The limits of the Wisconsin contempt power

I supported Wisconsin's efforts to haul in their missing Senators because the inherent power of legislatures to compel members' attendance includes, ex vi termini, compulsion. Any interpretation short of that would transform the power to compel attendance into the power to suggest it, and the notion (heard in some quarters) that the power goes no further than levying monetary sanctions would transform the power to compel attendance into the power so punish absence. I had some doubts, however, about the contempt citations; it didn't matter at the time, but now it might. In a nutshell, the Wisconsin Senate majority is claiming that because the minority members are under a contempt of the Senate sanction, they may attend but not vote.

As some critics noted at the time, Wisconsin's legislative contempt statute may pose a difficulty. Wis. Stat. § 13.26(1) (2010) authorizes the legislature to "punish as a contempt, by imprisonment, a breach of its privileges or the privileges of its members," but only for specified offenses. We immediately notice that the statute limits two things: the range of punishments, and the offenses for which punishment may be meted out. Thus, before we even get to whether the Wisconsin 14's behavior is punishable by contempt, we can observe that the statute does not on its face authorize loss of facilities and perquisites as a punishment.

Let's move on to the punishable offenses. Only two of the specified offenses seem remotely within striking distance, and their difficulties are immediately apparent: "Disorderly conduct in the immediate view of either house or of any committee thereof and directly tending to interrupt its proceedings" (§ 13.26(1)(b)) and "[r]efusing to attend or be examined as a witness, either before the house or a committee, or before any person authorized to take testimony in legislative proceedings, or to produce any books, records, documents, papers or keys according to the exigency of any subpoena" (§ 13.26(1)(c)). It's hard to imagine the former sticking—it's just too much of a stretch. The latter could work, but only by construing "as a witness" as modifying the particle "be examined" rather than the entire clause "attend or be examined." The absence of a comma, a fortiori given the structure of the dependent clause, confirms the latter, while the alternative inserts an absent comma ("Refusing to attend, or be examined as a witness, either before the house or a committee"), which doesn't work with a provision that's otherwise scrupulous in comma usage.

Accordingly, it is hard to treat this response (just deserts though it may be) as within the statute. But does the statute exhaust the contempt power?

Article IV § 8 of the Wisconsin Constitution authorizes a contempt power: "Each house may determine the rules of its own proceedings, punish for contempt and disorderly behavior, and … expel a member…." This is not a "grant of contempt power but a recognition and affirmation of the historic and inherent contempt power possessed by the legislative branch of our tripartite government and of the British Parliament."1 We must dwell on this for a moment. In England, Parliament traditionally enjoyed the power to punish contempt,2 and the mother of all parliaments bequeathed it generously: "The contempt power is everywhere, in the English speaking world, regarded as an inherent power, an essential auxiliary of 'legislative power,' and … scarcely affected at all by the advent of written constitutions and the doctrine of the separation of the powers of government."3 When the founding generation spoke of "judicial power," "executive power," and, as relevant here, "legislative power," they presupposed the historic content of those terms from the English constitution with which they were familiar,4 and this undoubtedly included the power to hold persons in contempt.5

Given the inherent nature of this power, a legislature can enact a statute to deal with contempt, as Wisconsin has (and as the U.S. Congress did in 1857, today codified at 2 U.S.C. § 292), but it doesn't have to.6 What happens if it does? Does the existence of the statute "occupy the field," binding the legislature to exercise its power only within the four corners and process of that statute? Put another way (to borrow Chief Justice White's phrase in a case he thought roughly analogous), can we say that provisions like sections 292 and 13.26 "conferred no power not already granted and imposed no limitations not already existing"?7

There are some reasons to think that the answers should be no to the former and yes to the latter. The U.S. Supreme Court has observed that while a legislature can erect procedures for exercising powers like contempt, it may not divest itself of the "essential and inherent power to punish for contempt in cases to which the power of either House properly extended."8 Accordingly, it is recognized that Congress' enactment of statutory contempt in the form of section 292 neither exhausts nor extinguishes Congress' inherent contempt power.9 Moreover, because the contempt power inheres in the legislative power, it might be arguable that an attempt to slough off that power into the criminal code to the exclusion of direct legislative action would violate the axiom that today's legislature can't bind the hands of tomorrow's.10 And one must observe that only a few short years ago, Democrats were rather taken with the idea of Congress reclaiming its inherent contempt authority as a weapon against the Bush administration's stonewalling of Congress.11

Interesting as this all is as general background, however, in Wisconsin we run into State ex rel. Groppi v. Leslie.12 Tackling section 13.26, the Supreme Court of Wisconsin characterized it as a voluntary "restriction"13 of the legislature's contempt power:

