Walkout Obstructionism (by both parties)

Minority rights are protected by the Bill of Rights, executive veto, the courts and the ballot box. Removing the weapon of walking out will not destroy the legislative process.

Elden Rosenthal was an Oregon trial lawyer, 1972-2017, and a member of the board of directors of the Southern Poverty Law Center.

In December, 1840, a 31-year-old state representative in Illinois jumped out of a window in order to avoid a quorum call on a banking bill he and fellow Whigs were opposed to. The Democrats, who were the majority party in the Illinois legislature, labeled Abraham Lincoln and his colleagues the “flying brethren” after the stunt, which proved unsuccessful as the bill was shortly thereafter passed.

Which is all to say that Oregon legislative walkouts are nothing new. Legislative walkouts by minority parties have a long pedigree.

Republicans killed a proposed constitutional convention in Rhode Island in 1924 by walking out and spending six months in Massachusetts. In 1994, California Assembly Republicans walked out in an effort to block Willie Brown from being reelected speaker. Texas Democrats walked out of the legislature in 2003 in an attempt to stop a redistricting bill, with state senators holing up in New Mexico. In 2011, Democrats in Wisconsin and in Indiana walked out to block right-to-work legislation in their respective states.

Oregon has seen multiple quorum defeating walkouts in the last 20 years. Democrats walked out of the House to kill a redistricting resolution in 2001. Republicans absented themselves in 2019 and again in 2020 to successfully kill cap and trade legislation. Republicans walked out again this year to protest Gov. Kate Brown’s COVID-19 policies.

The recent repeated Republican walkouts in Oregon prompted progressive pundits to scream “Foul!” and propose penalties for legislators who choose not to go to work when the legislature is in session. Then late last month all 67 members of the Texas Democratic caucus left the state senate chamber to derail voting-related legislation the Democrats contend was designed to disenfranchise Democratic voters. Texas Gov. Gregg Abbott has threatened to veto the legislature’s budget: “No pay for those who abandon their responsibilities.” The Oregon pundits who criticized the Republican walkouts have not publicly commented on the Texas Democrats’ maneuver.

Are walkouts a legitimate tool for minority party legislators to employ?

Every legislative body has rules setting out whether a majority or a super majority is required to pass legislation. When a minority party walks out and leaves a legislative body unable to conduct business due to the lack of a quorum, the minority party is effectively overriding the state’s own vote requirements. Most members of the majority party in each state have strongly stated public opinions when this happens: “How dare the [Republicans] [Democrats] flaunt the will of the majority!”

But it really isn’t that simple. In our increasingly hyper partisan political environment, the old school give-and-take bargaining that functioned to avoid legislative gridlock seems to have gone the way of the 8-track music cassette. When the minority party cannot have meaningful input, ought the minority legislators simply vote “No” and admit defeat?

The U.S. Senate, of course, is grappling with a similar issue. Should the use of the filibuster be allowed to continue as the Republican’ obstructionist tool of choice? “Block Biden’s agenda and bring back Trump in 2024,” seems to be the battle cry of the national  Republican Party.

Whether walkout or filibuster, the political result is the same. The minority party blocks the majority party’s legislative efforts, effectively thwarting the will of the people who elected the majority party legislators. The only recourse when there is a successful walkout or filibuster is to defeat the legislators who walk out or filibuster. But with the vast majority of elected officials running in “safe” districts (or “safe” states), this recourse is infrequently successful.

Did the framers of the Oregon Constitution envision walkouts as a legitimate tool of government? Did 18th Century drafters of the U.S. Constitution consider the U.S. Senate as a wall against majority-willed legislation? I think the answer to both questions is clearly “No.”  

James Madison believed requiring more than majority support for legislation would reverse “the fundamental principle of free government.” Alexander Hamilton argued that minority obstruction serves to “substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.”

But if legislative walkouts are made criminal, if the filibuster is eliminated, the problem of obstructionist tactics will not be solved. Stopping legislative obstructionism is like playing Whack-a-Mole.

The Legislative Assembly of Ontario, Canada, eliminated its equivalent of the filibuster rule in the early 1990s. New obstructionist techniques were adopted by the minority party. For example, a bill was introduced by a minority party legislator which included the name of every lake, river, and stream in the province. Under the rules of the Assembly, the clerk was required to read the bill aloud, a bit of foolishness that lasted over four hours. In D.C., disgruntled Republicans in the House have been calling for pointless and time consuming roll call votes. Moral of the story: there are many ways to obstruct the business of a legislative body.

But is there a better way to approach legislation than majority rule vs. no holds barred obstructionism?

Filibuster supporters argue that elimination of the filibuster would result in a whiplash of legislation passed and then rescinded when legislative majorities change. But would voters stand for ever-changing laws? Imagine tax laws enacted and then repealed with every change of majority party, health care rights expanded and contracted, mail-in voting repealed then reinstated, etc.

Those who claim the sky will fall if minority party legislators lose the ability to walk out of a legislative session, or if the filibuster is put in the dust bin, assume cold blooded ideological purity and disregard of the voting public will reign supreme. But isn’t it more likely that legislators will be less combative and more cooperative if obstructionist tactics are discouraged? Under the current situation, the minority party correctly understands that not compromising will yield a win. If the ability to remain ideologically pure and always win by simply walking out remains an option, why compromise? Removing the tool that guarantees never losing ought to result in a greater effort to minimize losses, a greater effort to seek compromise solutions. Isn’t it probable that removing all-or-nothing tactics from the toolbox of legislators will encourage minority legislators to work constructively with the majority party? Isn’t it worth trying?

If Oregon would criminalize walkouts for five years what would happen? No way to know without trying. Oregon could perhaps be the experimental lab for the entire nation.

Minority rights are ultimately protected by the Bill of Rights, executive veto, the courts and the ballot box. Removing the weapon of walking out will not destroy the legislative process, and just might make it better.

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