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Why Other State Legislatures Might Hesitate to Copy Tennessee’s Lawmaker Expulsions

4 minute read

After Tennessee’s Republican-controlled legislature expelled two Black House Democrats for taking part in a gun violence protest last week, the state has drawn further protests at the capitol and national scrutiny. The incident raised concerns about the extreme measures that supermajority state legislatures can take to punish those with differing views in today’s bitter political climate.

“We have seen in other contexts in which a state governor or legislature crosses a boundary that had not been breached before that other states sometimes follow suit,” says Rick Pildes, a professor at New York University Law school.

On March 27, a shooting at a Nashville school left six dead, including three children. Protesters descended on the state capitol to call for gun reform, and Democratic state lawmakers Justin Jones and Justin Pearson lost their seats after they took the demonstration to the chamber floor, leading chants from the house floor with a bullhorn. The Republican-led Tennessee House voted last Thursday to expel Jones and Pearson.(Another Democratic lawmaker who joined them in the protest and was white, Rep. Gloria Johnson, kept her seat.) The state Republicans’ actions drew swift condemnation: experts, Democrats, and President Joe Biden criticized not only what they say is a disproportionate punishment for lawmakers expressing opposing views but also the rushed manner in which the duo was expelled.

Four days after the expulsion, Jones is back in the House. The Nashville Metropolitan Council voted unanimously to reappoint him as an interim representative Monday. A vote to reappoint Pearson to his seat will occur Wednesday, per local officials. Special elections for both seats will be held in coming months; Pearson and Jones have said they intend to run to formally win back their official positions.

Given the backlash in Tennessee, other states may hesitate take similarly extreme measures to crack down on political opponents, experts say. “At the moment, no state legislature wants to be the Tennessee legislature; they are being condemned on multiple continents… it was a terrible miscalculation,” says Ken Paulson, director of the Free Speech Center at Middle Tennessee State University.

State legislatures have several less extreme options at their disposal to punish lawmakers who break bylaws. Lawmakers could be fined, formally censured, or lose committee privileges, for example. Moreover, a more serious punishment typically warrants a more drawn out process involving committee hearings, an investigation, published reports, and formal deliberation. “This, from start to finish, occurred within a week. There was really no process that the members were given; they didn’t treat this as a matter of gravity,” says Richard Briffault, a professor at Columbia Law School.

Expulsion is typically only applied for serious violations, such as a felony conviction or serious breach of ethics. In 1866, the Tennessee house expelled six lawmakers for fighting to prevent the Fourteenth Amendment from going into effect. Since then, the legislative body has only voted twice to expel lawmakers: in 1980, involving a bribery conviction, and in 2016, when the House majority whip was accused of sexual misconduct. Even nationally, cases are sparse. Those instances typically involve state lawmakers facing criminal charges or serious misconduct, such as Colorado lawmaker Steve Lebsock being expelled in 2018 following multiple allegations of sexual harassment.

While other supermajority legislatures may not go as far as expelling dissenting lawmakers, they could be inspired by ways to penalize lawmakers for their conduct if they can’t penalize them for their speech, Paulson says. This could include passing legislation targeting specific conduct that could be used against political opponents. “If [Jones and Pearson] had said the same exact thing outside on the front porch of the Capitol, they were untouchable. Because they walked into the well—and because they used a bullhorn—the legislature had a mechanism to punish them for their speech and pretend it was for their action,” Paulson says.

Still, the expulsions in Tennessee show that state legislatures are more polarized than ever—on gun control and other fraught political issues. “We are seeing norms of behavior in legislative bodies breaking down,” says Bruce Oppenheimer, a professor emeritus of political science at Vanderbilt University. Oppenheimer initially believed there would be a contagion effect from the Tennessee expulsions but has since come to believe that neither Republican nor Democratic supermajorities would want to engage in similar conduct. “They learned it’s probably a mistake to do so,” he says. “But you would never have thought it would escalate to this extent, so one wonders where it can go next.”

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Write to Sanya Mansoor at sanya.mansoor@time.com