Althouse: "In my career of 50 some years I have never come across a situation where the majority leader of any party could determine that the votes of another party could not count. This is the height of arrogance."

March 15, 2011

"In my career of 50 some years I have never come across a situation where the majority leader of any party could determine that the votes of another party could not count. This is the height of arrogance."

Said Wisconsin state Senator Fred Risser, contempt-of-senate-uously.

The link goes to the Cap Times, a local "mainstream" rag, which doesn't bother to find out what the Democratic Senators are supposed to do to get out of the contempt they were found to be in.

64 comments:

chickelit said...: "Rag"?

The Cap Times has a venerable history. Whether they've lost their way is another story.; 3/15/11, 1:13 PM
Ann Althouse said...: I say it's a rag. Prove me wrong.; 3/15/11, 1:15 PM
The Crack Emcee said...: The height of arrogance was leaving.; 3/15/11, 1:17 PM
PaulV said...: How do they get out of contempt of Senate? Pay fine? Their votes will count in Senate votes. Is committee system a creature of Senate rules?

This got on algorejr manbear post somehow; 3/15/11, 1:22 PM
chickelit said...: If the Cap Times is a rag then so is The New York Times and Isthmus. This is based soley on the definition of a publication being unworthy of respect. However, I think such monikers are purely subjective.; 3/15/11, 1:24 PM
vbspurs said...: Scott Walker must end Scott Fitzgerald's move to silence senators that represent more than two million Wisconsinites and immediately restore their voting rights.

Are the Senators in contempt or not? I'm guessing that Fitzgerald has a good grasp of the legal procedures, else he wouldn't have enforced it because the consequences are unimagined.; 3/15/11, 1:25 PM
Automatic_Wing said...: Risser's just waiting for the right moment to go all Joseph N. Welch on the Republicans.

Have you no sense of decency, sir, at long last? Have you left no sense of decency?

The Cap Times will eat that shit right up.; 3/15/11, 1:25 PM
MadisonMan said...: How can it be a rag if it's not printed?; 3/15/11, 1:25 PM
vbspurs said...: The height of arrogance was leaving.

B-bbbut, it was for the people! Like Eliot Spitzer, as long as you fight for the people, you're entitled to bang $1,000 per hour hookers.

wv: conworkr (grifters by any other name); 3/15/11, 1:27 PM
bil_d said...: This comment has been removed by the author.; 3/15/11, 1:30 PM
garage mahal said...: Althouse seems to be genuinely upset. Wonder what about?; 3/15/11, 1:31 PM
bil_d said...: The article went on to conclude:

"Democratic Party of Wisconsin Chair Mike Tate condemed Fitzgerald's move in a statement saying

'. . . Scott Walker must end Scott Fitzgerald's move to silence senators that represent more than two million Wisconsinites and immediately restore their voting rights.' "

No, Mike.

The 14 AWOL Senators must somehow find it in their hearts to navigate the fields and streams of outrageously mistaken rage and find a way to be removed from the backs of milk cartons. Then-and only then-their voices can be heard, votes counted, and some semblence of credibility restored... Not to mention the fundamental representation of their constituents.; 3/15/11, 1:33 PM
LakeLevel said...: Wait a minute, didn't the Fleabag 14 make the majority's votes not count when they left?; 3/15/11, 1:33 PM
Hoosier Daddy said...: Fifty years in the legislature???

Does Wisconsin have a part time legislature?; 3/15/11, 1:34 PM
Hoosier Daddy said...: Again can someone tell me why public employees need a union? Is protection from unfair treatment by the State something that is necessary?; 3/15/11, 1:36 PM
Unknown said...: Not knowing all the ins and outs, I can but guess. The remaining Senators voted to hold the fleebaggers in contempt when they split (or some time thereafter).

Assuming the rules don't require members of both parties to be present, the contempt citation is probably valid and the Demos are hoist on their own absentia.

Not unlike the Russians at the start of the Korean War.

chickelit said...

