The internal disciplinary practices of legislatures have a long history rooted in the Anglo-American tradition of legislative independence. One disciplinary measure is a reprimand, typically called a “censure,” which entails passing a resolution that publicly condemns a member’s conduct. Following the 2021 Capitol riots, the Virginia Senate censured state senator Amanda Chase for referring to the rioters as “patriots who love their country,” a move she argued violated the First Amendment.1×1. Sarah Rankin & Denise Lavoie, Virginia Sen. Amanda Chase Sues over Being Censured, Associated Press (Feb. 1, 2021), https://apnews.com/article/censures-lawsuits-virginia-75977d7351bf4719e822b782d54ca17e [https://perma.cc/B7HW-SKHB]. Until recently, the state senator’s argument would have lacked support in case law, as courts had uniformly found that the First Amendment did not restrict legislatures’ authority to censure.2×2. See, e.g., Phelan v. Laramie Cnty. Cmty. Coll. Bd., 235 F.3d 1243, 1247 (10th Cir. 2000); Zilich v. Longo, 34 F.3d 359, 363–64 (6th Cir. 1994); see also Whitener v. McWatters, 112 F.3d 740, 745 (4th Cir. 1997); cf. Blair v. Bethel Sch. Dist., 608 F.3d 540, 546 (9th Cir. 2010) (relying on Phelan and Zilich to analyze another retaliatory measure). However, in Wilson v. Houston Community College System,3×3. 955 F.3d 490 (5th Cir. 2020), reh’g en banc denied, 966 F.3d 341 (5th Cir. 2020). the Fifth Circuit created a circuit split when it held that a legislative body’s censure of a member can give rise to an actionable First Amendment claim.4×4. See id. at 499. Historical analysis of the common law disciplinary authority of legislatures and the authority’s relationship with legislative immunity lends context to the dispute. While it remains unclear when a legislature’s discipline violates the First Amendment, courts finding that censures of speech are unconstitutional would disrupt centuries of practice.
Under Texas law, the Houston Community College System (HCC) is a “governmental agency.”5×5. Id. at 493 n.1 (quoting Tex. Loc. Gov’t Code Ann. § 271.003(4), (9) (West 2019)). HCC’s board, comprised of publicly elected trustees, has statutory authority to govern through orders and resolutions as well as to adopt rules and bylaws “as it deems advisable.”6×6. Tex. Educ. Code Ann. § 130.082(d)–(f) (West 2019). After trustee David Wilson disagreed with the majority’s funding decisions, he publicly criticized his fellow trustees through automated phone calls, a website, and local radio,7×7. Wilson, 955 F.3d at 493. accusing them of failing to represent their constituencies.8×8. Appellant’s Brief at 13, Wilson, 955 F.3d 490 (5th Cir. 2020) (No. 19-20237). Adding to the tension, Wilson hired private investigators to surveil HCC and a fellow trustee at her residence.9×9. Wilson, 955 F.3d at 493. In response, the Board censured Wilson, denouncing his recent behavior as against HCC’s interests and violative of bylaws, including one about “respect for . . . collective decision-making.”10×10. Appellant’s Brief, supra note 8, at 14; see Wilson, 955 F.3d at 493–94. Wilson sued HCC under 42 U.S.C. § 1983, alleging that the censure violated his right to free speech.11×11. Wilson, 955 F.3d at 494. HCC moved to dismiss, challenging Wilson’s Article III standing and whether he had stated an actionable claim. Id.
The Southern District of Texas dismissed the claim.12×12. Wilson v. Hous. Cmty. Coll. Sys., No. 18-CV-00744, 2019 WL 1317797, at *3–4 (S.D. Tex. Mar. 22, 2019). Judge Hoyt relied on the Tenth Circuit’s decision in Phelan v. Laramie County Community College Board,13×13. 235 F.3d 1243 (10th Cir. 2000). which contained facts “analogous” to those at bar.14×14. Wilson, 2019 WL 1317797, at *3 (“[T]he court’s reasoning in Phelan, is instructive here.”). In Phelan, a publicly elected trustee opposed majority initiatives in a manner that others found “inappropriate.”15×15. Phelan, 235 F.3d at 1246. The board censured the trustee, declaring that her conduct violated its ethics policy about respect for majority decisions.16×16. Id. at 1245–46. The Phelan court reasoned that because the censure did not interfere with the trustee’s “opportunities to speak” or her ability to “perform her official duties,” it did not constitute a “penalty” and merely amounted to the majority “voic[ing its] opinion.”17×17. Id. at 1248 (citing Zilich v. Longo, 34 F.3d 359, 364 (6th Cir. 1994)). On those grounds, the Phelan court found that the censure did not infringe on First Amendment rights.18×18. Id. Following Phelan, Judge Hoyt held that Wilson’s free speech rights were not injured.19×19. Wilson, 2019 WL 1317797, at *3–4. Judge Hoyt dismissed on the grounds that Wilson lacked standing. Id. It is worth noting that the Phelan court found the plaintiff’s allegations were sufficient for standing but not sufficient to establish a First Amendment violation. Phelan, 235 F.3d at 1247 n.1.
