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When Vermont's, San Francisco's, and Other Cities' and Towns' Constituents Call For Impeachment of the President and Vice-President, Must Their Federal Representatives Listen?
The Ethics of Representative-Constituent Relations


Thursday, Jul. 26, 2007

Citizens in many parts of the Unites States are clamoring for the impeachment of President Bush and Vice-President Cheney. Do their representatives have a duty to listen? In this column, we'll consider that question.

Formal Calls for Impeachment From San Francisco and Vermont

The results of the 2006 midterm election were widely interpreted as a rebuke to the Republican Party, and some voters made it quite explicit that they thought Administration actions had been not just bad policy, but grounds for impeachment.

To take a prominent example, the voters of San Francisco adopted Proposition J, which "call[s] on [San Francisco's] elected federal . . . representatives to immediately invoke every available legal mechanism to effect the impeachment and removal from office of President George W. Bush and Vice President Richard B. Cheney for High Crimes and Misdemeanors under Article II, Section 4 of the Constitution of the United States of America."

After the midterm election, the Bush Administration continued to essentially conduct business as usual, angering many voters. Again, some made their views in favor of impeachment explicit: Recently, the Vermont State Senate passed a resolution which calls on its federal representatives to impeach the President and Vice-President.

Most recently still, Cindy Sheehan has announced that she will contest Nancy Pelosi's seat in the House of Representatives and base her campaign upon Pelosi's failure to call for impeachment.

When constituents signal their impeachment preferences loudly and clearly to federal representatives in Congress, do these representatives have some obligation to listen and respond?

The Representative/Constituent Relationship: A Bond without a Guidebook of Professional Ethics

The answer to this most central question of democratic governance requires some appreciation for what the relationship between representative and constituent ought to be in a democracy. But without an agreed-upon code of ethics or how-to manual to guide this relationship, getting at the nature of this dynamic proves confounding.

It is not at all clear, it turns out, what a good representative is to do when her constituents are demanding that she pursue impeachment. Representatives might routinely swear support to the Constitution of the United States (in accordance with Article VI) - a stately authority, to be sure - but their relationships with their constituents are not channeled through any oath or affirmation that could enable them to figure out how to execute their discretionary right to impeach under the U.S. Constitution's provisions.

Lawyers, of course, have elaborate principles and codes of professional responsibility that guide their relationships with clients. Beyond general requirements of "zeal in advocacy" (see the American Bar Association's 2007 Model Rules of Professional Conduct, Rule 1.3, comment 1)and "maintaining the integrity of the profession" (Rules 8.1-8.5), there are specific and well-thought out obligations governing confidentiality (Rule 1.6), conflicts of interest (Rules 1.7-1.11), and "declining or terminating representation" (Rule 1.16). Similarly, doctors take a modern version of the Hippocratic Oath and are guided by the American Medical Association's Code of Medical Ethics in their relationships with their patients. Ethical training is usually a prerequisite for entry into these professions. But what professional morality constrains and directs legislators in their interactions with their constituents?

Of course, there are laws against many forms of governmental corruption; but there is also, we think, a political ethic that may not necessarily be inscribable into law, which nevertheless should inform a legislator's relationship with her constituents.

Defining an Ethic for How a Representative Must Consider Constituent Views

Any such ethic must, to be sure, acknowledge the competing claims that weigh on a federal legislator. Although legislators are elected locally by supporters in their particular district, they must represent not only those who voted for them but also their entire district. Even more, they are charged with representing the whole nation.

Accordingly, while a representative must heed the opinions and preferences of her local constituents when they speak loudly and clearly together, she must also follow the dictates of her own conscience in pursuit of what she perceives to be in the true interest of the whole country, not just that of her particular district. Though hardly radical, this ethic, sadly, is notable for being routinely flouted and subverted in modern democratic life.

Chosen locally, the federal representative must be oriented locally; it would make no sense to use geographical representation in choosing our legislators if they were to owe nothing to their electors. But, all the same, their job as a federal representative requires that they be oriented nationally as well. We send our representatives to deliberate in Congress about what befits the nation, not merely to advocate zealously for our own narrow self-interest. The representative is not bound by constituent mandates or preferences - but nor should she be wholly free to ignore such expressions of voters' wishes, particularly those that enjoy lucid expression through traditional democratic mechanisms.

So what should a local representative do in the face of constituent calls for impeachment? Here, some kind of political morality that calls for care for, responsiveness to, and authentic engagement with constituent opinion and preference would be appropriate. Such an ethic could not, of course, be legally enforceable; our ethical lives and professional moralities are not always susceptible to legal enforceability. Indeed, we elect representatives in part so that they will exercise their own judgment, not ours -- a discretionary judgment that flows from considered reflection that takes into account constituent views, without being beholden to those views.

Voters Have the Power of the Polls, But That Is Not, Alone, Enough

Voters, of course, can simply issue verdicts without opinions by electing offending representatives out of office when they betray the degree of loyalty to constituent preference that voters deem to be required. Cindy Sheehan can, of course, challenge Nancy Pelosi in an election.

However, we think the paucity of the vote-them-out "remedy" shows why we need a more vigorous representative/constituent ethic than the one democratic minimalists prescribe: they think democracy has no political morality beyond electoral competitiveness. Even if Sheehan, for example, can muster the money and enthusiasm to run for office, such rough justice is not always meaningfully available, especially in an era where electoral competition is increasingly scarce - a function of partisan district-drawing, unequal access to campaign funds, and general incumbency advantages.

Political representatives need much more than the threat of being unseated to weigh on their consciences. As professional policymakers, legislators have the burden of engaging in considered reflection and judgment. All too frequently, however, legislators fall short of their responsibilities - becoming glib or listless in their reactions to constituent preference, and coarsened to the claims of their duty to vindicate the national interest or the common good.

How Today's Legislators Fall Short In Their Duty to Constituents Calling for Impeachment of the President and Vice-President

Are legislators currently honoring constituent demands for impeachment in a meaningful way? We think not. Democrats probably realize, quite rightly in our view, that impeachment would be unlikely to serve the party's long-term interest. But mere pragmatism and partisan considerations do not contribute to maintaining the dignity of the political profession and the integrity of the relationship between the rulers and the ruled, between representative and constituent.

The practice of political representation - indeed, the vocation of democratic politics itself - could be bolstered if conceptualized in terms of an ethic of care, responsiveness, and authentic engagement. To be sure, we are ultimately not calling for a mechanical how-to guide on how to govern; democratic politics, like family medicine, is as much an art as it is a science. However, it is an art-form that should be guided by an ethical framework to inform interactions between representatives and constituents.

The professional responsibilities representatives have to their constituents should guide the exercise of political judgment in the context of impeachment (and elsewhere). With such a code of ethics in place, a genuine national conversation could unfold about the merits and faults of impeachment.

Even in such an ethical landscape, calls for impeachment might not lead to an effective ouster. But we're sure that in such a world - where politicians took their ethical responsibilities to their constituents seriously - these calls would, at least, not fall on deaf ears.

Ethan J. Leib, author of Deliberative Democracy in America (2004) and co-editor of The Search for Deliberative Democracy in China (2006), is a professor of constitutional law and legislation at the University of California's Hastings College of the Law in San Francisco.

David L. Ponet, a political scientist whose 2006 doctoral dissertation was about political representation in the United States, advises the investment community on public policy and regulation.

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