Friday, June 24, 2011

Legal Limits on Party Discipline. Legislator Changing Partners? Stop the Dance.

Outside Discipline of Legislators.
Legislators turned into "employees" of a political group.

Who has jurisdiction to reinstate priority to the constituent voter?
Time to Bell the Cat.

You Vote Our Way,
We Pave Your Way.

Examine the forced political conformity contract imposed on legislators, with payment in benefits to them and career support from non-voter interests who set up the contracts, to fix voting services.

Are those void as against public policy, 
Are those political parties acting like the union bosses of old? of now?

I.  Ask.  How can this be?

How can a legislator, an independent contractor hired by the voters to serve them, freely sell self and become an employee effectively hired instead by a third party, a political non-constituent interest.  Think people eligible to vote, and their interests; vs. corporations not eligible to vote, and their interests.  Is the rationale for the shift, without permission of the voter, legal or ethical. 

There is already analysis of the relationship of voter as client of the legislator: see  This carries the idea further:  that the legislator legally and ethically cannot abandon the client interest of the voter at will, and enter into an employee relationship with a more lucrative employer -- the political party or group.  Of course, the legislator does anyway, and who is to bell the cat?

Who has jurisdiction, in time?

II.   ABC's
III.  Discussion
IV.  Concepts for the Joust

I. Ask
  • How can the independent contractor, the legislator hired by the constituency, contract away their independent judgment in accomplishing the goals of their political employer, the constituency. 
  • Can they instead choose to serve as employees of a third party non-constituent employer, who decides how they shall act, whether or not that serves the goals of the constituency. 

II.  ABC's

Can Legislator A 
Bargain away his status as independent contractor to B,
Where B is the voter in his district;
Where A had been accountable to B the Voter; 
And become instead an employee of C,
C the probably corporate or other organized Unrelated Third party
As to the same subject matter: government function and favor.
Where C as Third Party Corporate
Is not accountable 
Either to B the Voter 
Or to A the employee Legislator,
Yet C by contract and implied contract (influence)
now has power 
To force Legislator A to conform to Corporate C 
By means of punishments and rewards
Unavailable to Voter B
Who did the electing, but loses.

Let's see.
III. Discuss.

Minority Leader, Pelosi; and Attorney General, Holder, contemplate issues of the Republic separately


#A, the Legislator says

If I signed the conformity contract before the election and disclosed its terms and consequences, the constituents cannot complain if they still hire me.

If I signed the conformity contract after the election, then I think I have a problem with the constituents.

They were first in time, first in right as to my services.

I can always hold a referendum to see if they still want me, after I signed my independence away, so the contract is not void ab initio.  It can be ratified by the constituents. And if not, who can catch me?


#B, the Voter says

Do what you said you would.
Any implied or express contract enforceable by rewards and punishments, by which you, the legislator (who by definition is an independent contractor serving the goals of the constituency and accountable to them), contracts away my interest as a voter, is void ab initio as against public policy.
There shall be no exchange of services by you for benefits from others outside the constituency, unless those are approved in advance by the constituency, or at least ratified by the constituency after full disclosure and before the acts demanded are done.

No doing what profits you first, and apologizing afterwards.
Voter, who hired independent contractor Legislator, rejects legislator taking binding conflicting employment for profit elsewhere.


#C the Employer Profit-Making Political Party Group says

Get real. All I have to do is pay enough in benefits and rewards, and threaten enough withholding of support for people's careers, and I get what I want.  Call it what you like.  By the time a contracts argument hits the courts, we are past the next three elections. Take that.  Public policy be damned.  The policy is to win.


D.  Definitions raise a hand.

An employee is someone in the service of another under an express or implied contract of hire, or oral or written contract of hire, where the employer and not the employee has the power or right to "control or direct the employee in the material details of how the work is to be performed."  