The Fifth Circuit reversed and remanded. Writing for the panel, Judge Davis20×20. Judge Davis was joined by Judges Smith and Stewart. first found that Wilson had standing since he had alleged that the censure retaliated against an exercise of free speech rights, causing him “mental anguish.”21×21. Wilson, 955 F.3d at 495–96 (“[A] retaliatory action resulting in a chilling of free speech constitutes an injury in fact.” Id. at 495 n.21). Next, the panel determined that the censure, as alleged, was actionable.22×22. Id. at 496, 499. The panel declared that the district court “improperly endorsed” the Tenth Circuit’s decision in Phelan by “ignoring” Fifth Circuit cases in which reprimands of “elected official’s political speech” triggered First Amendment scrutiny.23×23. Id. at 497. The panel emphasized the importance of elected officials speaking on matters of public concern. Id. (citing Bond v. Floyd, 385 U.S. 116, 135–36 (1966)).
The panel pointed to two Fifth Circuit cases in which a judicial ethics commission reprimanded elected judges for speech it feared could have impaired the public’s perception of judicial impartiality.24×24. See id. at 497–98. In Scott v. Flowers, 910 F.2d 201 (5th Cir. 1990), the Fifth Circuit applied the balancing test set forth in Pickering v. Board of Education, 391 U.S. 563 (1968), for public employees; in Jenevein v. Willing, 493 F.3d 551 (5th Cir. 2007), the Fifth Circuit opted for strict scrutiny, reasoning that the Pickering test did not apply to elected officials. See Wilson, 955 F.3d at 497–98. The panel reasoned it “matters not” that those cases involved judges rather than legislators, because judges are still “political actors.”25×25. Wilson, 955 F.3d at 499 (quoting Jenevein, 493 F.3d at 560). The precedent was viewed as establishing that “a reprimand against an elected official for speech addressing a matter of public concern” is actionable.26×26. Id. at 498. Here, the panel found that Wilson was censured in part for his criticisms on matters of public concern, and thus his claim was actionable.27×27. Id. at 498–99. In contrast to the Phelan court’s position that a censure does not constitute a penalty, the panel viewed a formal reprimand as punitive “by its very nature,” as it represents the culmination of a disciplinary process.28×28. Id. at 498 (quoting Colson v. Grohman, 174 F.3d 498, 512 n.7 (5th Cir. 1999)).
In addition, the panel rejected HCC’s argument that the Board, as “a legislative body,” had “a right to censure” Wilson without creating liability.29×29. Id. at 499. The panel acknowledged the doctrine of legislative immunity but noted it shields legislators, and Wilson sued HCC, a local government body, to which common law immunities do not apply.30×30. Id. at 500; see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 701 (1978). HCC cited two cases not reliant on immunity, but the panel distinguished their facts. Wilson, 955 F.3d at 499–500.
