The celebrity of Democrats who disrupt state legislatures and invite mobs to do so creates perverse incentives and leads us astray.
The celebrity of Democrats who disrupt state legislatures and invite mobs to do so creates perverse incentives and leads us astray.
A s I discussed last week, Chuck Schumer, the Biden White House, and other Democrats and their media allies are being shamefully dishonest and dangerously demagogic in defending the mob of protesters that shut down the Tennessee state house. Now, as a predictable result of Democrats’ seeing political opportunity in these shenanigans, a similar controversy has arisen in the Montana house, from whose floor transgender lawmaker Zooey Zephyr has been barred for the rest of the 2023 session for openly and repeatedly refusing to abide by its rules.
Democrats argued, in the Tennessee case, that the state’s Republicans went too far in expelling the two legislators who had led the protest. Certainly, the Republicans could have chosen a less drastic sanction, and they made a serious political error in how they went about it. But some strong medicine was warranted, and it is warranted again in Montana.
Moreover, the hue and cry over the expulsions has ignored two things. First, the sanction, in practice, simply removed the legislators for a few weeks; both of them have already been returned to office. That is actually less severe than suspending them or barring them from the floor, because the Tennessee constitution prohibits a second punishment after expulsion, whereas a suspension could have been coupled with stripping them of committee assignments for the remainder of the legislative session. In the Montana case, Republicans chose the less drastic sanction and are given no credit by the same critics. Zephyr can still vote but has been denied any further platform from which to disrupt this session of the legislature.
Second, even expulsions from state legislatures are not nearly as rare or as partisan as the press might suggest. Elected legislatures voting to expel some of their members is a drastic step, but unless it becomes a weapon used routinely over mere partisan disagreements, it is not a grave threat to democracy. Talking yourself into urging mobs to seize control of those legislatures is a much more menacing problem. That is why many people referred to January 6 as an insurrection. Yet, Democrats are now making excuses for summoning mob incursions into state legislatures.
Disorder in the House
After the lower house of the Tennessee state legislature expelled Democrats Justin Pearson of Memphis and Justin Jones of Nashville, and narrowly missed expelling Gloria Johnson of Knoxville, the supposedly nonpartisan national press sided entirely with the Democrats. The national media grossly mischaracterized what had happened — typically a sign that they are peddling a narrative that would collapse if the story was told faithfully. Something similar is happening in Montana.
As Charlie Cooke has detailed — and really, he covers only the tip of the iceberg — the national media have repeatedly downplayed the conduct of the two expelled Tennessee legislators, who “led a mob onto the floor of the House, disrupted regular order, and, in one case, shouted at their colleagues through a bullhorn.” They repeatedly ignored demands from the sergeant at arms, the official charged with the order and safety of the legislature, to stand down. “Demonstrators also blocked several entryways and exits, forcing state troopers to step in to assist members in moving throughout the building,” forcing the legislature to go into recess.
In Montana, “Zephyr, not recognized to speak on another transgender proposal, hoisted a microphone in the air and encouraged protesters in the gallery to disrupt proceedings.” The protesters chanted, “Whose house? Our house!” Some were arrested. Moreover, “Zephyr refused a request from the sergeant-at-arms to settle things down and traveled to the county jail to visit some of the protesters who had been arrested.” Noah Rothman has much more on how the national-press accounts diverge from the facts of how Zephyr touched off this controversy in the first place.
Race to Deceive
The chaos of crowds and bullhorns, not simply dissent or disagreement, is why Pearson and Jones were expelled in Tennessee. It is why Johnson, who stood with them, narrowly escaped expulsion after she apologized. Because she is white, her receiving different treatment is, of course, treated by the press as evidence of racism against Pearson and Jones, who are black. Some on the left have compared the expulsion of the two men to the case of Julian Bond, a black Georgian whom the state legislature refused to seat until compelled by the U.S. Supreme Court in 1966. This is a grievously false comparison. The nominal argument raised against Bond was that his statements against the Vietnam War raised questions of his ability to take a legislator’s oath, but the Bond battle was widely understood at the time as part of the fight to maintain segregation in Georgia. Either way, it had nothing to do with his conduct inside a legislative chamber.
In Tennessee, the cries of racism look very much like a setup. Gloria Johnson may not have been as active a provocateur as Jones and Pearson, but she stood with them throughout the protest. The overwhelming majority of the Republican caucus voted to expel all three legislators, but Johnson apologized and begged not to be expelled. So, while the vote to expel Jones passed 72–25, and the vote to expel Pearson passed 69–26, the 65–30 vote to expel Johnson fell just short of the required two-thirds majority. Four Republicans voted to distinguish Johnson’s conduct from the other two; three others voted to penalize only Jones.
