I have neither lived in Michigan nor have I been a visitor to that state. I do, however, follow events in state governments for reasons of personal interests and my occupation. Less than one week ago, the news of events taking place on the floor of the Michigan House spread quickly throughout the country. You can find coverage of the proceedings in a vast array of media sources. I’m providing a link to an NPR account of the story because it provides a video link to the portion of the Michigan House proceeding at the center of the debate.
The second link is to a story in the Detroit Free Press. In addition to the story linked above, the page lists links to the coverage of the numerous occurrences resulting from the aftermath of that day’s proceedings in the Michigan House.
I am not inferring any agreement or disagreement with any of these articles or of others.
In contrast to media coverage and much public opinion, I choose not to comment on Michigan HB 5711, the bill in question, the gender of the representatives involved, or the political parties. I am not and to repeat I AM NOT diminishing the importance of the topic, or of gender, or of the political parties. Any role, be it 0 percent to 100 percent that you or I believe that may or may not have influenced the course of events to any degree does not impact what I find most troubling.
What is the core of the problem in my opinion?
Consider an elected representative of approximately 85,000 constituents who is one member in a body of 110 of representatives. Day 1, the Representative rises to speak on matters pertaining to the bill being discussed on the floor. The Representative is recognized by the Speaker and begins. At the conclusion of remarks, the Speaker pounds the gavel for a call to order. This action occurs because the Speaker feels that the Representative’s statement is a breach in proper decorum. Whether or not I or any individual believes the words used by the Representative were proper or vulgar in reality makes no difference. The actions by both Speaker and Representative are in accordance with the STANDING RULES OF THE HOUSE OF REPRESENTATIVES IN ACCORDANCE WITH THE MICHIGAN CONSTITUTION ARTICLE IV, SECTION 16. The entirety of which is linked below.
Relevant within this procedural document to my concerns are:
CHAPTER III: MEMBERS
Conduct in Debate:
Rule 28. When any Member is about to speak in debate or present any matter to the House, the Member shall rise and respectfully address the Presiding Officer, confine remarks to the question under debate, and avoid personalities.
Members Called to Order:
Rule 29. If any Member in speaking transgresses the rules of the House, the Presiding Officer shall, or any Member may, call the transgressor to order, in which case the Member so called to order shall immediately sit down and shall not rise unless to explain or proceed in order.
Rule 28 and Rule 29 were utilized. Still, whether or not you or I believe the Member transgressed the rules of the House is irrelevant. Both sides acted according to procedures regardless of whether they were correct or incorrect.
Now we come to CHAPTER VII: Personal Privilege and Conduct: Rule 74.
(1) Matters involving personal privilege are limited and include only the following:
(a) Anything tending to subject a Member to ridicule or contempt;
(b) Charges in news media accounts relating to a Member in his or her representative capacity only;
(c) News media accounts attributing to a Member remarks he or she has not made;
(d) Accusation by another Member in debate of intentional misrepresentation;
(e) Assault on a Member for words spoken in debate; and
(f) Arrest of a Member except for treason, felony or breach of the peace.
(2) A Member shall not use his or her position in any manner to solicit or obtain anything of value for himself or herself, House employees or any other Member which tends to influence the manner in which the Member performs his or her official duties.
(3) Sexual harassment of Members or House employees is prohibited and will not be tolerated by the House.
(4) A Member shall not convert for personal, business and/or campaign use, unrelated to House business, any supplies, services, facilities, or staff provided by the State of Michigan. This includes, but is not limited to, telephones, telecopy machines, computers, postage, and copy machines.
(5) A Member shall not solicit or accept any type of campaign contribution in any House facility or building.
Aside from Chapter 3, the Rules do not stipulate the form or methods by which punishment can be levied for abuse of these privileges. The only specifics mentioned in terms of reprimand are for treason or breaching the peace. No actions took place to suggest treason, and no complaints were registered for breaching the peace so arrest of the Member would not be in accordance with the manual. Even if you feel the Member’s actions or words were inappropriate, a complaint needed to be filed to assert breaching the peace. Nobody within that body filed such a complaint.
The Speaker took the action of barring the Representative from speaking on the floor of the House the next day, the last of the legislative session. The closest applicable reference is not to Members but to Committees (Chapter IV) and Rule 7 of the Uniform Committee rules: (7) All meetings or public hearings of committees or subcommittees shall comply with the following procedures in order to assure public access (See Const 1963, Art 4 §§ 16 and 17). Subsection F is written as: A person shall not be excluded from a meeting or public hearing of a committee or subcommittee except for a breach of the peace or in order to protect the health and safety of persons in attendance at the meeting.
