It’s the Sausage-Making

Legislative obstruction is again in the news. Texas Democrats, the opposition minority in the state house, temporarily blocked a bill on election reform through a parliamentary procedural tactic known as “quorum denial,” or, more colloquially, “quorum-busting.” This type of obstruction uses legislative rules such that if sufficient members are absent, it is impossible to take valid votes. In Texas, this also meant fleeing the state to avoid coerced attendance. Although uncommon, such tactics are a political tradition in some states and have become a symbolic ground zero for major ideological faultlines in debates about American state politics.

Did the Democrats’ obstructionism represent a case of admirable anti-authoritarianism? Or rather a contemptible disrespect for democratic institutions? Your partisan sympathies will likely color your response. Naturally, the answer is more complicated. Since the Texas conflict is so fresh, it is useful to review a past example that switches partisan interlocutors, one that took place in the Oregon legislature in 2019 involving a bill on climate change. In the Oregon case—an unusually successful one at that—both parties expended political capital in the fight, the bill was successfully stalled, and the tactic forced concessions to the minority even while signaling to the majority that non-legislative solutions to their policy concerns would be more productive.

Although various forms of procedural obstruction are usually described as political malpractice, the opposite is closer to the truth. Indeed, costly obstruction is an important element of political representation under conditions of severe partisan differences. It is also an embedded tradition of some U.S. states, and ultimately forms a key means by which minority oppositions can register symbolic gains to mobilize constituencies for future elections.

In 2019 the Oregon state senate was slated to vote on HB 2020, a controversial cap-and-trade climate mitigation project. The twelve Republicans in the senate minority did not show up for the vote. Oregon Governor Kate Brown ordered state police to help find the absent members and force their attendance, though many of them had fled across state lines. Compromises among party leaders ensued, including more committee privileges for the GOP and Republican agreement to proceed with remaining Democratic legislative business.

The next year saw another quorum denial threat on the same issue. This time, attempts to reach a settlement were doomed by the coronavirus dominating the agenda. Since then, the governor has pivoted to executive-oriented climate projects, bypassing the trouble of her insufficiently controlled legislature.

The 2019 conflict drew national interest. At least one Oregon Republican senator suggested that there might be violent resistance to a coerced return to the legislature. Local militias said they would protect the obstructing senators. Commentators opined that the GOP senators had breached their legislative duty to be present and vote in good faith, a further sign of uniquely Republican ill will and norm violation.

A comparative lens suggests a less purely partisan picture.

Governor Brown’s statement that the fleeing legislators “need to return and do the jobs they were elected to do” expresses a specific view of the role of legislators: as employees of the state (or perhaps the people), obligated to perform a single role as actors in a mechanistic legislative process. Yet quorum denial, coupled with crossing state borders, is an established element of American state politics.

The potential for legislative obstruction by the minority party is built into the parliamentary procedural rules of state legislatures. These rules generally allow a large and coherent minority to slow down or, in some cases, totally stop a bill’s passage despite a numerical majority in favor. The most famous example at the national level is the U.S. Senate’s filibuster rule, which allows a single Senator to temporarily halt progress on a bill and has awkwardly evolved into a practice used to prevent passage unless a three-fifths supermajority of member supports the legislation.

This is only one of a variety of forms of obstruction and procedurally intended—or unintended—gridlock across democracies, including general bicameral structures that promote legislative slowdown, the “disappearing quorum” of the 19^th-century U.S. House, parliamentary rules allowing extensive delay in the European Parliament, the sometimes violent blockading of the speaker’s rostrum in Ukraine, and the various scrutiny and slowdown mechanisms in legislative committees used by parties in parliamentary coalitions across Europe and elsewhere.

The widely used procedural manual Robert’s Rules of Order helpfully notes that quorum requirements are “protection against totally unrepresentative action in the name of the body by an unduly small number of persons”—that is, defense against political decisions made by an unrepresentative subset of a legislature’s members due to either unforeseeable absence or malice preventing other members from reaching the plenary.

