The Dangerous Precedent of Expelling Lawmakers

In Tennessee last Thursday, the state legislature voted to expel two Democratic members of their own body. Their ostensible crime was participating in a protest for gun legislation at the state capitol. Lawmakers on both sides of the aisle have attended such protests for years, with Lauren Boebert, Mo Brooks, and others attending the January 6th protest that later became a riot and attempted coup. But according to Tennessee Republicans, the protest of their three colleagues was beyond the pale. Two colleagues were expelled, while one was saved from expulsion by a single vote.

The backlash to this action has already begun. Democrats across the country are outraged. They have donated thousands to candidates in the state and have seen a groundswell of new candidates offering to run. In Tennessee, the expelled lawmakers are already going through the process of reinstatement. One has been appointed by the Nashville Metropolitan Council back to the seat they were removed from. The other is about to run in a special election that he is likely to win.

Most notably, the conservative media has failed to fall in line with the Tennessee state legislature. Donald Trump has been mostly absent from commenting on the action. Conservative magazines and news stations have focused more closely on Twitter or wokeness than they have on Tennessee. Some of the only critical comments from the party have focused on the celebrity gained by the expelled legislators rather than the righteousness of their expulsion.

The lukewarm response on the right to the Tennessee legislature is not related to the radicalism of their act. Instead, Tennessee Republicans have unwittingly grabbed a third rail, one that will likely not result in the action becoming a precedent for rampant expulsions in state legislatures.

The Republican Party does not care that Republicans in Tennessee took strong action specifically against Democrats. They are not bothered by the racial implications of removing two African Americans while retaining a third. Indeed, the party often relishes actions that anger liberals and horrify the mainstream media. Legislative overreaches and judicial interference, along with brazen restrictions on Democratic governors, have become familiar in recent years in states where Republicans control the legislature.

The problem with Tennessee’s action is that it was taken against sitting members of a state legislature. In general, legislative members are protected in their capacity as officers of the government. Senates and houses of representatives are fraternities in which members protect each other. They fear that striking out against a fellow member of Congress would invite backlash that may jeopardize their position. A legislature that kicks out a Democrat on false ethics charges or weak criminal complaints may later target a Republican for similar reasons.

This fraternal nature of legislatures helps to explain the infrequent censures and expulsions of senators and representatives, even as political polarization has increased in recent years. While expulsions happen somewhat more frequently on the state level, on the federal level they are practically unheard of. The vast majority of expelled members of Congress were either suspected or convicted of treason, related either to forming their own nation (William Blount) or supporting the Confederacy (numerous members in 1861). Since then, congressmen and senators have been accused of and even convicted of criminal behavior and not faced expulsion. George Santos has not been sanctioned or removed from Congress despite admitting to lying about his resume and facing a number of criminal investigations. William Jefferson ended up going to prison after thousands of dollars in bribes were found in his freezer. The strongest admonition he received from House leadership was a call for him to step down from his committees.

Republicans will not openly speak out on behalf of the expelled Tennessee legislators. They do not want to give Democrats any positive press if they can help it. But the general drive to protect lawmakers still exists, even if it has never been openly stated by either party. Instead, Republicans will likely complain about the special elections and reappointments but consider the matter closed. The eternal back-and-forth over seating the representatives that some pundits are warning may happen seems unlikely given the way the initial protest has receded from the news cycle.

There is no doubt that Republicans will try similar stunts as the Tennessee legislature pulled. The party is committed to gaining and wielding power at every possible opportunity. But a threat to the fraternity of legislatures may be a threat too far for even the Trump-dominated Republican Party. After all, Republicans know that one day Democrats will be in control in Tennessee. At that time, all of their criminal and ethical backgrounds may be due for another look from leadership.