Unfit Representatives

My friend Ron Krotoszynski had an op-ed in The New York Times yesterday pointing out that the Senate could expel Roy Moore, if he is elected, and that there are plausible precedents for doing so based on sexual wrongdoing. I want to expand on that discussion a bit.

Over the past year, I’ve been struck by the following thought. The clauses in the federal and state constitutions for removing officials (like impeachment, expulsion, or recall) rest on an unstated premise that the removal is justified because the voters were unaware of the official’s misconduct when he or she was last elected. If you look at almost every example where an elected official was removed, this was the state of play.

Suppose, though, that the voters are fully aware of the misconduct prior to the election and elect the person anyway. Then a removal based on that misconduct must rest on the idea that the voters were corrupt, stupid, etc. Basically, they are not entitled to elect somebody like that. But why not? I don’t see how any democratic theory can justify that. If the people in a state or a district want to elect a miscreant and suffer the consequences, so be it.

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5 Responses

  1. Joe says:

    “Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.”

    The wording to me in context at least implies the expulsion arises out of actions while in office. An absolute rule there might not work — a person might have killed the year before, e.g., and only arrested while in office. But, being convicted or maybe even arrested is a special case anyways. Misbehavior from years before to me seems different.

    At the very least, if voters were well aware of the situation, yes, I don’t think expulsion would be appropriate in most cases at least. The supermajority requirement helps here, plus the fact he will only have a short term. If I was in the Senate and he was elected, expelling him for wrongdoing years before to me would be questionable. I don’t think there is necessarily an absolute rule. Maybe, voters who look the other way even though a recent rape occurred can be overturned via the expulsion procedure. But, behavior like that at issue decades before? I think the voters putting him in balances the scales toward keeping him in.

  2. Joe says:

    ” voters were corrupt, stupid, etc. ”

    Maybe. Or, two bodies of people make a decision, and they can have strongly different views.

    Congress might vote for a law and POTUS might determine it is unconstitutional. There is a check/balance, here with each body (voters/members of the institution in question) having somewhat different interests.

  3. Brett Bellmore says:

    Right now, of course, all we have are allegations. Rather than considering a case where the voters “are fully aware of the misconduct”, perhaps you should be considering a situation where voters are fully aware of the *allegations*?

  4. dht says:

    I am not sure if the Senate has a written rule on this, but many organizations do have a (written or unwritten) morals clause which covers a lot of territory, and may not have a statue of limitations.

  5. Joe says:

    Don’t know what “allegations” gets us here.

    We have detailed accounts including responses from Roy Moore.

    There wasn’t a trial yet but in another context this didn’t stop some people from calling another person a “felon.”

    But, yes, we should weigh in the balance the information available to the voters in the balance somehow.