The April 2023 Expulsions: A Doctrinal Look at Legislative Self-Discipline

In April 2023, the Tennessee House of Representatives held expulsion votes against three of its members following floor-protest activity in the chamber. Two members were expelled; one survived by a single vote. All three retained their seats at the conclusion of the year through subsequent county-level appointment processes. The episode produced significant national attention but no authoritative judicial ruling on the underlying constitutional questions. It now stands as a doctrinal reference point — one whose unresolved questions inform every successor controversy in state legislative discipline.

This piece is offered as an editorial retrospective rather than current reporting. The doctrinal framework set out below applies to legislative-body discipline matters generally; it is not intended to characterize the merits of any specific 2023 proceeding.

## The doctrinal distinction: exclusion versus expulsion

American constitutional law has long distinguished two related but separate legislative powers. *Exclusion* refers to a chamber's refusal to seat a member-elect; *expulsion* refers to the removal of a member who has already been seated. The distinction is not merely temporal. The two powers operate under different constitutional limits.

The U.S. Supreme Court's decision in **Powell v. McCormack**, 395 U.S. 486 (1969), confronted the exclusion question and held that the House of Representatives could not exclude a member-elect for reasons beyond the constitutional qualifications for office set out in Article I § 2. The case stands for the principle that a chamber's discretion in exclusion is constitutionally bounded.

Expulsion sits on different footing. The constitutional grant in **U.S. Const. art. I § 5 cl. 2** — that "[e]ach House may . . . punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member" — is generally read to confer a broader discretionary power, subject to a procedural supermajority requirement and to whatever judicially-cognizable constitutional limits apply.

Most state constitutions, including Tennessee's, contain analogous provisions imposing the two-thirds supermajority requirement on expulsion of state legislators.

## The First Amendment overlay

Even where the procedural requirement is satisfied, the substantive ground for an expulsion vote may implicate the First Amendment. The Supreme Court's decision in **Bond v. Floyd**, 385 U.S. 116 (1966) — though formally addressing exclusion rather than expulsion — confronted a legislative body's attempt to deny a seat to a duly-elected representative on the basis of his constitutionally protected speech. The Court held that the First Amendment forbids a state legislature from conditioning eligibility for office on agreement with the legislature's positions or on the disavowal of dissenting speech.

The First Amendment retaliation framework developed in **Mt. Healthy City School District v. Doyle**, 429 U.S. 274 (1977), supplies the analytical method for situations in which an adverse action follows protected speech. Under *Mt. Healthy*, the affected party must first show that protected speech was a substantial or motivating factor in the adverse action; the burden then shifts to the actor to demonstrate that the same action would have been taken absent the protected speech.

Applied hypothetically to a legislative-body discipline scenario in which the underlying conduct includes constitutionally-protected expression — chamber-floor protest activity, for example — the *Mt. Healthy* framework would require the chamber to demonstrate that it would have voted to discipline the member on grounds independent of the protected expressive component. No published Tennessee appellate decision squarely resolves the application of *Mt. Healthy* to a state-legislative-body expulsion vote.

## The state-constitutional supermajority requirement

The Tennessee Constitution requires a two-thirds vote of the chamber for expulsion of a state legislator. This procedural threshold reflects the framers' considered view that expulsion of a duly-elected representative is an extraordinary remedy. The threshold serves a structural function distinct from any substantive constitutional limit: it imposes a numerical hurdle that prevents bare-majority partisan discipline.

The April 2023 votes met the two-thirds threshold for two of the three members and fell short for the third by a single vote.

## What the doctrinal vacuum means

Because the 2023 episode produced no judicial ruling on the underlying First Amendment retaliation question, the doctrinal area remains substantially undeveloped in state constitutional law. The questions left open include:

- Whether *Mt. Healthy*'s burden-shifting framework applies to legislative-body expulsion votes, and if so, how a chamber satisfies its burden of showing the same vote would have occurred absent the protected speech component
- Whether subsequent reinstatement through alternative procedural mechanisms — such as county-level appointment — moots the underlying constitutional question or preserves it for later proceedings
- Whether the two-thirds procedural requirement is itself a sufficient structural safeguard against First Amendment retaliation, or whether substantive judicial review remains available even where the procedural threshold is satisfied

Each successor legislative-discipline controversy that produces formal proceedings brings these questions closer to judicial resolution.

## The Black Lamp frame

TPF tracks legislative-body discipline matters and First Amendment retaliation litigation as a matter of professional and editorial interest. The firm's investigations practice frequently intersects with these areas in the context of digital evidence preservation, communications-record discovery, and forensic verification of legislative procedural records. We are not engaged on any matter arising from the April 2023 Tennessee events.