The recent expulsions of state legislators in Tennessee provides an opportunity to think about the expulsion power more generally. To my mind, these rare acts fall into two categories: a remand and a symbol.
A remand is where a legislature in good faith thinks that a member’s conduct means that the voters would no longer want that person to represent them. An obvious example is a felony conviction. Since a recall is often not possible, expulsion may be the only way to cut short that member’s term. The expelled member is then free to seek reelection, and the legislature might be wrong in thinking that the voters no longer support that person. What is clear, though, at least since the Wilkes precedent from Britain in the 18th Century, is that a member that the voters do want will not be expelled a second time.
The symbol involves kicking people out knowing that they will never return or will definitely come back. For instance, there was no need to expel the southerners who left Congress to join the Confederacy, but there was some important symbolism in expelling them. Likewise, a legislature can expel someone to make a statement even though it’s clear that the person will be sent back. This seems to be the result in Tennessee for one of the expelled members. who is already back in office and did not miss a vote. Whether this symbolic expulsion makes sense depends on how you assess the validity of the legislative statement.
Both types of expulsions make more sense when a special election is quickly held to fill the vacancy. Consider a different example–the U.S. Senate. A Senator has not been expelled in ages, but if that happened now typically a governor would pick the replacement. Eventually there would be another election, but that could take years. Expulsion in that context, therefore, should be seen as especially problematic because the voters may get no say on the matter at all for a long time.
Posted by Gerard Magliocca on April 12, 2023 at 01:25 PM