(Bloomberg Opinion) — Imagine a legislature in a deep-red state deciding that members who support abortion rights won’t be allowed to cast votes on any matter. Or a legislature in a bright-blue state decreeing the same disqualification for members seen sporting MAGA gear. Seems silly, I know — maybe even undemocratic.
But that’s what’s at stake in the kerfuffle that led to last week’s unexpected order from the US Supreme Court granting a stay in a lawsuit by Maine Representative Laurel Libby, whom her colleagues censured for refusing to remove a social media post that identified a transgender high school athlete who’d won an event at the state championship. As a result of the censure, Libby was not allowed to vote or even to come onto the floor.
Maybe you find Libby’s speech highly offensive, or perhaps you believe she was right on point. The question is, if the First Amendment would protect an ordinary citizen posting the same thing, can a legislature hold its members to a different standard?
Indeed, there’s a long history of legislatures refusing to let members vote for one reason or another — and I don’t just have in mind strategic decisions by the majority to bring up controversial bills when members of the other party happen to be absent. I mean actual votes to deprive lawmakers of their right to vote.
Sometimes, the history is colorful. Consider the 1902 episode when US Senators Ben Tillman and John McLaurin, both South Carolina Democrats, got into a fistfight on the chamber floor after McLaurin accused Tillman of “a willful, malicious, and deliberate lie.” Tillman responded by punching him. The pugilists were soon separated by their colleagues. The Senate found both in contempt and suspended them for six days, in the course of which, we’re told in Deschler’s Precedents, the following judgment ensued:
The President pro tempore ruled that neither Senator could be recognized while in contempt and subsequently directed the clerk to omit the names of McLaurin and Tillman from a rollcall vote on a pending bill.
Was the president pro tempore right? The issue was never litigated.
That precedent, to be sure, had nothing to do with freedom of speech. Have legislators ever been kicked out for their views? Of course they have. Probably the most notorious case is the 1920 expulsion of five alleged Socialists from the New York Assembly. The farcical nature of the legislature’s vote was clear at the time. A cartoon in the New York World showed cowering legislators being whipped into compliance. The head of one civic reform organization described the expulsions as a rejection of the fundamental democratic principle “that the proper place to attack undesirable party principles is at the polls.” On the eve of the vote, one of the targeted lawmakers warned that the act exemplified “a spirit that we believed had been buried long ago.”
But no. It was alive and well then, and it’s alive and well now.
And not just in Maine. I’m old enough to remember the ancient times of, say, 2023, when the Republican-controlled legislature of Montana refused to allow Democrat Zooey Zephyr, its only transgender member, to speak on the floor after she refused to apologize for remarks her colleagues considered inflammatory.
Perhaps more disciplinary cases are being litigated than in the old days. In 2021, for example, a federal court ruled against the Oregon Senate in a suit by a member who was ordered to give 12 hours’ notice before appearing on the floor. His offense? Promising to resist should fellow legislators seek his arrest, as they had threatened to do — for refusing to be present to create a quorum.
To be sure, sometimes legislatures can keep members from voting, even when otherwise protected speech is at stake. For instance, the Supreme Court has upheld state laws that bar legislators from voting when they have certain conflicts of interest. Most states have such rules in some form. (My state of Connecticut has a version.) However, the justices emphasized that the outcome was narrow, reflecting the fact that such prohibitions have been around since the early days of the republic. Beyond that, the current judicial trend is less punishment and more free speech.
Admittedly, there’s a case to be made for a broad legislative immunity from suit when disciplining members. But if we’re to have democracy at all, we dare not grant legislators untrammeled freedom to punish colleagues for engaging in free speech. The hard-won right of the British Parliament to decide the fate of its members was demanded as a tool to keep outside officials from meddling. There’s a painful irony in its devolution of that tradition into a device by which legislators might penalize rather than protect their colleagues.
I understand the views of those who, like Justice Ketanji Brown Jackson, worry that the Supreme Court has been misusing its emergency docket and deciding cases of import without full briefing and argument. But at least here, those potentially improper processes have been put to the glad cause of the First Amendment.
Episodes of legislative punishment seem to be occurring with greater and sadder frequency. One finds in these cases what Edgar Allan Poe called “elaborate frivolity” — he was writing about chess — imagining that the disputes illustrate something profound, where in truth, we see only how skillful manipulation of complex rules can lead majorities of the moment to lay waste to democratic notions. There’s enough of that going on already; let us not encourage state legislatures to add their voices to the nonsense.
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This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
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