National Democrats hail fugitive Texas legislators as heroes, but they don’t want to say what they’d do if the Senate GOP tried the same ploy.
National Democrats hail fugitive Texas legislators as heroes, but they don’t want to say what they’d do if the Senate GOP tried the same ploy.
T his week, Democratic state legislators from Texas hopped on a couple of charter jets and fled to Washington, D.C., in order to deny the Texas legislature a quorum needed to conduct business and pass a bill to modify the state’s voting procedures.
After the Texas Democrats arrived in Washington, D.C., they were greeted with open arms by Democratic members of the U.S. House and Senate.
“They’re trying to protect our democracy,” Democratic senator Elizabeth Warren of Massachusetts told National Review. “The Texas state legislature has made clear that the way they intend to hang on to power is keeping citizens from voting, and the Democrats are trying to fight back.”
“They’re trying to use every tool at their disposal to stop bad legislation on an issue that directly impacts our democracy,” Democratic senator Bob Casey Jr. of Pennsylvania told NR when asked whether fleeing the state was a legitimate legislative tactic. “I don’t think it can be judged by the usual standards that we apply to legislative activity. They’re taking obviously extraordinary measures. I’m not in any position to second-guess that.”
Vice President Kamala Harris hailed the Texas Democrats on Wednesday for making a “great sacrifice” and taking a “bold, courageous action in line with the legacy of Frederick Douglass.” (While some Democrats portray the legislation as “Jim Crow,” a top nonpartisan election analyst says it would have a “negligible” effect on election outcomes.)
The national Democrats’ embrace of the fugitive Texas legislators is more than a little awkward. Right now, most U.S. Senate Democrats are railing against the filibuster, which requires 60 senators to end debate on most bills. In the U.S. Senate, a quorum of 51 senators is necessary to conduct business, and Democrats only hold 50 seats (owing their majority to Harris’s tie-breaking vote).
How would Democratic U.S. senators respond if all 50 Senate Republicans fled the Capitol to deny a quorum?
When I posed that question to Elizabeth Warren in the Capitol, she filibustered.
“I think that protecting the vote is powerfully important. What we know about Republicans in the Senate is not a single Republican would vote to even open debate on protecting the vote across this country. I think the Republicans have made clear their position on voting,” Warren replied, without addressing how Democrats would respond to a Republican attempt to deny a quorum by leaving the Capitol. “We’re going to peel off here,” a Warren aide quickly added, ending the hallway interview.
When I asked Bob Casey Jr. how Senate Democrats would respond if Republicans tried to deny a quorum, he said: “Obviously, they’re different legislative bodies, and different rules govern. I’m not sure I’ve seen any kind of comparison between their procedures and ours.”
In fact, both the U.S. Constitution and the Texas state constitution include identical language that empowers the legislature to “compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.”
As the official U.S. Senate website notes, the U.S. Senate has “occasionally directed its sergeant at arms to arrest members. But the first openly physical act of compulsion did not occur until 1988. On February 24, 1988, in an attempt to establish a quorum on a campaign finance reform bill, Capitol police carried Oregon Republican Senator Robert Packwood into the chamber feet first at 1:17 a.m.”
There are several reasons why Republicans in the U.S. Senate would never actually flee the Capitol to deny a quorum during the 117th Congress. There’s not an issue on the horizon that would tempt all 50 Republicans to do it, and such an extraordinary act of obstruction would give Democrats a reason to abolish the filibuster. And while the jurisdiction of Texas law enforcement ends at the state line, the U.S. Senate sergeant-at-arms would have the authority to pursue absent members outside the District of Columbia.
“They were elected to do a job, and they can’t abuse their power by refusing to do their job and shut down the legislature,” Texas GOP senator Ted Cruz said of the fugitive Texas Democrats.
When National Review asked Cruz whether it would ever be legitimate for the 50 Republicans in the U.S. Senate to deny a quorum, he replied:
Over time, at both the federal level and state level, we have seen legislators try to deny a quorum. It is not a strategy that works over the long term, and one of the reasons is . . . the Texas constitution explicitly has a provision that authorizes the arrest of fleeing legislators who were trying to deny a quorum. And the Texas constitution copies that provision word for word from the U.S. Constitution.
Cruz added that “there’s long precedent in Congress that if legislators of either party try to deny a quorum and shut down the operations of government, that government has the authority to utilize force and compel their presence.” So, he said, “if Texas Democrats continue this stunt, I expect that’s where this ends.”
Of course, those arrests would occur only when the Democratic legislators return to Texas. Right now, they hope to outlast the current session that expires in August, but Governor Greg Abbott is warning he will simply call another special session if this one expires.
“I can and I will continue to call a special session after special session after special session all the way up until election next year,” Abbott said on Monday. “And so if these people want to be hanging out wherever they’re hanging out on this taxpayer-paid junket, they’re going to have to be prepared to do it for well over a year. As soon as they come back in the state of Texas, they will be arrested, they will be cabined inside the Texas Capitol until they get their job done.”