Tuesday, December 12, 2006

Will Hevesi's Confession Bring Him Absolution?

We have ourselves a bit of a situation here in the Empire State. In November, we elected Alan Hevesi as state comptroller, despite the fact that he had admitted to using a state employee to drive his wife to and from doctor’s appointments. Apparently, he was supposed to reimburse the state for any work by this employee that was not security-related, but did not do so -- until some time over the summer, when his opponent in the election made Hevesi’s actions public and accused him of breaching the public’s trust. According to an article in this week’s New York Magazine, Hevesi has since repaid over $80,000 for the employee’s time (covering a period of three years), and may be required to reimburse as much as $200,000 more.

In what was left of the election campaign by the time the story became public, Hevesi’s strategy became one of aggressive admission. He launched an ad campaign in which he confessed his missteps, apologized, and asked for the voters’ forgiveness. Perhaps it worked; in all events, the voters reelected him by a seven-point margin, although reportedly 92% had heard about the scandal. But perhaps at least some portion voted for him with some expectation that he could very well be removed or forced to resign. Such a vote would have been not so much a vote for Hevesi, but rather an expression of a view that whomever Eliot Spitzer (whom everyone expected to with the governorship quite handily) would nominate to replace Hevesi would be more appealing than Hevesi’s opponent.

Now, however, several news sources (most of which refer back to the same report in this week’s New York Magazine) are citing an article that State Senator Michael Balboni co-authored for the Fordham Urban Law Journal in 1987, which reportedly concludes that if the public has received full disclosure of a politician’s misconduct before an election and elects him or her anyway, the election works as an “exoneration” and the politician cannot be impeached or removed based on that misconduct. According to these reports, Hevesi could use this argument to resist attempts to remove him, perhaps even suing in court to block impeachment proceedings.

Senator Balboni’s article predates the coverage of the Fordham Urban Law Journal on Lexis and Westlaw, and I have been unable to find a single document that cites it prior to the recent articles about Hevesi. But if it turns out that Hevesi’s pre-election confession was complete -- that is, if his transgressions went no farther than what he publicly admitted in advance of the election -- then Balboni’s argument undoubtedly raises a difficult issue. It does seem inherently undemocratic to remove someone duly elected by the people based on alleged wrongs that the people fully knew about when they elected him. On the other hand, what precisely did the people “know”? Did their knowledge include, for example, the fact that it was widely believed that if Spitzer was elected governor (as he was, by a margin of victory greater than Hevesi’s), he would seek Hevesi’s removal or impeachment? If Hevesi is indicted (as he reportedly may be), will that constitute an additional “fact” that the voters cannot be said to have agreed to accept?

As big a fan as I am of courts, it is not at all clear to me that they are suited to resolve these kinds of questions. Rather, I strongly suspect that if the matter goes that far these issues will have to be decided by the state legislature, in the context of an impeachment proceeding. Hopefully, the members of that body will be able to find a way to deciper what we, their constituents, were actually thinking.

15 comments:

Madisonian said...

The article is called New York's Impeachment Law and the Trial of Governor Sulzer: A Case for Reform, 15 Fordam Urb. L.J. 567 (1987), and is available on HeinOnline.

Michael C. Dorf said...

The argument that the People knew all about this sort of thing when they re-elected him was used by Bill Clinton's supporters during the Lewinsky imbroglio. More generally, there is a long tradition of voters returning to power people who have done wrong. Representatives Hastings and Jefferson in the current Congress come to mind. This tends to put others, especially in their party, in a bit of a tough position, as Nancy Pelosi recently discovered with respect to Rep. Hastings.

Neil H. Buchanan said...

I voted for Hevesi confident that he would be canned and replaced by someone chosen by Spitzer. Giving the office to his opponent, who was blatantly unqualified for the office, was unthinkable. In fact, if I had to choose between Hevesi and his opponent, even knowing what I know about Hevesi, I'd rather have Hevesi serve a full term. That is definitely not what I was voting for, though. Not that one highly unrepresentative voter's views are dispositive . . .

Craig J. Albert said...
This comment has been removed by a blog administrator.
Craig J. Albert said...

To the extent that there's ever any testimony to be taken on the subject, let me say that I join Neil in having voted for Hevesi on the assumption that he'd either resign or be removed following a Spitzer victory, and that any nominee put forth by Spitzer and agreed to by Bruno would be better than the Republican candidate.

By the way, similar (but by no means identical) issues were raised in Powell v. McCormack, 395 U.S. 486 (1969), when the House refused to seat Adam Clayton Powell after an intervening re-election.

Adrienne B. Koch said...

Arguably, the difference between Hevesi and the examples Michael cites is that Hevesi admitted (or at least largely admitted) the "charges" against him before the election. He can thus claim that the voters don't care if he did what he is accused of doing. This may distinguish him from someone who has been accused of wrongdoing, maintains his or her innocence at the time of the election, and is later found guilty (by whatever the relevant body). In the latter case, we cannot tell whether (a) the voters didn't care about the wrongdoing; (b) they mistakenly thought that the person was innocent, and would have voted differently if they had "known" he or she would be found guilty; or (c) they thought the person was innocent and still do. That said, in the interest of full disclosure, I voted exactly the same way Neil and Craig did, for exactly the same reasons.

Adrienne B. Koch said...

Further to Craig's comment, I would also note an important difference between Hevesi's situation and that of Adam Clayton Powell. If Hevesi is impeached, the people deciding his fate will be the duly-elected representatives of the very people who elected Hevesi to statewide office in the first place. In contrast, the members of the House who refused to seat Powell represented -- by definition -- everyone except the people who actually voted for Powell.

Adam P. said...

I voted for the socialist candidate due to this dilemma.

But it will be interesting to see how this plays out in Congress with Rep. Jefferson's reelection. Jefferson has yet to confess, though.

One way to think about this though is as a classic countermajoritarian difficulty. The American people could overwhelmingly elect Arnold Schwarzenegger President, or me for that matter,but either of us would not be able to serve constitutionally (because of Arnie's Austrian birth and my youth). While neither Jefferson nor Hevesi currently have violated any constitutional provisions, the constitution of New York clearly doesn't predicate removal from office on what individual voters say. Because voters are likely faced with constrained choices in the voter booth( the HEvesi case), and may not consider the big picture but vote in their own past-pork interest (Jefferson, IMHO), this is a good thing. If Jefferson is convicted, though, would the implied consent of his constituency matter. Even though he has not denied guilt, I don't think the voters in LA overwhelmingly think the cash just innocently appeared in his freezer.

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