The minimum number of present members required to conduct legislative business varies widely across legislative chambers, ranging from a measly 20 out of 338 members in the Canadian House of Commons, to the 40 out of 650 Members of Parliament in the United Kingdom, to as much as one-half of the membership required in Denmark, Germany, and elsewhere. The first use of quorum denial in the United States was John Quincy Adams’ refusal to answer a quorum call in 1834, providing the tactic a legacy of close to two centuries in the American tradition. The higher the quorum minimum, naturally, the more its utility as a means to express a legislative opposition’s discontent.

The operative procedure in Oregon is a strict quorum rule with an unusually high threshold for both houses of the state legislature. In 2019 neither house nor senate Democrats, despite their majorities, held a quorum-fulfilling supermajority. In the state’s house of representatives, the Democratic majority passed the climate bill by a vote of thirty-six to twenty-four. The senate required a two-thirds quorum of twenty, but there were only eighteen Democrats. As the senate GOP minority was unusually united on the issue, their leadership took advantage of this fact.

These legislative tactics are not new in Oregon or other American states, and they are bipartisan. In the last fifty years, both Republican and Democratic minority parties in the Oregon legislature have used quorum denial as an obstructionist tactic. The Democratic Party walked out in 1971 to promote lowering the voting age to eighteen and in 2001 to protest a redistricting effort, while the Republican Party did so in 2007 over taxation changes.

Just a month before the Oregon flight over climate legislation, there was another quorum-busting effort over an education bill. The episode ended with an agreement not to pursue new gun control and vaccination legislation and guarantees of minority input on the climate change bill to come. In other words, the tactic seems to be confirmed by norms as a last recourse for minority members with deeply held beliefs, exercised when the parliamentary arithmetic would otherwise preclude the need for negotiation and amendment.

Oregon is not alone. In the Wisconsin senate in 2011, fourteen minority Democrats fled across the state border to Illinois to protest a law undermining union bargaining power. In the GOP-controlled Texas legislature, the so-called “Killer Ds” and the “Texas Eleven”—house and senate Democrats, respectively—fled to Oklahoma and New Mexico in 2003 to deny legislative quorums for a congressional redistricting plan. In the U.S. Senate in 1988, a Republican member—from Oregon, as it happened—was carried into the chamber “feet-first” to satisfy quorum for a campaign finance reform bill.

Quorum denial is a frustrating piece of parliamentary theater, yet fully understandable. At the time of the Oregon controversy in 2019, twenty-three out of fifty states had full legislative supermajorities—mostly Republican controlled, although after the 2018 elections, Oregon, California, and Illinois joined the list of Democrat-dominated legislatures. With nearly half the country’s states run as perceived one-party fiefdoms, it is unsurprising that legislative minorities would use whatever obstructionist tactics are at their disposal.

The bipartisan roots of quorum denial as one such tactic suggest caution about judging it an automatically unacceptable dereliction of duty. The “return to their jobs” argument by Governor Brown and critical media were right in noting the important civic function of a legislative body but miss the point when they castigate such tactics as illegitimate or undemocratic in the institutional sense. Democratic politics often are far messier than rubber-stamp affairs, and the legitimacy of an institutional obstructionist tactic is ultimately determined by the reaction of voters, not inherent to it.

While procedural obstruction disrupts the flow of legislative business, it is a powerful tool for the political opposition to signal the strength of its commitments to constituents. It is often a symbolic expression of discontent beyond rote plenary voting—an important element of political representation, especially in hyperpartisan environments. That both parties have used this device in recent years indicates that it is less a one-sided violation of norms than a reflection of powerful disagreements that must be treated seriously and reconciled within an institutional framework.

These tactics are usually quixotic and sometimes even dangerous for political oppositions. Indeed, just as such tactics are legitimate, the coercive privileges of a political majority are similarly so. The outcome of desperate obstructionism often does not achieve the minority’s goals. It often ends in the blocked policy’s ultimate passage, with only the most successful cases resulting in the internalization by political leaders that the issue is too toxic to move forward on. Furthermore, the stunt can damage public opinion of the offending party, with citizens viewing it as abrogating responsibilities or otherwise behaving fecklessly.