How did Johnson reward the Republicans who responded to her plea? By accusing them of racism for believing her. When asked why she wasn’t expelled, she responded, “I’ll answer your question; it might have to do with the color of our skin,” then told CNN, “Well, I think it’s pretty clear. I’m a 60-year-old white woman and they are two young black men.” Given that she has kept up this drumbeat in local and national interviews, it is hard not to conclude that her apology was insincere from the beginning and designed to sucker Republicans into giving her this narrative. There is a lesson here about dealing with Democratic legislators.
Not content to smear as racists the Tennessee legislators who declined to expel Johnson, the Democrats have now sicced the Department of Justice on them. Chuck Schumer’s letter to Merrick Garland demanded a federal investigation into “whether actions by the Tennessee state legislature violate any constitutional rights, including”:
(1) any rights of tens of thousands of Tennessee citizens in Memphis and Nashville to be represented by the legislators of their choice, whether under Article IV, Section 4 (guaranteeing to the states a Republican form of government) or other authorities;
(2) any rights of Representatives Jones and Pearson under the 14th Amendment or its enforcing civil-rights statutes prohibiting discrimination on the basis of race; and
(3) any rights of Representatives Jones and Pearson under the First Amendment protecting the right of speech and assembly.
The press has fueled the fire with all manner of apocalyptic rhetoric about the threat to democracy posed by a legislative chamber expelling members. On MSNBC, Joy Reid had a guest compare the expulsions to the crucifixion of Christ, and Ari Melber had another guest compare the event to the assassination of Martin Luther King Jr. The Associated Press, which was once a news outlet, opened its column on Jones and Pearson by claiming that “Tennessee has become a new front in the battle for the future of American democracy after Republicans expelled two Black lawmakers from the state Legislature for their part in a protest urging passage of gun-control measures,” and added in another column that “the fight over Zephyr’s remarks has brought the nationwide debate over protest’s role in democracy to Montana, where lawmakers punished her for voicing dissent, an increasingly prevalent move in statehouses.” Six different AP writers — Travis Loller, Adrian Sainz, Gary Fields, Amy Beth Hanson, Sam Metz, and Matthew Brown — had bylines on those two pieces. Will Bunch in the Philadelphia Inquirer: “GOP wages an asymmetrical war on democracy because it can’t get the votes.” Daryl Carter in the Boston Globe: “The Tennessee GOP has a problem with democracy.” On and on it has gone in this vein.
None of these outlets seemed to worry about the implications for representation when House Democrats voted on a party-line basis to strip Marjorie Taylor Greene of her committee assignments in 2021 based on statements she had made before taking office. Bad as Greene and her conspiracy theories are, that was an unprecedented step, and one for which Republicans retaliated in kind this year.
There is a reason why there were more votes to expel Jones than there were to expel the other two instigators. He has been escalating his protest tactics for quite a while, which is why he has been arrested 14 times, including for throwing a cup of hot coffee at other lawmakers in an elevator, assaulting a driver at a protest with a traffic cone, blocking traffic in Nashville, staging a sit-in in the speaker’s office, and causing disruptive outbursts at Republican campaign events.
How to Get Expelled
Expelling members of a legislature is a drastic step, but it is hardly rare or unprecedented and, if anything, has become a more common tool in blue and red state legislatures alike. Ballotpedia has been compiling a list of expulsions from state legislatures dating back to 1837. Twenty-six of the 61 recorded cases on the list have occurred since 2008, with nine of them in 2014–15 and four in 2021. Since July 2015, twelve of the last 17 state legislators expelled from their chambers were Republicans (not counting one Democrat who switched parties in a last-second bid to stave off expulsion). That includes a Republican state legislator in Arizona who was expelled after the “Tennessee Two” with minimal press coverage.
Of course, different legislatures have different rules and precedents regarding expulsion. The Tennessee constitution very explicitly provides in Article II, Section 12 for expulsions for disorder: “Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member, but not a second time for the same offense; and shall have all other powers necessary for a branch of the Legislature of a free state.” By contrast, as I noted in the case of George Santos, the U.S. House of Representatives is not allowed to refuse to seat a duly elected member on any grounds besides being constitutionally ineligible for the job. The five expulsions in House history have all involved felony convictions of representatives who had joined the Confederate Army. All 15 expulsions from the U.S. Senate were for treason, 14 of those expelled being Confederates ousted in 1861–62.
Many of the state-legislative expulsions have involved crimes, typically public corruption. In New York, for example, the state assembly speaker (Democrat Sheldon Silver), senate majority leader (Republican Dean Skelos) and senate minority leader (Democrat John Sampson) were all expelled in 2015 following corruption convictions; three other members of the New York state legislature were expelled following convictions in 2014–15.
But not all state-legislative expulsions have involved crimes. Liz Harris was expelled two weeks ago from the Arizona legislature for “disorderly behavior” and violations of the chamber’s “integrity” because she called a witness who lobbed false charges at her colleagues. Eighteen of 31 Republicans joined all 28 Democrats in voting for her expulsion. Recall what the Schumer letter argued: “Silencing legislators on the basis of their views or their participation in protected speech or protest is antithetical to American democracy and values,” and, “We cannot allow states to cite minor procedural violations as pretextual excuses to remove democratically-elected representatives.”
