Respecting Democracy and Due Process in DSA: A respone to Sam Natale and Ramsin Canon
In their piece “Legal Analysis of the NPC’s Removal Powers” Sam Natale and Ramsin Canon offer a range of constructive and thoughtful insights with respect to acceptable standards of malfeasance and legal precedents surrounding lawsuits brought against membership organizations by aggrieved members. The authors should be commended for their detailed and careful analysis. That said, they do not sufficiently explore a number of critical points surrounding the case of Danny Fetonte, points that would likely have made the authors more cautious in their conclusions that 1) the NPC has sufficient grounds to remove Fetonte from the NPC, 2) that Fetonte would have no legal grounds to bring a case against the NPC in the event he were removed from that body, and 3) that removing Fetonte from the NPC would not tarnish DSA’s democratic character as an organization or set a potentially dangerous precedent. I will consider each point in turn.
What is Malfeasance for the NPC?
The authors argue that the standard for adjudicating malfeasance in a context like DSA, where there are no clear guidelines in the constitution or bylaws explaining what does and does not qualify as malfeasance, is relatively low: “just an intentional and wrongful act”, they argue. Further, they argue that given this standard the NPC clearly has legitimate grounds upon which to remove Fetonte from the NPC. I believe they are incorrect in both of these claims. First, they say that the absence of a specification of degree with respect to malfeasance in the DSA constitution (i.e. saying “serious malfeasance” as opposed to simply malfeasance) implies that the intention of the constitution is that “any intentional and wrongful act would qualify [as malfeasance].” That reasoning clearly runs counter to the spirit of the constitution, since the constitution also establishes that attaining membership on the NPC requires the holding of a national convention and a sufficient number of votes cast by the elected delegates of DSA’s national convention. Why would the constitution establish such a high bar for entry to the NPC only to turn around and give the NPC wide latitude to remove its own members more or less at will?
Further, in support for the idea that the constitution sets a low bar for what counts as malfeasance, the authors suggest that the specified grounds for nonfeasance, “unexcused absences from two or more consecutive meetings”, itself constitutes “fairly minor misbehavior”. If nonfeasance has a low-bar, then malfeasance has a low-bar too, their reasoning goes. But this misunderstands what NPC meetings are. The NPC meets not every week or every month, but only four times a year (the current rate of NPC activity is highly unusual and due to exceptional circumstances that include the situation around Danny Fetonte as well as the events in Charlottesville). So two consecutive unexcused absences isn’t a momentary lapse or a brief period of flaking. It means the NPC member has effectively dropped out of participating in one of the NPC’s main required functions for about half a year. That’s a pretty major lapse, and certainly not “fairly minor misbehavior”. Using the author’s own logic of noscitur a sociis, the correct conclusion is the opposite of the one they suggestion: because the bar set for nonfeasance is quite high, the bar for malfeasance should be quite high as well.
Further, if the constitution’s intent were not that NPC members should only be removed in cases of serious malfeasance, why would it have set a standard of having a 2/3 vote requirement for removing NPC members when almost all decision-making in DSA — except very serious decisions with profound organizational implications — is conducted by majority vote? I wasn’t at the convention where the language around malfeasance was drafted so I can’t say definitively, but I strongly suspect the absence of specific language around the degree of malfeasance was not an intentional act meant to give the NPC the broadest possible grounds for removing NPC members. In fact such an interpretation would almost certainly have been anathema to both the drafters of the language and the delegates who ratified it. The absence of language around degree of malfeasance can much more parsimoniously be explained by the fact that when the language was written DSA was a much smaller organization in which almost all leaders and activists had longstanding relationships with each other to whom it would never have occurred that more fine-grained explanation of the intent behind the language would be necessary. Consequently, it is wrong to say that the constitution’s intent is to empower the NPC to remove members for any act, however trivial that is both intentional and wrongful.
