How strained shall be the quality of mercy shown the Ten Truant Texas Dems™?

This — from Charles Kuffner of Off the Kuff about what will happen to the fines and other penalties imposed on the Ten Truant Texas Dems™ (my nickname for them, of course, and not his) — I found very thought-provoking:

[M]y best guess is that the GOP will try to impose some sanctions, and the Democrats will tell them to go pound sand. Tactically, I'd guess the Democrats are hoping that the Republicans insist on fining them and restricting their access to supplies, conference rooms, parking lots, etc. It fits in well with their renegade-victim-of-oppression story line, and will serve as a continuing rallying point for them both in Texas and nationally. As such, the smartest thing the GOP can do is to be magnanimous and drop all of the punishments in the name of restoring harmony. The fate of redistricting is entirely in the GOP's control now, so it hardly costs them anything to let bygones be bygones, and it would take a lot of wind out of the Democrats' sails if they did so. I don't think anyone will be surprised to hear me say that I seriously doubt that Rick Perry is smart enough to advocate this. But hey, I could be wrong. Again, we'll know soon enough.

I make no prediction on what Gov. Perry or the other members of the state Republican leadership will actually do, nor any comment on their inate cleverness.  But otherwise I agree with Kuff's observations.  At least in the short term, it would be politically smart — canny, astute, shrewd, efficacious — for the Senate Republicans to forgive everything.

But would it be wise?  Would it be proper?  Would it be sacrificing an important principle for the sake of short-term political gains that will be outweighed by longer-term consequences?

It is important to consider what precedent will be set for the future — and to do so in a manner that is not driven by short-term questions of how being merciful or vengeful will play in the polls.  It is no hyperbole to say that we have had a constitutional crisis in Texas this summer.  This crisis resulted not only in hard feelings and hardball politics, but also demonstrated a paralyzing impotency in the mechanisms of state government — with a heavy resulting waste of both tangible economic capital for the entire State of Texas and metaphysical political capital for members of both parties.  Unless there is a wise and comprehensive course of action undertaken to achieve political closure now, then the bitterness of this summer's fight may make such walkouts and stalemates ever more likely in the future, rather than less.

But how can both sides back down gracefully, claim to have preserved their inconsistent sets of principles, and get on about the business of governing the State of Texas?  The dilemma is clear:

• On the one hand, there can be no doubt whatsoever that the "Texas 11" deliberately violated Texas Senate Rule 5.03, which provides that "[n]o member shall absent himself or herself from the sessions of the Senate without leave unless the member be sick or unable to attend."  I assume that this particular rule has been in place for a long, long time, and at the beginning of the 78th Texas Legislature, it was unanimously approved by both Republican and Democratic senators alike.  The Texas Senate Rules do not bless or allow for the possibility of civil disobedience by senators, no matter what principle is being "defended" by the destruction of a quorum.  This isn't going to change.  And it would be very bad policy to set a precedent for the future that this rule may be violated with impunity (besides the fact that such a precedent would require the Republicans to eat more crow now than they could stomach).

• And yet on the other hand:   As profoundly misguided as I think they are, and as knowingly sloppy with the truth as I think they've oftentimes been and continue to be, I do not doubt that the Democratic senators who fled the state were, ultimately, sincere in their beliefs.  Vengeance or retribution for its own sake would be worse than petty and politically stupid; it would be unjust if carried to extreme measures.  All that nonsense about "poll taxes" aside, it would be counterproductive to insist on any meaningful penalty that would inhibit a senator's or his staff's ability to perform their jobs.  And in the present circumstances (about which, see below), it would be cruel and unrealistic to try to enforce significant monetary penalties against any of these senators in their personal capacities.  (Some of our part-time legislators would likely be driven out of office, if not also to personal bankruptcy, by the fines that nominally are outstanding now.) 

How, then, to cut through this Gordian knot?  As always, with a bold stroke of a sharp, deftly wielded sword.

