Democratic state Rep. Justin Jones of Nashville speaks before his colleagues voted to expel him from the House on Thursday. Constitutional scholars say such measures are very rare — and have uncertain consequences.
Seth Herald/Getty Images
Seth Herald/Getty Images
It’s rare for any legislative body in the U.S. to expel a member — most states have reportedly never done so. Even in that context, the circumstances in Tennessee — where the Republican-led House expelled two Black lawmakers — stand out.
“Most expulsions have involved criminal conduct or abusive behavior, not suppression of dissent or targeting of political opponents,” state constitutional law expert Miriam Seifter told NPR in an email. “The Tennessee expulsions are therefore an extremely concerning outlier.”
Warnings of a “concerning level of democratic dysfunction”
Reps. Justin Jones, D-Nashville, and Justin Pearson, D-Memphis, were ousted not for committing crimes but for breaching the rules of decorum. They used a bullhorn on the House floor, speaking without being recognized and leading protests calling for gun restrictions as Republicans, who hold a supermajority in the chamber, stood by.
“I think it’s striking that the state legislature would even seek to expel them for such behavior, let alone actually succeed in garnering enough votes to expel them,” Anita Krishnakumar, who studies legislation and statutory interpretation at the Georgetown University Law Center, told NPR in an email.
But the pair have now been ousted, months into their two-year terms. A third House Democrat, Rep. Gloria Johnson, narrowly escaped being expelled.
“What happened this week in Tennessee was an exercise of power used to send a political message: dissent and refusal to conform will not be tolerated,” Vanderbilt University’s Carrie Russell, a principal senior lecturer in political science, told NPR in an email.
Many state legislatures and the U.S. Congress have similarly broad disciplinary powers. But that authority has been used sparingly. Before this week, the two most recent expulsions in Tennessee’s House came via overwhelmingly bipartisan votes to excise members on criminal or ethical grounds, rather than a supermajority imposing its will.
“Weaponizing legislative discipline reveals a concerning level of democratic dysfunction,” said Seifter, who is the co-director of the State Democracy Research Initiative at the University of Wisconsin Law School. She added, “it suggests that more attention should focus on state-level government.”
“Antidemocratic actions are far easier to pursue if state institutions receive limited scrutiny,” Seifter said.
It’s especially rare for a legislature to expel members over actions relating to substantive policy disagreements.
Precedents extend back to Civil War and Reconstruction
This is the first time multiple Tennessee legislators have been ousted in a single legislative session since 1866, when Tennessee was struggling to adopt citizenship rights for formerly enslaved people after the Civil War.
“The expulsion of six members from the Tennessee legislature in July 1866 was for ‘the contempt of the authority of this House,’ ” Vanderbilt University’s Russell, a principal senior lecturer in political science, told NPR.
“Specifically, the expulsion sanction was used because the representatives refused to ratify the Fourteenth Amendment (a condition necessary for Tennessee’s readmission to the Union),” Russell said. By expelling the members, the chamber could meet its majority threshold more easily.
Protesters listen from the Tennessee House gallery during a protest to demand action on gun reform laws and to support three lawmakers who faced an expulsion vote — in what experts call an extraordinary disciplinary move.
Seth Herald/Getty Images
Seth Herald/Getty Images
“So even then, it was used to excise dissenters,” Russell added.
The Reconstruction-era precedent, Krishnakumar says, “highlights the fact that this is an unusual, rare step for a legislature to take — and that it’s something legislatures don’t tend to do in times of normal politics.”
Noting the intense political polarization and divisiveness of the post-Civil War years, Krishnakumar said, “I don’t think it’s an accident that we have to reach back to that era to see similar behavior by a legislature.”
Will other states see similar efforts?
Of course, the current environment of intense political polarization extends beyond Tennessee. So, could majorities in other state legislatures follow suit, and expel politicians with whom they can’t agree?
“At this point, it seems unlikely” to become a broad pattern, Seifter said.
“Unlike other ways that state legislators may entrench their power or act in a countermajoritarian fashion (a pattern I’ve written about here), disciplinary actions are typically self-limiting,” she added.
One big reason: Even if a legislature succeeds in ousting a lawmaker, the state body probably won’t have a say in what happens to that seat. In Tennessee, county or metro councils in affected districts can name an interim lawmaker — and officials say they will reinstate Rep. Justin Jones, for instance.
In addition to that, Seifter said, “politically motivated expulsions are likely to be unpopular and mobilize opponents.”
Still, Krishnakumar notes that in highly polarized times, elected officials are hunting for ways to score points with their supporters and one-up the opposing party.
She added, “This kind of expulsion, while deeply problematic from a democracy standpoint, provides a good way to score those points.”