On Tuesday, August 5, Sen. John Cornyn (R-TX) requested, and the FBI apparently agreed, to use federal law enforcement resources to track down Texas lawmakers who left the state to break quorum of the state House. Sen. Cornyn’s request amounts to political grandstanding at best and an authoritarian effort to crush dissent at worst. In leaving Texas, these legislators have broken neither state nor federal criminal laws. As such, involvement of the FBI to track them down is a dangerous escalation that weaponizes law enforcement to achieve the political goals of President Donald Trump without any basis in the law.
Background
In early July, Texas Gov. Greg Abbott (R) called a special session of the Texas legislature, ostensibly to address the flash floods that killed at least 135 people in Texas Hill Country. Rather than focus on that tragedy, however, the Texas legislature decided to also take up President Trump’s demand that they draw five new Republican-leaning congressional districts to bolster the party’s chances of keeping the U.S. House of Representatives in the 2026 midterm elections. This mid-decade redistricting is far outside the norm, especially when directed by a president, as redistricting is supposed to occur only every 10 years following the national census.
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Rather than take part in a nakedly political power grab, Democrats in the Texas legislature left the state to break quorum and prevent the redistricting plan from advancing. Breaking quorum is a long-standing tactic nearly as old as the Texas legislature itself. The practice dates back to 1870, during the 12th Texas Legislature, and was used, even then, to prevent unpopular or controversial legislation from passing. In the modern era, Texas legislators have broken quorum in 1979, 2003, and 2021 to delay passage of bills that would hinder voting rights, with the 2003 break intended to temporarily delay a similar mid-decade redistricting plan. Other state legislators have also used this strategy—most recently in Oregon, where 10 Republican state senators left the state to prevent a vote on a climate change bill.
Historically, this has been a state matter, whereby state resources and law enforcement are used to track and—to the extent possible—retrieve legislators absconding their states to break quorum. Though in the 2003 Texas quorum break, the state used federal resources to track airplanes it suspected missing members were flying on, the Center for American Progress was unable to identify any examples of federal law enforcement—including the FBI—being used to track down or possibly arrest legislators breaking quorum. Even most recently, in 2021, lawmakers were threatened with arrest in the state, but no federal law enforcement was involved in the matter—not even when the lawmakers made public appearances in Washington, D.C. Nor did Texas Attorney General Ken Paxton bring state criminal charges against lawmakers whose expenses were covered by outside groups during the 2021 quorum break.
There is no legal basis for FBI involvement
It does not appear that the FBI has any credible legal basis to be involved in Texas’ efforts to retrieve these lawmakers. Indeed, it is not a crime in Texas for legislators to leave the state to break quorum. The only penalty they could ostensibly face is a $500-per-day fine imposed by rules of the Texas House passed in 2021. Sen. Cornyn’s assertion that the legislators are being bribed to leave is fatuous at best—as many of them have stated they have left the state in order to properly do their jobs, to fight for their constituents, and to prevent a political power grab from encompassing the state.
The issue of legislators breaking quorum is a wholly state law issue in which the federal government should not be involved whatsoever. There is a reason that Texas has not filed criminal charges against these legislators—because they have no basis to do so. Rather, they are taking civil efforts to bring them to heel. The Texas legislature has filed civil arrest warrants to bring the missing legislators back to the state, and Gov. Abbott filed an emergency motion with the Texas Supreme Court to have the head of the Texas House Democratic Caucus removed from office. Though Texas Attorney General Paxton has noted that the governor does not have the authority to bring that type of case, he said he will take action to pursue the legislators himself.
Every American should be very concerned that a U.S. senator is attempting to turn a state civil issue into a federal criminal matter.
The FBI itself states that it does not take over state investigations but may assist in locating fugitives fleeing justice. Federal law provides that aid in pursuing fugitives applies only to those fleeing to avoid felony prosecution, giving testimony in a criminal case, or facing criminal contempt proceedings before a state agency. The FBI can also serve warrants and seizures for violations of federal law. However, none of these provisions appear to apply to the legislators breaking quorum because they do not appear to have violated any criminal laws—state or federal. Furthermore, the U.S. Constitution and Supreme Court precedent require that if the legislators are apprehended in a different state, with their home state attempting to extradite them, the extraditing state’s governor must agree to return them.
Conclusion
Sen. Cornyn should know that there is no legal justification for asking the FBI to assist Texas in returning these lawmakers, as should FBI Director Kash Patel. But that has not stopped the attempted and performative weaponization of law enforcement to achieve political ends in this administration, and it may not now. This is a civil and political matter where legislators are attempting to protect their constituents’ rights to a free and fair democracy. Every American should be very concerned that a U.S. senator is attempting to turn a state civil issue—that would otherwise be enforced by the Texas legislature’s sergeant-at-arms—into a federal criminal matter. This represents a dangerous step on a path toward authoritarianism and is clear politicization of federal law enforcement.