To make the point clear, here’s a personal story of my time on the NPC: once I knowingly stole part of a bagel from an NPC comrade during breakfast because I was still hungry and there were no more bagels. That was both intentional and wrongful, I’ll admit it (now that I’m off the NPC), but unless we want to turn DSA into an organization of Kantian socialists it would clearly have been a major stretch of the constitution’s intent to bring charges of malfeasance against me. Certainly Natale and Canon wouldn’t want to advocate for such absurd stretching of the meaning of malfeasance; but when they slip into arguing that no degree at at all is implied, their argument does indeed lead to such conclusions.
But even if you disagree with my interpretations above, there is still the question of whether Fetonte’s actions were both intentional and wrongful, and whether the intent could be reasonably proven. I personally believe Fetonte deliberately withheld his employment history with CLEAT from his NPC candidate statement, though I don’t have proof, nor does anyone else, as far as I’ve seen. Unless someone is able to produce an email, phone record, firsthand testimony from someone to whom Danny revealed his intent or some other smoking gun to demonstrate intent, how can the NPC show that Danny’s act was intentional? Then there is the question of whether his act was wrongful. Was it in poor judgment? I think so, but that’s just my opinion. To demonstrate that Fetonte’s act was wrongful, there would have to be some rule or law that he violated. Is there a rule or law in DSA that stipulates what must be included in an NPC candidate statement? No. Consequently, from a procedural standpoint there are no grounds to justify the charge that he committed a wrongful act, as he violated no rule. DSA may choose to establish such rules in the future, but as things stand there are no grounds upon which to situate a malfeasance claim around what an NPC member did or did not include in their candidate statement.
The Potential for a Lawsuit
Second, let me address the argument that Fetonte would have no legal grounds upon which to bring a case against the NPC if he was expelled.
The authors cite relevant case law to argue that were Fetonte to bring a lawsuit against DSA on the grounds that he was improperly removed from the NPC, his lawsuit would probably be thrown out summarily by any judge. They indeed make a compelling case that courts err strongly on the side of not intervening in the internal affairs of membership organizations, and they rightly point out that the standard of due process established in the DSA constitution is much lower than that of a court of law (though I’m not sure that anyone was arguing to the contrary). However, they do not acknowledge the important differences between the cases they cite and the case of Danny Fetonte.
They cite the case of Davenport v. Soc’y of the Cincinnati, in which a judge upheld the expulsion of a member of the society for “conduct inconsistent with a gentleman and a man of honor” to argue that no judge would deem the NPC’s decision to remove Fetonte illegitimate since the standard for removing NPC members is similarly broad and encompassing. The difference between the two cases, however, is that in the Davenport case there was a clear, if broad standard to be applied with respect to the particular issue at hand in the case, which the judge interpreted on the basis of a range of historical uses of phrase “gentleman and man of honor.” No such standard exists in DSA’s constitution or any other of its governing documents with respect to expectations of NPC candidate statements, nor is there any language in any of DSA’s governing documents that could be reasonably interpreted as implying the prohibition or sanctioning of any actions related to NPC candidate statements. Consequently, the only standard the judge would have to apply in the case of a Fetonte lawsuit would be the word malfeasance itself, which can only be demonstrated to have occurred if Fetonte’s action was both wrongful and intentional. As I discussed above, there are not strong grounds upon which to demonstrate either in this case.
As the authors point out, we really have no idea how a legal fight brought by Fetonte against DSA might play out (reason enough from my perspective to err on the side of caution), but it seems likely that a judge would want to establish some precedent or standard for assessing the meaning of malfeasance (as the judge in the Davenport case did with respect to “gentleman and man of honor”). As I mentioned above no rule exists prohibiting Fetonte’s actions, so it’s not obvious to me that a judge would agree that his actions constitute malfeasance given DSA’s own standards.
The authors also point out that the judge in the Davenport case clearly stated their willingness to intervene in the internal proceedings of a membership organization if a member was expelled for improper reasons or “based on unfair procedures.” Given that the NPC released a statement condemning Fetonte’s actions (August 10th) before taking any formal decisions against him, it is likely that Fetonte would argue that he was judged prior to receiving a fair hearing from the NPC. He could also potentially gather public statements made by individual NPC members against him to argue that there was no way for him to receive a fair hearing by the NPC. I, like everyone else, don’t know if any of these arguments could be sustained in courtroom, but they are of sufficient number to suggest that the NPC should tread very carefully.
