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SHOULD SENATORS WHO SWITCH PARTIES BE REMOVED FROM OFFICE OR COMPELLED TO RESIGN?
Professor William G. Ross
Cumberland School of Law, Samford University
JURIST Contributing Editor

The transfer of control of the U.S. Senate from the Republicans to the Democrats because Senator James M. Jeffords of Vermont changed his party affiliation raises questions about the constitutional implications of party switches among senators. Should one senator be permitted to precipitate a profoundly important power shift by abandoning the party label under which voters elected him? Even though polls indicate that most Vermont voters approve of Jeffords痴 party shift, which reasonably may be viewed as an act of courage and conscience, Jeffords has frustrated the expectations of voters who supposed that he would help the G.O.P. to retain its majority in the Senate.

Although members of Congress are under no legal obligation to honor promises that they make to their constituents during election campaigns, a change in partisan affiliation breaks faith with voters more profoundly than does a change on any pending legislation or policy position. A congressional candidate痴 appearance on the ballot under a particular party label constitutes a tacit pledge that the candidate will help that party organize control the chamber of Congress to which he or she is elected. While voters understand that changed circumstances may cause a member of Congress to alter his or her position on a particular issue, party affiliations are presumed to be more enduring.

Questions about the constitutional implications of partisan defections retain more than academic interest because Republicans are hoping to recover control of the Senate by wooing at least one conservative Democrat across the aisle. If Republicans succeed in converting a Democrat, there are other liberal Republicans who might become Democrats. It is therefore possible that control of the Senate will see-saw back and forth between now and the 2002 election.

Fortunately, party switches have been relatively rare. Jeffords is only the seventeenth incumbent senator during the past century who has deserted his party, and most of these senators have retained the support of their constituents. Indeed, party switches typically are made by senators in states in which the party from which they depart is out of favor. Jeffords痴 party transfer is a classic example since Vermont during the past forty years has been transformed from one of the nation痴 most reliably Republican states into one of the most strongly Democratic. Senators who change parties typically have been elected in spite of their party label rather than because of it and they usually have won reelection at the next election under their new affiliation. For example, Alabama痴 Senator Richard Shelby had no difficulty winning re-election in 1998 after he switched from the Democrats to the Republicans. Similarly, Colorado痴 Senator Ben Nighthorse Campbell survived re-election after he became a Republican. And, as in so many other areas, Strom Thurmond holds the record: South Carolinians have re-elected him to the Senate six times since he transferred his affiliation from Republican to Democratic in 1964 after he was twice elected as a Democrat.

Despite their rarity, party defections are troubling.

Although many voters tend to vote for the person rather than the party, many others vote for the party rather than for the person. Since party loyalists are not likely to have voted for the defecting senator痴 opponent, the senator has not vitiated the votes of party loyalists in the previous general election. A defecting senator, has, however, deprived party loyalists of the opportunity to nominate a more loyal party member in the party primary.

Accordingly, a senator who changes parties theoretically should resign from office and seek re-election as a member of his or her new party. Phil Gramm honorably followed this course of action during the 1980s when he switched from the Democratic to the Republican Party during his service in the House of Representatives. Texas voters returned Gramm to the House at a special election and later sent him to the Senate, where he still serves. In an irony, Gramm (along with Nighthorse and Shelby) are losing committee chairmanships as the result of Jeffords痴 switch.

In reality, however, resignation by a senator usually is impracticable because, under the law of most states, Senate vacancies are filled not by special elections but rather by gubernatorial appointment. Although the Seventeenth Amendment provides that 甜w]hen vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies, that amendment also permits states to allow the governor 鍍o make temporary appointments until the people fill the vacancies by election as the legislature may direct. In accordance with the Seventeenth Amendment nearly all states have enacted statutes that allow the governor to appoint someone to serve until the next general election, a period of up to two years. No senator could be blamed for failing to resign after changing parties if he had to wait until the next election to recover his seat particularly if his successor were likely to oppose him at the polls.