If the Cap Times is a rag then so is The New York Times and Isthmus.

You broke the code.; 3/15/11, 1:38 PM
kjbe said...: They did not break any state law or senate rule. They are only in contempt in Fitz's mind. How to end the contempt? Only Fitz would know...and is willing to tell. Maybe a batch of cookies would help.; 3/15/11, 1:39 PM
john d hyland said...: The senators did not commit contempt. Wis. Stat. sec 13.26 requires acts which they did not commit before the senate may pusinsh a member for contempt. The statute is specific, and the only definition remotely close, disorderly conduct in the immediate view of either house, really doesn't fit the bill.; 3/15/11, 1:40 PM
DADvocate said...: If Risser has been in politics for 50 years, it's time for him to leave. I don't know about the legality, etc of Fitzgerald's move. It doesn't sound like a good one. But, there's been plenty of arrogance in politics lately. Just look at Obama, Pelosi and Reid during Obama's first two years.; 3/15/11, 1:42 PM
kjbe said...: Oh, looks like Sens Fitzgerald and Ellis will allow the dems to vote. No collection on the $100 fines. No longer in contempt. Wonder what happened?; 3/15/11, 1:43 PM
DADvocate said...: Althouse seems to be genuinely upset. Wonder what about?

I think she's worried about the wolf-bear roaming Wiconsin.

Maybe a batch of cookies would help.

Only if they're vanishing oatmeal raisin.; 3/15/11, 1:46 PM
Unknown said...: Well, the senators who vacated their offices may not know what to do to come back into grace but Wisconsin businesses have some very clear directions here about how to get off the boycott list - Orwell in Wisconsin - the Oath of Supremacy rears its ugly head in our state?

Here's the Walker Watch website with instructions to biz owners - post a You Tube denouncing Walker (read our script) or you are "a cow pie".

http://scottwalkerwatch.com/?page_id=1588; 3/15/11, 1:47 PM
MadisonMan said...: Oh, looks like Sens Fitzgerald and Ellis will allow the dems to vote. No collection on the $100 fines. No longer in contempt. Wonder what happened?

Bad PR is my guess.; 3/15/11, 1:50 PM
Lipperman said...: Not exactly, k(*)thy. The Willinois14 are in contempt until they attend a regular Senate session. The next one is in early April. In the meantime, "They are free to attend hearings, listen to testimony, debate legislation, introduce amendments, and cast votes to signal their support/opposition, but those votes will not count, and will not be recorded.”; 3/15/11, 1:51 PM
ark said...: I find it remarkable that none of the comments so far makes a serious effort to answer Ann's question: Whare are the Democratic Senators supposed to do to get out of the contempt they were found to be in.

My understanding is that even though they have shown up at the Capitol, they're still AWOL as far as Senate sessions are concerned because they haven't shown up as part of a quorum at a session.

Therefore, their physical appearance has so far had no normative effect. What the Senate is saying, I think, is that until they participate in the public part of the legislative process, they are still in contempt; and therefore they will not be permitted to participate in the private part of that process.

Am I right?; 3/15/11, 1:52 PM
former law student said...: All of a sudden it's not ok to be contemptuous of Republicans?; 3/15/11, 1:54 PM
Sara (Pal2Pal) said...: I thought it was a judge who found the Senators in contempt. Am I right? Wrong?

If I'm right, then isn't the judge who would have to lift the contempt order? What would Fitzgerald have to do with it, other than enforcing the order?; 3/15/11, 1:55 PM
kent said...: "This is what consequences for one's actions looks like."; 3/15/11, 1:58 PM
john d hyland said...: no Sara, the 19 passed a resolution finding the 14 in contempt. They then imposed a penalty and ordered the sergeant at arms to take all steps necessary, including using a document purporting to be a warrant, to arrest and bring them in. If the 14 took the issue to court it would not hold up, and the majority knows it.; 3/15/11, 2:01 PM
Leland said...: I say it's a rag. Prove me wrong.

