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Wednesday, March 02, 2005

Ind. Law - Still more on "So, how 'dead' are these bills, really?"

I received this question from a reader this afternoon:

The quorum count required in the Indiana House is set by rule, and the house is not helpless in the face of a walkout. Why did Bosma act like it was out of his hands?
The reader points to the following House rules:
3. Quorum. Two-thirds of the members of the House constitute a quorum to do business. (Constitution, Article 4, Section 11.)

4. Power of Less Than a Quorum to Compel Attendance. Seven (7) members with the Speaker or Speaker Pro Tempore, or eight (8) members in the absence of the Speaker and Speaker Pro Tempore, one member of the majority of whom they shall elect acting Speaker, may call the House to order, compel the attendance of absent members, make an order for their fine and censure and adjourn from day to day until a quorum is in attendance.

I'd also add to that list:
77. Absence of Quorum. When less than a quorum is present no motion may be entertained, except to adjourn or compel the attendance of members.
I consulted with a wise observer of many General Assemblies for an answer. First, of course, the "quorum count required in the Indiana House is [indeed] set by rule," but that rule echoes the Constitution, and the Constitution cannot be altered by House rule.

Second, yes, Speaker Bosma could have sent the doorkeepers or even the State Police out to attempt to round up the absent members. Readers may most recently recall that happening in Texas, where Democrats who did not want to see new redistricting legisation enacted fled once to Oklahoma and once to Louisiana, if I recall correctly. And U.S. Rep. Tom DeLay received some national heat for using the FAA to track down airplanes carrying the fleeing lawmakers.

But much the same has happened in Indiana. Longtime readers of this ILB may recall the following entry from May 16, 2003:

And Indiana has its own recent history, as recounted in this AP [report telling about] two Indiana stories, the reapportionment walkout of 1995, and the notorious 1925 walkout:
Perhaps Indiana's most storied party bolt took place in 1925 when Senate Republicans tried to alter the congressional districts. Thirteen Senate Democrats broke a quorum by boarding a bus and traveling to Dayton, Ohio. A 14th got there by hitchhiking. "For the next two days, U.S. 40 between Indianapolis and Dayton was jammed with process servers and Republican politicos trying to coax, cajole or coerce the fugitives back to their seats," Justin Walsh wrote in the book, The Centennial History of the Indiana General Assembly. Back in the Senate, Republicans draped the seats of the Democrats in black crepe paper. They also read a telegram purportedly from Ohio's lieutenant governor responding to a proposal to exchange five Ohio Republicans for the Indiana Democrats.
I too have consulted The Centennial History at pp. 347-348 and find there is a bit more to be told about the 1925 "bolting":
The Indianapolis newspapers enjoyed field days from February 25 through 27 [1925] serving a steady diet that included dignified statements from Dayton [Ohio] by Senator Cravens regarding the rights of a legislative majority and a heart-rending account of Senate "widows" left behind in Indianapolis. * * * In the meantime, Klan Grand Dragon D.C. Stephenson did go to Dayton to break the deadlock. Stephenson stood to lose his entire agenda in the General Assembly if Democrats did not return so the session could finish its work.
My wise observer opined: "I would not want to be quoted, but I think by letting his members vent some steam on the floor and remaining a little restrained himself, the Speaker at least kept the D’s in Indianapolis." The observer continued:
Since the advent of single-member districts, the split in the House has been quite close every term. 55 members would be a big majority in current terms. The old days of 70-member majorities are over, at least for now. Certainly, the Republicans can pass anything they want but they only have 1 extra vote (52 members, 51 votes required for passage). What if one R has a heart attack as Ulmer did last year? What if 1 member feels he or she can’t support the caucus on an issue? On a bill like daylight saving time, for example, some of the western-most of the Republicans might endanger their seats by voting for it, the majority has to maintain some relationship with the rank and file Democrats. Holding them virtual prisoners doesn’t seem to be the way to accomplish that.

The new members seemed to be particularly puzzled by the events and were probably more likely to push for use of the police. Most of the veterans know denying a quorum is the only weapon the D’s have. In prior years, the R’s could rely upon the Senate to kill most things they abhorred. With the governor’s office gone and the Senate D’s completely ineffective, the House D’s are the only ones who can make a stand.

I always think of John Gregg saying the state police would have to chase him through the cornfields. There’s a vision for you!

I had planned to write a little about the Senate tonight too, but that may wait now until tomorrow.

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[Update 3/5/05] I received a note from a reader yesterday proposing another opinion for Speaker Bosma, should there be another walkout:

Good coverage on the issue. In addition to sending out the State Police, which would be pretty heavy handed, the rule says the majority "may ... make an order for their fine and censure..." It seems that the speaker could have announced at noon that there would be a vote at 4:30 upon an order of fine and censure. Set the fine at the equivalent of the day's wages ($131 did I see in the Star) plus the days per diem for those not in attendance from 5 to midnight.

An amount for the fine that is appropriate to the problem, not so heavy handed as to lose the political posturing needed for public support. Yet the fine is small enough that if either party wants to use this tactic again, it does not foreclose the prospect. Then the fallout for their exercise of principle is borne by the one exercising their principles. (Stephen L Carter in his book "Integrity" suggests that is the proper way to test whether a choice is one of integrity.)

Posted by Marcia Oddi on March 2, 2005 06:46 PM
Posted to Indiana Law