Of course the Member was not excluded from the next day’s session; the Member was only barred from speaking. It should be noted, however, that this Member was in fact recognized in the opening roll call and in votes recorded on the day of being barred from speaking.
Now if the Speaker or you or I feel that the Member has not adhered to the codes of Personal Privilege and Conduct, within the House Rules is a reference to use Mason’s Manuel of Legislative Procedure since Michigan is one of the many states which incorporates that tome into its legislative procedures. I do not have access to the most recent, 2010, edition of Mason’s Manuel but I am not aware of a condition which bars a representative from speaking the following day. There are references to situations such as that which took place on the Michigan floor for a call for the Member to apologize or face the possibility of censure. Censure is formal, public scolding of the official. Rules on the censure process differ from legislative body to legislative body, but in general the process begins with a resolution or written statement by a member of the legislative branch explaining the official’s misconduct and why disciplinary action is needed. Following a formal investigation, typically by an ethics committee, if committee deems the charge is warranted the legislature then votes on whether or not to censure the individual with a simple majority vote being sufficient. Mason’s also lists the provisions for impeachment proceedings to remove a member from office.
The Speaker and the Michigan House, however, did not follow their own rules and procedures or that of Mason’s in their actions. The Representative is also incorrect that 1st Amendment rights had been violated. If any Constitutional right had been violated it would be those provided by the 14th Amendment via its incorporation precedents
The primary consequence for the 85,000 constituents of that district is that their right to be heard on the floor of the House that day was denied by the actions of the Speaker. Even if your personal feelings are that the Representative had broken decorum or offensive for whatever reason, there was no avenue for those constituents to be heard. Without formal or even public proceedings, neither the Representative nor the constituents had advance notice that their right to be heard had been stricken. Even if notice had been given immediately following the previous day’s session, the approximately 85,000 constituents of that district would have to agree to and designate a representative who could reach the floor of the house at minimum 30 minutes prior to the call for order the next morning. After that window of a few hours, if some designee did arrive, it would take the permission of either the Speaker or House Majority leader to gain access to the floor.
Admission to Floor–Defined:
Rule 2. (1) No person shall be admitted on the floor of the House for a period of 30 minutes immediately preceding the time set for any call to order during any session of the House through adjournment, except as follows:
(a) Representatives and Senators;
(b) Former Legislators, unless otherwise restricted;
(c) Sergeants at arms, pages, Clerk’s staff, and legislative staff who are specifically designated to be working on the House floor during session;
(d) Directors of Michigan Departments and the Governor’s legislative liaisons shall be admitted to the Thatcher or Document room and may have floor access with the permission of the Majority Floor Leader;
(e) Immediate family of Representatives who have obtained and are wearing in plain sight appropriate identification passes, issued under guidelines developed by the Majority Floor Leader;
(f) Media correspondents accredited by the Clerk of the House who are wearing in plain sight appropriate identification passes, issued under guidelines developed by the Clerk. Media correspondents shall not use the center aisle or be at the Members’ desks during roll call votes; and
(g) Such other persons as may be invited by the Speaker or Majority Floor Leader.
No disrespect to either position on the original bill in question. The focus and attention should be that the majority party in a state decided to silence the voice of a district, or approximately 85,000 individuals, for a legislative day where a number of various bills were discussed and decided. Since some, if not all, matters on the House calendar for that day concerned topics not related to the previous day’s bill, how is that acceptable?
People on both sides ideologically may want this event to be based on the subject of the particular bill and remarks, but since the United States has established legislative and judicial systems based on precedents an important one has been established in Michigan. Regardless of content within a particular bill, the majority party, regardless of whether it is the Democratic Party, Republican Party, or even a 3rd Party, can silence the voice of an entire district without any due process for all proceedings the following day. If a particular district has a high interest in a prospective piece of legislation, we now have a convenient way to prevent those interests from appearing on the official record.
It should not matter what your ideology is to not be concerned by this taking of rights.
Supporting or opposing the performance of a play might call attention to an individual matter. The truth, however, is that one matter can still be determined by the precedent established without the need to ever call for a discussion specific to that or any matter.
This time one district was silenced by the majority party. The next time, your party might be the minority party and your district silenced using the same precedent. If you do not believe that can happen, you are not alone. Martin Niemöller many years ago echoed the same sentiments in these chilling words:
First they came for the Socialists, and I did not speak out–
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out–
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out–
Because I was not a Jew.
Then they came for me–and there was no one left to speak for me.
The lesson is not that it is about vaginas or that particular bill in Michigan. The lesson is that unless you are part of the majority party in Michigan and a part of any majority faction within that party, there may be no one left to speak for you if you offer a different opinion. That applies to any and all individuals and opinions, regardless of race, gender, age, political ideology, and on and on and….