Subsequently, the Fifth Circuit denied a petition to rehear the case en banc with a divided 8–8 vote.31×31. Wilson v. Hous. Cmty. Coll. Sys., 966 F.3d. 341, 341 (5th Cir. 2020) (denying petition for rehearing en banc). Dissenting, Judge Jones32×32. Judge Jones was joined by Judges Willett, Ho, Duncan, and Oldham. asserted that the decision was at odds with sister circuits whose “application of true First Amendment principles put [the panel’s] to shame.”33×33. Wilson, 966 F.3d. at 342–43 (Jones, J., dissenting from the denial of rehearing en banc) (explaining and endorsing the Tenth Circuit’s Phelan decision and the Sixth Circuit’s Zilich decision). She argued a censure without a tangible penalty is simply an “expression”34×34. Id. at 343 (quoting Zilich v. Longo, 34 F.3d 359, 363–64 (6th Cir. 1994)). that cannot “compel” or “suppress” speech.35×35. Id. at 342 (quoting Phelan v. Laramie Cnty. Cmty. Coll. Bd., 235 F.3d 1243, 1247 (10th Cir. 2000)). Judge Jones also claimed that the panel erred in relying on precedent involving judges, as judges’ and legislators’ public roles are fundamentally different.36×36. Id. at 344. She suggested legislators’ discipline ultimately “resides in the ballot box.” Id. She suggested that the decision “threatens to destabilize legislative debate” and that these political disputes would lack “manageable legal standards.”37×37. Id. at 342. Judge Ho also filed a dissent in which he declared that “[t]he First Amendment guarantees freedom of speech, not freedom from speech,” implying he viewed censures as a form of speech. Id. at 345 (Ho, J., dissenting from the denial of rehearing en banc).
In Wilson, the Fifth Circuit created a circuit split when it held that a legislative body’s censure can give rise to an actionable First Amendment claim under § 1983.38×38. HCC petitioned the Supreme Court for review, framing the principles expressed by Judge Jones and the Phelan court in the government speech doctrine. Petition for Writ of Certiorari at 26–30, Wilson v. Hous. Cmty. Coll. Sys., 955 F.3d 490 (5th Cir. 2020) (No. 20-804); see also Helen Norton, The Government’s Speech and the Constitution 27 (2019). The precedent creates uncertainty about longstanding practices that are prevalent in local government and raises questions about the underlying constitutionality of incidents at higher levels of government,39×39. In theory, the reasoning in Wilson may apply to state and federal governments, but factors like sovereign immunity and the political question doctrine may limit adjudication. like the censure of a state senator for calling the Capitol rioters “patriots.” Historical analysis of the practice at issue in Wilson contextualizes these disputes and may help inform their proper resolution. Precedent on legislative immunity with respect to § 1983 serves as a framework to analyze legislative discipline. The analysis suggests that legislatures’ disciplinary authority may be recognized in the federal common law as a corollary to legislative immunity. The common law authority exists in federal, state, and local governments, like HCC. While it remains unclear how to determine when legislative discipline violates free speech rights, it would disturb practices predating the Founding if courts find it is unconstitutional to censure speech.
The Supreme Court’s recognition of legislative immunity in federal common law provides a framework to analyze its corollary: legislative discipline. In 1871, Congress passed a law now codified as § 1983, which, by the letter, created unfettered liability for state actors’ constitutional violations.40×40. 42 U.S.C. § 1983 (“Every person who, under color of . . . any State . . . shall be liable . . . .”). However, the Court has “construed” § 1983 “in the light of common-law principles that were well settled at the time of its enactment.”41×41. Kalina v. Fletcher, 522 U.S. 118, 123 (1997). Thus, in Tenney v. Brandhove,42×42. 341 U.S. 367 (1951). At the time Tenney was decided, § 1983 was titled differently. when state legislators were sued under § 1983, the Court applied legislative immunity (or privilege),43×43. Id. at 371. which provides legislators absolute immunity for conduct “in the sphere of legitimate legislative activity.”44×44. Id. at 376. The Court reviewed legislative immunity’s origins in Parliament, its adoption in the colonies, how it was important enough to be widely enshrined in constitutions, and its centrality to legislative independence.45×45. Id. at 371–76. The Court declared that given “presuppositions of our political history,” legislative immunity “clear[ly]” applied.46×46. Id. at 372; see id. at 376. The Court later affirmed that local legislators, like HCC’s trustees, enjoy legislative immunity.47×47. Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998) (citing Tenney, 341 U.S. at 376).
