Danny should resign, but we need due process

I think most people agree that it would be the best thing for the organization if Danny Fetonte resigns from the NPC. But if he doesn’t, can the NPC just kick him off? We have to think very hard about that question if we want to remain a democratic organization.

I’m chiming in because I’m a former member of the NPC and know DSA’s rules better than most. And, as a founding member of the Left Caucus in 2014 and one of its few members on the 2015–2017 NPC, I’m also fairly well known as a political opponent of Danny’s.

I don’t think I’ve ever met Danny personally. I mostly just know him from reading his emails criticizing proposals I supported over the years. I have sharp disagreements with him on lots of important issues, from the way we should relate to the Democratic Party and to the union movement, to the way we should structure DSA itself. I respect all the work he’s done building DSA up across Texas, and hope he keeps organizing with us when this is all over. But that respect shouldn’t be mistaken for defending Danny or his politics in any way. I consider him a political opponent within DSA and I definitely didn’t vote for him for NPC.

The recent crisis has led a lot of people to call on Danny to resign from the NPC. I’m one of them. Danny, step down. It’s obvious that’s the solution that’ll mean the least harm done to the organization overall at this point. If Danny’s main concern is that someone with his brand of politics, or someone representing the Austin chapter, sits on the NPC, then I think it would be a suitable compromise for the NPC to negotiate with Danny the person who would replace him if he resigns. It would be fair game because, according to our constitution, the NPC can choose whoever they want to fill vacancies. That kind of amicable, negotiated resignation I think is the best possible outcome for DSA as a whole, and I hope Danny is willing to consider it for the sake of the organization he’s spent so much time and energy building up over the past few years. Ideally the mediation process the NPC announced last night could lead to a compromise like that.

So I join those who are calling for Danny to step down. But lots of people have taken a further step and asked the NPC to vote him out if he doesn’t resign willingly. And that’s something we should really think hard about. I think a simple vote to kick him out would be a major violation of democratic procedure and set a very authoritarian precedent that I hope we’ll decide to avoid. If the mediation process doesn’t result in a compromise that both the NPC and Danny can live with, I think it’s very important for DSA to move forward with due process in registering the allegations against him, giving him the chance to defend himself, and deciding the dispute with fair and equitable procedures.

Fuck police unions

Lots of people are feeling really angry and indignant about this issue, and those feelings have only been inflamed by the really horrific violence in Charlottesville this weekend. I share those feelings and the politics behind them. Police are carrying out large-scale systematic abuse and murder of civilians across the country, particularly poor people and people of color, and police unions are doing what they can to make sure those crimes go unpunished. Police unions are class enemies and should be regarded as such. I’m comfortable with having some who think that it’s useful to try to build relationships with “progressive” police unions in DSA, since we’re a big tent organization and disagreements about all kinds of strategic and tactical questions are part of that. But I think that a large majority of DSAers agree that police unions are class enemies to be fought, particularly since our convention just voted to create the Afro-Socialist and People of Color Caucus and to affirm police and prison abolition as one of our ultimate aims.

I want to say again that I did not vote for Danny, and I consider him a political opponent of mine in DSA. I also want to say again that I see police unions as class enemies―enemies we have to oppose fiercely. But I have been alarmed by how lightly many DSAers have taken the decision of asking the NPC to remove one of its members. Asking him to resign is fine (I’m doing that too), but we should be very wary of that next option. Here’s why.

Think about DSA’s structure: The convention is the most democratic decision-making body we have — it’s far from perfect, but democracy is messy. At the convention, all our chapters and at-large members elect delegates, who meet together, and deliberate and debate and decide question about how we want our organization to work and what we’re gonna do. It’s our Congress, our General Assembly, except it only meets for one weekend every two years. The NPC is just the group we choose to delegate leadership to while the convention isn’t meeting.