Is it printed on wood pulp paper, web media, or cloth?; 3/15/11, 2:11 PM
Mr. D said...: When it comes to cynicism, Risser's got nothing on Tim Cullen.; 3/15/11, 2:17 PM
Phil 314 said...: What are the Democratic Senators supposed to do to get out of the contempt they were found to be in.

They're supposed to do a full day of suspension on Saturday, in the library

But don't worry, it will be really cool!! They'll get to know each better and come to appreciate how each of them is really special and how the vice principle , I mean the Governor, is the real jerk.

Ritmo can tell you more about it.; 3/15/11, 2:19 PM
B said...: This comment has been removed by the author.; 3/15/11, 2:33 PM
B said...: I see it a little differently than Mr Risser. In my life of 50 some years of adulthood, I have only twice come across the situation where the minority legislators of any party would determine that the votes of the majority party legislators would not count. In both cases, it was the democrat party that attempted to subvert representative democracy. This assumption that the power to approve legislation must be ceded to the democrats regardless of the results of legal elections is the height of arrogance.; 3/15/11, 2:35 PM
Simon said...: It's certainly just deserts, but I have some doubts about whether the majority can do this. Since neither offense nor punishment fit within Wisconsin's statutory contempt, the legislature is presumably relying on the inherent contempt power inherited by American legislatures from Parliament. (A fee years back, this was very much in vogue on the left, so they can't complain now.) So I suppose the question comes to rest on this: As things stood in 1776, did Parliament's power to hold members in contempt extend to discounting their votes, and has anything happened since then to change the compass of the inherent contempt power? I don't have the answers, but those seem to be the questions.; 3/15/11, 2:39 PM
vbspurs said...: Leave it to our Simon to come up with the goods! Look what Big Tent Democrat wrote about inherent contempt:

Before, I was very reticent about inherent contempt, for precisely the same reason I have reacted negatively to this unbound assertion by the Bush Administration that it is the President who decides whether a claim of executive privilege is valid -- it undermines our system of checks and balances. The Founders were primarily concerned with making sure the each branch was checked by the others. Inherent contempt is, in a way, the flip side assertion of unbound power in the Executive. But it becomes necessary here because the Bush Administration has chosen to argue against checks and balances.

Cheers,
Victoria; 3/15/11, 2:44 PM
Issob Morocco said...: Crack Emcee, I would say the height of arrogance is living off of the government teet for 50 years and acting all put out about what happened. That is not a career that is overpaid welfare.

The height of stupidity just might be the voters in Wisco who keep sending the cat back to Mad Town.; 3/15/11, 2:47 PM
Thorley Winston said...: My first thought was that no elected official should be holding office for 50 years.

My second thought is that anyone who holds elected office and refers to it as a “career” is inherently unfit for any office.; 3/15/11, 2:49 PM
Alex said...: fls - If I had my way I'd strip you of your vote NOW.; 3/15/11, 2:55 PM
Alex said...: Madison is Berkley MidWest version. Same insane lunatics!; 3/15/11, 2:56 PM
Peter V. Bella said...: What are the Democratic Senators supposed to do to get out of the contempt they were found to be in.

Grovel, apologize, and beg forgiveness of the people.; 3/15/11, 3:31 PM
former law student said...: Risser sounds like a cool dude. He made his living from his law practice (with an Oregon JD). He says he has the same principles as his Republican ancestor -- the GOP simply moved far to the right.

From the Monitor in 2007:

http://www.csmonitor.com/2007/0301/p20s01-lihc.html

Risser is a tall man with thinning gray hair and a tight-cropped beard that give him the look of a genial grandfather, which he is, several times over. When he's not wearing his lycra cycling gear (he logged 100 miles on his 79th birthday – he wanted to bike his age but just kept going), he dresses in conservative suits and bright ties. During his tenure, he has served as Senate president four times, including again this year, as the parties have shifted power.
...
More than anything, Risser has been a master of legislative rules. He decided to immerse himself in the minutiae of parliamentary procedure shortly after first being elected to the Senate in 1962 as a way to move up.

