Are Wisconsin Republicans conspiring to kidnap?

Guest post by Publius 

Publius has lived in and spent most of his life thinking about Washington, D.C. He is an attorney, an avid sports fan, and the editor of The Fourth Branch.

(Ed. note: This is Publius's third guest post for us. You can find his first, on George Will and "engaged justices," here, and his second, on conservative support for nullification, here. -- MJWS)

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(Ed. note 2: Pro-union rallies were held around the country yesterday in a wonderful and much-needed show of support for Wisconsin's public-sector unions. We all need to stick together on this to counter not just what Gov. Walker and legislative Republicans are trying to do in Wisconsin but the broader threat to unions, and labour generally, both in that state and elsewhere, with conservatives seeking to undo the right to collective bargaining and more generally to hand more and more power back to the corporate overlords who run the Republican Party and who are so dominant within American conservatism. -- MJWS)

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By now, most everyone is familiar with the high political drama in the State of Wisconsin, where Democrats and labor continue to fend off attacks by Republicans to severely reduce the ability of workers to collectively bargain.

Only one parliamentary hurdle stands in the way of a Republican victory on collective bargaining: the Senate quorum requirement. Republicans need 3/5 of all state senators to be present during a legislative day to establish a quorum. There are currently 19 Republican senators and 14 Democratic senators, meaning they are one person shy of establishing a quorum to pass the bill reducing collective bargaining rights.

Under Rule 84 of the Wisconsin Senate rules:

The chief clerk shall immediately call the roll of the members, and note the absentees, whose names shall be read, and entered upon the journal in such manner as to show who are absent with leave and who are absent without leave. The chief clerk shall furnish the sergeant at arms with a list of those who are absent without leave, and the sergeant at arms shall forthwith proceed to find and bring in such absentees.

To avoid the strong arm of the sergeant at arms, Democrats fled from the State Capitol. Not to be deterred, the State Senate majority leader then sent the state police to the homes of the Wisconsin Democratic senators with instructions to compel such individuals to return to the Capitol. The police failed to locate a single Democratic senator, as all had reportedly left the state by the time the police arrived.

The Wisconsin Constitution expressly permits the Houses of Congress to pass rules to compel attendance by absentee legislators. Accordingly, the Wisconsin Senate rules do grant power to the sergeant at arms to compel Senate attendance of wayward senators. No other person or group, including the state police, has authority under the Senate rules to compel attendance.

The jurisdiction of the sergeant at arms is debatable. There is a strong argument that his power is limited to the confines of the Capitol grounds. Outside of the Capitol grounds, the sergeant at arms may be powerless to compel any action.

The debate is moot, however, because Senate Republicans did not use Capitol police under the direction of the sergeant at arms to compel attendance. Instead, they attempted to use the Wisconsin State Police. Unfortunately for Senate Republicans, there is no law or rule which would permit the state police to compel a Democratic senator to return to the Capitol Building. Actually, the analysis is even more concrete: The Wisconsin Constitution prohibits the arrest of any member of the Wisconsin Senate while the legislature is in session. As provided in Article 12, Section 15: 

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 fifteen days next before the commencement and after the termination of each session.

The Democratic senators are not committing treason, a felony, or a breach of the peace by avoiding the Senate. There may be political ramifications (including a recall election, for example), but that's a far cry from asserting criminal ramifications.

Without the power to compel Democratic senators to return to the Capitol, the state police could find themselves in violation of Wisconsin criminal laws -- possibly including kidnapping. Under Section 940.31 of the Wisconsin Criminal Code, kidnapping occurs when a person:

By force or threat of imminent force carries another from one place to another without his or her consent and with intent to cause him or her to be... held to service against his or her will.

Each of those elements would seem satisfied if the state police were to force a Democratic senator to return to the Capitol to participate in a quorum call (i.e., service against his or her will).

If not kidnapping, perhaps false imprisonment, which is defined in Section 940.30, as an act which occurs when a person "intentionally confines or restrains another without the person's consent and with knowledge that he or she has no lawful authority to do so..."

Of course, if the police were to be found guilty of a crime, the State Senate Republicans would by extension be guilty of conspiracy in connection with that crime (see, e.g., Sections 939.05 and 939.31).

No, I don't expect any actual criminal charges to be filed, nor do I expect that a state police officer would actually arrest and transport a Democrat to the Capitol even if he found a Democratic Senator within Wisconsin (though I didn't expect the police to go looking, either).

That said, it's fairly ironic that the Democrats are often being cast as lawbreakers in this drama and are being forced to take political refuge in a neighboring state. People may disagree with what Democrats are doing. Some may even consider the Democrats' actions to be cowardly, petty, childish, abusive, dilatory, or, alternatively, brave, valiant, significant, dutiful, or a host of other adjectives. But unquestionably their acts are lawful -- and Republican efforts to compel Senate attendance by using the Wisconsin State Police are not.

(Cross-posted at The Fourth Branch.)