By now the misadventures of Texas’s wayward House Democrats, now days into their third quorum-busting effort, have become a nationally known farce. They went to D.C. with a case of Miller then got stuck with six cases of Corona.
Texas Democrats busted quorum to prevent consideration of election integrity legislation, such as extending voter ID safeguards to mail-in ballots and preventing local officials from changing election rules late in the game without legislative approval. One of the direct casualties of the walkout was bail reform to prevent arrestees at high risk for violence from easily making bail, with Democratic delays likely to result in the murders of an additional 21 Texans, if the current pace of murders committed by people released on bail continues.
Working to reestablish quorum in the Texas House, Speaker of the House Dade Phelan late Tuesday evening August 10, Texas issued 52 arrest warrants to compel absent Democrats to return to the House chamber for the second 30-day special session called by Republican Gov. Greg Abbott to start on August 7. The special session can’t complete its business without the House achieving a quorum of two-thirds of its 150 members. Democrats have 67 members, meaning at least 17 Democrats would have to show up in Austin for the House to conduct business.
The Texas speaker, a Republican, would have acted sooner except for Democratic State District Judge Brad Urrutia’s temporary restraining order the evening of August 8 preventing the arrest of House members. The order is extraordinary for its breathtaking incomprehension of basic constitutional concepts such as “political questions,” “separation of power,” and “co-equal branches of government” as well as respect for longstanding practices.
In issuing his ruling, Urrutia subsumed exclusively legislative powers to his own powers as a member of the judiciary, restraining the speaker of the House from achieving a quorum to conduct business by preventing the “Detaining, confining, or otherwise restricting a Texas House Democrat’s movement without his or her consent so as to interfere substantially with his or her liberty.”
The judge’s order was stayed by the Texas Supreme Court on Tuesday. In requesting the Supreme Court’s intervention, Republican Attorney General Ken Paxton made five key arguments:
- The judge abused his authority by interfering in the Texas legislature’s effort to obtain a quorum.
- The speaker is immune from any lawsuit for legislative acts under the Texas Speech and Debate Clause (analogous to the Speech or Debate Clause in the U.S. Constitution).
- The Political Question doctrine preempts judicial review of a wholly “Legislative, Intra-Branch Dispute.”
- As the pleading reads, “The Texas Constitution Expressly Permits the Legislature to Compel the Attendance of Absent Members.”
- And, given that special sessions run 30 days, time is of the essence and there is no other adequate remedy than that of civil arrest.
Compounding Judge Urrutia’s error, a second judge weighed into the affairs of the legislature on Wednesday when Democrat Judge Chris Morton, of the 230th District Court in Harris County, granted a writ of Habeas Corpus for Democratic Texas State Rep. Gene Wu. Wu’s attorney asserted, “There was no was quorum, so they could do no business, so the warrant is illegal and the warrant to arrest violates the Texas constitution.”
In fact, one of the few things the Texas House can legally do is to compel attendance to achieve a quorum. The Constitution of the State of Texas plainly states on this matter in Section 10 of Article 3, “Two-thirds of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each House may provide.”
That members of the State Bar of Texas and sitting state judges can’t — or refuse — to understand the plain-letter reading of the state constitution should be a cause for alarm for all Texans. When rule of law is disregarded, anarchy or tyranny is close at hand.
Importantly, Phelan’s effort to compel attendance is more common in legislative bodies in the United States and around the world than commonly understood by the press and the public — although in all likelihood, political journalists commenting on the situation know all too well how frequently it occurs.
In one celebrated incident in 1988, Republicans in the U.S. Senate were trying to block consideration of a campaign finance bill. They questioned whether there was a quorum present in the chamber late one night and left.
Some Democrats were absent, as well, and Democratic leadership ordered the sergeant-at-arms to arrest absent senators, keeping the Senate in session until a quorum could be reestablished. Capitol Police found Republican Sen. Bob Packwood of Oregon in his office and commanded him to return to the chamber. He refused. Packwood was literally dragged feet-first into the Senate chamber by Capitol Police.
My own experience as a lawmaker in California is similar. California had a requirement for a two-thirds vote to approve a budget as well as to approve most new taxes. Since Republicans held more than one-third of the membership of both chambers during my six years in office, it was not uncommon for the Democratic leaders to lock down the chambers, preventing members from leaving without permission.
It was an overt form of psychological warfare aimed at wearing down the opposition by depriving them of sleep and personal hygiene. We’d sleep under tables in the caucus meeting room, with loud snores reverberating in the stuffy room. Eventually, Democrats would pick off enough Republicans to get to two-thirds and we’d be herded onto the floor to vote.
If we had even thought to ask, no judge would deign — or dare — to rescue us. Being sequestered in the Capitol against our will was a risk we signed up for when we ran for legislative office.
With now two Texas state judges clearly exceeding their authority by intruding into an internal matter of a separate branch of government, it’s time for the Texas Legislature or Texas Supreme Court to consider exercising clear powers they possess over judges too “incompetent to discharge (their) duties” under Article 15: impeachment.
If not, judges will continue to exceed their lawful authority, gradually cementing judicial supremacy, on the road to an inevitable judicial tyranny.