For the NPC to remove one of its members — a member that the convention elected — is effectively to cancel the result of one of DSA’s most democratic decisions. It’s a step we should be comfortable with the NPC taking in exceptional circumstances, but it should only ever be taken with extreme care, and following very clear, fair, open, and deliberately chosen processes, in accordance with the DSA constitution, which is decided upon by the convention. Otherwise it’s the NPC seizing for itself the right to cancel the decisions of the convention willy nilly. For a group that calls itself the Democratic Socialists that’s a bridge too far. So we owe it to ourselves to tell our leaders loud and clear that we want them to be very careful about the process right now.

I worry a lot of people are jumping the gun because they wanna send the strongest signal possible that DSA rejects police unions. But that means the question of whether Danny belongs on the NPC is being blurred together with the question of what our stance is toward police unions. We want to demonstrate to the world as clearly as possible that DSA opposes police unions, and this CLEAT thing is very embarrassing, so we’re tempted to make Danny into a sacrificial lamb. We certainly have to oppose police unions and make that opposition very clear in what we say and do. But as I see it, that can’t involve calling on the NPC to just summarily cancel out the results of our democratic election. That would be the wrong move. Not only would it be against our own rules, but it would also mean a new kind of authoritarian power for the NPC that I hope none of us want it to have.

Can the NPC just vote him out?

So you might say, sure I want “due process”, but what does that entail here? The DSA constitution only has one clause about removing a member of the NPC. Article VIII, Section 7: “An NPC member may be removed for malfeasance or nonfeasance by a two-thirds vote of the NPC, with nonfeasance defined to include unexcused absences from two or more consecutive meetings.” Grounds for the charge of malfeasance aren’t specified, but malfeasance means intentional wrongdoing in one’s capacity as an office holder. It usually applies to pretty gross violations of duty like falsifying documents, embezzling money, harassing people, and other intentional, clearly wrongful things like that. A similar term, misfeasance, includes wrongful acts that are unintentional or due to negligence. But misfeasance isn’t included in our constitution — only malfeasance is.

So somebody has to deliberately do something very wrong in order to be justifiably kicked off the NPC. It’s a high bar. And it’s a high bar for a reason — it would be a pretty incredible power if the NPC could just expel one of its members whenever a ⅔ majority turned on someone. Malfeasance is a pretty narrow term, and we should want it to stay narrow. We want it to be very difficult for the NPC to cancel out the convention’s choices, choices made by hundreds of delegates who were elected to represent thousands of members. That is, we don’t want a group of NPC members to be able to override the democratic decision of the whole membership in convention. They should only be able to do it when someone is acting in really wrongful ways, and that’s reflected in our constitution’s wording about malfeasance.

The issue is that there really aren’t any legitimate ways for the NPC to slap Danny with malfeasance and vote him out just like that.

Arguments that Danny supports political issues contrary to the values of DSA (in this case, police unions) or that he previously held employment contrary to DSA’s values (here, working as an organizer for a police union) don’t add up to malfeasance. Neither of those things are wrongdoing, things that violating the requirements of holding the position of an NPC member. And I should point out that as far as I know Danny does not in fact support police unions as a political cause. In his statement released last week he clarified his employment history, some of the racial and immigrant justice work he’s done over the years, and that he voted in favor of the prison abolition statement at the convention. I’m sure plenty of us have had jobs in the past that were contributing to causes we don’t agree with — this is capitalism after all, and ethical employment is just about as hard to find as ethical consumption is.

But even if Danny did support police unions in his personal politics, the only way to turn a difference in political viewpoints into “malfeasance” would be for the NPC to require him to issue a statement condemning his former employment, and for him to refuse to do it. But do we really want to get into forced, public self-repudiation in DSA? I think we’d all like to find ways of making clear we oppose police unions that don’t involve adopting authoritarian practices similar to the central committees of Stalinist or Maoist sects.