Moreover, states may be unable to take any direct action against party defectors. Although some states permit the recall of members of Congress, the constitutionality of such statutes is questionable. The U.S. Supreme Court痴 decision in United States Term Limits, Inc. v. Thornton (1995), which held that congressional term limits were unconstitutional because they added to the qualifications prescribed for members of Congress in Article I of the Constitution, suggests that the state recall statutes similarly might be invalid. Scholars who have considered the constitutionality of state recalls of Congress members generally contend that these statutes improperly add to the constitutionally-prescribed qualifications. Although Timothy Zick recently has made an interesting and plausible argument that these laws may be valid because the states and their citizens should be free to exercise all powers that the Constitution does not withhold from them, courts are still more likely to view state recall statutes as an intrusion on Article I.

Similarly, it would not be practicable for the Senate to take action against a defecting senator.

The Constitution does not provide for impeachment of members of Congress, and Congress determined as early as 1798 that it lacked power to impeach any member. Accordingly, Congress dismissed charges against Tennessee痴 William Blount, who allegedly had conspired to start a military expedition to wrest Louisiana and Florida from Spanish control and deliver the territory to England.

Theoretically, the Senate could expel a member for party defection since the provision in the Constitution that each house of Congress may expel a member by a two-thirds vote (Article I, Section 5) prescribes no limitations on the Senate痴 expulsion power. Except for senators who were expelled during the Civil War for their Confederate sympathies, however, the Senate has expelled only one senator in its entire history and that expulsion occurred more than two centuries ago, in 1798, when Blount痴 military intrigue caused him to lose his seat for conduct far more troubling than any party defection.

The use of the expulsion power to banish an incapacitated member or a party defector is therefore virtually unthinkable. While the Senate may not be as clubby as it once was, senators understandably would not wish to heap such ignominy upon a senator who merely had changed his or her partisan affiliation.

The Senate could remove some of the disgrace of a party switch by enacting a rule that provided for automatic expulsion of any senator who switched parties. Such an objective rule would relieve senators of the need to take specific action against an individual colleague. The Senate also might consider applying the rule only prospectively in order to avoid the need to impose a retroactive penalty against Jeffords. Indeed, the Senate might even provide that the rule would apply only to senators elected for the first time beginning in 2002. To ensure the constitutionality of such a rule, the Senate probably would need to confirm any expulsion with a formal vote rather than allowing the expulsion to be automatic. And, of course, a senator who faced such expulsion could receive the opportunity to gracefully resign.

Even with an automatic rule, however, expulsion would be too harsh a remedy. Similarly, recall of senators in those states that permit the recall of U.S. senators also might be unduly zealous even if such recalls were constitutional. States, however, could and should change their laws to fill vacant seats by election rather than by appointment, at least in cases in which a member has changed parties. Public opinion should then demand that members who change parties resign and stand for re-election.


William G. Ross teaches Constitutional Law and Constitutional History at Cumberland School of Law, Samford University, Birmingham, Alabama. He is a 1979 graduate of Harvard Law School. He welcomes comments on this essay at JURIST@law.pitt.edu.

May 30, 2001

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Discussion

  • This opinion is only valid if party politics is considered more important than constitutional law and the liberal philosophy it is founded on. One of the Framers most profound fears was of the primacy of factions and factional interests over the public interest. Party politics is only factional politics write large. To argue that switching parties somehow offends the constitutional order of the United States cannot be made unless the arguer values party over nation. Political parties are organizational means to a political means (control of the government) and are they are extraconstitutional. To claim that elected officers should adhere to parties that in their opinion work against the public interest is sophistical nonsense. If the voters of Vermont--who are the only ones that count in this specific controversy--disapprove of Jeffords decision they can vote him out. If they don't, then it is not a tacit admission that his action was correct, but a ringing endorsement.

    Mike McGlothlin
    Long Beach, CA

  • Professor Ross is engaging in the classic sour grapes discussion. The Constitution says nothing about the organization of the House and Senate beyond naming certain officers. If this were a parliamentary form of government the argument might make sense. Politicians in America have always been independent of party affiliation. To now argue for punishment or removal for some act contrary to an artificial standard would bring us back to the days when Congress refused to seat Adam Clayton Powell and the Georgia Legislature refused to seat Julian Bond.

    Stuart Shiffman
    Illinois USA

    • [William Ross replies] Mr. McGlothlin and Mr. Shiffman both properly emphasize that the Constitution does not prohibit a senator from changing his partisan identity during his term of office, a point that I conceded in my column.

      I also heartily agree with Mr. Glothlin that senators owe a higher duty to the public interest than to partisan interests, which is why I described Senator's Jeffords's switch as "an act of courage and conscience."

