Should He Stay or Should He Go?

Congressman Eric Massa (D-NY) has announced that he intends to resign from Congress effective 5 pm today.  Massa had announced last Wednesday that he would not seek re-election for health reasons, but his decision on Friday to resign immediately was apparently prompted by revelations that the House Ethics Committee is investigating him for “sexually harassing” a male staffer.

It would be a natural assumption that Massa’s resignation reflects some consciousness of guilt.  Massa, however, has come forward publicly and detailed the basis for the sexual harassment allegation, which he says was based on a single remark made to a staffer at a wedding reception.  If one credits Massa’s account, his remark, although juvenile, would seem to fall well short of conduct that would merit discipline, much less expulsion, by the House.

O.k., then why is Massa resigning?  According to Massa: “Mine is now the deciding vote on the health care bill, and this administration and this House leadership have said, ‘they will stop at nothing to pass this health care bill, and now they’ve gotten rid of me and it will pass.’ You connect the dots.”

With all due respect to Congressman Massa, I am having a hard time connecting the dots.  I understand that he is suggesting that the House leadership somehow orchestrated the ethics investigation against him, but I don’t see how that explains his decision to resign.  If he is innocent, one would think that he would want to stay and fight the allegations.  And while one can understand the distaste for public airing of such allegations, resignation doesn’t make much sense if he is going to be publicly discussing them anyway.

More importantly, Massa’s resignation is not, or should not be, simply a personal matter.  Professor Josh Chafetz argues in Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L. J. 177 (2008), that Members of the House have no constitutional right to resign their positions, and that at the time of the framing of the Constitution, it was anticipated that Representatives would not be able to resign their seats without permission from the House, as was the tradition in the British House of Commons.  (By contrast, the Constitution expressly acknowledges the possibility that Senators may resign, a distinction that Chafetz explains as reflecting the differing structure and purpose of the Senate).

It is true that the House historically has not exercised any authority to prevent Members from resigning, and I think it would be incorrect, even if one largely agrees with Chafetz’s argument, to suggest that Members currently need permission to resign from the House.  Nevertheless, there is merit in Chafetz’s proposal that the House consider restricting resignation as of right.  As he puts it:

Is it really so onerous to tell people who ran for House seats that they must remain there for two years?  Members are well compensated, in both financial and psychic wages, and 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.


As Chafetz notes, the two situations in which Member resignation seems most inappropriate are (1) resignation to escape punishment by the House and (2) resignation for personal advantage or convenience.  Massa’s case involves both of these situations.  He is either leaving to escape punishment or to avoid the inconvenience of fighting false allegations.  Or both.  But in any event, he is leaving his constituents without representation during what is, by his own admission, a time in which the House will be making critical and historic decisions affecting their interests.

Put another way, if Massa is innocent, he should stay and fight for his constituents.  If he is guilty, he should stay and face the music.




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