DFL Reps continue refusing to attend the House: Can they be made to?

Minnesotans’ hopes that House DFLers would bank their Supreme Court win and show up to work yesterday were disappointed. All 67 Republicans were in the chamber at 3:30 p.m. when Secretary of State Steve Simon gaveled the House into session, but all 66 DFLers remained in hiding — collecting $15,000 for doing so — and the session was adjourned almost immediately. Since the Supreme Court ruled that 68 members are necessary for a quorum, this will continue until at least one DFL Representative bothers to turn up for work. This is a government shutdown.

A couple of weeks ago, I referred to an excellent article by James J. Heaney, the best, in my view, on this business so far. He notes that:

Quorum-busting is deeply despised by both voters and constitution framers. It is a fundamentally anti-democratic strategy, and both the federal and state constitutions contain provisions expressly intended to prevent quorum-busting. In Minnesota, the quorum provision continues, “…but a smaller number may adjourn from day to day and compel the attendance of absent members in the manner and under the penalties it may provide.”

Yesterday, House Republicans attempted to invoke this clause in Minnesota’s state constitution to “compel the attendance of absent members in the manner and under the penalties it may provide,” specifically by withholding their legislative salaries and denying their per diem payments: If there is one thing the DFLers care about as much as making Melissa Hortman speaker, it is getting paid.

Unfortunately, Sec. Simon didn’t even recognize members to make any motions, blocking this entirely constitutional solution to the crisis.

It is worth pondering what this means. The framers of Minnesota’s constitution were well aware of the sorts of tricks the DFL is trying to pull so they explicitly included in the constitution a measure to prevent them from doing it, but Sec. Simon is refusing to permit that constitutional power from being exercised.

Some have argued that this “quorum-busting busting” clause cannot be activated because the House is not yet organized, but this argument falls apart the second you remember that the quorum-busting is the very reason the House is not yet organized. The framers of Minnesota’s constitution put that clause in specifically to prevent stunts such as the DFL is trying to pull now.

We know this because they said so themselves. On Friday, July 30, 1857, during the “Debates and Proceedings for the Constitutional Convention for the Territory of Minnesota,” the following exchange occurred:

Mr. STANNARD. That section says a majority of each House, and that is the reason why I want my amendment adopted. I want a quorum to consist of a majority of all the members elected, and not a majority of those who happen to be present I do not want a few members to come in and organize the House in the absence of all the rest. I cannot vote for a Constitution unless a provision similar to mine is in it. I insist that a majority of the members elected to any deliberative body should constitute a quorum. It is a question which ought not to be left open to the opinion of this man or that, but should be fixed and certain.

Mr. MORGAN. I conceive that the word “majority” means a majority of the members sworn in. The section says, a majority of each House, not a majority of those present. There can be no other meaning attached to it, for we frequently find ourselves without a quorum, which is, less than a majority of the members sworn in.

…

Mr. SECOMBE. I hope the amendment not prevail. This amendment if adopted, will allow a minority, by remaining out of either House, and refusing to be sworn in, to compel the attendance, and constantly perhaps, of all the other members—a case similar to what we saw at the commencement of this Convention. [Emphasis added]

The record notes simply:

The amendment was not agreed to.

And why were the framers of Minnesota’s state constitution so alive to the danger of quorum-busting? Because they had contemporary experience of it. Heaney notes that:

As the Civil War began, a notorious Confederate sympathizer, [Democrat] Clement Vallandingham attempted to deny a quorum because the Confederate states (which the Union still regarded as, legally, U.S. states) had refused to send Representatives and Senators to Washington (since they regarded themselves as, legally, a foreign government). The House ruled that only members duly chosen counted toward quorum, and that ruling stands to this day. (Hind’s Precedents, Vol. IV, §2885 et. seq.) If that ruling held in Minnesota’s legislature, the quorum would be 67.

Minnesota’s Democrats are dusting off one of their oldest plays.