      And I agree with Mr. Shiffman that resignation would make more sense in a parliamentary system, where legislators are elected much more on the basis of their party label and partisan affiliation is much more important because party discipline is more cohesive. Since most parliamentary systems do not require party defectors to resign and seek re-election in a by-election, Mr. McGlothlin and Mr. Shiffman have more the reason to ask why voters should demand this in the United States.

      Political parties, however, have become an integral part of our constitutional system even if they are not formally part of the Constitution. For the reasons stated in my column, I continue to believe that a senator who resigns from a party also should resign from office, particularly if his change in partisan affiliation would change partisan control of the Senate. As I explained in the column, however, I do not favor expulsion, and even resignation would not be practicable unless state law allowed the senator to seek immediate re-election.

  • In a presidential system, party affiliations are important but not overwhelmingly so. And they need not be. It is doubtful that voters will elect a politician to office on the platform of one party and, assuming recall to be constitutional, recall him/her on the sole ground that party affiliation has been changed.

    Certainly, the election of a candidate over another is an endorsement of that candidate by voters. Perhaphs of the candidate's party also. But perhaphs not, as Professor Ross himself has conceded. It is believed that voters would expect their representative to do all that is necessary to represent their interests effectively even if that means a reconsideration of political affiliation.

    Even in parliamentary systems where party supremacy can be the norm, a defecting member may incur the wrath of the parliamentary 'chief whip' with the big stick while retaining the support of his constituents. And that's what really counts.

    Vincent M. Okwechime, Jr.
    Nigeria

  • Prof. Ross acknowledes that a Senator owes a higher duty to the country than partisan interests. Party membership then becomes mere windowdressing. It has no Constitutional and little legal bearing here. To follow his reasoning out, why not just impeach every candidate who goes back on a campaign promise? This is essentially a political rather than a Constitutional issue, with a "vote" being the proper remedy.

    Whether or not politician's change parties, and what immediate repercussions there are to them, is a question best addressed by the parties. The remedy proposed is too extreme. Regardless of how you feel about the Jefford's defection, the Constitution allows for the election of an individual, not a "party member" as is the case in some Parliamentary systems. The same Constitution guarantees this individual's freedom of association as well. Accordingly, even politicians are allowed the same freedom to enter into, and to leave, different groups.

    The Thornton decision above suggests that the courts would probably view any type of official or legal remedy, short of a Constitutional Amendment, to be invalid to force a switching Senator to step down. As noted, these types of conversions generally only occur when a Senator's state has already idealogically shifted. Expecting a state to demand its Senator step down, particularly if the Senator has shifted to re-align with their state's political background, is unrealistic; and to allow an immediate re-election is too cumbersome. The only realistic remedy is to wait out their term and then vote them out, if the state electorate is so inclined.

    Lee Guthrie
    Cumberland alumnus
    Alabama

  • I comment as a non United States Citizen.

    Constitutional issues to one side, I was so pleased to have a restortion of balance in the United States senate. Mr Bush's actions gave me seriosu fears. His action over climate change. His proposed defence spending "Star Wars" or similar, and then the proposed expansion of mineral exploration, even to mining and development in the Alaska National Park, affect us all in a finite interconnected world.

    Putting aside obvious thoughts of cronyism, in Bush's policies. I say thank God for America, and thank God for people like the Senator who have the courage to continually review and then live up to their principles. An action in the spirit of the Founding Fathers.

    I am so grateful for a system of government that allows a person to be more than an automatan to a party, but to be a thinking human being. It is the "Outsiders" like the Senator who have the courage to make the truly great changes.

    President's Bush's election could turn out to be a phryic victory for his supporters.

    Ronald A. Walden
    lawyer
    New Zealand

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CONTRIBUTING EDITOR

JURIST Contributing Editor William G. Ross is a professor at the Cumberland School of Law of Samford University, where he teaches constitutional law, legal history, and ethics. Professor Ross practiced law in New York City for nine years before joining the Cumberland faculty in 1988. He is the author of two books about American constitutional history and a book about the ethics of time-based billing by attorneys. His numerous law review articles concern ethics, legal history, and the federal appointments process. Professor Ross graduated from Stanford in 1976 and the Harvard Law School in 1979. He welcomes comments on his columns at JURIST@law.pitt.edu.