Wisconsin Senate Majority Leader Scott Fitzgerald, a Republican who serves as Governor Scott Walker’s legislative consigliere, is trying to put the best face on his attempt to rewrite not just the rules of the Senate but the Wisconsin Constitution.
As everyone from Kenosha to Cairo knows, fourteen Democratic members of the Wisconsin Senate have refused to return to the Capitol and provide Republican leaders of the chamber with the quorum required to approve Walker’s budget repair bill. The Democrats fled to Illinois in order to delay action and force negotiations on the measure, which would strip most public workers of basic bargaining rights. The bill would also restructure state government so Walker can begin dismantling BadgerCare and SeniorCare and start selling public properties to private corporations.
Walker is furious with the Democrats, since they are messing with the plan he outlined in a taped phone conversation to bust the unions and make himself the next Ronald Reagan. So Fitzgerald is under pressure to get the job done.
Late last week, Fitzgerald got his fellow Republican senators to vote to hold the fourteen Democrats in “contempt of the Senate” and to order police agencies to “forcibly detain”—translation: arrest—them.
Pretty serious business, this arresting of colleagues. But Fitzgerald says: “They have pushed us to the edge of a constitutional crisis.”
The Wisconsin Constitution, like those of most states, was written with an eye toward preventing the use of legal threats to harass legislators. It reads: “Members of the Legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the Legislature, nor for 15 days next before the commencement and after the termination of each session.”
Fitzgerald would have Wisconsinites—and Americans who continue to watch developments in the Midwestern state where an uprising against Walker's bill has brought hundreds of thousands of protesters into the streets—believe legislative rules give him the authority to override the constitution.
But a legal analysis prepared by one of the state's most prominent law firms—Cullen, Weston, Pines & Bach—shreds that argument.
“None of the 14 absent senators has been charged with a crime. Nor has any crime occurred," it reads. "The Wisconsin Senate has absolutely no authority to order any of its members arrested or taken into custody in order to compel their attendance.”
That’s the bottom line.
So if there is a “constitutional crisis,” it has been created by Fitzgerald—at the behest of Walker.
They are acting not as representatives of the people but as autocrats. We have seen this before. Back in 1798, in the first real constitutional crisis of the new American republic, President John Adams and his allies pursued political foes. Vermont Congressman Matthew Lyon was incarcerated, under the Alien and Sedition Acts, for criticizing Adams.
The voters of Vermont were offended, as were the American people. Thomas Jefferson sought the presidency in order to remove Adams, restore First Amendment rights and, in Jefferson’s words, end “the reign of the witches.” After a contested election, he was elected by the US House, with Lyon casting a deciding vote in Jefferson’s favor.
America’s constitutional crisis was over.
Wisconsin does not have a constitutional crisis, at least for now. But the assault on the state document by Walker and Fitzgerald ought not be forgotten. Their insult to the Legislature and the constitution merits the same fate that was accorded Adams: swift removal from positions of public trust.