This week I want to follow that thread into a courtroom, because something landed on the Cole County docket on June 18 that states the principle I was circling — states it cleanly, formally, with citations — and then aims it in exactly one direction.

The case is Schappe, Inc. d/b/a Tuners Bar & Grill v. Catherine L. Hanaway, Missouri case 26AC-CC00337, a proposed class action against the Missouri Attorney General in her official capacity. The subject is gray-market gaming machines: the “pre-reveal” amusement devices that have hummed away in Missouri gas stations, bars, and fraternal halls for more than a decade. The Attorney General has launched an enforcement campaign against them — search warrants, seizures, felony charges in some counties, misdemeanors in others, demand letters from municipal police giving operators until a deadline to unplug. The plaintiff hasn’t been charged with anything. It is suing to stop the campaign before it arrives.

I have no particular brief for the gambling machines. Whether Missouri should license them, tax them, ban them, or leave them alone is a question for the legislature, and the legislature — as the petition correctly notes — has looked at the question repeatedly and declined to answer it. That silence is the whole point.

What interests me is the constitutional argument the plaintiff makes, because it is, almost word for word, the grievance I have been writing about from the other side of the glass.

The petition’s theory is this: a criminal statute that no one can read in advance to know what it forbids — whose practical scope is set not by the legislature but by which cases a prosecutor decides to bring — is not really a law at all. It quotes Justice Gorsuch: vague laws “leave people in the dark about what the law demands and allow prosecutors and courts to make it up,” and “in our constitutional order, a vague law is no law at all.” It argues that when the same statute, unchanged in text for decades, gets enforced one way in one county and the opposite way in the next, with “no intervening legislative amendment, no intervening appellate ruling, and no published regulation,” what you have is not the rule of law but the rule of whoever holds the office that week. It argues that a rule whose meaning “shifts with the identity of the Attorney General in office” has “ceased to function as law” and “become a license.”

Read that last line again. A rule that has become a license. Strip out “Attorney General” and “statute,” and you have a precise description of how a political caucus disciplines a member. The text never changes. The application does — depending on who you’ve crossed, what moment it is, and whether anyone with standing decides to make an example of you. There is no published standard for what gets you removed from a caucus or stripped of a committee or quietly told you are no longer welcome at a club meeting. There is no notice. There is no appellate court. There is, to borrow the petition’s own framing, a standardless sweep that “allows policemen, prosecutors, and juries to pursue their personal predilections” — except the actors are party officers, and the forum is a meeting room, and the Constitution has nothing to say about it.

I want to be careful here, because the point is not that the lawsuit is wrong. The vagueness doctrine is real and important, and the argument the petition makes is a serious one — serious enough that I think the businesses bringing it have a genuine constitutional grievance about being threatened with felonies for conduct the legislature never plainly criminalized. The doctrine deserves to win when the state tries to manufacture crimes by enforcement. That is exactly what it is for.

The point is the asymmetry. The principle that the state may not punish you under a standard too vague to know in advance, may not single you out by discretion for conduct it tolerates in others — that principle is available, with a filing fee and a good lawyer, to a bar in St. Charles defending its slot-adjacent machines. It is not available to a member of a political body subjected to the informal version of precisely the same thing. The machines get a forum. The person does not.

Consider what that informal version looks like in practice, because I served alongside it.

I wrote last time about Bob Burns — the St. Louis County Democrat whose warm on-air calls to a racist radio host surfaced in April 2018, at the precise moment the caucus had a Republican governor on the ropes. What I described then as a matter of timing was also, up close, a matter of discipline. Within a day of the recordings going public, the Minority Leader stripped Burns of his committee assignments. Within weeks, the caucus voted to expel him from its ranks. Burns had broken no written rule — he never used a slur himself; he had praised a man who did — and he was given no notice, no hearing, and no appeal. There was a leadership decision and a caucus vote, and that was the entire process. He kept his seat anyway, running unopposed that November. The caucus could remove him from itself; it could not remove him from the ballot.

And it is not a relic of one chaotic spring. In May 2025, the same caucus stripped Representative Marlene Terry — a Black woman representing north St. Louis County — of all four of her committee assignments, including her ranking position on the Legislative Review committee. Her offense was a vote: in a budget conference she had sided with the Republican governor on how to fund education, after backing a school-choice bill the year before. Leadership did not like the vote, so it took the committees. “I don’t have to be in a committee to be heard,” Terry told the House floor. “I will vote how I please, when I please and where I please. No one can take away my voice.” She was right that they could not take her voice. They could, and did, take everything that was theirs to grant and revoke at will — which is the whole point. The operative standard was loyalty, and loyalty is not a standard anyone can read in advance.

I raise these not to relitigate either episode, but because the petition now on the Cole County docket comes from inside that same political world. The lawyer who signed it, Nelson Mitten, is a Democratic committeeman in St. Louis County. His wife, Gina Mitten, sat in the House Democratic leadership — as Assistant Minority Floor Leader — in 2018, when the caucus deployed exactly these discretionary tools against Bob Burns. I draw no conclusion about anyone’s conduct from that, and none should be drawn: a lawyer is entitled to his clients, and a good argument is a good argument regardless of who makes it. I note it only because it draws the asymmetry inside a single household. The constitutional principle that the state may not punish people by unwritten, selectively applied standards is being argued, ably, by a family that has lived comfortably within an institution that disciplines its own by precisely that method. The doctrine is available downtown, for machines. It was never available to Bob Burns, and it was not available to Marlene Terry.

