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Virginia’s John Wilkes Wannabe

For any middle-aged legislator thinking about going all flagrante delicto with an underage intern, be warned that potential consequences include not only pregnancy, but thorny constitutional issues.

Now that I have your attention, a little review.  Not long ago we discussed Benjamin Cassady’s exposition of why Members of Congress are not subject to impeachment and disqualification. Cassady advances the concept of “electoral pardon,” i.e., the idea that voters should be free to forgive a legislator’s past misdeeds and return him to office. He in turn traces this right to the Framers’ sympathy for John Wilkes, a celebrated MP who was repeatedly expelled from Parliament and just as regularly returned to office by his constituents, who viewed him as a hero and a champion of liberty. By limiting the Impeachment and Disqualification Clauses to executive and judicial officers, Cassady argues, the Framers implicitly vindicated Wilkes and ensure that Congress could not deprive voters of their right to be represented by whomever they chose.

Cassady builds upon the work of Professor Josh Chafetz, who has written about the Wilkes case in the context of Congress’s power to expel members. The constitutional text does not limit the expulsion power to offenses unknown to the voters, and Chafetz points out that the Framers chose not to adopt a draft which would have prohibited a second expulsion for the same offense. See J. Chafetz, Democracy’s Privileged Few 207-08 (2007). Nevertheless, “[d]rawing on American outrage over the Wilkes case, the argument has maintained that once the voters have indicated either their approval or their forgiveness of the Member’s action by reelecting him, then it would be impermissibly antidemocratic for the House again to expel him for the same offense.” Id. at 211.

This argument seems to have largely been accepted, at least in the House. Chafetz is critical of the extent to which the Wilkes case “has been successfully invoked in arguments for an absolute ban on reexpulsion for the same offense.” Id. at 234. He argues that while the House ought to be “reticent” to expel a Member for conduct already known to his constituents at the time of his election, there should be no “blanket prohibition” on the practice. Id. at 211. In particular, Chafetz points to the situation where a Member engages in improper conduct that benefits his constituents but harms the interests of the nation as a whole (e.g., where he bribes fellow legislators to support a bill of great interest to his district). In such cases, he argues, the Member should be subject to expulsion even if the voters approve the conduct. Id.

All of which brings us to the case of Delegate Joseph Morrisey of the Commonwealth of Virginia (possible new mottoes: “Fewer governors in prison than Illinois!” or “On second thought, we have enough lovers, thank you”).  Morrisey recently entered into a plea of no contest to misdemeanor charges arising from his inappropriate relationship with a 17-year-old girl.

Morrisey originally suggested that he would remain in office while serving his sentence, but last week he agreed to resign effective January 13, 2015, on which date a special election will be held to fill the vacancy. This came as a great relief to the leaders of the Virginia House of Delegates, until they found out that Morrisey intended to run in the special election.

So what would happen if voters were to return Morrisey to his legislative seat? There would clearly be some sentiment among Morrisey’s colleagues for expelling him, as Delegate Scott Surovell confirms in this article.  But Professor John McGlennon, chairman of the government department at William & Mary, invokes the Wilkes rule (knowingly or not) when he responds that the voters’ judgment should “take precedence” over the views of the House of Delegates.

The thorny constitutional question is whether the House of Delegates is constitutionally obligated to defer to the judgment of the voters. Are precedents adopting a “Wilkes rule” or an “electoral pardon” principle of constitutional dimension, or do they merely reflect a prudential judgment that the legislative body can decide is inappropriate in a particular factual context? If the principle derives from the Constitution, it is absolute or is it merely a presumption that can be overcome under certain circumstances? Morrisey’s case certainly does not fall within the exception identified by Chafetz (misconduct in service of his constituents), but perhaps there are other circumstances that would warrant overcoming the Wilkes presumption. For example, the House of Delegates might decide there is an overriding public interest at this time in expelling legislators who might make Virginia a laughingstock.

Of course, the House of Delegates is not governed by the federal constitution or precedents of the U.S. House of Representatives. But this fact could end up benefitting Morrisey’s position. The Virginia Constitution’s language on legislative discipline and expulsion closely tracks that of the U.S. Constitution and was presumably modeled on the latter (the original Virginia Constitution of 1776 appears not to address the issue). Morrisey might plausibly argue that the Virginia provisions were adopted by full knowledge of congressional practice and precedent and therefore should be deemed to constitutionalize the “Wilkes rule” in Virginia, regardless of its status for federal purposes. (I do not know whether there is any Virginia precedent on point).

All of this is likely academic as the voters will probably not take up Morrisey’s case as a cause celebre ala Wilkes. But it should be noted that Wilkes was a famous libertine and some of his expulsions were based on his authorship of a pornographic parody that scandalized British society of the time. So you never know.

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