Independent contractor:  Someone who contracts to do work according to his own judgment and methods, accountable to the employer only as to the end result.  See discussion at What Is An Employee ? The Answer Depends on the Federal Law, by Charles J. Muhl, Monthly Labor Review 2002, at

IV.   Concepts for the Joust

Mere agreement with a platform, or promise of support is not at issue. Pelosi and Holder, separately, are concerned with the process.  Legislator:  employee or independent contractor, to whom?

At issue is the power of an outside group to constructively employ, then penalize or reward an elected official; and so control his vote. Is that it? Control of State?Where is public policy? This is no private matter. See

The issue of how to define and apply public policy to contractual agreements is not new.  See Public policy is indeed mercurial. 

Validity of Conformity Oath 

In this corner; Legislator as employee of political party; in that corner, voters who hired legislator as independent contractor to voter. And the purchaser of the referee: the third party employer of the legislator.

TOPICS - Agreements Restricting Decision-Making in Advance

Round I

1.  State loyalty oaths have been held void. Example:  a teacher cannot be forced to swear that he is not a communist. See There are issues of academic freedom involved. That also is a matter of state action, and equal protection comes in. 

In academics, loyalty oaths have been overturned: Without turning this into a scholarly tome, or shepardizing, and only doing a quick read for concepts; a sampling of cases in the states turns up some characterizations that are apt.  Here is Schmid v. Lovett,  154 Cal. App. 3d 466, 201 Cal. Reptr 424 (1984) at  That case addressed situations of teachers required to take loyalty oaths that they were not communist. A plaintiff signed but objected to it as a form of discrimination in public employment, a different matter than a mere party loyalty oath that is not involved with public employment, but the concepts are interesting. The loyalty oaths were found unconstitutional. Fair use spot quote --
'Loyalty oath requirements have been characterized as "threats to academic freedom." (White v. Davis (1975) 13 Cal.3d 757, 769 [154 Cal.App.3d 478] [120 Cal.Rptr. 94, 533 P.2d 222].) They are "particularly pernicious, "the courts have held, where, as was apparently the case here, no opportunity is afforded one who declines to take the oath to explain that his or her refusal is prompted by conscientious scruples and noble motives. The assumption of "guilt by association" of oaths of this type was automatic and irrefutable. (SeeMonroe v. Trustees of the California State Colleges, supra, 6 Cal.3d 399, 414.)'

Loyalty oaths as threats to academic freedom.  Failing to provide opportunity to a refusenik to explain that his or her reason is based on "conscientious scruples and noble motives."  Guilt by association:  the assumption of such oaths that a refusal meant guilt was automatic and irrefutable -- therefore no go.

Round 2

2.  Divorce.  Parental agreements fixing in advance pivotal matters as to the dependent child's interest have been held unenforceable. See  An advance fixation of some matters "violates the precepts of the society we live in."  Phrase from Divorcesupport. The best interest of the child cannot be bargained away.

Round 3

3.  Unions can order members to support the union positions, but not always. These are private agreements, and matters of contract. Issues are in flux, see

Round 4

4.  Governments can require loyalty oaths if the issue is already set and proper as to ideology.

Israel has waded into these waters. The cabinet in 2010 approved an oath whereby non-Jewish, and then by amendment Jewish as well, immigrants were to swear loyalty to "a Jewish and democratic State."  See

There, however, the issue was not loyalty to a consensus on ideology, ideals made into a legal reality, such as the United States had through the Declaration of Independence and the Constitution.  The Jewish state was founded both as Jewish and as a democratic state, and the issue is unsettled how the two can be reconciled. The article approves the loyalty oath as an important step to that reconciliation. The oath does not seek to set in advance how voters will vote on particular legislation.

Round 5

5.  Loyalty oaths imposed by property owners on property buyers -- restrictive covenants -- may or may not be upheld -- restraints on alienation.

Is a loyalty oath analogous to a restraint on alienation in property? We can try.

You shall not sell your land to a Yankee.

There's an interesting idea. Is that enforceable?  Find absolute and partial such restraints at Whistling Dixie, the Invalidity and Unconstitutionality of Covenants Against Yankees, by Alfred L. Brophy and Shubha Ghosh, at  

Partial restraints, if reasonable, can be upheld.

