A legislative supermajority can do what it likes.
Tennessee Republicans really went there. Despite the outcry, the GOP-controlled state legislature expelled two Democrats Thursday for engaging in a boisterous protest against gun violence.
But the key lesson out of Nashville is not what did or did not happen in the chamber; it’s another reminder of what it means for a legislature to gain a “supermajority” enabling it not only to dominate legislative matters, but to deploy overwhelming power more broadly, even over the other branches of government.
In virtually every state, each house of the legislature is the judge of its members. The U.S. Constitution similarly gives each house of Congress the same power. Members can be reprimanded, censured, fined, stripped of committee assignments and expelled for a wide variety of conduct, though this sanction is rarely applied.
In the entire history of the U.S. House, only five members have been expelled — the last, Ohio Democratic Rep. James Traficant, was removed after being convicted of bribery, racketeering and tax evasion and didn’t have the decency to step down on his own. The Tennessee House last expelled a member in 2016, when Jeremy Durham was ousted for rampant sexual misconduct. Thirty-six years earlier, Robert Fisher was booted for soliciting a bribe.
But what if a legislature decides to exercise power just because it can? Can it expel or refuse to seat a member for purely political reasons? Once upon a time it seemed so. In the fevered nationalism of World War I, Congress refused to seat Socialist Victor Berger after he won a seat in 1918. He ran again in 1919 and won again, and Congress again refused to seat him. At the same time, the New York State Assembly expelled all five Socialists on general grounds of “disloyalty.”
The mood of the time was captured by the Assembly speaker, who thundered: “We are building by our action today a granite bulwark against all traitors within the boundaries of our republic. Our flag of the republic is whipping the breeze in defiance of enemies from without.”
A few decades later, a similar attempt to ban an elected legislator was rebuffed. Julian Bond, a key civil rights leader, had been elected to the Georgia House; but in 1966, the legislature voted by an overwhelming margin not to seat him on the grounds that he had opposed the war in Vietnam and expressed sympathy for draft resisters. But later that year, a unanimous U.S. Supreme Court ruled that Bond’s First Amendment rights had been violated and ordered him seated. He served for more than 20 years in the Georgia House and then the state Senate.
The case of the two Tennessee Democrats involves neither criminal nor immoral conduct nor the mere statement of opinions. It involves conduct — encouraging demonstrations and bringing a bullhorn and posters to the state House floor — that violates the rules of the House. Still, the legislature has never imposed before so severe a penalty for rules violations, and over the past few years, a number of legislators have kept their posts even after being charged with serious sexual misconduct.
Clearly, expelling these members is an explosive move and temporarily leaves their constituents no representation, at least until a special election is held; in fact, the state party is already raising money for the members to win back their seats.
Meanwhile, there’s another story playing out 600 miles to the north that highlights another, potentially even more consequential use of hard-ball legislative power.
While liberals were celebrating the election Tuesday of a Wisconsin Supreme Court justice who will tip the court to the left, voters in the state’s 8th senatorial district were sending Republican Dan Knodl to Madison. That gives the GOP a Senate supermajority and with it, the power to remove key officials through impeachment — including judges. In late March, Knodl said he would “certainly consider” impeaching Janet Protasiewicz, the new state Supreme Court justice, though he was talking about her role as a county judge.
Would Wisconsin Republicans impeach a justice simply because they don’t like the court’s rulings? Well, there is nothing hypothetical about how the state’s GOP legislature has used its power against other branches of government.
In 2018, after Wisconsin voters elected a Democratic governor and attorney general, the legislature and the lame duck Republican governor, significantly cut back the power of both offices. And while it might be politically risky to remove a justice whom voters overwhelmingly elected, it’s not at all far-fetched to imagine that if the new liberal court majority strikes down the state’s gerrymandered legislative districts, that legislature would respond by trying to remove one or more justices from office. And there’s nothing hypothetical about other states — looking at you, North Carolina — where supermajority GOP legislatures have cut deeply into the power of the executive branch once Democrats won those posts.
In the coming weeks and months, the Nashville battle may well be just a footnote as legislatures exercise their powers over everything from the makeup and reach of the courts to the traditional powers of a governor, to the will of the voters who vote for ballot propositions. It’s another reminder that the most important elections of the 21st century happened in 2010 — when legislatures from one end of the country to the other turned red and began to reshape the politics of the nation.
