PORTLAND, Ore. (CN) — Two Republican state senators who boycotted legislative hearings in the Oregon Legislature in 2023 lost an appeal to the Ninth Circuit on Thursday after a three-judge panel ruled that legislative walkouts are not a form of free speech.
“Actions have consequences,” the panel wrote in the order. “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 per curium order addresses a lawsuit filed by Republican Senators Dennis Linthicum, Brian Boquist and Cedric Hayden, who joined two Oregon voters and three county GOP committees in claiming that the senators’ disqualification from reelection chilled their free speech.
The lawsuit, filed in November 2023, followed an order from Oregon’s Secretary of State LaVonne Griffin-Valade that upheld a voter-backed measure that barred lawmakers from reelection if they accrued over 10 unapproved absences during a legislative session.
Oregonians passed Ballot Measure 113 with 68% of the vote in November 2022. The law arrived after three years of Republican-led walkouts to deny the Oregon Legislature a quorum to decide on bills related to greenhouse cap-and-trade plans, vaccine and gun regulations and the former state governor’s regulations relating to Covid-19.
But the measure didn’t stop lawmakers from staging the longest legislative walkout yet in the following spring.
The 2023 boycott — spurred by two Democratic-backed bills involving reproductive rights and gun restrictions — resulted in the subsequent disqualification of 10 Republican senators, including Linthicum, Boquist and Hayden.
Overall, Boquist had 34 absences from scheduled legislative floor sessions in 2023, 30 of which were unexcused and occurred during the walkout between May 3, 2023, and June 25, 2023. Linthicum had 37 absences during those floor sessions, 32 of which were unexcused and also occurred during the walkout.
Boquist and Linthicum appealed to the Ninth Circuit after U.S. District Judge Ann Aiken denied a preliminary injunction to circumvent LaVonne-Griffin’s order. That appeal came before U.S. Circuit Judges Ronald Gould, Daniel Bress and Senior U.S. Circuit Judge Jay Bybee — appointed by former U.S. presidents Bill Clinton, Donald Trump and George W. Bush, respectively — in early February.
The senators’ attorney, Beth Jones of Capitol Legal Services, argued elected officials have a right to express their political views, even if it means being absent from work. Jones also argued that Oregon Senate President Rob Wagner — a Lake Oswego Democrat — retroactively changed the boycotting senators’ excused absences to unexcused after elected officials walked out in protest.
The judges were just as skeptical during the appeal hearing as in their subsequent order. The panel affirmed Aiken’s denial of the preliminary injunction in finding that the senators’ argument “falters at the outset because they cannot show that their walkout was constitutionally protected activity.”
“We agree with the district court that not attending legislative sessions — depriving a legislature of the quorum required to consider legislative action (or risking that result) — is ‘an exercise of the power of the legislator’s office’ and therefore is not activity protected under the First Amendment,” the panel wrote. “In reaching that conclusion, the district court relied soundly on the U.S. Supreme Court’s reasoning in Nevada Commission on Ethics v. Carrigan.”
In Carrigan, the Supreme Court concluded a Nevada law prohibiting lawmakers from voting on matters involving personal interests did not violate the First Amendment because “a legislator has no right to use official powers for expressive purposes.”
The panel similarly rejected the senators’ argument that the case had relevance to the Ninth Circuit’s 2022 decision in Boquist v. Courtney. In that appeal, a federal judge dismissed a challenge from Boquist after an Oregon Senate committee enforced a policy requiring him to provide notice when he would enter the Oregon Capitol following his perceived threats on the Senate floor.
“Boquist was a very different case,” the panel wrote. “Senator Boquist there was not exercising the ‘legislative power’ as Carrigan conceived it; he was making statements, including to a reporter, not engaging in a ‘governmental act.’”
As for the senators’ claims of unfair treatment for unexcused absences, the panel reasoned that “Wagner’s strict enforcement of the absence policy applied to members of both parties.”
The panel explained how, during the protest, Wagner granted excusal requests for life-threatening medical circumstances, a meeting for an ethics complaint and a funeral.
“He also excused Senator Boquist for two days when a water line burst at the senator’s farm,” the judges wrote, adding that Wagner denied excusal requests from other senators, including for family visits, illnesses, a wedding and a high school graduation.
In an email, Boquist said he was not surprised by the ruling considering one of the judges compared elected part-time senators to electrical engineers at a corporation in Portland.
“His analogy was the employer could fire a missing employee,” Boquist wrote. “Oddly, Portland teachers missed 10 days on strike but got a huge raise instead. Same teachers who funded the ballot measure.”
Boquist said the analogy infers that Wagner was the employer, not the citizens who elected the lawmakers.
Attorney Vance Day — also representing Boquist and Linthicum — said in an interview that the senators’ underlying lawsuit will move forward and that they are considering further options. Day expressed particular concern with Bybee’s concurring opinon which says, “The freedom of speech protected by the First Amendment, although colloquially denominated a right, is better characterized as a privilege or an immunity.”
“Personally, I don’t think the founders of our nation meant to draft a bill of privileges,” Day said. “They drafted a bill of rights. And a right is inalienable. It’s not given by government. It’s not a privilege like a driver’s license is.”
On Feb. 1, the Oregon Supreme Court issued a different ruling in support of the boycotting senators' disqualification after they challenged the validity of Measure 113's ability to prevent their reelection.
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