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PaperclipPerfector  3d ago (text post)   11704 thread views

Culture War Roundup for the week of May 19, 2025

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I think Maine's in the right here. The first Amendment does not mean politicians cannot retaliate against other politicians for their speech. A Speaker of the House who pisses off too many people will not be Speaker anymore. Can this retaliation go so far as preventing a legislator from voting? The constitution states:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

This is a reference to the federal House and Senate. Nevertheless, it supports the notion that the framers did not think the First Amendment, which they passed shortly after this, which initially applied only to the federal government, limited Congress's right to regulate the speech of Congressmen. The right to expel a member appears absolute, courts have no say. Incorporation means that what initially applied to the federal government now applies to the states. Given that the First Amendment did not limit the actions of the federal legislature in regulating its members' speech, it stands to reason that the same should be true for the state legislators. It's not a matter of "legislative immunity" so much as the parameters of the First Amendment.

The constitutional problem is effectively disenfranchising a representative's constituents, by preventing the representative from voting. Even if a recall and replacement election could be held and a new representative seated, prior to the following legislative vote, you'd be allowing the majority to choose their own opposition. (This is also true of expulsion, but, as the quote shows, a higher threshold was chosen for that.)

The right to vote is never guaranteed in the constitution. States cannot deny it on account of a list of things.(race, sex, age if above eighteen, failure to pay poll taxes) There is the Guarantee Clause, but courts have ruled (possible wrongly) that it's a "political question" that can only be invoked by Congress.

True, but SCOTUS has finite tolerance for violations of the spirit of the law, including freedom of expression (and choice of representative is a form of expression) and ballot access by candidates.

Still, the 2/3 requirement for expulsion means the majority cannot use its power to determine rules to expel. That at least implies that it cannot do things that are tantamount to expulsion by a bare majority.

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