In Wisconsin, for example, Democratic tactics proved a failure, further pushing voters toward the state’s anti-union governor in subsequent elections. National media attention invites unwelcome scrutiny and pressure on lawmakers to reach a deal. And legislators, ultimately office-seeking actors, tend to relent when their future re-elections are jeopardized by negative coverage. Quorum denial is a weapon of the institutionally weak. Quorum denial and cross-border flight make for a costly political signal: they may galvanize partisans but undercut more tenuous supporters. Thus, political oppositions choose these tactics only in dire circumstances, and usually not for very long.

Quorum denial that involves border crossing, not unusual in some American states, is less common elsewhere. One reason is the relatively high quorum requirements in many American states, particularly in senates: Oregon’s two-thirds rule is higher than that of all other OECD countries and higher than the U.S. Senate’s old simple majority rule, set in 1861. Another reason is the terrible optics of cross-border flight. U.S. state boundaries are porous, with weaker emotional attachment to state-specific identities compared to national ones. A legislator’s crossing a national border is more consequential, not least due to vulnerability to accusations of being a traitor to the nation.

In fact, major disruptive legislative obstruction is more common in authoritarian regimes, where the pressure is higher for minority parties to go along with controversial legislation and the very legitimacy of the political regime is often contested. Obstruction tactics were infamously common in the semi-authoritarian parliament of 19^th-century Austria-Hungary, so much so that Mark Twain commented on it during a trip in 1897. More recently, quorum strikes in Russia in 2012, full attendance boycotts in Bangladesh over a disputed election in 2019, and similar boycotts in Serbia because of an attack on an opposition Member of Parliament in 2020 all underline the symbolic usefulness of these tactics to permanent oppositions.

Truly disruptive legislative obstruction is rarely found in most OECD democracies. Partly due to coalition governments and parliamentary systems that fuse legislative and executive branches, more mild forms of scrutiny tend to be preferred. Meanwhile, the multiparty presidential systems of Latin America also see less obstruction, in part because of the oversized legislative coalitions supporting a given presidential administration, often brought together through corruption and clientelism.

It is the particularly vehement two-party competition in the United States, at both federal and state levels, that provides legislative minorities with incentives more like the existential political struggles in some authoritarian regimes, where partisan competition is seen as a zero-sum exercise.

In electoral authoritarian or hybrid regimes, where the political environment is skewed toward the ruling party and elections are unfree and unfair, political oppositions have hard choices to make about how to act institutionally. Some oppositions let themselves be coopted, becoming pliant supporters or mild critics in legislative chambers in exchange for rents and policy concessions. Harder-line opposition parties will often boycott parliament altogether to undermine the legitimacy of the institution and regime before domestic and international observers.

Dealing with these starker choices, legislative obstruction is often attractive. When opposition parties are ideologically united and have parliamentary delaying tactics procedurally available, they are especially likely to use them, despite their cost and knowledge of ultimate failure.

It is no accident that three of the most recent U.S. examples of quorum denial with border crossing—in Texas, Oregon, and Wisconsin—relate to deeply divisive, emotional political issues: voting, climate change, and union power. Such actions signal not only disagreement but near-existential opposition.

The comparison of hyperpartisan, obstructionist U.S. state politics to non-democratic regimes is hardly exact. Texas is not Hungary. Oregon is not Venezuela. Yet in some states, the high stakes of partisan competition and the gap in fundamental worldviews do mimic the tense standoffs and disruptive procedural blockages found in such places.

Thus, we should view the legislative walkouts in Oregon and Texas as examples of political division being waged via institutional protest through absence—a­­­­ form of protest that has genuine costs yet is hardly a political unicorn. We can condemn violent threats sometimes associated with these events and note the frustration they cause, while not presuming they are an unacceptable failure of democracy. Not all politics is mechanical, and the extraordinary use of procedure to signal sharp disagreement is fundamentally a question of the political.

Institutional obstruction channels real grievances into political activity, a form of disorder much better expressed through a bitter fight in a legislature than on the streets. Assessing political strife in the American states through a comparative lens can increase our understanding of institutionalized political conflict as it actually exists within the democratic regimes we cherish.

Julian G. Waller is a non-resident fellow at the illiberalism studies program and a Ph.D. candidate at George Washington University.