Further, the authors do not acknowledge other potential legal grounds upon which Fetonte might sue DSA were he to be removed from the NPC, in particular defamation of character, which would allow him to get around any potential obstacles surrounding juridical circumspection in cases of the internal governance of membership organizations. He could simply use the vast trove of unsubstantiated claims (many made by NPC members, and one made formally by the NPC itself) to bring charges of slander or libel.
Again, it’s not at all clear how successful these arguments would be in a court of law, but even a small likelihood of success is enough for me to urge extreme caution. A lawsuit, even one that DSA wins, takes a lot of lawyer hours and staff time, both of which are expensive, and both of which could and should be used to build our organization rather than defend ourselves against aggrieved members. Our membership dues money and staff time should be going toward the crucial tasks of political organizing across the country. It would be very regrettable if the organization got wrapped up in a draining court battle that could have been easily avoided. Even if DSA were confident we would win such a lawsuit, it would still be very expensive and require major organizational resources, so “winning” would effectively entail an organizational loss.
The Question of Democracy
The authors argue that defenses of due process around the Fetonte issue (such as Sean Monahan’s excellent piece) wrongly turn what is essentially a political question into a procedural question. In other words they imply that people like Sean are hiding behind a narrow conception of due process because they think that’s the strongest defense of Danny Fetonte. The authors are partly correct that this is a political issue, though not for the reasons they imply, and in part they are incorrect because they have an inaccurate interpretation of the current powers afforded to the NPC with respect to NPC member removal. I will take each of these issues in turn.
I agree with the authors that adjudicating the Fetonte situation is, in part, a political question, but not because folks like myself who favor a strong defense of due process are trying to defend Danny Fetonte, far from it. My political perspective is very different from Danny’s and I’ve never been nor am I now his political ally in DSA. Rather, this situation is political because there is a distinction between what the NPC can do vs. what it should do.
Even putting aside the question of what the NPC’s authority actually is with respect to the removal of its own members, the NPC should not set a precedent for NPC removal based on political disagreements, even when these are substantial. Until recently, DSA was a small organization in which the vast majority of leaders and activists knew each other and had built trust on the basis of longstanding and close personal relationships. Much to everyone’s excitement, this is no longer the case. However, the rapid change in size and structure that DSA’s has experienced brings with it significant challenges with respect to internal democratic practice.
In the context of a small organization like DSA had been before, the dangers of removing someone from the NPC on political grounds would be significantly lower because there would be broad agreement both on the exceptional character of a single instance of removal as well as on the nature of political perspectives that were so beyond the pale that they couldn’t be tolerated in the organization. Of course in a smaller organization it would also have been easier to use personal relationships and mutual trust to resolve issues like this before they ever reached such a crisis level.
By contrast, in a much larger organization with a much broader variety of political perspectives and with much lower levels of personal trust between members, however, there’s a much greater threat that various groups will want NPC members removed for political motivations on an ad hoc basis. In the context of a larger DSA, the content of political perspectives that are beyond the pale is highly controversial and no consensus or even broad agreement exists in the organization on this question. Under these conditions it becomes more important than ever to recognize that the NPC is not a neutral body, but rather a political body that may very well contain members with an interest in removing members for reasons other than the health of the organization or the good of the membership. In an ideal world (perhaps at the next convention) an independent, genuinely neutral body with legitimate authority derived from the membership would be established to adjudicate cases like this. In the meantime, however, it is absolutely critical that the NPC be cognizant of the political character of the body and act in a circumspect a fashion as possible in any case with even the possible perception of conflicts of interest or other forms of political impropriety.
