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The Unconstitutional Expulsion of Legislators

Legislatures can expel members, but not when it is to discriminate based on race or free speech.

Published: May 25, 2023

When the Tennessee House of Representatives expelled two members for their political speech in April, it was unprecedented. The chamber’s actions appear to have been racially motivated, as only the Black elected officials were thrown out while a third, white official who engaged in the same conduct was spared.

Days earlier, house leadership had blocked Democratic Reps. Justin Jones, Justin Pearson, and Gloria Johnson from speaking out in favor of gun reform. In response, they led chants about the issue on the house floor. The Republican supermajority promptly expelled Jones and Pearson, supposedly for breaching the rules of decorum.

Within a week, their respective local governments reinstated the legislators pending special elections. But this short-term outcome should not distract from the legislature’s undemocratic actions.

The Republican majority abused its power to expel two democratically elected lawmakers because of who they were and what they said, stripping representation from nearly 150,000 Tennesseans and effectively nullifying the votes the public had cast a few months earlier. The message was clear: the raw will of the current majority will be wielded against dissenters.

Legislatures have the power to expel members, but the Supreme Court has ruled that legislative power must be balanced against the First Amendment and other fundamental rights. Indeed, the expulsions prompted elected officials in the U.S. Senate to ask the Justice Department to investigate whether the Tennessee house’s actions violated such limits.

The events in Tennessee fit into a broader trend of partisan majorities removing or otherwise disempowering elected officials for their political views. In Montana, a Republican supermajority in the house voted to remove Rep. Zooey Zephyr (D) from the floor and committee meetings for the last week of the session after Zephyr, the state’s first openly transgender lawmaker, spoke against a ban on gender-affirming care for transgender youth.

Florida Gov. Ron DeSantis (R) removed Andrew Warren, an elected county prosecutor, from office last year because he promised not to enforce the state’s newly enacted anti-abortion law. A federal judge condemned DeSantis for violating the prosecutor’s First Amendment right to free speech, explaining that a “governor cannot properly suspend a state attorney based on policy differences.” DeSantis now threatens to remove Monique Worrell, another elected prosecutor, over disagreements with her charging decisions.

In Wisconsin, legislators pledged to consider impeaching Janet Protasiewicz, a newly elected state supreme court justice, before she ever ruled on a case. They pointed to no wrongdoing by the justice, only the possibility that she would rule based on her “personal beliefs,” a reference to her campaign comments supporting abortion rights and denouncing gerrymandering.

Even in an era of American democratic backsliding, the silencing and removal of legitimately elected officials over policy disagreements or for other invidious purposes is a startling development. By turning a measure meant to punish criminality or grossly unethical conduct into a political weapon, the Tennessee legislature undertook an unprecedented, likely discriminatory, and probably unconstitutional removal of two representatives.

Silencing Political Speech

In the wake of a deadly shooting at the Covenant School in Nashville that killed three 9-year-olds and three adults, the scourge of gun carnage in the United States again took center stage — except in the Tennessee house. According to Jones, Republican house members barred him and other lawmakers from raising the issue on the house floor. “Our mics were cut off throughout the week whenever we were trying to bring up the issue of gun violence,” Jones said. “The speaker cut off my voting machine. The first time I’ve ever seen that happen.”

Undeterred, Jones, Pearson, and Johnson pushed back. They took to the house floor in protest, amplifying their pleas for gun control measures with megaphones and chants. The lawmakers’ civil demonstration mobilized hundreds of gun violence prevention advocates to converge on the statehouse to demand action.

Republican leaders moved swiftly to divest the representatives of committee assignments and schedule a vote for their expulsion. The majority accused all three of bringing “disorder and dishonor to the House of Representatives” and “disrup[ting] the proceedings of the House.” It reached this conclusion without a proper investigation into the events surrounding the trio’s protest. Contrary to common practiceincluding in Tennessee, the legislators did not get the opportunity to defend themselves before an ethics committee. They were not even provided a chance to speak formally in their defense until immediately before the expulsion votes.

Using a disciplinary measure that had only been used three times since the 1800s (each time under far more egregious circumstances), the house ousted Jones and Pearson — who are both Black — from the body along party lines, temporarily depriving over 100,000 Tennesseans of their elected representatives and political power. Although all three participated in the protest, Johnson — who is white — avoided expulsion by a single vote.