...
His strategy worked. By 1966, he'd become the senate minority leader. He set to work mes- sing with the GOP agenda, which they didn't always appreciate. Once, they disconnected the phone line at his Senate desk. Another time, a Republican member slammed Risser's telephone down in anger and broke his hand.

...
Risser became so adept at using the rules to thwart the opposition that he once inspired an unusual counterattack. "I argued so much against the rule changes the majority wanted, they just said, 'We don't need rules,' " he says. "So they operated for two years without rules."; 3/15/11, 3:51 PM
Mutaman said...: "I say it's a rag. Prove me wrong."

I don't know about Wisconsin, but in most jurisdictions the burden of proof is on the party making the allegation.

Have you ever been in a courtroom?; 3/15/11, 4:06 PM
Art said...: john d hyland

They have no need to take it to court as the Wisconsin State Constitution gives a majority of the Senate the power to do anything short of expelling a member and a 2/3 vote can even do that. No judge's opinion in the matter makes any difference at all. The Senate Sergent at Arms is charge with enforcing the rulings of the body.; 3/15/11, 4:14 PM
kjbe said...: Actually, Beep, contempt in Fitz's mind. He was making it up as he went along. So who exactly figured out that the "it's not punitive, it's parliamentarian" meme wasn't working and how did she/he get Fitzgerald to change his mind?; 3/15/11, 4:15 PM
mike said...: former law student said...
Risser sounds like a cool dude. He made his living from his law practice (with an Oregon JD). He says he has the same principles as his Republican ancestor -- the GOP simply moved far to the right.
But he was a Democrat in 1962, when his party was enforcing segregation, black codes, and openly supporting their own terrorist organization, the KKK (which, BTW, was founded by Democrats, twice). I mean, think about it, this guy was a contemporary of lots of the villains of the Civil Rights era--Lester Maddox, Orville Faubus, Bull Connor, etc.--all of whom were Democrats just like him. And yet he stayed in their party--Bull Connor's party. Think about that FLS. Quite the courageous liberal there. No wonder Risser is so tolerant of the violence perpetrated by his union thug fellow Democrats. It wouldn't surprise me if an old-school Democrat like Risser keeps an ax handle hanging on a wall in his office (just in case someone gets uppity).; 3/15/11, 4:21 PM
Revenant said...: They did not break any state law or senate rule. They are only in contempt in Fitz's mind. How to end the contempt?

They were held in contempt by a vote of the Wisconsin Senate back on March 3rd. So, no, it wasn't just "in Fitz's mind".

It is probably bad PR, though. My guess is Walker told him to chill.; 3/15/11, 4:29 PM
smgoodman said...: @john d hyland & *k*thy

People don't do their research before spouting off about these issues. As an employee of another state legislature, I know that the legislature as plenary authority in these matters. How do you find that out? Go to the Wisconsin Constitution. Art. IV, Sect. 8 says "Each house may determine rules of its own proceedings, punish for contempt or disorderly conduct"

Further, the annotations cite to a case that shows that courts have no jurisdiction to review legislative proceedings: Milwaukee Journal Sentinal v. DOA, 2009 WI 79, 319 Wis 2d 439.

According to its rules, the Senate can adopt its own rules for contempt and enforce them at will.; 3/15/11, 4:39 PM
chickelit said...: He says he has the same principles as his Republican ancestor -- the GOP simply moved far to the right.

Obama tried to move the DNC further to the left, alienating the middle. Hard lesson for him I guess.; 3/15/11, 4:49 PM
former law student said...: But he was a Democrat in 1962, when his party was enforcing segregation, black codes, and openly supporting their own terrorist organization, the KKK

Geez -- Madison must have been a rip-roaring town back then.; 3/15/11, 5:06 PM
Michelle Dulak Thomson said...: No, no, no. That's not the height of arrogance.