If you think only violence, treason, or a criminal conviction should be the basis for expulsion, how would you defend the expulsion of Harris and the consequent disenfranchisement of her constituents? Her behavior was undoubtedly both unethical and uncollegial, but legislators traditionally have broad legal rights in debates and hearings. The Arizona constitution, for example, pledges that “no member of the legislature shall be liable in any civil or criminal prosecution for words spoken in debate.” Don’t expect a federal case to be made for her.
Republican Cindy Gamrat in Michigan was expelled in 2015 over an affair with a colleague, who resigned to avoid expulsion. The two had been caught on tape concocting “a bizarre scheme to cover up their affair by spreading a phony diversionary story that he was caught having sex with a male prostitute behind a Lansing nightclub.” That is a lie, but it is not a crime.
In 2021, Republican Mike Nearman was unanimously expelled from the Oregon house for letting “stop the steal” protesters into the building in December 2020. The move to expel Nearman was led by Democrat Tina Kotek, who is now Oregon’s governor. At the time, Nearman had been convicted of no crimes, although he pleaded guilty to two misdemeanors the following month. Nearman’s case is a more extreme one than those of Jones and Pearson because some of the protesters he let in the legislature were armed, and the legislature was right to kick him out. But he had committed no violence himself, and none took place before the protesters were arrested. Clearly, the principle of treating all expulsions as an attack on representative democracy, without regard to what threat the legislator’s conduct may pose to the chamber, is not as absolute as Schumer and others would have you believe.
A number of state legislators have been expelled for varying types of accusations of sexual harassment of women, even in the absence of criminal convictions. These include Republican Luke Simons in North Dakota in 2021, Democrat Steve Lebsock in Colorado in 2018, and Republican Don Shooter of Arizona in 2018. In 2021, Republican Rick Roeber was unanimously expelled from the Missouri House of Representatives after an ethics-committee report found that he was an alcoholic who had engaged in physical and sexual abuse of his children and had drowned puppies. None of this resulted in a criminal conviction or had much to do with his behavior as a legislator: Was it a threat to democracy to strip Roeber’s constituents of his services, or was it proper to expel him for some especially grievous personal wrongs?
Mobs and Consequences
The celebrity treatment of Democrats who disrupt state legislatures and invite mobs to do so, and the Justice Department’s investigations of legislatures that try to defend themselves, create perverse incentives and lead us to bad places. Zephyr is obviously trying to provoke a response in order to cash in on the sort of national popularity that Jones and Pearson have attained. Jones told MSNBC that “as we saw . . . with Representative Zephyr in Montana, this trend toward authoritarianism is continuing. . . . When you come for one of us, you come for all of us.”
In Oklahoma last month, Republican legislators censured another transgender Democrat (resulting in the legislator’s being stripped of committee assignments) for obstructing justice “after state troopers said the lawmaker blocked them from questioning a transgender-rights activist accused of assaulting a police officer during a protest over anti-trans legislation.” Naturally, the legislator is defiant and refuses to apologize. In Florida, the senate minority leader and the chairwoman of the state Democratic Party deliberately got themselves arrested at a pro-abortion protest near the capitol.
As I noted in my prior piece, this is a continuation of a Democratic campaign of invasions and disruptions of state capitols going back to Wisconsin in 2011 and now openly celebrated by the majority leader of the United States Senate. It is also celebrated by the vice president, who declared that “the voices of students, parents, teachers and preachers will not be silenced,” and that “these voices must be heard, they will not be discouraged or deterred — even if using a bullhorn becomes necessary!” At the core of this approach is the idea that norms and rules are always secondary to whether the cause in question is one Democrats happen to support.
This is a very bad sign for our civic health. And as Erick Erickson notes, the glaring double standard in media coverage, and the specific way in which Gloria Johnson sandbagged her colleagues, only feeds Republican intransigence: When Republicans have lost faith in ever getting a fair hearing in the press, they will act only to use power and won’t bother making their most reasonable case to the public.
The Tennessee expulsions struck me at the time as overkill, although the briefness of the expulsions and the fact that Jones and Pearson were thus immunized from further consequences suggests that Republicans got the worst of both worlds, making the protest’s instigators martyrs nationally while costing them little. The use of lesser sanctions in Montana and Oklahoma has more bite. Some state constitutions explicitly allow lesser sanctions: California amended its constitution by popular referendum in 2016 to permit the suspension of legislators.
Even if Tennessee Republicans can fairly be criticized for poorly judging how best to react to the misconduct of Democrats, let us not forget that this story is about the misconduct of Democrats. Their party is now openly celebrating that misconduct and pledging more of it to make it harder for our democratic institutions to represent the people who have elected them. Republicans — especially Republicans who were appalled by January 6 — have every right to use every tool at hand to put a stop to that before something happens that all Americans who believe in the democratic process regret.