[Josh Chafetz, guest-blogging, July 23, 2008 at 12:58pm] Trackbacks
Starting Anew on House Resignations,

or, Part V of Leaving the House. I've argued that the Constitution gives the House of Representatives the power to refuse resignations, and I've shown that this power has never been exercised. So, what now?

I'm going to suggest in this post that there are good reasons for ceasing to treat House resignations as a matter of right. Both of the reasons I suggest sound in republican political theory.

First, a couple of preliminaries: (1) The 1872 statute that I mentioned in my previous post poses no bar to altering House rules so as to require the House to accept resignations — the Rules of Proceedings Clause makes it clear that a statute cannot entrench a House rule so as to prevent its being altered by resolution. (I make this argument at greater length in my book, and others have made it, as well.) (2) I am not arguing that the current system is unconstitutional. Current House rules can be understood as automatic acceptance of tendered resignations — the fact that the House (as I have argued) has the power to refuse resignations does not mean that it is obligated to exercise that power. Therefore, (3) my argument that the House should alter its rules so as to hold a vote on tendered resignations is a policy-based argument, although, as Larry Solum has helpfully pointed out, and as I have tried to suggest in the article, those policy considerations are very much informed by constitutional values.

With those preliminaries in mind, I suggest that there are two paradigm cases which point to the desirability of requiring the House to vote on resignations. First, there is the punishment of Representatives who violate House ethics rules or the law. As I argued in this 2006 New York Times op-ed and this Yale Law Journal Comment (link in PDF), Congress could go a long way toward restoring public confidence in itself if it took more seriously its constitutional role as enforcer of its own ethical discipline. As we all know, members of Congress frequently resign when they are under an ethical cloud. The obvious implication of such resignations is that they prefer resignation to expulsion — you can't fire me; I quit! And while the House's punishment power extends to punishing former members for acts done while members, the House tends (understandably) to take an "out of sight; out of mind" approach.

But it seems to me that there is significant public benefit in forcing the House to make institutional comment on the behavior of its members — you can't quit; we're firing you!. We tend to think that self-discipline is a good thing, no less in corporate bodies than in individuals, and a body that has allowed a corrupt member to slink away into the night while muttering about "spending more time with his family" has failed to be self-disciplined. That cannot but affect our impression of our Congress, and I think it is no wonder that an institution which so frequently allows this to happen is held in such low esteem generally.

If inaction was not an option — that is, if the House had to vote on whether or not to accept the member's resignation — it might decide that it would be just as easy (and considerably more cathartic) to vote instead to expel him. The expressive value of such expulsions might do a lot to increase the public perception of congressional ethical standards.

Note that this rationale for refusing to allow resignations as a matter of right does not presuppose that Members will actually be kept in the House against their will. Rather, it changes the terms of the bargaining over how they leave the House. Under the current rules, the individual Member holds all of the power, as the decision is entirely hers. But the change proposed here would shift power to the House — it would allow the House as an institution to dictate the terms on which a Member leaves. More importantly, however, it would constrain the House in dictating those terms: if there has to be a floor vote, and Members have to vote either way, then they will have to explain why they voted to let an obviously corrupt Member walk away without any sort of condemnation. In short, Members under an ethical cloud who want to leave the House will still leave the House — but their colleagues will be forced to contemplate whether the voters consider the ethical transgressions of that Member sufficiently egregious to demand institutional comment by the House. That is, the expressive costs of allowing a Member to resign for spurious reasons will be internalized by the House, rather than externalized onto the polity.

The second paradigm case for requiring a House vote on resignations is the member who seeks to resign because he is simply sick of the job or wishes to take a job that is more lucrative or personally convenient. Allowing this member to resign as a matter of right sends the message that legislative service is just a job, something that one does for personal reasons. I suggest that a more normatively appealing conception of legislative service is as a republican duty — something akin to service in a volunteer military, which, while undertaken voluntarily, then cannot be quit until the terms of service are satisfied.

House service is unlikely to be foisted on one who did not seek it. Is it really so onerous to tell a person who ran for a House seat that she must remain there for two years? Members are well-compensated, in both financial and psychic wages, but for that compensation we have a right to demand that they commit to putting the public interest above their own for a short period. Allowing resignation as a matter of right sends the message that House service is a job like any other, a job that one takes because it suits one's ends, rather than a trust one holds to serve a greater good. In contrast, when leaving the House is a matter of legislative grace, rather than individual right, the message is sent that devotion to the public weal is held above desire for personal gain. This, I suggest, is closer to our aspirational conception of the House of Representatives.

It is, again, worth noting that this republican value does not depend on any Member's actually being refused permission to leave the House, and, again, it seems unlikely that Members would frequently be refused permission to leave. Rather, the value is in the mere fact that the Member has to ask. In so doing, she reinforces both the reality and the public perception of what a Representative's relationship to the polity ought to be.

This concludes my summary of the article. In my final post, I'll reply to some of the comments on my previous posts. If you want further documentation of or elaboration on any of the points above, they are summarized from pages 46-55 of the article draft on SSRN.