Most of the suggestions that float around concerning ways to reform Congress- and there are a lot of people that want some sort of reform- generally revolve around one end goal: making it easier to kick people out of Congress. The thing is, though, most of that 'most' takes a blanket, carpet-bombing approach: namely, kick everybody out at once, or instill term limits to make sure nobody sticks around too long.
That's where the debate tends to stagnate. While some are sufficiently ticked so as to want everybody gone, others view this as throwing the baby out with the bathwater, as there are always at least some genuinely decent people in the chamber that would get swept out as well. The opponents of kicking everyone out indiscriminately, but still favoring making it easier to boot, want to find a way to boot more people while keeping the good ones around.
The general compromise is to just ask people to vote out their own members of Congress. But let's face it, if that worked, and worked as intended, people wouldn't be so angry at Congress. We've just had three elections in a row where more people got voted out than usual, and people are angrier at Congress than ever. So clearly just voting people out isn't going to get the job done by itself. Votes get bought. Administrative agendas diverge from campaign agendas, and given the results of the 2010 season, that has emerged as a deliberate campaign tactic. And recalls, or parliamentary systems allowing for irregularly-scheduled elections, would require a Constitutional amendment, and these days, that would almost require a new Constitution entirely. (This is another common pitfall: aiming so big with reforms that you basically tear down the entire American political system and start over. In practice, good luck.)
So we need something simple enough to stand a chance of implementation, yet capable of booting out people between elections while leaving the worthy unmolested. Those are the required parameters.
How about a soccer referee?
In the world of sports, soccer is known for providing their referees with more influence on the game than any other sport. They're given broad latitude to interpret a small number of rules, they can eject people, they can eject people for arguing with the ref (which goes down in the books as "dissent"). Their word is final and law.
And, as far as we're concerned, they have a simple way of handing out punishments: yellow card is a warning, red card means you're tossed, two yellows equal red.
The proposal we'll put forward today involves setting up a list of offenses that would be classified as 'yellow card' and 'red card' offenses, and then hiring maybe three referees per body to interpret and enforce (and for God's sake, don't let Congress or the President directly appoint them). And let's make sure they're enforced. Congress has a mechanic to punish its own, but it's far too based on partisanship or outright scandal to be effective enough for our purposes. One of the factors of our current environment is that, in order for a deliberative body to properly operate, the body must first agree amongst itself to abide by certain rules and customs. When that basic agreement breaks down, the body cannot operate.
So we need something with teeth, that can operate even when the body cannot and, if order cannot be maintained, is able to impose it. This is important; if the majority party is the one committing the offenses, they are not likely to punish themselves to any degree that will actually get the point across.
Actually, let's add a third card while we're at it. There's a small competition in the Vatican involving Roman Catholic seminaries, called the Clericus Cup, that uses a blue card for conduct that doesn't quite warrant a yellow. A blue card is equivalent to hockey's penalty box: you're sent off the field for five minutes, then you come back.
Let's define the cards, which we'll allow to reset at the start of each new Congress so you don't end up taking it on the chin partially because of something you did 20 years ago:
BLUE CARD: For minor offenses. As it's worth five minutes in the Vatican game, let's make it worth a five-day stay in the Congressional penalty box. What that will mean here is that you could not sit on committees, could not participate in floor debates, and could not cast votes during that time. Those activities would be reconstructed so as to best be able to go on without you during that time. Allotted time in committee hearings and debates would be redistributed, and vote tallies would be scored as if there were simply one less person around. You'd still be able to do things like contact constituents and have conversations with colleagues off the floor, but you're not in the committee room, you're not on the floor, and you're not voting. If it screws with your side's numbers on a vote, too bad. You may accrue any number of blue cards without being issued a yellow or red.
YELLOW CARD: Nothing happens to you on a single yellow card. It is, however, a warning to watch yourself for the rest of the term. You only skate this way once. Next time you get a yellow, you'll be sorry.
RED CARD OR ACCUMULATION OF TWO YELLOW CARDS: Because two yellows equal a red, and as any soccer fan knows, a red card means you're sent off the pitch. You get a red card, and you're booted out of Congress. You're not booted out permanently; after all, soccer players who get red cards aren't banned for life. But you will have to sit out the next Congressional election season, which means that when you run again (and oh, they will run again), you'll have to do it as the challenger as opposed to the incumbent. That makes it that much tougher to get your job back. In the meantime, if your constituency wishes to hold a special election to replace you, they certainly may.
Though if the red-card offense wound up getting you arrested in addition to whatever the referee did to you, running again at all may be a difficult ask. (Should you be a Senator booted during an election season in which your state has no Senate seats up for grabs, this will carry over to the next Senate election your state has.)
YELLOW CARD FOLLOWED BY STRAIGHT RED: When this happens in soccer, it gets punished more severely than if you'd gotten just the red. We'll do that here as well. A normal red forces you to the sidelines for one Congressional election season. Yellow plus red will mean you sit out two. (Or whenever the next two Senate elections in your state happen, if you're a Senator.)
This, of course, leads to the question of what exactly constitutes a bookable offense. This is the most important part: what kind of behavior are we going to try to enforce. Understand that we can't just make everything a red-card offense, much as you might want to do so. That defeats the whole point.
