Ninth Circuit: First Amendment doesn’t protect senators who walked out from consequences

The First Amendment doesn’t protect state senators who walked out in protest for six weeks from losing their chance to run for reelection, a federal appeals court ruled Thursday. 

The Leap Day decision is a final nail in the coffin for a handful of Republican senators who have been trying to evade a voter-approved constitutional amendment meant to discourage quorum-denying walkouts by punishing lawmakers who miss 10 or more days of work. Ten Republican senators, six of whom would have been up for reelection this year, ground the Senate to a halt for six weeks in 2023 in the longest walkout in state history. 

Earlier this month, the Oregon Supreme Court unanimously rejected arguments from some of the affected senators that they should be eligible to run for reelection because the law was poorly written. Sens. Dennis Linthicum, R-Klamath Falls, and Brian Boquist, R-Dallas, pinned their hopes on the federal courts, hoping federal judges would agree that they were engaged in constitutionally protected protests by walking out.

U.S. District Court Judge Ann Aiken rejected their argument in December, and a three-judge panel of the Ninth Circuit Court of Appeals affirmed her decision on Thursday. 

“Actions have consequences. When those actions might be described as expressive in nature, the First Amendment sometimes protects us from the repercussions that follow. This is not one of those instances,” the opinion said. 

Judges Ronald Gould, Jay Bybee and Daniel Bress wrote that Linthicum and Boquist couldn’t show that their walkout was constitutionally protected activity. Instead, they wrote, depriving the Legislature of its quorum was exercising their power as legislators. 

“No private citizen enjoys the privilege to advance or frustrate legislative action directly in the Legislature,” the opinion said. “The ability to stymie legislation by absenting oneself from a meeting of the Oregon Senate belongs to senators alone.”

In a separate concurring opinion, Bybee noted that public employees like teachers are not excused from work if they choose to attend political rallies, and that the senators didn’t give any reason why they should be treated differently than any other public employees. 

The filing deadline for the May primary is March 12, meaning Linthicum and Boquist don’t have time to appeal the case further and expect a decision before the filing deadline. Linthicum’s wife, Diane, has filed to run in his stead, while former state lawmaker Bruce Starr is running for Boquist’s seat.