The forerunners of these sections were adopted in 1849 shortly after the adoption of the constitution. In the light of the law on contempts as it then existed and by their terms, these sections granted no power but limit and proscribe the exercise of the legislative contempt power. It was an expression of the legislative intent to limit its own power to less than that declared by the constitution and less than that exercised by the Parliament. The contempt power in sec. 13.26 was restricted to enumerated offenses and the imprisonment was limited to prevent the occurrence of such offenses during the session of the legislature.14

State supreme courts are the authoritative expositors of state law,15 and we have a directly on-point decision from Wisconsin's Supreme Court. It is enough to push past the dicta from McGrain quoted above; the Groppi court was presumably aware of the concerns mentioned, and if the Wisconsin Supreme Court chooses to revisit the issue, perhaps that would not be amiss. Nevertheless, as things stand today, the law of Wisconsin is that section 13.26 is the exclusive vehicle through which the legislature may exercise the contempt power.16

In sum, we have seen that while background principles of Anglo-American law may afford legislatures broader contempt powers than the statutes suggest, and that these may hold good in other jurisdictions, these have been rejected by the law of Wisconsin. Groppi holds that the statutory contempt is the only game in town.17 And as I explained above, it is hard to treat the Senate's response as within the statute; section 13.26 provides an exclusive remedy for contempt which does not include forfeit of voting rights, and the conduct at issue is not made sanctionable by the statute. For these reasons, it is my view that the majority is acting ultra vires.

1. 1. State ex rel. Groppi v. Leslie, 44 Wis.2d 282, 290, 171 N.W.2d 192, 195 (1969).
2. 2. Marshall v. Gordon, 243 U.S. 521, 533 (1917).
3. 3. C.S. Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. Penn. L. Rev. 691, 699 (1926); see also Thomas Jefferson, Manual of Parliamentary Practice, quoted in 2 Hinds Precedents 1046 ("the British Parliament exercise the right of punishing contempts; all the State legislatures exercise the same power, and every court does the same").
4. 4. See Coleman v. Miller, 307 U.S. 433, 460 (1939).
5. 5. Marshall, supra, at 534-36; Mary Patterson Clarke, Parliamentary Privelege in the American Colonies 205-06 (1971) (power passed intact from parliament to the colonial legislatures); Potts, supra, at 716 (State legislatures "assumed that the contempt power so freely exercised by the colonial assemblies had been passed on to them without diminution"); Stewart Rapalje, Treatise on Contempt § 2 (1884) (power is inherent to all legislative bodies); cf. Anderson v. Dunn, 19 U.S. 204, 231 (1821). Accordingly, the Supreme Court has recognized that the Constitution presupposes the contempt power and imposes no barriers on it beyond the requirements of due process.Groppi v. Leslie, 404 U.S. 496, 499 (1972).
6. 6. For example, Anderson, supra, involved a direct contempt action decades before section 292 was enacted.
7. 7. Toldedo Newspaper Co. v. United States, 247 U.S. 402, 419 (1918) (emphasis added).
8. 8. McGrain v. Daugherty, 273 U.S. 135, 172 (1927) (quoting In re Chapman, 166 U.S. 661, 671-72 (1897)).
9. 9. Kaiser, et al., Congressional Oversight Manual in Congress of the United States: Oversight, Processes and Procedures 32-33 (Plesser, ed. 2007).
10. 10. Cf. Clinton v. New York, 524 U.S. 417, 451-52 (1998) (Kennedy, J., concurring).
11. 11. See, e.g., House Judiciary Comm. Maj. Staff, Reining in the Imperial Presidency 292 (2009), available at http://judiciary.house.gov/hearings/printers/111th/IPres090316.pdf; http://www.talkleft.com/story/2007/7/20/185912/487;
    http://www.politico.com/news/stories/0907/5610.html.
12. 12. Groppi, supra, 44 Wis.2d 282, 171 N.W.2d 192.
13. 13. 44 Wis. 2d at 294, 171 N.W.2d at 197.
14. 14. 44 Wis. 2d at 291, 171 N.W.2d at 195.
15. 15. Forsyth v. Hammond, 166 U.S. 506, 518-19 (1897); Beck v. Dobrowski, 559. F.3d 680 (7th Cir. 2009).
16. 16. Of course, the legislature could act on the issue too, but such action would require the full legislative process, not simply the unilateral action of the Senate. That makes our question quite unlike the rules of proceeding cases that Wisconsin courts will not entertain. Cf. Milwaukee Journal Sentinel et al v. Wisconsin Dept. of Admin., 319 Wis. 2d 439, 456 (2009) (such rules are "exclusively within the province of the legislature, because 'a legislative failure to follow [its own] procedural rules is equivalent to an ad hoc repeal of such rules, which the legislature is free to do at any time'" (quoting Custodian of Records v. State, 272 Wis. 2d 208, 680 N.W.2d 792)).
17. 17. This conclusion spares us the need to inquire whether the original understanding of the contempt power when the Wisconsin constitution was framed allowed a legislature to prevent members under sanction from voting.