Where's my Senator?

July 25, 2008 11:52 AM

Would an oath of office be considered a verbal contract with the constituents represented by that office? If so, would violation of that oath be grounds for a class action lawsuit for breach of contract? This came to mind when examining the voting records of Obama and McCain, and noticing that both have missed a significant percentage of votes during this term of Congress, and that the Senate Oath of Office includes the phrase "... and that I will well and faithfully discharge the duties of the office on which I am about to enter..."
posted by Morydd to law & government (11 comments total)

"... and that I will well and faithfully discharge the duties of the office on which I am about to enter..."

Depends on whether a court would rule that missing votes is in direct, willful violation of the duties of office. I bet not, except in extreme cases, especially since it's so common.

It's not like we actually hold married people to "until death do us part."
posted by Sticherbeast at 11:57 AM on July 25

Short answer: No.

Long answer involves an entire law school course on standing, immunity, tax payer class actions and constitutional law.
posted by crush-onastick at 12:04 PM on July 25 [1 favorite]

No, besides the legal issues crush-onastick brings up, you could very easily make the argument that a legislator's duties go well beyond taking votes.
posted by lunasol at 12:21 PM on July 25

Nothing would stop you from spending an enormous amount of money to file such a lawsuit, and nothing would prevent a judge from laughing at you while dismissing it.
posted by deadmessenger at 12:21 PM on July 25

Article 1 Section 5 of the Constitution provides that "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member."

Punishment for failure to live up to the oath of office is basically an internal matter. Expulsion is rare but not unheard of.
posted by jedicus at 12:22 PM on July 25

No. Super-briefly, it's not a contract because, among other things, it's neither reciprocal (no one makes a return promise to them based on this promise) nor does it fall into one of the other, less typical categories of contractual or quasi-contractual commitments. It's also too vague. Also, if it were a commitment between them and, say, the Senate, it would not be the kind of thing that a member of the general public could enforce, and a court would also be inclined to regard Senate rule-based sanctions as an adequate remedy.

As I blather on, what crush-onastick said, too.
posted by Clyde Mnestra at 12:26 PM on July 25 [2 favorites]

Every action has what is known as a "prima facie" case, the elements that a party must prove to prevail. A typical breach of contract case might have the following:

(1) There was a valid contract.
(2) The plaintiff performed as specified by the contract.
(3) The defendant failed to perform as specified by the contract.
(4) The plaintiff suffered an economic loss as a result of the defendant's breach of contract.

Here, there is no valid contract, because the defendant, (the senators) have not agreed to do the acts supposed to have given rise to the breach. Did either of them make a vaild promise to all persons voting that they would attend every vote? No.

Plus, there are no economic damages common to all members of the class. Although one voter might have had to pay more taxes due to a missed vote, another might pay less.

Furthermore, the damages cannot be traced to the individual senators. 100 people can vote on these things and since any one of the persons involved could have had an impact on the outcome by changing a vote, there is no traceable economic damages.

Additionally, contract claims against the U.S. government are heard in the U.S. Court of Claims. The Court's jurisdiction is: Any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.

That means that there must be money damages. In contract law, the damages must have been forseeable by both parties to the contract. That means that the senators must have been able to predict the case.

There are no contract claims against individual members of the federal government.

However, surprisingly, class actions against the federal government itself do exist.
The Court of Claims allows such actions when:
(1) the United States has acted or refused to act on grounds generally applicable to the
class; and
(2) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

Finally, the speech or debate clause of the U.S. Constitution would likely immunize the senators. A non-vote on an item is as much a political act as a vote on it is.
posted by Ironmouth at 12:29 PM on July 25

Here, there is no valid contract, because the defendant, (the senators) have not agreed to do the acts supposed to have given rise to the breach. Did either of them make a vaild promise to all persons voting that they would attend every vote? No.

And even if he did make such a promise, consideration from the taxpayers is sorely lacking.
posted by toomuchpete at 1:15 PM on July 25 [1 favorite]

I was thinking about the consideration issue, and I wondered if the vote constituted consideration.

Even so, there's no real meeting of the minds. The acts are really independent.
posted by Ironmouth at 2:47 PM on July 25 [1 favorite]

Depends on whether a court would rule that missing votes is in direct, willful violation of the duties of office. I bet not, except in extreme cases, especially since it's so common.

Didn't Eugene McCarthy used to do this more or less deliberately, sit in his office and ignore the calls to chambers towards the end, when he no longer cared? Or do I malign the man with a misremembered anecdote?
posted by IndigoJones at 5:36 PM on July 25

I was thinking about the consideration issue, and I wondered if the vote constituted consideration.

I would argue that it didn't. For starters, it would seem difficult to classify a vote as "something of value" since it's against the law to extract any value directly from it. Also, the votes are made independent of the oath, and the oath is made to the electorate in general, not just the voters who voted for him.

I guess, in the end, this just doesn't appear to satisfy ANY of the elements of a contract.
posted by toomuchpete at 8:49 PM on July 25