Following the considerations in Tenney, legislative discipline, a corollary to immunity, may be recognized in the federal common law. By the seventeenth century, Parliament’s struggles for independence resulted in legislative privilege, which shielded Parliament from interference and liability from the King and the judiciary.48×48. Léon R. Yankwich, The Immunity of Congressional Speech — Its Origin, Meaning and Scope, 99 U. Pa. L. Rev. 960, 963–64 (1951); see also Tenney, 341 U.S. at 372. With immunity from external interference, internal discipline grew important to operate effectively, and the traditional measures included censure, imprisonment, and expulsion.49×49. See Thomas Erskine May, A Treatise upon the Law, Privileges, Proceedings and Usage of Parliament 43, 49 (London, Charles Knight & Co. Ludgate-Street 1844). Modeled after Parliament, colonial legislatures inherited legislative immunity, and “[t]he power to discipline [members] was more or less assumed as a part of [legislative] privilege.”50×50. Mary Patterson Clarke, Parliamentary Privilege in the American Colonies 184 (1943) (emphasis added); see also id. at 12. Punishing rule-breaking was viewed as “necessary” to make “all the other rules effective.”51×51. Id. at 184. Punishments included censure, fines, and imprisonment. Id. With great discretion, legislatures also punished nonlegislative conduct deemed harmful to the body’s institutional integrity.52×52. See Jack Maskell, Cong. Rsch. Serv., 93-875, Expulsion and Censure Actions Taken by the Full Senate Against Members 1 & n.1, 4, 24 (2008).
Legislative discipline’s near-ubiquity in constitutions indicates that it has been important and widely understood. The federal Constitution authorizes each house to “punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.”53×53. U.S. Const. art. I, § 5, cl. 2. Rather than presenting new substantive ideas, the terms resembled state constitutions enacted before the Philadelphia Convention.54×54. See, e.g., Md. Const. of 1776, art. XII; N.H. Const. of 1784 pt. II, art. XXII. Since then, forty-six states have enshrined disciplinary provisions with common features.55×55. 6 Nat’l Conf. of State Legislatures, Inside the Legislative Process 4–5 (1996). For instance, thirty-seven states use the term “disorderly.” Id. at 2. Local government charters, too, have provided disciplinary provisions substantially similar to that of the federal Constitution.56×56. Compare, e.g., N.Y. City Charter § 45 (2004), with U.S. Const. art. I, § 5, cl. 2.
Despite these enumerations, legislative discipline remained common law. Near the Founding, the power was viewed as inherent to all public bodies, even “[t]he humblest assembly,” as it kept rules from becoming “nugatory.”57×57. 2 Joseph Story, Commentaries on the Constitution of the United States § 835, at 298 (Boston, Hilliard, Gray & Co. 1833); see Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230 (1821) (noting the power belongs to the “deliberative assemblies of the Union”); Hiss v. Bartlett, 69 Mass. (3 Gray) 468, 475 (1855) (noting the power belongs to “every . . . deliberative body”). Accordingly, legislatures disciplined beyond their enumerated powers with judicial endorsement.58×58. See Anderson, 19 U.S. (6 Wheat.) at 233 (suggesting that confining the authority to enumerations “[n]ever occur[ed] to any one” at the Convention); Hiss, 69 Mass. (3 Gray) at 475. Today, common law discipline prevails, as state legislatures expel in the few states that never enumerated a disciplinary provision, citing an “inherent authority” to “discipline.”59×59. H.R. Res. 2, Gen. Assemb., Extra Sess. (N.C. 2008); compare id., with N.C. Const..
The common law authority exists in local governments, like HCC. When the Supreme Court affirmed local legislators enjoy legislative immunity in § 1983 actions, the Court consulted treatises and state supreme court decisions before and after § 1983’s enactment in 1871.60×60. See Bogan v. Scott-Harris, 523 U.S. 44, 49–51 (1998). Likewise, when discussing local legislatures’ expulsions of officeholders — a more severe measure than censure — before 1871, a state supreme court declared an “inherent” authority was “well settled,”61×61. State ex rel. Tyrell v. Common Council of Jersey City, 25 N.J.L. 536, 539 (1856). and after, numerous state supreme courts affirmed the power.62×62. See, e.g., Mayor of Savannah v. Grayson, 30 S.E. 693, 696 (Ga. 1898) (“a necessary incident”); State ex rel. McMahon v. City Council of New Orleans, 32 So. 22, 25 (La. 1902) (“the incidental power”); Hawkins v. Common Council, 158 N.W. 953, 956 (Mich. 1916) (“an inherent incident”). Meanwhile, the same treatises the Court cited on local legislative immunity endorse disciplinary authority.63×63. See Bogan, 523 U.S. at 49, 51; 1 John F. Dillon, Commentaries on the Law of Municipal Corporations § 242, at 269 (Boston, Little, Brown, & Co. 1881); Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers § 652, at 435 (Chicago, Callaghan & Co. 1890) (analogizing local bodies’ disciplinary authority to that of the houses of Congress). The view was disseminated in more treatises and leading American parliamentary guides.64×64. See, e.g., Luther Stearns Cushing, Elements of the Law and Practice of Legislative Assemblies in the United States of America 269 (Boston, Little, Brown & Co. 1856); Henry M. Robert, Pocket Manuel of Rules of Order for Deliberative Assemblies § 66 (Chicago, S.C. Griggs & Co. 1876) (“inherent right to . . . punish”); Alice Sturgis, Standard Code of Parliamentary Procedure 213 (3d ed. 1988).
