Posted by Brendan Fischer on March 16, 2011

Senate Majority Leader Scott Fitzgerald has backed off a March 14 announcement that he would effectively eliminate Senate Democrats' right to vote during committee hearings and sessions. At first glance, it may appear that Fitzgerald and company are retreating from weeks of out-of-control decision-making, but the more likely explanation is that blocking votes may be unconstitutional and illegal. Plus, the move was completely contrary to Fitzgerald's prior claims that he was only trying to force the fourteen back into Wisconsin and "back to work." In a temporary win for legislative sanity, Fitzgerald seems to have backed down for now.

Violation of Wisconsin Citizens' Constitutional Rights?

If Scott Fitzgerald prohibited the counting of Democratic Senators' votes, he may have been violating the Constitutional rights of the 2.2 million residents they represent.

Because citizens speak in the legislature through their elected officials, the 2.2 million residents of Senate districts represented by Democrats would have been silenced by Fitzgerald's new rules. At least one Wisconsin Supreme Court Justice has argued that, because citizen speech flows through their elected officials, voters' First Amendment rights are violated if a representative's vote is "cancelled by the acts of others."

While Fitzgerald would likely respond that residents in Democratic senate districts were already disenfranchised when their senator fled the state, that assertion is easily rebuffed: those senators, acting on their own volition, took an affirmative act to delay passage of a bill they believed would adversely impact their constituents. Fleeing the state is analogous to a filibuster or a decision to abstain from a vote. The Democrats' denying a quorum was intended to influence the outcome of legislation and to shape public debate to favor their constituency's interests. In contrast, Fitzgerald's refusal to count Democratic votes would be prohibiting any action on behalf of the Democrats' constituents.

Additionally, Fitzgerald's decision raises 14th Amendment Equal Protection issues, as it will disproportionately silence the state's African American and Latino populations. Wisconsin's populations of color are concentrated in Senate districts represented by Democrats, particularly the 6th District (Spencer Coggs) and the 4th District (represented by Lena Taylor). A right-wing Majority Leader silencing the politicians who represent people of color sounds eerily similar to the Jim Crow era.

Violation of Wisconsin Contempt Laws?

If Fitzgerald blocked Democratic votes, he himself could have been found in violation of Wisconsin's contempt laws.

Fitzgerald's March 14 memo asserted that votes from the fourteen Senate Democrats will not be counted because they remain in contempt. The original contempt order may not have been subject to legal challenge because it was passed under Senate rules, which courts will not enforce or review. It also did not mention any sanctions related to voting, instead effectuating unprecedented warrants calling for the arrest and return of the fourteen. Wisconsin Statutes have separate contempt laws for public officials, and Fitzgerald may have violated those laws had he actually blocked the voting rights of the Democratic Senators ( the contempt statute would also have been triggered had the arrest warrants been acted upon, according to a legal memo from Cullen, Weston, Pines & Bach).

Wis. Stat. § 13.26: "Each house may punish as a contempt, by imprisonment ... for one or more of the following offenses: (1)(d)… attempting by menace or other corrupt means or device to control or influence a member's vote or to prevent the member from voting."

Luckily for Fitzgerald, he did not follow-through with his threat to "prevent the member[s] from voting" by use of the arguably "corrupt means" of an impermissible punishment for a trumped-up contempt finding. While "corrupt" is not defined in this statute, it appears to refer to dishonesty or other generalized misconduct (like "menace") rather than quid pro quo corruption.

Faced with declining poll numbers and massive opposition protests, Scott Fitzgerald and Wisconsin Republicans have been panicking and making a series of legally problematic decisions, including a seventeen-second roll call in the Assembly, a committee meeting improperly noticed under the state's open meeting law, and violating court orders by conducting legislative action while the Capitol building was in virtual lockdown. While they pulled back from the brink this time, we'll see what they do during the budget debates.

Bill Moyers presents "United States of ALEC," a report on the most influential corporate-funded political force most of America has never heard of -- ALEC, the American Legislative Exchange Council.