While house leadership claimed that the disruption to floor proceedings justified the expulsions, a look at the full context calls this explanation into doubt. The purpose of floor proceedings is to debate the issues, and it was leadership who denied the entire body the opportunity to debate an important matter. The Republican supermajority took escalating measures to prevent discussion on the issue of gun violence until the representatives engaged in civil protest. There are no examples in the last century of a state legislature lowering the expulsion bar below criminal or ethical misconduct. When a legislature punishes legislative advocacy, it suggests there is more at play than a breach of decorum.

Unprecedented Expulsions

Not once in the last 100 years have legislators removed their colleagues solely based on what those colleagues said or believed. The U.S. and Tennessee Constitutions grant their legislative chambers identical powers. Each may “determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” The two bodies have the same expulsion power, and many other state legislatures operate under similar rules.

In its 230-year history, Congress has limited expulsions to cases of treason and bribery convictions. It has expelled only 20 members: 1 for supporting plans for a British attack on Florida in 1797, 17 for supporting the Confederacy in 1861, and 1 each in 1980 and 2002 over convictions for accepting bribes.

State legislatures have limited their use of the expulsion power to similar offenses for more than a century. Our research found 122 state legislators have been banned since the ratification of the Constitution in 1788. In 29 instances, the offender engaged in bribery and corruption. In 21 cases, expulsion followed other criminal convictions such as tax evasion, extortion, assault, lying to federal agents, or electoral fraud. Ten bans resulted from sexual or domestic offenses, three for violence or fighting, four for corrupted elections, and nine for disloyalty. There were five instances in which personal attacks on colleagues led to expulsion. One recent instance involved an Arizona legislator who invited a speaker to make defamatory statements about state officials allegedly taking bribes from a drug cartel, and another involved a Texas senator who baselessly alleged in 1909 that his colleagues violated anti-lobbying law “a thousand times.”

There was one significant departure from this norm during the Reconstruction era. In an expulsion gambit more brazen than any other in American history, the Georgia General Assembly ejected 33 Black members in 1868 after agreeing Black citizens did not have the right to hold office in the state. The Georgia Supreme Court subsequently overturned the expulsions, and the Black legislators were able to serve in their elected roles. After the rise to power of reactionary politicians and the Ku Klux Klan, however, at least a quarter of the 33 representatives were murdered, beaten, threatened, or jailed.

Finally, our research revealed eight instances in which a legislator’s speech or views led to their expulsion. In 1875, the North Carolina House of Representatives expelled a member for “non-belief in the existence of God.” At the tail end of World War I, during the first Red Scare, the New York State Assembly ejected five members for being socialists, arguing that members of the Socialist Party could not be loyal to the United States. The last two were State Representatives Jones and Pearson.

The Tennessee legislature had previously expelled three members. One in 1980 after a bribery conviction, one in 2016 after an attorney general report determined he had inappropriate sexual contact with 22 women, and one in 2022 following a wire fraud conviction.

Jones and Pearson stand alone as the first legislators in a century expelled for their speech on a matter of public and legislative importance. They did not threaten or make false accusations about their colleagues. They committed no crime. They merely used their office to promote the interests of their constituents, a fact unchanged by any pretense about causing a disruption. Even if the disruption of proceedings were the true basis of the expulsions, that too would be a first.

As the historical record shows, rarely have legislatures expelled members for their identities, beliefs, or speech. Post–Civil War and World War I–era repressions are not guiding lights for our since-matured democracy, and majorities in state legislatures should not emulate them to cement power.

Constitutional Protections Against Improper Expulsions

The courts have rarely considered whether legislatures retain the power to expel a member. This is unsurprising: expulsions are so uncommon — and usually are carried out for reasons that relate to a member’s criminal or unethical conduct — that the matter has had few chances to wind up in court.

In 1966, however, the U.S. Supreme Court ruled on a similar question of legislative exclusion in Bond v. Floyd. After Julian Bond, an electee to the Georgia House of Representatives, endorsed a statement opposing the Vietnam War, house leadership asserted that his statement was grounds to deny him admission to the legislative body. The Court unanimously ordered the Georgia house to seat Bond and made clear that the legislature could not ignore nor limit First Amendment free speech rights when it considered excluding an elected official.

Bond presents a close analogy to the expulsions of Jones and Pearson. In its decision, the Court explained that the First Amendment “requires that legislators be given the widest latitude to express their views on issues of policy” without legal repercussions. The principles affirmed in Bond would presumably also bar the legislative removal of two elected representatives for their policy views concerning gun violence.