Like legislative immunity, legislatures’ disciplinary authority may be recognized in the federal common law in § 1983 actions. Matching Tenney’s analysis, legislative discipline originated in Parliament, was adopted in the colonies, remained common law but was important enough to be widely enshrined in constitutions, and effectuates legislative independence by enforcing rules and protecting institutional integrity. Moreover, the Court’s recognition of legislative immunity practically compels recognition of the corollary: if legislators are free from external interference, internal discipline is implied. This concept has been ingrained in “presuppositions of our political history” ever since “[t]he power to discipline [members] was more or less assumed as a part of [legislative] privilege” in the colonies. The link has stood the test of time: a concept that discipline occurs when privilege is breached has persisted in Parliament’s practice, drafts from the Philadelphia Convention, state constitutions, federal and state supreme court opinions, and the House of Representatives’ punishments.65×65. See, e.g., N.H. Const. pt. II, art. XXI; Kilbourn v. Thompson, 103 U.S. 168, 196 (1880); Hiss v. Bartlett, 69 Mass. (3 Gray) 468, 474 (1855); 155 Cong. Rec. H9529 (daily ed. Sept. 15, 2009); H. Journal, 4th Cong., 1st Sess. 405 (1796); 2 Max Farrand, The Records of the Federal Convention of 1787, at 334 (1911); May, supra note 49, at 59–60.
Recognition of legislative discipline and its relationship to legislative immunity contextualizes disputes like Wilson. Wilson enjoyed legislative privilege and its rare absolute immunity,66×66. Erwin Chemerinsky, Absolute Immunity: General Principles and Recent Developments, 24 Touro L. Rev. 473, 473 (2014) (explaining that qualified immunity is the “norm”). to “protect the integrity of the legislative process by insuring independence.”67×67. Miles-Un-Ltd. v. Town of New Shoreham, 917 F. Supp. 91, 98 (D.N.H. 1996) (quoting United States v. Brewster, 408 U.S. 501, 507 (1972)); see also Tenney v. Brandhove, 341 U.S. 367, 376 (1951). He brought a lawsuit concerning the corollary to that freedom: the body’s discipline. In essence, Wilson sought for judicial interference with a piece of a larger structure of legislative independence — a structure that courts have treated delicately, hence, the legislative immunity doctrine. This concept may amplify prudential concerns. However, by law, legislatures cannot “ignore constitutional restraints.”68×68. United States v. Ballin, 144 U.S. 1, 5 (1892). Thus, if a court finds discipline is unconstitutional, a local government, like HCC, may be liable.
