Q&A with Jeff Irwin: 'The Republicans picked a fight with the Constitution and we're prepared to stand up for it'
Ryan J. Stanton | AnnArbor.com
Irwin and five other Democratic lawmakers who are co-plaintiffs in the case argue House Republicans have repeatedly granted immediate effect to controversial bills that don't actually have the two-thirds majority support needed to take such action. They argue those bills should have to wait until 90 days after the legislative session ends to take effect.
Republicans have fired back, saying they're not doing anything the Democrats didn't do when they were in power, and Irwin concedes that's mostly true.
But the Democrats contend Republicans are violating the state Constitution by ignoring their requests for roll call votes on whether the bills should take immediate effect.
Irwin, a first-term Democrat, sat down with AnnArbor.com on Tuesday to talk about the circumstances that have the Democrats suing the Republicans.
AnnArbor.com: It sounds like you've picked quite a fight with the Republicans in the state Legislature. What is this really about?
Irwin: Well, we didn't pick a fight with the Republicans. The Republicans picked a fight with the Constitution and we're prepared to stand up for it. There's a lot of different elements of this story, but I think the crux of it is that the state Constitution says that if one-fifth of the Legislature requests a roll call vote on any question, that roll call vote shall be granted. And on a number of occasions, as members of the House, I and many of my colleagues have stood up and said, 'Mr. Speaker, we want you to count the votes on this particular motion,' and the Republicans have continued to ignore our calls for a counting of the votes. What's happening is the Republicans are declaring a two-thirds majority erroneously and putting it in the journal without any counting. Even in circumstances where it's clear that there is not a two-thirds majority, even in circumstances where it's a very divisive partisan bill, they're attaching the immediate-effect provision to these bills and jamming them through.
Courtesy of Jeff Irwin
Irwin: When a bill passes in the Legislature, there's a roll call vote and everybody puts their votes up individually and those are recorded. After that roll call happens is the time at which usually an immediate-effect motion would be made relative to that particular bill, and what happens in the Legislature is that now just as a matter of routine, as soon as a bill passes, the speaker will recognize the majority and the majority leader will say, 'I move for immediate effect.' And the speaker ignores us and our calls for accountability and our calls for a roll call and just sort of says very casually, 'All those in favor please rise.' And usually nobody stands up or just a small handful of people will stand up and then they gavel it through and say it's passed. And then they print in the journal 'immediate effect has been passed with two-thirds of the members voting therefore.' Our whole lawsuit is trying to disprove that fact.
AnnArbor.com: How often is this happening?
Irwin: There have been 566 bills passed through the Legislature and 546 of them have had this immediate effect provision. It's not accurate to say the Republicans have ignored our calls for a roll call vote on every single one of those 546 bills. Some of the bills are bills the Democrats would be happy to support immediate effect on.
AnnArbor.com: What's your response to the claim that use of immediate effect isn't anything new and the Democrats did this in the past?
Irwin: That's mostly true. The real story of this in the historical context is the immediate-effect motion has sort of degenerated over time. And both parties have abused this power when they've had the gavel, but it's gotten worse and worse over time. And it's gotten especially bad after term limits, because now there's no institutional memory, now there's no real respect amongst colleagues, for the most part, and we're seeing that with the way the Republicans are disrespecting their Democratic colleagues. So it's happened before but it's gotten worse and worse over the years and it's gotten to the point now where the Republicans are so brazen and blatant in their violation of constitutional provisions, it's so obvious that what they're doing is wrong, that it's gotten to this fever pitch and it's gotten to this point of a lawsuit.
AnnArbor.com: What pushed you and other House Democrats over the edge to finally file a lawsuit? And what is going on in the case now?
Irwin: After the situation in the House degenerated to that point, we finally realized we had to seek justice in the courts, so we filed a motion for an injunction in Ingham Circuit Court and that was heard last Monday by Judge Clinton Canady III, and Judge Canady ruled that the Republicans were enjoined from passing immediate-effect motions without counting the votes in the future, and that immediate effect would not be applied to the three bills we specifically mention in our lawsuit.
