Legislators' Walkout to Prevent Quorum Is Not Protected from Discipline by the 1st Amendment

In Linthcum v. Wagner, published February 29, 2024, the 9th Circuit Court of Appeals affirmed a district court's denial of a preliminary injunction.  An Oregon initiative provides that a state legislator's failure to attend ten or more legislative sessions without permission or excuse shall be deemed disorderly behavior and shall disqualify the legislator from holding office in the legislature for the term following the legislator's current term.  Ten state senators staged a walkout to protest legislative actions.  They submitted written excusal forms to the senate president, who refused to grant them.  Two accrued more than 10 unexcused absences.  The secretary of state determined both were ineligible to appear on the ballot for the next election.  The two senators sued the state under 42 U.S.C. section 1983 for damages and for a preliminary injunction to allow them to appear on the ballot.  They alleged retaliation for speech in violation of the 1st and 14th Amendments.  The district court denied the preliminary injunction, on the ground that the unexcused walkouts were not protected speech.  No private citizen can advance or stymie legislation directly in the legislature.  Only members can do that.  The use of the power to stymie legislation by absence implicates the governmental mechanics of the legislative process.  A legislator has no 1st Amendment right to use that power for expressive purposes.  A legislator's legislative power is not personal to the legislator; it belongs to the people.  The the historical tradition of legislatures retaining the power to physically compel absent members to attend legislative sessions bolsters this conclusion.