Some people have argued that last week’s statement from Danny itself can be considered malfeasance, since it was an open attack on the NPC inflaming a crisis situation the NPC’s trying to get under control. The statement definitely was an open attack, and it definitely inflamed the situation. But it would set a really bad precedent to consider something like that malfeasance you can be booted off the NPC for. DSA’s an organization that prides itself on openness and tolerance for dissent. Danny’s statement was infuriating to many people (including me). But what was it at bottom? It was a open expression of no confidence in the leadership and a dissent about process. Treating a statement like that as malfeasance sets the dangerous precedent that open criticism of the NPC can be considered an offense worthy of getting kicked off the NPC. I don’t think we want DSA to go there.

People should be kicked off the NPC for malfeasance if they’re harassing people, deliberately sabotaging projects, leaking confidential information, stealing members’ dues money, and clear rule-breaking like that. Having bad political views, having an embarrassing employment history, and openly criticizing the NPC shouldn’t be considered malfeasance. In these cases, no rules are broken, at least not in an obvious or unambiguous way. It’s perfectly fair game for DSA members to call on Danny to voluntarily step down for any of those reasons. But it would be completely against our constitution or any idea of democratic procedure for the NPC to remove someone on those grounds.

The route forward for due process

Luckily as far as I know, most people who’ve reasoned about it aren’t calling for the NPC to use any of those options. Most people are arguing that the election itself was unfair because Danny didn’t disclose this former employment as a candidate, and therefore mislead the voters.

It’s clear to me that in retrospect, Danny should have said something about CLEAT ahead of time. We should have been having the debate about what his views are and whether to hold somebody’s previous employment against them before the election, not afterwards.

But whether Danny’s omission was really deliberate wrongdoing, and whether deliberate wrongdoing during the campaign counts as malfeasance for an NPC member, are questions that require very careful consideration.

They’re not simple questions to answer. Some people have accused Danny of intentionally leaving out the information about CLEAT in order to improve his chances of getting elected. Others have pointed out that there were no requirements for candidates in place about disclosing their work histories, and that he said more about his work history than most candidates did. Still others have responded that while he may not have broken any rule, he should have foreseen that his prior work with CLEAT would be controversial and offered up the information proactively. And others have replied that there was just as much of a duty on the voters to look into the candidates ahead of time and ask about any questions not answered in the short candidate statements. Of course, there were dozens and dozens of candidates and not much time to examine and cross-examine them. I and the previous NPC tried hard to develop new policies for such competitive elections (the virtual debate sessions were a brand new procedure) but in retrospect it’s clear that we didn’t do nearly enough. Voters needed much more time and more opportunities to consider and question the candidates — for that shortcoming, the fault belongs to myself and the previous NPC. My point is that wrongdoing on the part of the candidates in a situation like this isn’t exactly a straightforward thing to establish.

There’s a second set of issues around the fact that the mistake in question happened when Danny was still just a candidate. Malfeasance is about what someone does while holding an office, and it’s not really obvious whether things done or not done during the campaign, prior to taking the office, really count. It’s even shakier ground if we hold Danny liable for a policy of employment disclosure that we only are deciding on now, then we’re punishing him for breaking a policy which didn’t exist when he allegedly violated it. In legal terms that’s called ex post facto punishment and is pretty universally banned because it’s unfair to hold people’s actions to standards which weren’t in place yet when they acted.

If the mediation process fails and no compromise is reached, then the NPC will need to figure out a procedure for due process. A good procedure would be one that sets a precedent we’d all be happy with — a procedure you’d be comfortable with if it was used against you one day. That would mean something like this: collecting the accusations people are making against Danny and turning them into formal charges of malfeasance, then giving him a chance to respond and defend himself, and then making careful and deliberate decisions based on the relevant facts. Only then would it be fair for the NPC to have an up-or-down vote on expelling Danny, on the basis of whether or not his actions constituted malfeasance.

If we don’t do that — if we kick Danny off of the board without following our own constitution (which is the basis for our legal tax status as a 501c4 organization) — we also open DSA up to a lawsuit, something which could easily bankrupt and effectively destroy the organization. That’s a serious risk that we should know about. But even if that legal threat wasn’t there, we should take due process and democratic procedures extremely seriously.