The vote to impose penalties and sanctions by a majority of the Texas state senators who remained at the Capitol for the second special session — the Republicans plus Ken Armbrister, but over his and Republican state senator Bill Ratliff's opposition — did indeed have an arguable basis in the Texas Constitution and the existing Texas Senate Rules, notwithstanding the absence of a quorum.  If push came to shove, in fact, I think they'd have the better of the argument, in a technical and legalistic sense.   

The only place where push could likely come to shove, though, would be in the Texas Senate, and not in the Texas courts.  As demonstrated by the dismissals of the Republicans' attempts to "mandamus" the missing Democratic senators in both a Travis County District Court and in the Texas Supreme Court (as an "original jurisdiction" proceeding), the Texas courts will have none of this fight; it's a classic example of something that is considered to be a "political question" that, under the doctrine of separation of powers, lacks "justiciability."{note1}  So as a practical matter, the Senate has plenty of running room and flexibility here to write its own ticket so long as it doesn't expressly violate any provisions of the Texas Constitution.

Even if authorized and justifiable, the voting of penalties and sanctions was unprecedented.  That doesn't mean it was wrong.  But it means that, arguably, it came as a big surprise, and an unfair one, even if it was technically justified.  The Republicans can concede this point without any loss of face.  Moreover, they can likewise concede that it's a fundamental notion of "due process of law" that before you can penalize an offender, he has to first have been given fair notice — via a statute or via caselaw — that what he's about to engage in will land him in the soup, and indeed, roughly how hot that soup might be!{note2}

So there's your principled, equitable basis to support an act of sublime mercy — not a pardon that forgives unconditionally, wipes out the offense, and implicitly approves the misconduct after the fact, but rather an amnesty that is a measured decision to forego prosecution just this once.  "Guys, we think what you did was wrong, and we know you don't agree with that; but we can both agree that this was a novel, unprecedented situation, and we can also all agree that it would be better form for the entire Senate to agree on when and how this kind of penalty ought to be assessed."

That's only half of what's needed, though.  As part of the same unanimous Senate resolution that grants an amnesty and sets aside all fines and penalties with respect to the just-concluded second special session of the 78th Legislature, there must also be the joint statement of the "sense of the Senate" that before the next regular session of the Texas Legislature in 2005, a bipartisan commission (comprising an equal number of Democrats and Republicans, with Lt. Gov. Dewhurst voting only if necessary to break a tie) should meet to draft and propose amendments to the existing Texas Senate Rules.  Those amendments would be designed to put teeth into Rule 5.03.  As such, the rules as amended should contain graduated, automatic penalties (not requiring a separate vote in the absence of a quorum) that become more and more severe, leading all the way up to — but stopping just short of — declaring a vacancy in the seat of the most extreme offenders.  Whether the Senate could engage in that ultimate sanction without violating the Texas Constitution is a question best left for the next extreme constitutional crisis, which hopefully will never come.

To invoke the nickname of a former Texas governor (a native of my hometown, by the way):   PRESTO!  We've achieved an act of bipartisan cooperation and statesmanship that jerks the bloodstained tablecloth off the table without upsetting any of the dishes.  We'll let tempers cool until the 78th Legislature and redistricting are firmly behind us all.  We'll pick cool heads for the intersession commission to launder the tablecloth and prescribe table manners for the future.  And best of all, we'll diminish the likelihood — without necessarily foreclosing it completely — of similar walkouts by either party in the future.

(As my royalty on this proposal when adopted, I ask merely for 0.001 percent of the gross state sales tax revenues for the next five years.  Think of it as an extremely modest contingent fee.)

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{note1} There's well developed parallel federal caselaw on this, if not much Texas law for understandable reasons.  Compare, e.g., Nixon v. United States, 506 U.S. 224 (1993), with Powell v. McCormack, 395 U.S. 486 (1969).

{note2} See, e.g., Rogers v. Tennessee, 532 U.S. 451 (2001).