Another Peculiar Resignation from Illinois

As you may have heard, Representative Jesse Jackson, Jr. submitted a letter of resignation to the Speaker the day before Thanksgiving. The Hill explains: “Jackson has been absent from Congress since June, while receiving inpatient treatment for bipolar disorder. He returned to Washington in September but then checked back into the Mayo Clinic in Minnesota. In November Jackson checked out of the Mayo Clinic again and continued to receive treatment elsewhere.”

Jackson won a contested primary against former Representative Debbie Halvorson in March 2012, and he easily won the general election on November 6, 1012. Thus, in addition to being a Member of the House in the 112th Congress, Jackson was a Member-elect of the 113th Congress.

The relevant part of Jackson’s November 21, 2012 letter reads:

For seventeen years I have given 100 percent of my time, energy, and life to public service. However, over the past several months, as my health has deteriorated, my ability to serve the constituents of my district has continued to diminish. Against the recommendations of my doctors, I had hoped and tried to return to Washington and continue working on the issues that matter most to the people of the Second District. I know now that will not be possible.

The constituents of the Second District deserve a full-time legislator in Washington, something I cannot be for the foreseeable future. My health issues and treatment regimen have become incompatible with service in the House of Representatives. Therefore, it is with great regret that I hereby resign as a member of the United States House of Representatives, effective today, in order to focus on restoring my health.

(emphasis added).

There are a couple of noteworthy things about this letter. First, Representative Jackson clearly and expressly resigns his seat in the current Congress (the 112th). Because it will be impossible to fill the vacancy before the Congress expires, the major practical effect of this resignation is to deprive his constituents of a vote in the House during the lame-duck session. To be sure, it will also save taxpayers the cost of Jackson’s congressional salary for about 6 weeks, but Jackson could have saved taxpayers an equivalent amount of money without resigning. Having retained his seat for many months while absent from his congressional duties, it is unclear why Jackson would choose to resign now.

Second, although his letter implies that he will not be taking the seat to which he was elected in the 113th Congress, Jackson does not explicitly state his intention in this regard. This strikes me as an odd omission. House precedent shows that a Member-elect may resign before taking office and that the chief executive of the state may treat the resignation as creating an immediate vacancy. II Hinds Precedents § 1230 et seq. The timing of the vacancy appears to be a question of state law. For example, when in November 1998 then-Speaker Gingrich informed the Governor of Georgia that he would “not take the seat of congressman for the Sixth District of Georgia for the 106th Congress,” the Governor did not attempt to call a special election until after the 106th Congress convened in January 1999. House Rules & Manual § 20.

Here Jackson has not explicitly declined his seat in the 113th Congress. Such intent may be inferred from his letter (assuming that January 2013 falls within the “foreseeable future”), but it is doubtful that this constitutes an effective resignation for purposes of creating an immediate vacancy. Illinois Election Code 25-2 provides: “An unconditional resignation, effective at a future date, may not be withdrawn after it is received by the officer authorized to fill the vacancy. Such resignation shall create a vacancy in office for the purpose of determining the time period which would require an election.” One would think that for Jackson’s letter to be effective as an “unconditional resignation” of his seat in the 113th Congress, it would have at least to expressly state that it was a resignation of that seat.

Illinois officials are apparently under the impression that they are required to treat Jackson’s letter as creating a vacancy for the 113th Congress, and they are scrambling to seek a judicial waiver of the time periods provided by Illinois law. It seems to me, however, that this may be unnecessary because no vacancy has yet arisen under Illinois law. But Illinois may want to instruct its congressional delegation on how to resign.

House Rules on Employment Negotiations and Recusal: the Case of Representative Cardoza

Representative Cardoza of California announced earlier this week that he would be resigning from Congress and joining the law firm of Manatt Phelps. Manatt apparently jumped the gun a bit and listed Cardoza yesterday on its website as a managing director in its public policy practice, even though Cardoza had not actually resigned yet, according to this Politico article. (Manatt subsequently removed the listing). Politico says that Cardoza was going to submit a letter of resignation effective midnight yesterday, although the Clerk still has him as a Member of the House as of this afternoon.

So that’s a little gauche, but were any laws or rules violated? There is no prohibition on former Members of Congress going to work for lobbying firms, although the post-employment law forbids them from lobbying the legislative branch for a period of one year after they leave office. Nevertheless, there are many things that they can do even during this one-year “cooling off period.” As explained in this House Ethics Committee memorandum, a former Member may immediately “aid or advise clients (other than foreign governments or foreign political parties) concerning how to lobby Congress, provided the former Member makes no appearance before or communications to Members or employees of Congress.” The former Member can also lobby the executive branch and state governments during this period.

We have previously discussed whether it is appropriate for Members of Congress to resign for personal convenience and concluded that while perhaps there should be a norm/rule against this, it is not currently prohibited.

So that leaves the question of whether Cardoza properly complied with House Rules regarding employment negotiations and recusal. As explained in the Ethics Committee memorandum, “Members must notify the Committee within three (3) business days after they commence any negotiation or agreement for future employment or compensation with a private entity.” The definition of what constitutes a negotiation is somewhat vague, but this doesn’t matter much for our purposes, since we don’t know what communications Cardoza had with Manatt or when they occurred.

What we do know is that Cardoza filed a Notification of Negotiations or Agreement for Future Employment Form with the Committee on July 30. The form indicates that the negotiations began that same day, July 30, which I suppose is possible. I would note, however, that Cardoza’s last vote in the House appears to have been on July 25 (Roll Call Vote 518). He did not vote in any of 38 roll call votes that the House took on July 26, July 31, August 1 or August 2.

Of course, we don’t know why Cardoza missed these votes, but it seems like a reasonable surmise that participating in some or all of these votes would have raised ethical questions. The Committee advises that “Members are strongly encouraged to abstain from voting on legislation that provides a benefit targeted to any entity with which the Member is negotiating or from which the Member has accepted future employment.” Presumably, the Committee would look askance at a Member voting with respect to legislation on which his prospective future employer was lobbying. Given the breadth of Manatt’s lobbying practice, it might have been difficult for Cardoza to determine which legislation he shouldn’t vote on, and he may have decided that the prudent thing to do was to stop voting on everything.

If this was the case, Cardoza was required to notify the Ethics Committee of his recusal, and also to provide the Clerk with a copy of his prior Notification of Negotiations form so that the Clerk can make that document public. It does not appear that Cardoza did this because the Clerk never made the notification form public. Thus, there may have been technical non-compliance with this requirement.

All in all, however, if it is true that Cardoza did not begin his negotiations with Manatt until July 30 or shortly before, it seems to me that he complied with the spirit, if not the letter, of the House rules on employment negotiations and recusal.




Resigned to Distraction

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.


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.