There was also reason to believe that Bond’s race motivated the Georgia legislature’s decision to exclude him. Bond was a civil rights leader and one of six Black men elected to the Georgia house in 1965 — a group that was among the first Black legislators in the state since the expulsion of 33 Black members because of their race a century earlier. While the Supreme Court resolved Bond’s lawsuit under the First Amendment, the Court acknowledged that nearly all the voters in his district, who were temporarily denied representation because of his exclusion, were Black. Bond’s exclusion may therefore have also violated the 15th Amendment, which prohibits the denial or abridgment of a citizen’s right to vote on account of race — a protection that covers both access to the ballot and adequate representation.

Other cases that have confronted related issues of legislative power provide instruction on how to approach the novel expulsions in Tennessee. They reveal a long-standing recognition by the Supreme Court that legislators must not use their expulsion power to trample free speech, illegally discriminate, or harm minority voters.

In 1892, the Supreme Court recognized in United States v. Ballin that “[t]he Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights.” Much like federal law enables an employer to fire an at-will employee for any reason except a discriminatory one, legislatures cannot expel a member for exercising a constitutional right.

Likewise, in the landmark 1962 case Baker v. Carr, the Court held that while state legislatures have express constitutional power to draw electoral districts, those districts must comply with the 14th Amendment’s Equal Protection Clause. In other words, even where the Constitution expressly gives a legislature certain power, other constitutional guarantees may limit the exercise of that power. In 2019, a federal court in Tennessee recognized that expulsions, like lawmaking and redistricting, are a “legislative power.”

In each of these cases, the Supreme Court acknowledges that legislatures have broad powers, including to expel members. But in no case does the Court suggest that the legislature’s right to expel defeats other constitutional rights granted to all Americans, including legislators and the voters who elect them. Expulsion is a power, not a superpower.

One state court recently ruled against the weight of this precedent and refused to hold a legislature accountable for unconstitutionally misusing its authority. In response to a lawsuit filed by Representative Zephyr demanding reinstatement, a Montana court held that separation of powers principles barred it from reviewing the legislature’s decision. The court’s judgment contradicted the well-established mandate that courts be open to all who seek to vindicate fundamental rights. The Baker Court acknowledged that the reach of judicial power extends to state action that results in the denial of constitutional rights. The Bond Court explicitly held that it had jurisdiction to determine whether the Georgia house “deprived Bond of federal constitutional rights.” The upshot is clear: not only may courts decide claims of individuals harmed by the exercise of legislative power — courts must do so if the claim involves a protected right.

In Tennessee, numerous protected rights are at issue. The expulsions punished Jones and Pearson for the viewpoint they expressed, an action that the U.S. Supreme Court regards as presumptively unconstitutional under the First Amendment. Time and again, the Court has recognized that laws restricting or compelling speech based on the view expressed have the potential to expel ideas from public debate. In this case, the legislature’s actions have all the hallmarks of suppressing speech based on its viewpoint. The majority silenced the representatives whenever they attempted to raise the need for gun control legislation. The legislature did not silence those representatives when they sought to speak on other topics.

In addition, the expulsions appear to violate the 14th and 15th Amendments. In Village of Arlington Heights v. Metropolitan Housing Development Corp., the Supreme Court explained that to decide whether a legislative act is intentionally discriminatory, courts should look at several factors, including the act’s discriminatory impact, legislative history, and historical background. An application of the Arlington Heights factors to what happened in Tennessee suggests that race was a motivating factor for the expulsions.

First, a discriminatory impact was present as JonesPearson, and Johnson represent districts that are heavily Black and brown. While these expulsions did not prevent Black voters from casting their ballots, they essentially nullified their votes by silencing and removing their duly elected representatives. Second, although the three lawmakers engaged in the same conduct, the legislature treated them differently by expelling the Black members and sparing the white representative.

Third, Tennessee has an incontestable history of slavery, racial segregation, and race discrimination that continues to manifest in the legislature today. Tennessee is the birthplace of the Ku Klux Klan and the site of Martin Luther King Jr.’s murder. Johnson told a news anchor that she “hear[s] racist statements all the time” in the legislature. Illustrating the point, she described hearing one of her colleagues insist that the legislature “should bring back hanging by a tree” during a discussion about a bill to revive certain methods of execution.

On balance, this evidence crystallizes the real motivations for the legislature’s conduct. Johnson recognized this; when asked why she survived the expulsion vote and her colleagues did not, she asserted that the hypocrisy “might have to do with the color of our skin.”

State legislatures have broad power to expel their members, and there are good arguments for why they should have that power. We cannot trust members who take bribes, commit sexual assault, or engage in treason to represent us, and there is no fundamental right to engage in these actions. But freedom of speech and freedom from racial discrimination are protected. Those rights do not cease to exist when one enters through the statehouse doors.

Adriana Monzón contributed research support.