Democracy is about individual people with their individual wills coming together to form a group together and a collective will. It means living and working together under rules that everyone has agreed to and had an equal voice in creating. It’s not easy or straightforward at all. Questions about how we create that collective will and write the rules we’re all subject to are too important to be swept aside. And most importantly, it’s essential that all delegated authority, whether a Congress, a workers’ council, or an NPC, be strictly held to the rules that we set out for them, and that all their proceedings are governed by due process rather than by summary judgment and arbitrary will. Creating a powerful, democratic organization will mean laying down and sticking to fair and durable procedures that ensure that each member will be treated justly and that our leadership’s powers are clearly defined and limited.

Hopefully Danny can be convinced during the mediation process that it’s best for DSA if he resigns. I hope people continue to make that case to him in a comradely way. But if he refuses, we need to follow due process, and we should be preparing ourselves for the real possibility that the NPC will decide that what he’s done does not constitute malfeasance and he can’t be expelled. In that case we should certainly call on them to pass a statement making DSA’s opposition to police unions very clear, and to develop materials and trainings to help chapters with the tough work of organizing against the police and prison system on the ground.

Any of the ways the NPC could try to just pin Danny with malfeasance now and summarily vote him out are pretty alarmingly undemocratic and go against our commitment to fair and open procedures. It would be a gross seizure of power for the NPC to give itself the right to just go ahead and override an election result from the convention.

My hope is that DSA emerges from this crisis more democratic, not less. Let’s make sure that we have detailed campaign procedures in place for the 2019 NPC elections, as well as a constitutional amendment for a recall process ready to be voted on by the convention delegates. It’s clear that we need a constitutional provision for democratic recall of NPC members. I’ve already started to draft an amendment about that for the 2019 convention — we’ll have two years to think it over, make changes, and get support for it. But unfortunately there’s no procedure for a recall right now. The only democratic and constitutional option is to try to find a compromise through mediation, and if a compromise can’t be reached, to ensure a thorough, fair and deliberate process for evaluating whether or not Danny has broken the rules.

Amongst the many socialist groups on the scene, one of the things that’s always made DSA stand out to me is how democratic and open it is. It’s one of the main reasons I could never feel at home in any of the Stalinist/Maoist groups or authoritarian Trotskyist groups out there. Whereas lots of other organizations have central committees who have a pretty free hand and can easily expel their own members or force them behind closed doors to resign, DSA takes democratic elections, the plurality of views, and freedom of criticism very seriously. Warping our own rules and empowering the NPC to make a sacrificial lamb out of Danny Fetonte would be a major move towards an authoritarian structure for DSA.

I have many, deep political disagreements with Danny and I want him to step down for the good of the organization, but we’re making a major mistake if we get impatient with vital democratic processes. Let’s keep encouraging him to resign in a comradely way for the good of the organization, and encourage the NPC to pursue mediation in good faith. If that doesn’t work out, let’s push the NPC to carry out a fair and open process for hearing malfeasance charges.

Let’s make sure that DSA demonstrates our opposition to the police and prison system clearly and authentically in everything we do, from our national statements down to our chapter organizing. We want to put forward a meaningful challenge to the carceral state and structural racism, and we’ll do it not by symbolic actions (especially ones that involve twisting our constitution and weakening our organization’s democracy) but instead by doing real work on the ground disrupting ICE raids and countering police violence across the country.

I disagree with Danny’s politics and I don’t want him on the NPC. But democracy means not getting your way all the time on everything. Convention elections are the highest and most democratic decisions we make in DSA, and our constitution needs to strictly limit what powers the NPC has to overturn convention decisions. Developing DSA into a more democratic organization means ensuring the fullest of due process in resolving the dispute over Danny Fetonte’s seat on the NPC, as well as putting forward a clear and comprehensive system of campaign procedures, and a recall amendment, for our 2019 convention.