I wrote a NYT review of a Yo-Yo Ma CD many years ago that wasn't entirely complimentary. It prompted a furious letter from the pianist Emanuel Ax to the effect that it was "the height of arrogance" for pipsqueak me to comment on the work of such a great artist.

Ever since, my husband has been telling people that the height of arrogance is 5'6".; 3/15/11, 5:56 PM
Simon said...: smgoodman said...
"Further, the annotations cite to a case that shows that courts have no jurisdiction to review legislative proceedings: Milwaukee Journal Sentinal v. DOA, 2009 WI 79, 319 Wis 2d 439."

The annocations cite the case; you have cited [it] to us. Malapropisms aside, That case observed that legislative compliance with "rules having 'to do with the process the legislature uses to propose or pass legislation or how it determines the qualifications of its members' … is exclusively within the province of the legislature, because 'a legislative failure to follow [its own] procedural rules is equivalent to an ad hoc repeal of such rules, which the legislature is free to do at any time.' Accordingly, courts will not intermeddle in purely internal legislative proceeding…." Milwaukee Journal Sentinel et al v. Wisconsin Dept. of Admin., 319 Wis. 2d 439, 456 (2009) (alteration in original; citations deleted). But that proposition seems limited on its face to rules governing internal procedure within the power of the legislature to unilaterally alter (one must wonder whether the contempt power still falls into that category, see State ex rel. Groppi v. Leslie, 44 Wis.2d 282, 294 (1969)), and the limits of the point seem to be confirmed by what the court did next: It went on to decide the case anyway!; 3/15/11, 6:05 PM
Revenant said...: Ever since, my husband has been telling people that the height of arrogance is 5'6".

That's hilarious. :); 3/15/11, 6:29 PM
Steven said...: The Wisconsin Constitution clearly says:

"Each house shall be the judge of theelections, returns and qualifications of its own members; and a majority of each shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner and under
such penalties as each house may provide."

A fine for non-attendance is clearly a penalty for non-attendance, and thus within the power of the Senate to impose on its members.

Now,

"Each house may determine the rules of its own proceedings, punish for contempt and disorderly behavior, and with the concurrence of two−thirds of all the members elected, expel a member; but no member shall be expelled a second time for the same cause."

Voting in committee is a rules of procedure matter; the Wisconsin Constitution neither creates Senate committees nor guarantees anyone a vote or membership in any of the committees. It is thus perfectly permissible for the Wisconsin Senate to deny those with outstanding fines for non-attendance a vote in committees.

Now, there might be some technical argument that such a decision was not properly promulgated procedurally in this specific case, but it's clearly within the scope of the powers of the Senate for the majority to do this thing, whether the complaining Senator is so senile he's forgotten the basic rules of his place of employment.; 3/15/11, 8:36 PM
Simon said...: My more considered take on the Wisconsin situation. It doesn't look good for Steven, or for my own previous remarks.; 3/15/11, 9:40 PM
jim said...: Risser is right.; 3/15/11, 9:53 PM
former law student said...: simon -- it is a pleasure to read a sound legal argument in the comments here.; 3/15/11, 10:13 PM
Anonymous said...: Simon...

Are you reading that law correctly? Because I'm seeing this in the first section:

Each house may punish as a contempt, by imprisonment, a breach of its privileges or the privileges of its members; but only for one or more of the following offenses:

It seems to me that that law is to limit which contempt charges can merit imprisonment. It does not limit what counts as contempt options.; 3/16/11, 7:09 AM
Simon said...: That-xmas: read the post I linked above. If this was a matter of first impression, I might agree, and it would seem to me that the legislature's inherent contempt power is in any event broader than the statute. But the Supreme Court of Wisconsin held otherwise in Groppi, and it has the authoritative lawsaying role in Wisconsin. Of course, the court can be "overruled" by the legislature changing the contempt statute, but absent that, the law of Wisconsin today is that the legislature may only exercise its contempt power through section 13.26. Your reading would release the legislature from those limits; that's perfectly sensible on its face, but it can't be reconciled with Groppi.; 3/16/11, 7:31 AM
Unknown said...: Ann Althouse said...

