by Karl Kurtz
In my conversations with reporters about the Wisconsin Senate and Indiana House legislative walkouts, I have been careful not to choose sides on either the substantive or the procedural aspects of the conflict. I have tried to add perspective to the procedural battles by suggesting that both sides in the debate are doing exactly what you would expect them to do: the majority has attempted to use its considerable powers to enforce its will on the chamber, and the minority has used every available tool to protect their rights and make their points. The fact that the majorities are Republicans and the minorities are Democrats in both Wisconsin and Indiana has nothing to do with it from the standpoint of understanding representative democracy.
I have been meaning for some time to go the next step and to catalog some of those powers of majority rule and protections for minority rights but had not gotten around to doing so. Then I read a very interesting review essay, "Legislative Obstruction," (sorry, link to abstract only; full review available free to American Political Science Association members or for purchase to general public through JSTOR) by Yale political scientist David Mayhew of Gregory Koger's book, Filibustering: A Political History of Obstruction in the House and Senate. The essay also covers several other recent books on the U.S. Senate filibuster.
Mayhew summarizes Koger's classification of types of legislative obstruction as follows:
As a practical matter, congressional obstructionists have had a palette of three options from which to choose: prolonged speaking, dilatory motions, and disappearing quorums (that is, do not show up, thus preventing any legislative business).... In turn, congressional majorities trying to suppress obstruction have had three options from which to choose: formal rules (that is, calling the previous question, suspending the rules, voting cloture, arranging unanimous consent agreements, or ruling members out of order), attrition (that is, wearing the obstructionists down), and parliamentary innovation (that is, changing a chamber's rules or precedents)....
Why would legislators try to obstruct at all?... They might wish to block a bill--the obvious aim-- but otherwise they might wish to gain license for amendments, force action on an unrelated issue, take a stand, delay action on a second bill, or ensure prolonged discussion.... All these aims have historical grounding.
And that historical grounding includes state legislative obstruction. Mayhew says that Koger also points out that he "came across references to obstruction in 20 state legislatures, 19 foreign legislative bodies and the United Nations." Virtually all of the above majority and minority tools appear in my summary of legislative walkouts.
I would add that in the tension between majority rule and minority rights, the deck is stacked on behalf of the majority. A couple of key majority party advantages that have played an important role in state legislative walkouts but don't appear on Koger's list (or at least Mayhew's summary of it--I have not yet read the book) are the presiding officer's authority to recognize (or not recognize) members to speak or offer motions and rules that require members to attend sessions and the power to use law enforcement to compel their presence or punish them (docking their pay or holding them in contempt) if they do not attend.
The power of the majority is confirmed by the history of legislative walkouts: In the great majority of cases, for all the drama associated with a minority walkout, the majority almost always wins out.
Note: The title of this posting was corrected to "Wisconsin and Indiana" from "Wisconsin and Illinois" on Mar. 17, 2011.