State legislatures don't need to be this way
Legislative abuses of power are running rampant—will voters respond?
State legislatures are having a banner year. Legislatures in many states have pushed horrific policies that further stigmatize members of the LGBT community, compel women into forced pregnancies, strip localities of their ability to govern themselves, and degrade public education.
Much of that is old hat. Though they’ve dialed the intensity up to an 11, for years—really, decades!—Republican majorities in legislatures have been doing those exact same things. Whether the goal is to put test cases before the U.S. Supreme Court or weasel around existing constitutional doctrines, legislatures have long been pushing the envelope on what they can do. Democratic state legislators have long taken stands against these policies—Wendy Davis attracted worldwide attention when she filibustered the Texas Senate’s anti-abortion legislation a decade(!) ago—and they’ve done so this year, too.
But some Republicans have been dissatisfied with merely pushing their policies through and attempting to insulate them from voter disapproval. This year, they’ve increasingly moved to punish Democrats in the legislature who have stood against their new policies.
Earlier this month, the Tennessee House of Representatives successfully expelled two Black state legislators for exaggerated “misconduct” surrounding one of their protests for gun control legislation. State Representatives Justin Jones and Justin Pearson were later reappointed to their own seats in the legislature by the county commissions in their districts.
Last week, Montana State Representative Zooey Zephyr, the state’s first openly trans state legislator, said that her Republican colleagues would have “blood on their hands” if they voted for legislation that banned gender-affirming care. It was strong language—backed up by the brutal truth of how many trans children attempt suicide—but in any event, it’s a phrase used in common parlance that utterly pales in comparison to language used by national Republican politicians.
The reaction from the Republican majority in the State House was to act as though Zephyr threatened violence and needed to be punished. The Montana Freedom Caucus, a coalition of far-right members of the state legislature, condemned her remarks, repeatedly misgendering her in the process. When Zephyr attempted to speak on the floor of the legislature in the days that followed, she was denied the ability to do so—despite the fact that the Speaker of the State House likely does not have the authority to refuse to recognize a member. But even if the Speaker is violating the State House’s rules, so long as his rule-breaking is sanctioned by a majority of his colleagues, that’s the end of the matter.
I can’t imagine that this sort of behavior will be restricted to the Montana and Tennessee state legislatures. While the treatment of these three representatives by the Republican majorities in their states is abhorrent, to their colleagues, this is likely all performative—and meant to test the bounds of what they can get away with.
Some observers have suggested that, given that Jones and Pearson were later reappointed to the Tennessee State House, their expulsion was something of an own goal for the Republican majority—Jones and Pearson won international attention, elevated their profiles, and increased their fundraising potential. Likewise, the awful treatment of Zephyr by the Montana State House may have raised her profile, too—and attracted attention to the anti-trans legislation making its way through the state legislature.
But I’m not so sure. Yes, everything may have worked out for Jones and Pearson this time, and they can’t be expelled twice for the same offense under the state constitution, but was their reappointment inevitable? State leaders attempted to pressure the Shelby County Commission to not re-appoint Pearson, threatening to withhold state funds for local projects (which they may still do). And how has anything worked out for Zephyr? She’s still not being recognized on the floor of a legislative body to which she was elected, which denies her constituents effective representation.
At bottom, a supermajority of the Tennessee State House, and the majority in the Montana State House, showed that they willing to flex their power in these deeply undemocratic ways—and perhaps inspired other Republican majorities across the country. If the rhetoric of Democrats in state legislatures has been chilled at all, then the punitive actions of these legislative majorities have accomplished their purpose.
And then, of course, there’s the obvious fact that, if Jones, Pearson, or Zephyr set out to challenge their treatment in court, they’d almost assuredly lose. State legislatures are paid extraordinary deference by courts in their own internal deliberations. Most courts will not second-guess a legislature’s decision to censure or expel one of its own members—and even blatant rule-breaking is outside the purview of most courts.
These realities have empowered state legislatures to act like little fiefdoms—despotic at times, feeble and helpless at other times. Legislative majorities can act punitively and maliciously toward members they disfavor without consequence. If they want to exaggerate a member’s actions to paint a picture of misconduct that justifies a punishment, they can do so.
And in other states, the histories and traditions—the unspoken rules that govern their conduct—utterly neutralize the will of voters. In many states, whether a piece of legislation makes its way to the chamber’s floor depends on how the various committee chairs feel about it. If the chair of the committee to which a bill was assigned doesn’t like it and opts not to bring it up for a vote, it may never get voted on, even if a majority of the legislature would approve it. In New Jersey, despite the overwhelming Democratic majority, an unspoken tradition that allows a judicial nominee’s home county senators to withhold their consent and block the nomination almost prevented a stellar public-interest lawyer from being confirmed to the state Supreme Court.
The fact that courts abstain from these disputes is deplorable. Setting aside centuries of English parliamentary tradition that predated our country’s formation, what is the reason for courts to defer to legislative abuses of power? In some cases, sure—legislatures are entitled to pass legislation based on their own fact-finding efforts, and perhaps we are uncomfortable with courts micro-managing the legislative process. But requiring, for example, that the Tennessee State House sufficiently demonstrate that Justin Jones and Justin Pearson exhibited “disorderly conduct” such that they should be expelled? That hardly seems excessive. Likewise, requiring the Montana State House to demonstrate that its refusal to recognize Zooey Zephyr in floor debates is in compliance with House rules? Again, where is the violation of separation of powers?
More to the point, how can courts justify refusing to step into these processes if their abstention empowers legislatures to act abusively?
We have options here—more specifically, in many states, the electorate can choose to take us down a different path. In Colorado, following voter frustration with gridlock in the legislative process, a coalition of voters proposed the GAVEL (Give a Vote to Every Legislator) Amendment in 1988, which voters overwhelmingly ratified. The amendment requires all bills to receive a committee vote on the merits, and that bills favorably voted on be calendared for consideration on the floor.
And in 2003, the Colorado Court of Appeals held that these requirements weren’t optional—that committees are required to consider each piece of legislation and cast a vote on the merits. While the court declined to “mandate any specific form of committee consideration in every situation,” it explained that “‘consideration on the merits’ contemplates, at a minimum, some interactive consideration by members of a committee and that each measure must be so considered before being voted on by the committee on its merits.” Inspired in part by the GAVEL amendment’s modification to the legislative process, Colorado courts have involved themselves in technical aspects of the legislative process to ensure constitutional compliance.
If we decide that we don’t want state legislatures exercising their powers like the Montana and Tennessee state houses have done, in states where voters can initiate constitutional amendments—or perhaps even statutes—voters should seriously consider doing so to modify their state legislatures’ powers. Expanding state courts’ jurisdictions to include violations of internal legislative rules or the processes required by state constitutions won’t explode dockets. The best result here would be to chill legislative majorities from acting punitively or lawlessly—which they would likely be less inclined to do with the knowledge that their actions could be reviewed by a court.
At various other times in our country’s history, voters have expressed dissatisfaction with how state legislatures have conducted themselves. Every generation, it seems that there is a new crisis to respond to—a persistent lack of democratic accountability, wastefulness and financial mismanagement, malapportionment, corruption and cronyism, partisan gerrymandering, and so on. In response to these crises, voters have elected state legislators and executive officials who have pushed for changes—and beyond that, they’ve pushed for constitutional amendments that have reigned in legislative power or reshaped how the legislature is composed. Abuses of power in state legislatures have been constant throughout our history, and our collective response to it has nibbled at different parts of the problem.
Perhaps the time is now to permanently cut state legislatures’ unchecked power to run roughshod over the rights of their own members.