Debunking the myth that it’s OK for the Michigan GOP to ignore the constitution because “Dems did it, too”

Wrong is wrong, illegal is illegal

I have been writing about how Michigan House Republicans have been refusing to acknowledge Democrats’ request to have a roll call vote on whether or not to make a bill take “immediate effect” rather than wait until 90 days after the end of the legislative session. Our state constitution says that they can do this if 2/3 of the House votes for it. If 1/5 of the House asks, the vote must be by roll call.

Democrats have over 1/5 of the House.

Republicans do not have 2/3 of the House.

Because of this, they have been ignoring Democrats’ request for roll call votes because they know they do not have the votes for it. In doing so, they are violating the state constitution. The Democrats have sued and were issued a temporary restraining order to keep the Republicans from continuing their abuse of the state constitution. The Republicans, of course, wish to keep violating the state constitution so they have appealed.

In my piece from Friday titled Michigan Republicans have ILLEGALLY passed over 96% (546) of their bills under “immediate effect”, I talked about the revelation made on The Rachel Maddow Show that the House Republicans had been making nearly EVERY bill “immediate effect”. I made a mistake, however, in saying that this was done illegally for 546 of the bills. It’s only illegal if the Democrats request a roll call vote and they have not done this for all 546 bills.

Rachel Maddow got it a bit wrong herself. In her segment, she said “This is new in Michigan governance”. As it turns out, this isn’t the case. I have been in contact with someone (who asked to remain anonymous) who has spent a great deal of time in the Michigan legislature and they said this:

You’re definitely right to point out that the Republicans are violating the law with shady vote counting. But one thing to caution you about is that “immediate effect” largely pro-forma on almost everything. Not granting “immediate effect” has in the past been kind of like doing a filibuster in the US Senate prior to the last 10 years or so–something to do to put a brake on or slow down implementation of something you don’t like, but something done with great restraint so as to not completely gum up the works.

[There was a time when] the Republicans controlled both branches of the legislature, had a lock on the judiciary and Engler was governor. I can’t remember which bills, but a few times our members stuck together to deny “immediate effect” to something, at least one time to obviate some bill the Republicans passed (if I recall correctly) because it was addressing something that had to be done that year and wouldn’t matter after that year). But usually, even on really contentious issues, “immediate effect” was granted as a sorta kinda form of respect for the system.

Now, to be clear, not granting “immediate effect” usually came at a significant cost. If the Democrats denied “immediate effect” on something, the Republicans would tell the Democrats they would bring the bill up for “immediate effect” again and threaten the Democrats with not passing something the Democrats needed or wanted really badly and that the Republicans could live with or live without, like something that helped the big cities. So it might have been used more frequently had the Republicans not used it as a bargaining chip. But using it as a bargaining chip isn’t really that objectionable; it’s fairly standard legislative horse-trading. I mean, Democrats would sometimes deny “immediate effect” on something they didn’t care about but that the Republicans really needed in order to trade it for something else the Democrats wanted.

Yesterday, the Detroit News explained that, when they were in power, Democrats also made most of their legislation have “immediate effect”, as well.

House Democrats have sued the Republican majority over a procedural move to make bills become laws faster — a maneuver the Dems regularly used when they were in power.

In 2009, the Democratic majority got all but two of the 242 laws it passed to go immediately into effect after then-Gov. Jennifer Granholm signed them.

The next year, Granholm signed 383 laws passed by the House, 365 of which had an immediate-effect clause, Republicans said Friday.

And this, of course, is the crux of of the Republicans’ argument — that it’s okay for them to do this because others have. This is, however, not the point of the lawsuit at all. The point of the lawsuit is that Democrats have the right under the constitution to ask for the roll call vote and they are not being allowed to.