It is unclear how to evaluate when legislative discipline violates the First Amendment, given the peculiar doctrinal and prudential considerations. Courts that are reluctant to disturb legislatures’ established practices or adjudicate disputes of a political nature69×69. See Tenney, 341 U.S. at 378 (“Courts are not the place for such controversies.”). may rest their decisions on historical analysis. Under such an approach, censures for speech may be presumptively constitutional, as they have occurred since before the Founding.70×70. Cf. Nevada Comm’n on Ethics v. Carrigan, 564 U.S. 117, 122–25 (2011). Parliament and colonial legislatures frequently punished speech.71×71. See Clarke, supra note 50, at 180; Dorian Bowman & Judith Farris Bowman, Article I, Section 5: Congress’ Power to Expel — An Exercise in Self-Restraint, 29 Syracuse L. Rev. 1071, 1078, 1084 (1978) (noting expulsions for uncivilly “expressing unpopular opinions,” id. at 1078). Then, the House of Representatives censured speech considered disrespectful or violative of rules throughout the nineteenth century and into the twentieth century,72×72. See, e.g., 2 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States § 1248, at 799–801 (1907) (noting a member was censured for implying another had ulterior motives); id. § 1305, at 867 (noting a member was censured for accusing another of lying); id. § 1259, at 810–12; Robert D. Stevens, But Is the Record Complete? A Case of Censorship of the Congressional Record, 9 Gov’t Publ’ns Rev. 75, 76–79 (1982). for instance, after a member called an act a “monstrosity.”73×73. Hinds, supra note 72, § 1247, at 798–99. The House claimed its standards were “universal” for “all deliberative bodies.”74×74. H. Journal, 40th Cong., 2d Sess. 195 (1868). Even recently, the House reprimanded a member for proclaiming “You lie” during an address from President Obama on health care.75×75. Carl Hulse, House Rebukes Wilson for Shouting “You Lie,” N.Y. Times (Sept. 15, 2009), https://www.nytimes.com/2009/09/16/us/politics/16wilson.html [https://perma.cc/Q7JN-2FT4]. Meanwhile, state legislatures have censured members for discussing abortion insensitively on public media76×76. See AJ Willingham, Alaska Rep Censured for Implying Some Women Get Abortions for Free Travel, CNN (May 11, 2017, 3:03 PM), https://www.cnn.com/2017/05/11/politics/alaska-censure-david-eastman-abortion-trnd/index.html [https://perma.cc/CG4F-SW7N]. and, now, for referring to the Capitol rioters as “patriots.” Accounting for local legislatures, currently, a censure of speech occurs in the nation around every two days.77×77. Petition for Writ of Certiorari, supra note 38, at 19–20, 25. Overall, historical practice can likely support a finding that censures of speech are constitutional.78×78. Unlike the censure in Wilson for non-legislative speech, congressional censures for speech have addressed speech in the chambers or congressional publications, see sources cited supra note 72. Even if this distinction were relevant, other legislatures have censured for non-legislative speech throughout history, see, e.g., Bowman & Bowman, supra note 71, 1084 n.71; Willingham, supra note 76, and the House has readily considered censuring for non-legislative speech without questioning the legality of doing so, see Hinds, supra note 72, § 1245, at 797–98.
Still, the judiciary has changed tack in recognizing free speech protections before.79×79. See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 641–42 (1943). If courts do not defer to historical practice, by default, these censures may be subject to strict scrutiny,80×80. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994). the standard the Wilson panel suggested would be appropriate in dicta.81×81. See Wilson, 955 F.3d at 498 & n.51; see also supra note 24. Remember, however, the First Amendment is famously committed to “uninhibited, robust, and wide-open” debate82×82. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). and protects even heinous expression, like Nazi demonstrations.83×83. Collin v. Smith, 578 F.2d 1197, 1201 (7th Cir. 1978) (withholding “moral judgment”). As such, it may be unclear how a judicial test could soundly differentiate between Wilson disrespectfully discussing funding decisions and legislators, for instance, calling an act a “monstrosity,” referring to rioters as “patriots,” speaking about abortion insensitively, or proclaiming that President Obama lied about health care. Without suitable standards for the political context, applying judicial tests may severely disturb a longstanding practice of legislatures.
The circuit split created by Wilson is fascinating and challenging. Courts’ duty to uphold the Constitution is pitted against a presumption in Anglo-American government that courts do not disrupt legislatures’ well-established internal practices.84×84. Cf. Tenney v. Brandhove, 341 U.S. 367, 376 (1951) (suggesting it may be unconstitutional for federal law to abridge state legislators’ “traditional sphere”). In the absence of a Supreme Court ruling, lower courts may find it appropriate to contextualize these disputes and their implications before reaching decisions. These age-old fact patterns are unlikely to disappear. After all, politicians engage in an array of antics that legislative bodies may wish to condemn, as Wilson’s censurable behavior outside of this lawsuit exemplifies.85×85. See Susan Milligan, Election by Deception: A White Houston Man Won a Seat on the City’s Community College Board by Pretending to Be Black, U.S. News & World Rep. (Nov. 12, 2013), https://www.usnews.com/opinion/blogs/susan-milligan/2013/11/12/houston-resident-gains-seat-on-community-college-board-by-pretending-to-be-black [https://perma.cc/LM6T-YDLW].