Absolutes, probably not.

Look especially at page 7of the Whistling site -- the list of factors that lead to a conclusion of reasonableness or unreasonableness of a restrictive covenant.  Then apply to other areas of loyalty or control of disposition: Consider if the Southern state can require the Northern purchaser to take a loyalty oath to the South, or some such.

To be reasonable, as to restraints on property conveyance --
  • The imposer of the restraint has to have an interest in the land he seeks to protect. A covenant running with the land idea.  Concrete connection. See page 11.
  • Restraint must be limited in time
  • Restraint must accomplish a worthwhile purpose.
  • The one restrained probably won't encounter the issue much again
  • The number of people likely to be so restrained is small
  • The one restrained is a charity (that gets into land use issues, not relevant here.
So:  Pose a political party organization, or other group in politics with power to pass out money and favors, and remove people from desired positions as punishment.

Ask:  Does a political party with members outside the geographic constituency have an interest in the vote they seek to compel that will impact on the constituency.  Can the restraint extend throughout an individual's elected office term, as to any item of legislation that comes up.  Does the restraint do something worthwhile for the constituency, or just the political party. How many are involved in the restraint -- the entire caucus?

Apply to voting restrictions:  It is hard to prove that an advance restraint on how to vote as to a public servant is reasonable.  For the unreasonable, see FN 2


The neutral referees so far confer and consider: Voting controls.

It is not a far reach to say that controlling votes of those who pass the laws of the states and federal government is similar:  not enforcing limits on freedoms based on skin color, but based on whether they are "liberal" or not, with specific buzz phrases triggering the concept. Interesting, if not controlling.

  • Substitute "Liberals" for "Yankees" in the Whistling site, and all seems the same except, of course, that land property is treated differently than personal property -- a vote would be personal property? Sure. A thing of value.  A chattel evidenced by an electronic counting board in the House or the Senate.

Other rationales for voiding political loyalty oaths that carry enforcements, pain or blessing, to keep people in line.

Round 6

6.  Is independent judgment of a legislator a duty of citizenship?

Can rules of a group such as a union or political party prohibit a member from exercising duties of citizenship by taking political positions outside or opposed by the union or political party.  Can the group force signed agreement to its policies, worded as it chooses, then penalize the member who disavows or refuses to sign,  by withholding benefits; or reward others for signing and supporting the party or group position with benefits.


Stop the dance.  Stop the match.

Pelosi, Holder, somebody, CREW, intervene here.  Who has jurisdiction.  File something.  The corporations have taken over the constituents and the legislators are paid employees.

Practical applications.  For example, tax reinstatements are not tax increases.  Tax reversions, seen as a reversion to a prior level, are not tax increases.  Loyalty oaths that preclude tax increases with no definitions, no voter accountability for voter interests, are against public policy.  Null and void ab initio. From the first Show.


FN 2  To be unreasonable, a restraint on alienation or a covenant that runs with the land would (clearly, we enjoy the Whistling site.  Do read it all).
  • Restraint has to be imposed out of spite, malice, capriciousness, the imposer has no interest in the land affected (the geographic constituency -- i.e. not eligible to vote there), unlimited duration, large number of people restrained.
Apply that standard to voting restrictions.

It is easy to prove a restraint on how to vote is unreasonable: capricious, spite, malice, outsiders influencing in.

Ask:  Is there an imprimatur of the State involved in party loyalty oaths? What if the objective of the restraint is to control the State itself?

The oaths and pledges act on the stage of the federal government and state government. This takes more analysis. It does not appear to be state action, however. Not violation of equal protection? Not racially discriminatory -- but politically-ideologically discriminatory.  A matter of Beliefs? When does ideology arise to the level of a religion? Are we there yet?

Interesting point:

The Mr. Ingram in the Whistling article, the imposer of the restraint, was trying to revive a lost world by means of a restrictive covenant. He wanted to restore a world where the state enforces limits on freedoms based on skin color.