Here again is the photo I published last week of the Democrats trying in vain to be heard:

If you want to see a more astonishing display, here’s the relevant bit of Rachel Maddow’s segment from last Thursday. Pay particular attention at 13:15:

See the hand pop up at 13:15? Follow the yellow arrow in this screenshot:

Hear the woman shout, “I ask for a roll call vote”? That’s Democrats trying to get recognized and to request a constitutionally-mandated role call vote, mandated when 1/5 of the House members request it. Again, so that we’re clear on this:

Democrats have over 1/5 of the House.

Republicans do not have 2/3 of the House.

Here’s Representative Jeff Irwin on MarkMaynard.com:

Our argument is that Michigan House Republicans have ignored our requests for an accounting of the votes under the terms provided by the state’s Constitution. Their argument is that the House can set it’s own rules and that one of our rules is that the Speaker has to call on you in order to make a proper motion. Since they have never called on us at the proper time and since they are never obligated to call on us whatsoever, there has been and could be no Constitutional violations. In effect, they’re arguing that House rules can be used to subvert or nullify Constitutional provisions.

To me, it could not be more clear that this is unjust. The people of our state voted for a Constitution that put certain limits on the power of the legislature. One of those important limitations is the 2/3rd super-majority required for immediate changes to the law. This sort of limitation on the power of the state is a core principle of American government that transcends partisanship. My hope is that the courts will recognize the fundamentals of the argument rather than the partisanship of the combatants.

So, when you hear people say “both sides have done it”, that’s only true for the actual frequent use of “immediate effect”. However, what is new is Republicans refusing to allow Democrats to be heard on the House floor and for them not to be allowed to have the constitutionally-protected roll call vote.

The argument that it’s okay because we have always done it this way is specious. If Republicans had put up a fuss about this, I would have supported their position. However, I cannot recall ever hearing them complain about this. To suggest that the Democrats shouldn’t be allowed to because they never did is absurd and so is the accusation that this is purely political. If the GOP didn’t like it, they should have made an issue about it. Their failure to do so then doesn’t take away the Democrats’ ability to do so now.

Here’s Jeff Irwin again:

Has this been done before? Yes. Violating the clear terms of the Constitution has become commonplace in the Michigan House of Representatives. The big difference now is that since the Senate follows the Constitution, there was always one chamber where immediate effect votes would be counted and extremely divisive bills would not earn immediate effect in the Senate.

Today, Michigan Republicans have a 2/3rds majority in the Senate as well as a simple majority in the House. Therefore, House procedure has a real impact on important issues and these procedural shenanigans have been used to cut children off of welfare and gay families off of health benefits, all with no meaningful time to plan a transition (for example).

Another difference that is important to me is that I’m new to the Michigan House and I’ve always thought this practice of declaring votes successful without any actual voting is bogus.

It is bogus and they have every right to have the temporary restraining order made permanent.

One more point on this. In my piece on Friday, I was pretty hard on the Democrats:

While my most white-hot ire at this is aimed at Michigan Republicans, I have to ask where the hell Michigan Democrats have been on this? What percentage of bills passed with immediate effect without a roll call vote was enough that they finally took action? How many laws passed this way were enough? 5? 6? A dozen? Why on earth are we just now hearing about this when 96.5% of the laws were passed this way? Why did it take 546 before this became a screaming headline?

It’s bad enough that we’re contending with an anti-democratic bunch of Republican zealots but when the only thing that stands between us and them is a House Democratic caucus that didn’t start making a fuss until this late in the game, our chances of prevailing look bleak. We count on them to tell us about these things. Our news media certainly isn’t doing it. Bloggers like me with day jobs can’t sit in the legislature day after day to monitor things. We rely on our Democratic legislators for this. And, in this case, they waited far too long to pull the emergency stop cable.

While I do believe they waited too long to sound the alarm on this, knowing that the frequent use of “immediate effect” is not unusual and that their going along with the Republicans on it was part of the political “horse trading” that is common in governments gives me a deeper understanding of why they didn’t react sooner. I’m pleased that they are making this an issue now and look forward to hearing their side of this on The Rachel Maddow Show on Monday night.