The Republicans appealed that up to the Appeals Court level, so the Court of Appeals heard their emergency filing on Monday and they basically preserved the status quo. They said, 'We're going to take this case, we're going to hear it on the merits, and we're going to preserve the status quo with respect to the bills that were specifically challenged by the Dems.'
So the two that were signed by the governor and were already in law — the bill affecting the graduate research assistants and the bill affecting collection of union dues by public employers — those bills are going to continue to be enforced. And the other bill that we sued on where the Republicans are seeking to change the rules about petition signatures and ballot initiatives ... what the three-judge panel in the Court of Appeals said about that bill was its immediate effect would not be valid through the House.
The most troubling part of the Court of Appeals ruling to me was the Republicans can continue during the time the court is hearing this case to declare erroneous and non-existent two-thirds majorities on bills and change the law with immediate effect despite the fact that they obviously don't have the votes and the evidence is right there in the journal.
The controversy over procedure in the Michigan Legislature has Rachel Maddow fired up:
AnnArbor.com: So this isn't directly about the emergency manager law? I know that's been cited as a bill that was given immediate effect last year without a true two-thirds majority.
Irwin: The emergency manager law is not specifically mentioned, but this is to some degree about the emergency manager law because it was a divisive change, and what the governor and the Republicans did was they really accelerated the pace at which emergency managers could be appointed so they could be appointed earlier and more often, and they also increased the powers that these emergency managers had, specifically with respect to voiding union contracts. And if the Republicans had followed the Constitution, then those changes would have gone into play in a more orderly fashion. They wouldn't have been immediate.
AnnArbor.com: What other laws do you believe have been given immediate effect without a true two-thirds majority and what have been the consequences?
Irwin: One example that particularly bothers me is we all know Republicans last year passed a law that forbids public employers from treating their gay and lesbian employees the same as their straight employees. They can't provide them the same pay and benefits. It's now illegal in Michigan. We have enshrined this type of bigotry and discrimination into our laws and we have forbade the city of Ann Arbor and other employers in our area from providing certain benefits to certain employees because of who they love. The Republicans did not have a two-thirds majority for passing that bill, and one of the heartbreaking aspects of that bill was that the governor signed that bigoted piece of legislation three days before Christmas, so the moment the pen lifted off that page it became law and those people were cut off benefits three days before Christmas with no time to plan a transition.
Another good example was the welfare benefits piece. Last fall the Republicans cut off about 24,000 children and 12,000 adults from welfare benefits because they were too poor for too long. Once again, the Republicans have a right to do that. But what they shouldn't have had a right to do is cut those benefits off immediately without a two-thirds vote of the Legislature. They should have had to wait until 90 days after the beginning of the year.
Under federal law you can't cut off people's benefits in this sort of precipitous way. You have to have a process. You have to give people a little bit of time to plan. And what happened was Michigan got sued. Michigan lost in federal court on this matter, and we ended up having to revoke these people's benefits in a more slow process anyway — not quite as slow as it would have been if they followed the law. But we ended up jerking these people around who are already struggling in a way that I think is really unfair, and then in addition we ended up spending money on a legal case that we should have never had to fight.
AnnArbor.com: Remind me who the plaintiffs are in the lawsuit and who you're fighting specifically.
Irwin: There are six named plaintiffs and three named defendants. The six named plaintiffs are Richard Hammel, Kate Segal, Mark Meadows, Woodrow Stanley, Steve Lindberg and myself. All House members. Five third-termers. One freshman. The named defendants are Speaker Jase Bolger, Floor Leader Jim Stamas and John Walsh, the speaker pro tem.
The reason why this is important is because, when we set up our Constitution, one of the core principles of American political theory is that government should have certain limitations. There are certain rights that are reserved for the people. There are certain powers that the minority has. And yes, we have a democracy, but we put certain limits on that democracy and we enshrine those limitations in our Constitution. And what's happening in the Legislature is the Republicans, because they have the majority, they're ignoring those limitations on their power and they're abusing their power. They're ignoring the limited rights that the minority has.