I say it's a rag. Prove me wrong.

Rag implies an actual physical item. The Crap times would be an iRag.; 3/16/11, 8:16 AM
Michael McNeil said...: How can it be a rag if it's not printed?

Is it printed on wood pulp paper, web media, or cloth?

Rag implies an actual physical item. The Crap times would be an iRag.

Really, you folks pretend to be thinking adults? It's like a kid who runs up declaring, “I'm not a kid! Kids are baby goats!” Well, kids may be baby goats, but most adults, and a great many children, are aware that in any natural human language many words have more than one meaning.

(Though adding “web media” to the “wood pulp paper” and “cloth” list above is quite funny, I have to admit.)

Dictionary.com:
5. Informal
a. something of very low value or in very poor condition.
b. a newspaper or magazine regarded with contempt or distaste: Are you still subscribing to that rag?; 3/16/11, 11:05 AM
Anonymous said...: Simon,

I can't find the WI Supreme Court decision online. The US Supreme Court's decision focused just on the confinement aspect of the law and seems to let the legislators have a free hand in other contempt charges.

I know it's not unusual for a plain reading of the law and a courts interpretation of the law to differ, but it seems to be quite a stretch to me. If what you are saying about the WI Supreme's interpretation of the law is correct then the Legislators can ONLY claim contempt for acts that will get you imprisoned.; 3/17/11, 5:09 AM
Anonymous said...: Simon,

I can't find the WI Supreme Court decision online. The US Supreme Court's decision focused just on the confinement aspect of the law and seems to let the legislators have a free hand in other contempt charges.

I know it's not unusual for a plain reading of the law and a courts interpretation of the law to differ, but it seems to be quite a stretch to me. If what you are saying about the WI Supreme's interpretation of the law is correct then the Legislators can ONLY claim contempt for acts that will get you imprisoned.; 3/17/11, 5:10 AM
Simon said...: that-xmas, it's on both Lexis and Westlaw—I can email you if you like? The later SCOTUS case of the same name, 404 U.S. 496, was a case on collateral review of Fr. Groppi's situation rather than direct review of 44 Wis.2d 282, so it dealt with slightly different issues.

On the balance of your comments, I agree in part and disagree in part. I agree that Groppi (44 Wis.2d, not 404 U.S.) seems a strange reading in light of the legislative contempt power's history; I'm not certain that it's wrong, but I have some real doubts (¶7 of my above-cited post raises them). But I would underscore that it's the original understanding of the contempt power that unsettles me rather than the plain meaning of the text in vacuo, both constitutional and statute. A plain reading of the WI Constitution says that the legislature has the concept power (a strict reading, which unlike a plain reading tends to ignore context, would say that the Constitution grants the contempt power), but nothing in the plain meaning of the Constitution's text suggests that the legislature can't regulate its use of that power by rules and laws. It's only when we consider the historical backdrop of the contempt power and other factors beyond the four corners of the text that doubt creeps in.

Now, that doesn't mean that you're wrong to look to the plain meaning. My caveat is simply this: "Plain meaning" includes original meaning, but I think you're taking it too narrowly, taking plain meaning as "what the words on the page say, as we perceive them in isolation today." But in true plain meaning inquiry, we are (or should be) asking what meaning would be plain to the community that adopted the text, an inquiry which focuses on the text but which recognizes that the historical and cultural assumptions of the lawgivers—the meaning of the words when they were adopted—are imbedded in the text. (We can't know what the establishment clause means, for example, without understanding what "establishment" meant, lexically and culturally, in 1788.) In Judge Easterbrook's comely phrase, we want to know "the ring the words would have had to a skilled user of words at the time, thinking about the same problem." The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & P.P. 59, 61 (1988); see also n.5 and accompanying text of my post here.; 3/17/11, 9:54 AM