As I have discussed before, there is a theory, advanced by Professor Josh Chafetz, that Members of Congress should not be able to resign as of right, but should require permission of the House before doing so. As a matter of constitutional law, Chafetz contends that the Framers expected that Members of the House, like Members of Parliament, would require permission of the body before resigning their seats (he believes that the Framers intended for Senators to be able to resign as of right). As a matter of republican theory, he argues that it is wrong to treat a congressional seat as if it were an ordinary job that can be left for reasons of personal advantage or convenience.
I find the second part of Chafetz’s argument the more persuasive. It does seem wrong for Representatives to abandon their positions as a mater of personal convenience, such as when they are trying to escape investigation or punishment for ethics violations. This is true of Senators as well- a particularly egregious example was Senator John Ensign’s resignation the day before his sworn deposition was to be taken by the Special Counsel investigating ethics charges against him.
Then there is the case of Representative Anthony Weiner, who resigned from Congress today. In Weiner’s case, one cannot say that he resigned to escape investigation or punishment. Rather he resigned because of pressure from the Washington political class, particularly his party’s leadership, which wanted to escape its own punishment in the form of constant media questions about Weiner’s sordid tweeting. It was generally agreed that Weiner’s presence in Congress was a “distraction,” i.e., an inconvenience to Weiner’s colleagues.
The debate over whether Weiner should resign focused on whether his misdeeds merited such “punishment.” But this was the wrong question. Weiner may have deserved to lose his job, although it should be noted that his conduct, while perhaps warranting sanctions from the Ethics Committee, would certainly not have resulted in his being expelled from the House. But lost in this discussion were Weiner’s constituents, who are supposed to be the real parties in interest here. His resignation means that they will be left without representation in Congress for several months, and will have to undergo the inconvenience and expense of a special election. There is no reason to believe that this is in their interests, or that they favor this outcome.
It seems to me that the most appropriate resolution of Weiner’s situation would have been for him to remain in Congress, keep a low profile (so to speak) and accept gracefully whatever punishment the Ethics Committee imposed upon him. For Weiner, concentrating on doing the actual work of a congressman rather than running his mouth on cable tv might have been punishment enough. But this outcome would not have been achieved even if his resignation required the permission of the House—his colleagues would have been only too happy to grant him permission to leave.
As an alternative, Chafetz suggests that Weiner could resign and then run in the special election. In this way, he argues, Weiner’s constituents would have the last word on who should represent them. He points to historical examples where Members were returned to office after resigning or being expelled, including Preston Brooks, a pro-slavery representative from South Carolina, who resigned (and was promptly re-elected) in 1856 after brutally caning abolitionist Senator Charles Sumner.
The problem is that Weiner’s situation is rather different than most of these historical examples. Although it appears that Weiner’s constituents would have preferred that he stay in Congress, it seems doubtful that they would want him to resign and promptly run for re-election. In returning him to Congress, Brooks’s constituents were sending a message, however reprehensible, about matters of public importance. There is no analogous public interest in a special election framed as a referendum on Weiner’s conduct.
In the end, therefore, there was probably no practical alternative to Weiner’s resignation. It also seems unlikely that the House (or Senate) will adopt a rule restricting resignations. There is, however, something that they could do to address the specific situation of Members who resign while facing ethics charges. There is no constitutional reason why investigations of these Members could not continue after their departure (and indeed there is precedent for disciplining former Members). This would deter some resignations of convenience, at least.