The balance between the powers of the majority party and procedural rights of the minority in legislatures is an institutional issue not often discussed beyond the walls of state capitols.
But this year was an exception, the result of the closely watched “walkouts” this year by two minority-party caucuses in the Midwest. In Wisconsin, Senate Democrats left the state in mid-February to prevent a vote on a controversial bill limiting the bargaining rights of public employees. Indiana House Democrats used a similar tactic, protesting contentious measures involving unions and public schools by leaving the state. A month-long standoff ensued.
Though not unprecedented, this minority-party maneuver is seldom employed, in part because state constitutions make it unusable. In most states, only a simple majority of members in a legislative body is required for a quorum and to conduct legislative business. That is true of every Midwestern state except Indiana and Wisconsin (see map).
State constitutions, though, don’t determine many of the procedural rights of minority parties. That is instead left to the legislatures.
“There is a quite a bit of differences among the states, more than many might realize,” says Nancy Martorano, a professor of political science at Dayton University. “Those variations come both from the formal rules of the legislature and informal norms.”
In a 2004 paper, Martorano developed an eight-point index to measure the procedural powers granted to minority parties in state legislatures.
Several of these measures focus on the power of the minority within legislative committees. Do these committees have ranking minority members? What is the majority-to-minority ratio of membership on these committees? Does the minority have the right to request committee meetings and to file committee reports on the floor of the legislature? Can a bill be discharged from a committee by a minority vote or the request of a single member, thus allowing an open debate by the full legislature? (In North Dakota, legislative rules allow all bills to reach the floor.)
And then there are the rights afforded to, or not afforded to, minority parties on the floor of the legislatur For example, some states require a super-majority vote to suspend normal legislative rules or procedures — a rule that protects the minority party.
Another factor, Martorano says, is the extent to which legislatures allow floor amendments on a bill. Some permit amendments at multiple stages of the process, thus giving the minority party ample opportunity to have its voice heard. In contrast, Oregon allows no floor amendments. Many legislatures have established some kind of middle ground, limiting amendments to the second or third reading of a bill.
Martorano says she knows of only one state with a rule close to the U.S. Senate’s “filibuster rule,” which allows a minority of members (39 of the 100) to effectively stall and block legislation. That state is Texas, where a two-thirds vote is required for any bill to be considered on the Senate floor.
Meanwhile, in Indiana and Wisconsin, there has been legislative movement to prevent future minority-party walkouts from occurring.
As part of the budget bill signed into law in Indiana, a civil penalty of up to $1,000 per day can now be imposed on a lawmaker who “commits the act of legislative bolting.” In Wisconsin, Democratic Sen. Tim Cullen has called for a constitutional amendment to eliminate the rule requiring that three-fifths of members be present for fiscal bills to be passed.