Run, Anthony, Run
Why Weiner should resign—and then run for re-election.
Rep. Anthony Weiner is in a tricky position. There is no evidence that he did anything illegal, but his actions—to put a good spin on it—cast serious doubt on his judgment. Worse, in an attempt to cover up his indiscretions, he lied.
Still, the question lingers: Do Weiner's misdeeds require his removal from Congress? In her terse, two-sentence statement, Minority Leader Nancy Pelosi pointedly did not accuse him of committing an expellable offense; she merely urged Weiner to seek help "without the pressures of being a member of Congress." Likewise, President Obama framed the issue in terms of effective service: "I can tell you that if it was me, I would resign. Because public service is exactly that, it's a service to the public. And when you get to the point where, because of various personal distractions, you can't serve as effectively as you need to … then you should probably step back."
But the president also said that "ultimately there's going to be a decision for him and his constituents." And perhaps therein lies our answer. Since Weiner hasn't committed a crime, and arguably has not even committed a serious ethics violation, why not let the voters decide? And the best way for him to do that is simply to resign and run in the special election that would be called to fill his seat.
There is a long tradition in Anglo-American legislative practice that the voters should have the final say on ethical matters. In England in 1764, John Wilkes was expelled from the House of Commons for a series of "scandalous" publications. He fled to France for several years, but returned to London in 1768 and stood for Parliament. He won, but was not allowed to take his seat, and a new election was ordered. He won again, and again, and again. After his fourth consecutive victory, the House simply declared his opponent the victor. But Wilkes kept standing for election, all the time growing more popular as a symbol of public discontent at the ruling elite. "Wilkes and Liberty!" was a rallying cry in London and the colonies, and finally the House bowed to public pressure and seated Wilkes in 1774.
Eight years later, all records of Wilkes' continued exclusions from Parliament were expunged from the House of Commons Journal "as being subversive of the rights of the whole body of electors of this kingdom." The Wilkes affair was understood to stand for the constitutional principle that no one should be expelled twice for the same offense—if the voters had forgiven him, who were the other members of Parliament to say no?
At the time the American Constitution was drafted, all three state constitutions that contained an explicit power of expulsion (Delaware, Maryland, and Pennsylvania) prohibited a second expulsion for the same offense. An early draft of the Constitution contained the same limitation on the congressional houses' expulsion power, but that limitation was dropped in later revisions. Still, it is widely understood that any body seeking to re-expel a re-elected member would be in serious tension with constitutional values, if not in explicit contravention of constitutional text.
In 1857, Rep. Orsamus Matteson, a Whig from New York (what is it with my home state?), resigned to escape an expulsion resolution arising from corruption allegations. He promptly ran for and was re-elected to his old seat. In the debates over whether to expel him again, the Wilkes precedent was repeatedly invoked, and ultimately the House took no action. Likewise, Rep. Preston Brooks of South Carolina, who caned Sen. Charles Sumner nearly to death on the Senate floor in 1856, survived an expulsion resolution. Nevertheless, he chose to resign and seek re-election, seeking his constituents' blessing of his behavior. They gave it, re-electing him, and he was seated without controversy less than a month after he resigned. More nobly, Rep. Phil Gramm of Texas resigned his House seat in 1983 when he switched parties and won as a Republican in a special election later that year.
Brooks may serve as something of a limiting example for my argument. After all, here was a pro-slavery representative from South Carolina seeking his constituents' approval for physically assaulting an abolitionist Massachusetts senator. Surely, the fact that his constituents approved should not bind the House. And, indeed, I have argued that the House can and should refuse to accept a resignation where it seeks, instead, to punish a member for unethical (or, in Brooks' case, downright brutish) conduct. We can imagine a world in which South Carolina was the only pro-slavery state, such that Brooks would have been re-elected, but there would also have been enough votes in the House to overcome the two-thirds bar for expulsion, and in that world, no constitutional values would have stood in the way of Brooks' expulsion, even after re-election. We the People of the United States are sovereign, and the representative of a small faction should not be allowed to interfere with the governance of the whole through brute force.
But Anthony Weiner is no Preston Brooks. To the extent that Weiner has sinned against his wife and his marriage vows, that is a private matter. To the extent that his behavior has brought the House into disrepute, that is a public sin. But—barring the revelation of new and more disturbing facts—the sin in this case hardly warrants expulsion. Unlike, say, members who accept bribes, Weiner's behavior causes eye-rolling, not an actual loss of faith in the institution's ability to govern fairly. For bringing the House into (some) disrepute, Weiner may deserve a censure, but his behavior can hardly be said to warrant expulsion.
Weiner's worst public sin is the lies he told. For those, he should do penance and seek the forgiveness of his constituents. And the best way for him to do that is to put his fate in their hands. He should offer his resignation. The House should accept it. And he should, if he still desires to be in Congress, run for his seat. He will have to humble himself; he will have to explain himself; and he will have to ask for the public's trust to be placed in him anew. And if his constituents do re-elect him, it will be because they've decided, with all of the facts on the table, that he is worthy of their trust. It will be a moment of political redemption, a vote of confidence in him from his real bosses, the people of his district. And there the matter should be left to rest.
Josh Chafetz is assistant professor at Cornell Law School and the author of Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions.
Photo by Michael Nagle/Getty Images.