So in order to avoid making undemocratic pronouncements of what DSA’s politics are or are not that could easily be weaponized to attack any group of DSAers whose political perspective diverges from that of another group within DSA, we must err on the side of permitting the broadest possible range of perspectives in the organization, even when that is extremely frustrating to many members. If we hope to have the slightest chance of holding together DSA as it continues to grow and as the range of perspectives within it continues to widen, we have to militantly adhere to clear, regular and equally-applied procedural standards, since we can no longer rely on an implicitly-shared conception of what does and does not fall outside the realm of political acceptability in DSA, nor on the strength of personal relationships built on longstanding trust to help us whether political crises.
The authors argue we shouldn’t be worried about setting a precedent through Danny’s ad hoc removal, since the 2018 convention can pass new standards for NPC practices. From a legal point of view this is correct, but it ignores the political precedent, which is all the more important in a democratic organization like DSA. We can and should develop standards and procedures for NPC elections and clearer criteria for malfeasance and nonfeasance, as well as a constitutional amendment to approve a democratic recall process. But it will be a meaningful change in the organizational political culture in 2019 if we affirm the norm in 2017 that if a vocal number of members press for it, the NPC should expel one of its elected members even if no malfeasance occurred. Especially if Fetonte’s’s dismissal leads to a number of people resigning from DSA, not only the organizational culture will be different but also the group of individual delegates who will be voting in 2019.
I am not Fetonte’s’s ally politically, but I think it is very important for us to get comfortable with the thought of people we strongly disagree with sitting on the NPC. DSA is a “big tent”, and although the tent has boundaries, we should be very cautious about empowering the NPC to reconfigure those boundaries and expel its members on the basis of their political beliefs.. Giving the NPC a power like that is incompatible with the goal of developing DSA as a large, multi-tendency, open and democratic organization. Relatedly, the NPC should not extrapolate conclusions about which political perspectives are sufficiently problematic to warrant removal from the NPC on the basis of whether those perspectives conform to positions taken in DSA’s resolutions and other public statements. For instance, the DSA convention passed a resolution empowering the new Afro-Socialist Caucus to do work around prison abolition, but it doesn’t follow from that approval that we can kick individuals out of leadership positions because they hold political positions that don’t represent the current political consensus in DSA. DSA has never applied its resolutions in this manner in the past, and should not do so in the future.
In sum, I’m not interested in defending Fetonte politically. What I’m interested in is defending fair and equitable procedures for political reasons, and limiting the NPC’s powers to remove its elected members on an ad hoc basis.So yes, this is partly a political question. At the same time, however, it is also a procedural question about the appropriate interpretation of DSA policy. The authors must understand this clearly given the level of detail they go into around all the procedural technicalities of this case.
The authors’ argument that this is an entirely political issue is based on their claim that the NPC clearly already has the authority to remove Danny Fetonte for not disclosing his involvement with CLEAT. As I detailed above, however, that’s a misunderstanding of the DSA constitution. Fetonte violated no DSA rule by not disclosing this information (even though I and many others in DSA believe he definitely should have done so) and furthermore the intention of the language around NPC removal in the constitution was in no way to give the NPC latitude to dismiss members based on whatever grounds they see fit. The authors argue that not voting to remove Fetonte from the NPC would undemocratically override the delegates of the 2001 DSA convention who voted to approve the current language around NPC candidate removal in the DSA constitution, as they would have interpreted the language to imply that the NPC should have broad and flexible authority to remove NPC members. To the contrary, as I discussed above, that is not the case, and is in fact the opposite of what the 2001 convention delegates — who also believed that NPC membership was such an important issue for the organization that it could only be determined by a vote of DSA’s biannual convention — would have wanted.
Doing the Process
In summary, despite the very useful service Natale and Ramsin have performed of providing a legal context for helping us to understand both the meaning of due process in a membership organization and some of the historical legal precedents cases along these lines, they misunderstand 1) the actual authority the NPC currently enjoys to remove its own members, 2) the potential legal fallout that removing Fetonte from the NPC could generate, and 3) the crucial importance of maintaining impeccable democratic and procedural standards during organizational crisis such as this. I hope that all DSA members and particularly members of the NPC bear these points in mind as we move forward, and I hope that thoughtful, reasoned exchanges such as this will increasingly take the place of reactive, unreflective and often poorly-reasoned grandstanding on social media.