The petition asks the court to hold that you cannot criminalize by enforcement what the legislature never criminalized by statute. I agree. I’d only add the corollary it has no reason to reach: you cannot legitimately discipline by improvisation what no rule ever defined as misconduct. One of those propositions has a courthouse, an established doctrine, and a Supreme Court Justice’s prose behind it. The other has a stripped committee list and a vote you didn’t see coming.

A vague law, the petition says, quoting Justice Gorsuch, is no law at all. It’s right. I’d only add that a vague rule, applied by people with the power to apply it, is still very much a rule. It just isn’t one you can take to court.

Subscribe now

Sarah Unsicker served in the Missouri House of Representatives from 2017 to 2024, and as House Democratic Policy Chair from 2019-2022.

The technique is the timing.

In the spring of 2018, Missouri was in the middle of one of the more consequential political crises in recent state history. Governor Eric Greitens — Republican, former Navy SEAL, elected on an anti-establishment outsider platform — was unraveling on two separate legal tracks simultaneously.

On February 22, a St. Louis grand jury had indicted him on invasion of privacy charges: a woman with whom he’d had an affair in 2015 alleged he had photographed her partially nude, without consent, in the basement of his home, and used the image to coerce her silence. On March 1, the Missouri House had voted unanimously — bipartisan — to authorize a Special Investigative Committee to look into it.

That committee released its first report on April 11. It was devastating. The woman’s sworn testimony described being restrained, blindfolded, partially undressed, and photographed without consent. Nine days later, on April 17, Attorney General Josh Hawley announced a separate investigation: evidence that Greitens had taken the donor list from his veterans’ charity, The Mission Continues, and used it for political fundraising — a felony. Hawley publicly called on Greitens to resign.

By mid-April 2018, Missouri House Democrats were in a position they hadn’t occupied in years. A Republican governor was facing criminal exposure on two tracks. A bipartisan House investigation had produced damning public testimony. A Republican attorney general was calling for his own governor to go. The political ground was unusually clear.

Then, on April 20 — the same day St. Louis Circuit Attorney Kim Gardner charged Greitens with the charity donor list offense — recordings surfaced of Democratic State Representative Bob Burns calling into a radio show hosted by a man named Bob Romanik.

Bob Romanik ran AM stations in the St. Louis area for roughly a decade. His broadcasts were a reliable source of racist, misogynistic, and homophobic content. On February 9, 2018, he had used the N-word on air. This was not exceptional for his show; it was the pattern.

Burns, a Democrat representing a St. Louis County district, had called into Romanik’s KQQZ show multiple times in the weeks prior. The recordings, posted to a YouTube channel called “Romanik Watch” by then-State Senator Maria Chappelle-Nadal, captured Burns calling Romanik a truth-teller: “You preach truth, justice, and the American Way.” He told Romanik there was “a place in heaven for a guy like you.” He called him a friend. He praised his advocacy for veterans.

Burns had not used a slur. He had praised the man who did.

By April 21 — the day after the recordings surfaced — House Minority Leader Gail McCann Beatty had stripped Burns of his committee assignments, and a chorus of Democratic leaders including Senator Claire McCaskill and Auditor Nicole Galloway were calling for him to resign. By May, the full House Democratic Caucus had voted to expel him from its ranks. He refused to leave his seat.

The headline that spring, in the days when it mattered most, was not Republican governor faces impeachment but Democrats in disarray.

I was in the Missouri House when this happened. What I remember is how completely it worked — not in the sense that Burns faced any lasting accountability (he ran unopposed that November and won), but in the sense that the Democratic caucus spent its political energy on internal discipline at exactly the moment we needed it elsewhere. The tools available to the legislature for dealing with a member who has embarrassed the institution are, in practice, almost entirely social. And deploying those tools takes time, attention, and goodwill — all of which were in finite supply during a governor’s scandal that should have been a straightforward story about Republican misconduct.

I don’t know who ran the Romanik Watch YouTube channel. I don’t know how Chappelle-Nadal came to have the recordings, or whether she understood what releasing them at that moment would do to the caucus. These are questions worth asking, and I’m not in a position to answer them.

What I can say is that the effect was a textbook disruption operation: introduce a secondary crisis into the opposition at the moment the opposition has maximum leverage, force them to spend credibility on internal housekeeping, and muddy a clean narrative with complexity. Whether that effect was engineered or accidental is almost beside the point. The pattern is what matters.

This is how memetic warfare operates at the state level — and why it so rarely gets recognized as such. It doesn’t require fabricating anything. Burns really did make those calls. The recordings were real. No one put words in his mouth. What the operation required — if it was an operation — was only patience: the willingness to hold material until the moment its release would cause the most damage to the most people, none of whom were Bob Burns.

The target wasn’t Burns. The target was the House Democratic caucus’s ability to function as a coherent political force during the most significant accountability moment of the Greitens era.

Greitens resigned on June 1. By then, the Democrats had spent six weeks managing their own scandal instead of his. Greitens never faced impeachment. He was never exonerated, either. He left on his own terms, more or less, and the story of how Missouri’s House Democrats handled that moment is tangled enough that no one gets to claim it cleanly.

That’s what a good disruption operation does. It doesn’t have to win. It just has to make the other side lose the thread.

Sarah Unsicker served in the Missouri House of Representatives from 2017 to 2024.