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Will they stay or will they go?

Despite continued wooing from Lt. Gov. David Dewhurst and redistricting map author Sen. Todd Staples (R, Palestine), Senate Democrats continue to make hints and allegations that they will not stick around for another, blocker-bill-free, special session. Testimony from a defense attorney who asserted that the state Constitution says they can’t be arrested for not showing up can only bolster them.

Criminal defense attorney Keith Hampton also told the Senate Democratic Caucus that an arrest by a Senate sergeant at arms or a private security agency to force senators to the Senate floor for a vote might be prosecutable as kidnapping under state law.

“And it gets worse than that. If someone in the Legislature directed them to do that, there is the crime of conspiracy to commit aggravated kidnapping,” punishable by up to life in prison, Hampton told the Houston Chronicle Thursday.

I presume this is a logical extension of the state court ruling by Judge Charles Campbell that rebuked Speaker Tom Craddick for using the DPS to hunt down the Killer Ds. Republicans were noncommittal in response to Hampton’s warning.

Dewhurst, who presides over the Senate, evaded questions about whether he would order the Democrats arrested if they broke the Senate quorum.

“I will continue to follow state law. I understand that (Campbell’s) ruling has been appealed by the attorney general,” Dewhurst said.

Campbell’s ruling applied state law, and Hampton said it will provide a starting point for any challenge to Department of Public Safety authority to bring in legislators who break quorum.

Dewhurst is slightly mistaken – Campbell’s ruling hasn’t been filed yet, and so it hasn’t been appealed yet – but I imagine that’s not a big deal.

Several Senators have explicitly declared their intentions.

“I’m ready to walk,” said Sen. John Whitmire, D-Houston, the Senate’s longest-serving member.

“For me, there is no benefit to staying for another special session,” said Sen. Mario Gallegos, D-Houston. “I can tell you as far as breaking a quorum, 11 will break it.”

Neither Sen. Bill Ratliff, the lone Republican to “unalterably oppose” redistricting, nor apparently Sen. Ken Armbrister (D, Victoria), who was the first to mention a walkout in response to a suspension of traditional Senate rules, will boycott another session, meaning it’s the 11 other Senate Democrats, which would be exactly enough to prevent a quorum. There’s not a whole lot of margin for error there. It’s also leading to a sense of paranoia:

Sen. John Whitmire, D-Houston, said some senators are afraid Perry will call a new special session immediately after the current session ends on Tuesday, while Democratic senators are still in the Capitol.

“You get a strong paranoia or concern that they are going to sine die (adjourn) at noon and call us back an hour later so they can lock us up in here,” Whitmire said.

Mr. Gallegos, a former firefighter, said Democrats are aware that Mr. Dewhurst could lock members in Senate chambers, especially if a special session is called immediately after the current one adjourns. It can end no later than midnight Tuesday.

“I do keep ties with my firefighters that have the Jaws of Life,” Mr. Gallegos said. “They can bolt any door open here in the Capitol.”

(Note: the Whitmire quote is from the Chron, the Gallegos quote from the Morning News.)

We will know soon what the Democrats plan to do, and then presumably what if anything the GOP will do in response.

Democrats are expected to meet within the next day to discuss the logistics of skipping a second special session.

“I think there are 11 who are extremely firm in their view that this is not an issue that warrants us coming in for a special session,” said Leticia Van De Putte of San Antonio, chairwoman of the Senate Democratic Caucus.

“All senators need to make their own decisions, then we will make a collective decision.”

There is one possible bargaining chip that I can see, which is Sen. Jeff Wentworth’s less aggressive map, perhaps in addition to Wentworth’s bill to create a nonpartisan redistricting commission. That bill is starting to pick up public support.

The continued fuss prompted government watchdogs, voter groups and religious groups to push for a proposal by Sen. Jeff Wentworth, R-San Antonio, to have redistricting done in the future by an independent commission rather than lawmakers.

The groups include the League of Women Voters, Campaigns for People, Common Cause, Public Citizen, Independent Texans, the Texas Baptist Christian Life Commission and Texas Impact.

“In a democracy, the voters are supposed to be supreme and they’re supposed to choose their representatives,” said Fred Lewis of Campaigns for People. “Under our redistricting process in Texas, the politicians are supreme and they choose their voters” through the way they draw districts.

Wentworth’s bill is SJR2, the slightly-unreadable text of which is here.

UPDATE: Redistricting is officially dead this session, without a map being brought up for a vote. A second session will be called (my guess: next week) and there will be no blocker bill. The Chron just has an AP wire story right now, but the Statesman has a slightly fuller staff report. I’ll survey the news stories tomorrow morning.

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  1. kevin says:

    Would the combination of the less agressive map, the passing of the non-partisian redestricting and a requirement that redistricting be done again after 2004 break this?

  2. Charles,

    I already posted on Keith Hampton’s ridiculous argument. He behaves as if the TEXAS CONSTITUTION, which gives the House the EXPRESS AUTHORITY to arrest legislators, is somehow subservient to the state’s kidnapping law. I’ve got news for Hampton — It isn’t!

    What a maroon.

  3. Ginger says:

    Direct constitutional arguments may or may not hold in the matter of arresting legislators, depending on a lot of other things I doubt anybody other than a constitutional law expert has handy citations for. The Constitution trumps a lot of things, but common sense trumps the Constitution sometimes.

    The First Amendment forbids restrictions on speech, but it’s still illegal to yell ‘fire’ in a crowded theater, to use a classic example.

  4. Ginger,

    That’s very true, but it is also true that the First Amendment is a case where two rights — the right to live and the right to free speech — seem to be in conflict. And if you look at original intent, or even textualism, you’ll find ample justification for outlawing yelling fire in a crowded room.

    The case of legislators thwarting a quorum is a different story. The Texas Constitution clearly grants the legislature the power to arrest legislators of who are attempting to halt bussiness by thwarting a quorum. And if we don’t accept this power, we have no reason to accept the procedural rule that comes with it. We could just as easily say a quorum isn’t needed and that remaining House members could have passed redistricting by themselves.

    That’s extreme, but no more extreme than denying the House the right to order the arrest of legislators.

  5. Ginger says:

    But that’s not the entirety of the matter. Who can be deputized? Who can make the arrests? Who can bring someone back to Austin?

    I’m not a constutional law scholar, so I don’t have good answers off the top of my head. But that’s where you’re going to run into questions. The Constitution says a lot of stuff, but the devil’s in the details of policy implementation. And that’s practical experience in the legal profession speaking.

    Simple answers about what the law says go great on bumper stickers, but that’s not the way the way law works in practice. The sergeant at arms has Constitutional authority to (try to) get people back to the chamber, but in practice there will be legal limits about how he can delegate it and to whom he can delegate it. It’s the start of that wrangling that we’re now seeing.

  6. Ginger,

    The Constitution does grant the power of determining the manner in which legislators are brought in. Specifically, it says that the remaining members may “compel the attendance of absent members, in such manner and under such penalties as each House may provide.”

    I suppose this does demand some interpretation (we wouldn’t say that it is appropriate for Tom Delay to hunt down Democratic lawmakers with an army of hitmen), but it seems unreasonable to assume that the House is denied the authority to order law enforcement agencies to arrest lawmakers thwarting a quorum. In the end, it is the House that is supposed to determine the manner in which legislators will be compelled to attend, and not the judiciary.

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