Wisconsin and the Meaning of the Arrest Clause

The Wisconsin Senate has passed a resolution that requires the majority leader to “issue an order to the sergeant at arms that he take any and all necessary steps, with or without force, and with or without the assistance of law enforcement officers by warrant or other legal process as he may deem necessary in order to bring [an absent] senator to the senate chambers so that the senate may convene with a quorum of no less than 20 senators.”  This action has led to some highly misinformed speculation regarding the meaning of the arrest clause, a feature of both the U.S. and Wisconsin constitutions.

The arrest privilege protects members of a legislature from arrest, except for “treason, felony and breach of the peace,” during the session of the legislature and the time during in which they are traveling to and from such session.  The privilege is an ancient one– Josh Chafetz dates it back to at least 1340, when it was asserted by the House of Commons to gain release of a member imprisoned by royal authority.  As Chafetz notes, “the function of the privilege was to protect the Houses against all outsiders” so as to ensure that they “could properly fulfill their constitutional role.”  See Democracy’s Privileged Few 111-12.  In other words, it is designed to ensure that legislators are not prevented by courts or other outside parties from attending and participating in legislative sessions.

As Akil Amar and Neal Katyal note in a 1995 law review article, modern cases have given the arrest clause such a narrow construction as to make it a “virtual nullity.”  They suggest, however, that a broader interpretation of the clause that once prevailed may be more consistent with the original understanding. Specifically, they argue that “arrest” may be “understood more functionally as extending to various civil cases that interfere with– that arrest– a person’s performance of her duties in public office.”  In support of this view, they cite, among other things, an 1840 decision of the Wisconsin Supreme Court which held that the privilege should be given a “liberal construction” to ensure “the protection of the rights of the people that their representative should be relieved from absenting himself from his public duties during the session of congress.”

Even at the time when the privilege was given its broadest reading, however, there appears to be no case or commentator suggesting that the privilege would in any way inhibit a legislature from arresting its own members.  Among other things, such an interpretation would render unconstitutional longstanding rules and practices of both the U.S. House and Senate.  For example, a House rule provides that in the absence of a quorum, “a majority of those present may order the Sergeant-at-Arms to send officers appointed by him to arrest those Members for whom no sufficient excuse is made and shall secure and retain their attendance.”

Moreover, applying the arrest privilege to arrest by the legislature would stand the purpose of the privilege on its head.  Rather than protecting against interference by outsiders that might prevent the legislature from fulfilling its functions, or prevent individual legislators from performing their constitutional duties at a session of the legislature, it would now prevent the legislature itself from ensuring that it has a quorum to conduct its business and would empower individual legislators who wished to absent themselves from performing their duties.  It would also fly directly in the face of the quorum clauses of the U.S. and Wisconsin constitutions, which authorize each house to “compel the attendance of absent members, in such manner, and under such penalties, as each house may provide.”  There is simply no warrant (so to speak) for such an interpretation.