Senators Seeking the Arrest of Their Missing Colleagues

Today, two U.S. Senators, Michael Bennet (D) and Cory Gardner (R) of Colorado, are introducing a resolution to prevent future government shutdowns. The cudgel that would do this is a combination of arrests and public shaming:

Under the Bennet-Gardner bill, the Senate would be forced to take attendance roughly once an hour — every day — between 8 a.m. and midnight for as long as a shutdown continued…. If a majority of senators aren’t on hand for the attendance count, officially called a quorum call, then the remaining lawmakers have the power to seek the arrest of their missing colleagues, according to a preview of the measure [emphasis added].

Additionally,

If the Senate moves to arrest the absent lawmakers, the sergeant at arms would be required, once an hour, to report the names of the missing senators and whatever information was available about their current location.

Okay, first thing’s first. I’m pretty sure this runs directly against Article I, Section 6 of the Constitution, which privileges members of Congress from arrest while they’re in session. But even setting that aside, this is a transparently silly measure. It makes the assumption that shutdowns happen because members of Congress aren’t spending enough time together, and if they could just all sit in the chamber at the same time, they would reach some sort of resolution to their problems.

This isn’t why shutdowns happen. Shutdowns are a bad collective outcome resulting from individually rational behavior. That is, members of Congress are representing their party, their constituents, and their sincerely held beliefs much of the time, and each of those have become more extreme and polarized in recent decades. For members of Congress (particularly Republican ones since the 1990s), the idea of refusing to send the President a budget he’ll sign seems like a perfectly logical alternative to allowing funding to continue in a way that they and their constituents find abhorrent. The problem is that then you have a shutdown that makes everyone, and particularly congressional Republicans, look bad.

But the threat of arresting members or forcing them into the same room or publicly shaming them doesn’t really make reaching bipartisan agreement more likely. It doesn’t change the individual calculation for a Senator to hold the line against the other party. Indeed, it may just increase attention on those Senators and make them look more principled. Ted Cruz speaking to a chamber full of Senators about wasteful public spending makes for much better television than Cruz speaking to bunch of empty seats. A Senator being dragged by the Sergeant-at-Arms into the chamber makes his refusal to vote for a budget look all the more noble.

(This also has the perverse effect of making the real government look more like the fictitious one on “House of Cards,” when that one refuses to look like the real one. But don’t get me started.)

Now, I assume Bennet and Gardner are smart enough to know all this, and they’re simply trying to make a bipartisan statement that they don’t want the Senate to behave as it has in the recent past. And that’s certainly a commendable enough statement; recent shutdown threats and the Senate GOP’s outreaches to Iran to thwart U.S. diplomacy are already signaling that Mitch McConnell’s plan to make his a Senate that works is not off to a good start. But this new proposal really can’t be anything more than a symbol. As an actual way to run a legislative chamber, it’s a pretty silly idea.

[Cross-posted at The Mischiefs of Faction]

Seth Masket

Seth Masket is an associate professor of political science at the University of Denver.