A Forgotten Way To Impeach
Thursday, January 26, 2006
Thanks to Kagro X for permission to reprint all of his impeachment articles. Here is his latest, posted at The Next Hurrah:Ooh! It's my first use of the State and Local Government category!
So I was cruising around Daily Kos the other day, and came across this diary, raising a point of parliamentary arcana. I just had to look into it.
NOTE: Sec. 603. Inception of impeachment proceedings in the House. This refers to Jefferson's Manual-the House uses it as a supplement to its standing rules.>>
In the House there are various methods of setting an impeachment in motion: [...] by charges transmitted from the legislature of a State (III, 2469)
Whaaaaaaa? (TM)
The diary linked back to another blog, where the idea apparently originated. And to be perfectly honest with you, this read at first like just another fringe-y, kooked-out misreading of procedure. But I just happen to have an old copy of Jefferson's Manual here on the desk, and sure enough, that's just what it says. The legislature of any state or territory may transmit charges to the Congress and recommend impeachment.
Now, to be sure, there is nothing that forces the House of Representatives -- still the sole body capable of adopting actual articles of impeachment -- to act on such charges. In fact, you can be assured that they'd do everything in their power to avoid doing so.
But what a story it'd make! A little known constitutional procedure that has lain dormant for decades, never before used against a president, and pitting the duly elected and sworn legislature of a state against a federal Congress sitting on its hands and refusing to act!
What drama! What passion!
So, where to start?
Well, clearly you'll need to begin in a state with a strong Democratic majority in the legislature. That's just plain fact. And while it may be complained that it puts an unduly partisan shine on things, the bottom line is that there really are no Republicans willing to consider their duty in this matter.
With that, then, let's examine the state of the states, and partisan control of the state legislatures. The handy-dandy chart in the link shows us that the legislatures of Alabama, Arkansas, California, Colorado, Connecticut, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Jersey, New Mexico, North Carolina, Rhode Island, Vermont, Washington and West Virginia all have Democratic majorities in both houses. But Hawaii, Massachusetts, Rhode Island and Vermont have got overwhelming majorities. Veto-proof majorities (though that may not be a necessary requirement).
Hawaii's 51 House seats are occupied by: 41 Democrats and 10 Republicans.
Hawaii's 25 Senate seats are occupied by: 20 Democrats and 5 Republicans.
Massachusetts' 160 House seats are occupied by: 139 Democrats, 20 Republicans and 1 independent.
Massachusetts' 40 Senate seats are occupied by: 34 Democrats and 6 Republicans.
Rhode Island's 75 House seats are occupied by: 59 Democrats and 16 Republicans.
Rhode Island's 38 Senate seats are occupied by: 33 Democrats and 5 Republicans.
Vermont's 150 House seats are occupied by: 83 Democrats, 60 Republicans, 6 Progressives and 1 independent.
Vermont's 30 Senate seats are occupied by: 21 Democrats and 9 Republicans.
That's pretty good odds, at least based solely on partisan affiliation. Lots of leeway for "conscientious objections."
One curious side note: All four of these states have Republican governors -- some for the first time in decades. How weird is that? Will it matter? Not sure. Not only are these veto-proof majorities, but if these states abide by parliamentary rules similar to those used in Congress, a concurrent resolution approved by both houses is not subject to executive signature, and therefore not subject to veto.
But what else do these states bring to the table?
Well, according to a recent SurveyUSA poll, the states with the three very worst approval ratings for Bush are: Rhode Island, Vermont and Massachusetts -- in all of which Bush draws at least 64% disapproval. Rhode Island actually puts Bush below 30% approval, splitting 29/68!
That's another notch in the columns of those three, then.
Now, any of those states would make a great place to start. Massachusetts has a famous Democratic tradition, of course. And it doesn't hurt that it's the home state of the last Democratic presidential candidate. But what captures my interest is that they were one of the states (along with Vermont, as a matter of fact) whose presidential electors voted to transmit additional messages to Congress, calling for an investigation of voting irregularities in the 2004 presidential contest.
These are people who are on board with the concept of breaking tradition, and utilizing a bit of arcana when appropriate.
Vermont, of course, has a number of things going for it in this sweepstakes. Need national players with the clout to get the story heard? Vermont provides plenty: Senate Judiciary Ranking Member Pat Leahy; the only independent in the Senate (and a former Republican at that), Jim Jeffords; the only independent in the House, Bernie Sanders; and of course, Democratic National Committee Chairman and former governor, Howard Dean.
Overly concerned about partisan taint? In addition to the independent status of Jeffords and Sanders, Vermont has a relatively robust third party presence in its legislature -- the Progressives, generally a liberal-leaning bunch, but without the complicating ties of membership in the Democratic Party.
Add to that the Vermont Legislature's resolution of May 29, 2003 disapproving of the USA PATRIOT Act and calling upon Congress to repeal specific provisions of it, and you've got a real contender.
But let me just throw in one quick plug for Rhode Island. It's got the legislature. It's got the low -- and I mean low -- Bush approval ratings. But it's also got Lincoln Chafee, one of a dying breed of "moderate" Republicans, who faces what's looking like an uphill battle for reelection this year.
Would Chafee -- who has broken from the president recently on some key votes, including judicial nominations -- have it in him to stand by Bush when the I-word is on the table, the man's approval ratings are in the toilet, and his home state's legislature has sent instructions to impeach?
I don't know, but I'd love to find out!
So, is it all just some crazy pipe dream? Well, if you're asking me whether the Republican-controlled House is likely to be persuaded to move articles of impeachment at the behest of a single state legislature, the answer is obviously no. But as I said, what a story it'd make!
What would the House do with such a charge? Well, clearly it'd have to be delivered in some formal fashion. Perhaps memorialized by a motion from a sympathetic Member. At the very least recited aloud by the Reading Clerk, live on C-SPAN. But the House would have to dispose of it somehow, most likely by immediately moving to commit the charges to a committee -- likely Judiciary -- and let it rot there, or to table any motions brought seeking to recognize the transmission of the charges.
But that's just fodder for the media. "Congress Ducks State's Impeachment Charges," the headline might read. (OK, maybe that's the pipe dream.) Still, it's a story. And what if more than one state sent such charges?
But another beauty of this is that Jefferson's Manual also instructs us:
A direct proposition to impeach is a question of high privilege in the House and at once supersedes business otherwise in order under the rules governing the order of business. It may not even be superseded by an election case, which is also a matter of high privilege. It does not lose its privilege from the fact that a similar proposition has been made at a previous time during that same session of Congress, previous action of the House not affecting it.
State legislatures take note, however:
A resolution simply proposing an investigation, even though impeachment may be a possible consequence, is not privileged. But where a resolution of investigation positively proposes impeachment or suggests that end, it has been admitted as of privilege.
The resolutions referred to above are actually those which would be proposed in the House, memorializing the receipt of a state's petition, but it could only help matters for state legislatures considering transmitting such charges to be explicit in framing their document in terms of impeachment. It'd be a much tougher sell to convince the House Parliamentarian that a resolution brought in the House seeking to memorialize a state legislature's resolution calling for impeachment did not actually constitute at least a resolution of investigation positively proposing impeachment. Not that the House GOP Leadership wouldn't consider overruling the Parliamentarian, of course.
So, who's up for it? Who likes Vermont for the job? Rhode Island? Someplace else? Hawaii's nice during winter.
