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Notes -
Back in February, Maine state representative Laurel Libby got censured by the states House of Representatives for posting a tweet featuring state track-and-field champions photos with the same kid that won the recent women's pole vault also placing fifth in men's poll vault two years prior. (Tweet on page 9 of this pdf.)
The censure (passed narrowly along party lines) is based on the notion that Libby is endangering the minor athlete with all this publicity, and that she must apologize. She refused to do so. The rules of the House of Representatives say that "is guilty of a breach of any of the rules and orders of the House … may not be allowed to vote or speak, unless by way of excuse for the breach, until the member has made satisfaction." So until Libby apologizes, she is barred from speaking on the floor, and barred from voting.
Libby sued in federal court for 1st Amendment violation. Meanwhile, she has been seeking emergency relief to restore her voting rights (and thus also the representation rights of her constituents). Both the district court and the First Circuit court of appeals have declined to grant her the emergency relief:
Today, the US Supreme Court granted the emergency relief.
The tweet in question is on an important current political topic made by an elected representative, is inline with her platform (which is likely why she got elected in the first place), and has only publicly available information. The censure bases its rationale on possible harm to the minor athlete, based on indirect evidence that harm could happen (but didn't): tweets by others about this kid, and some study finding that trans kids are four times more likely to be bullied. So it seems to me that this is a clear-cut case of clearly protected political speech by someone whose job it is to speak it.
I am therefore trying to wrap my head around the "legislative immunity" argument that both the district court and first circuit found persuasive. In Maine House of Representatives, some things require a super-majority (2/3 votes), e.g.: overriding the governor's veto. What is to stop the slim majority of one political party of censuring enough members of the opposing party based on similar fig-leaf reasons, depriving them of the ability to vote, and thus gaining the super-majority?
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:
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.
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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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