Regulation by Resignation
Should Al Franken resign in the wake of revelations that he forcibly kissed the journalist Leeann Tweeden in 2006? New York Times columnist Michelle Goldberg says yes because otherwise, “Republicans . . . will use Franken to deflect from more egregious abuse on their own side.” Slate’s Mark Joseph Stern says yes because the revelations expose Franken’s hypocrisy and because allowing him to remain in the Senate would undermine the Democratic Party’s credibility. (Tweeden, for her part, has said that she is “not asking for him to step down.”)
Much of the commentary on Franken in the past day has focused on his fitness for office and on the political implications of him remaining in the Senate. Another way to look at the question (and, I think, a potentially more productive way) is to think about the effect of his resignation on future behavior. One might call it “regulation by resignation,” and I think this perspective strengthens the argument for Franken to leave.
Franken’s resignation would serve to bolster the norm that individuals who have committed sexual harassment or sexual assault will be ineligible for public office. By “ineligible,” I don’t mean ineligible as a matter of law (and there is a very strong argument that any law barring individuals who have committed sexual harassment or sexual assault from serving in Congress would be unconstitutional). Instead, I’m imagining a norm that would lead colleagues and constituents to expect and demand resignation when credible allegations of sexual harassment or sexual assault against a public official emerge.
We have not had such a norm in the past. (If we did, Bill Clinton would not have been President, and Donald Trump would not be President today.) The most important question for purposes of Franken’s future is, I think, whether the world would be a better place if such a norm began to take root. Franken’s resignation would go some way toward bringing that norm about, and Franken’s Democratic colleagues could accelerate the norm cascade by demanding his resignation themselves.
There are good reasons to believe that the world would indeed be a better place with such a norm. Young and not-so-young men with political ambitions (Franken was 55 at the time of the Tweeden incident) would be less likely to commit sexual harassment and sexual assault in the future, knowing that their ambitions could be dashed as a result. Put differently: Franken’s resignation could play a regulatory role, insofar as it might affect the future behavior of individuals who aspire to public office (a population segment that is, I would expect, significantly more numerous than the segment of the population that ever actually holds public office).
“Regulation by resignation” is not, and should not be, the only way we regulate sexual harassment and sexual assault. But criminal law may be too blunt a tool in many circumstances, and tort law has its limits as well. Litigation is costly; statutes of limitations expire; and sometimes the prospect of a monetary reward for the victim will cause observers to give less credence to that person’s allegations. Which is not to deny that criminal law and tort law have a role to play here; the point is merely that regulation by resignation can serve as a useful supplement.
An analogy to “regulation by resignation” is “regulation by confirmation” — i.e., regulation of behavior via norms that prevent nominees from being confirmed to judgeships and agency posts if they have engaged in certain acts in the past. Anecdotally, I’ve heard friends with young kids say that they are motivated to pay Social Security taxes for caregivers because they don’t want to close the door to a judgeship or other Senate-confirmed post down the road. Zoë Baird casts a long shadow. (By which I don’t mean to draw a false equivalence between sexual harassment and “nanny tax” evasion. My observation is simply that similar phenomena occur elsewhere in public and private life.)
It may be only in relatively rarified circles that regulation by resignation and regulation by confirmation matter. But even if only a handful of incidents of sexual harassment and sexual assault are deterred once a new norm is internalized, then that would seem to be reason enough for Senator Franken to leave.