There are certainly worthy offenses I've missed, and time will bring new behaviors that need classification, but here's a starter set:
BLUE CARD OFFENSES:
*Violation of minor existing House/Senate ethical rules (e.g. smoking or profanity on the floor,)
*Insulting a constituent (constituent and referee must agree that an insult has been made)
*Public displays of ignorance on a topic in which you are on a committee, presenting legislation, or taking an active part in legislative debate (e.g. Ted Stevens' 'series of tubes' comment while he was on the Commerce Committee; Lynn Westmoreland wanting a display of the Ten Commandments on the steps of the Capitol but can't name more than three of them). It's one thing to be ignorant on a topic. The credo of this site is that everyone's stupid about something. But when you're on a committee concerning a topic, you're expected to know that topic. When you're in the thick of a debate in Congress, you'd better know what you're talking about. And if you're presenting legislation without knowing what you're doing... no. Just no. Go to that giant library complex right down the street, do your homework, and try again in five days.
*Egregious question-dodging (e.g. completely ignoring a debate question and talking instead about something unrelated)
YELLOW CARD OFFENSES:
*Violation of major existing House/Senate ethical rules (e.g. keeping your spouse on staff in a paid position; not giving sufficient notice prior to holding a committee hearing- this second one originally sounded like a blue-card offense until I remembered the extent to how this violation tends to get abused)
*Any misdemeanor conviction
*Failing to hold at least one town hall meeting during August recess (except in case of illness or injury)
*Creating a scene during a Presidential address
RED CARD OFFENSES:
*Violation of essential existing House/Senate ethical rules (e.g. leaking classified information to which you are privileged due to your committee; casting a vote for someone else or attempting to allow someone to cast a vote for you)
*Any felony conviction (you're headed to jail anyway, but just to get our bases covered)
*Becoming disbarred, or equivalent depending on non-Congressional job (David Durenberger, R-MN, would have gotten this card in 1990)
*Committing physical violence against a colleague (self-defense excepted)
VARIABLE OFFENSES: Not all offenses can be tied to the same card all the time. Sometimes it's a matter of degrees.
*Violation of other existing House/Senate rules (depends on the rule)
*Hypocrisy (Hypocritical words are probably going to be blue; hypocritical legislative maneuvers may warrant a yellow; hypocritical acts- breaking rules you've spent years shouting from the rooftops, such as adultery by family-values people- stand a strong chance of being worthy of a red)
*Unsportsmanlike conduct (This is where that broad brush comes in for enforcement. This amounts to "don't be an asshole", and is usually going to be blue, but particularly jerkish moves may warrant a yellow. This is also why, again, we have to bury the appointment in as many layers of bureaucracy as it takes to keep Congress or the President or anyone with an axe to grind from getting anywhere near it. If that can't be done, this is all just going to cause more problems than it solves.)
*Voter fraud/caging/intimidation/etc. (This will always be at least a yellow. You can't let this stuff slide. Whether the card becomes red depends on what exactly happened, how involved the candidate was in the fraud, how many votes were affected and how likely it was that the fraud changed the outcome of the election. If the fraud changed the outcome, it automatically goes red; this person should not be in Congress in the first place. The referee doesn't necessarily need to wait for formal convictions; if they're satisfied with the evidence, they can issue the card at any time. What tends to happen otherwise is accusations tend to wither on the vine after the winner gets seated.)
Sex scandals are not going to be a bookable offense. Apparently, we do just fine punishing those ourselves. Sometimes we do a little too fine, but that's a whole different can of worms.
Now, the big question, aside from implementation and how the constituencies in question are going to feel when it's their guy getting red-carded out (especially if it's someone popular back home), is if any of this is going to actually be effective. More importantly, is it going to be effective in the way we're intending? I know this is unsatisfying to hear, but that I don't honestly know. Parties may try to operate through having people commit yellow-card offenses to get their way, hanging back, and letting the next guy commit a similar yellow-card offense to keep their way. The referee may be too stringent, or too lenient. We may be stepping on some rule or other with the referee's mere existence that would need to be taken care of before anything can be done. Most importantly, there may very well be something I'm missing about the referee's independence even after I copped out with 'whatever keeps it away from being an appointment by Congress or the President'. It may be that the very nature of the position causes Congress or the President to follow the thread, figure out what chain of people leads most quickly to the referee, and politicize that thread. The incentive to do so would be strong, as we've alluded to twice now: get control of the referee, and you can clean your opponents out of office. Something similar could happen even if the referee is truly independent, but merely poorly chosen.
Which is a reason that we may want to sit on this one a while. I don't think I've got this one perfect, but I do think it's worth at least a bit of time to think about. Some kinks need to be worked out, the list of bookable offenses needs to be fleshed out, the referee's selection process, place in the organizational chart and chain of command needs to be gotten just right. But I'm fine with sitting on it. Just because you come up with an idea, even if it's a good one, that doesn't mean that the time to implement that idea is now. Sometimes it's good to just toss out an idea whenever it is you get it, and then just let it stew until conditions are right. Sometimes conditions become right. Sometimes they don't. In the meantime, you can always come back and work on the idea, or get extra sets of eyes on it.
So we leave today with a loose end. It happens. But it's okay to have an idea with a loose end. A loose end just means you have a start.