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When Legislators Behave Badly—What Should Be Done?

Twenty-two different people have told the Attorney General that Republican State Representative Jeremy Durham engaged in various kinds of sexual innuendo and relations with them. He has suspended his campaign but has chosen not to resign. What should be done?

Sounds like a question with an easy answer, but it’s not as easy as it looks. Here are some of my thoughts based on twenty-two years in state politics, which included the “pleasure” of serving in office when legislative colleagues were indicted and the “pleasure” of holding a “trial” to expel a colleague only to be sued in federal court for doing so. But before I share those thoughts, let me be clear; I’m not defending Rep. Durham or the conduct he’s been accused of or whatever conduct he has actually engaged in. In fact, given everything, if I were him, I would resign, but that’s not where we are.

Should the Legislature remove him?

This is a bit tricky because to say “no” is to risk being accused of winking at the behavior of which Rep. Durham’s been accused or condoning his behavior. But I would say in this particular case, “Go slowly because the precedent you set could prove problematic.”

Politics can be a dirty business. Power is a great temptation. People will say all kinds of things about others, particularly when not under oath, in order to remove them from power or ascend to a place of power. Accusations do not always prove to be actualities.

Until yesterday, when Rep. Durham admitted that he made some of the statements he was accused of, the Legislature had only unsworn allegations to go on. Of course, it’s fine if the Legislature wants to make its own determinations of guilt and innocence based on unsworn “he said, she said” allegations and denials, but the members may find themselves spending more time on expulsion proceedings than on legislative matters if they start down that path.

Rep. Durham’s admission would ameliorate the potential precedent for incessant “witch-hunts,” but current legislators have a practical issue to consider. While removing Rep. Durham from office now would make a “statement,” the Legislature is adjourned until next January. If the voters don’t re-elect him on August 4th, then should the Legislature be called back into session for some unforeseen reason, his primary opponent would take office anyway. Removing him now will not affect his ability to take office in January if the voters should re-elect him. And that leads to a final consideration.

Were Rep. Durham’s term not at an end as a practical matter, then the Legislature would need to pursue what the investigation has uncovered. But voters start going to the polls today, and they can serve as their own jury. After all, the power of that office in our system of civil government belongs to them. And that brings up my final observation.

One of my associates shared with me a recent commentary in which the author said we have the kind of politicians and laws we have because we, as a people, allow it. If that’s true, and it largely is, then all I can say is “Ouch! Who is going to hold us accountable?”

We can begin to hold ourselves accountable by voting wisely this election cycle. We hope TNVoterGuide.org will help you do that.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Duplicity and Disdain for the Constitution

The plaintiffs who recently filed a lawsuit to enjoin passage of Amendment 1 have unwittingly shown their duplicity and their disdain for both the people of our state and our constitution.

Amendment 1 was necessitated by a ruling of the state Supreme Court in 2000 that “found” a right to abortion in our state constitution. Amendment 1 essentially reversed the state Supreme Court’s ruling. Now the plaintiffs argue that the votes on the amendment were not properly counted because election officials counted all the votes “the people” cast on the amendment, not just the votes of “the people” who voted for a gubernatorial candidate.

I put the words “the people” in quotes because they are central to the provision of the constitution on which the plaintiffs rely to disqualify the votes of people who didn’t vote in the gubernatorial election, which is potentially thousands of voters. The provision reads as follows:

“And if the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the state voting for governor, voting in their favor, such amendment or amendments shall become a part of this Constitution.”

To properly interpret that provision, the whole of the constitution should be examined, and there is one other place in the constitution that speaks to amendments to the constitution. It’s Article I, Section 1, which provides, in pertinent part:

“All power is inherent in the people; . . . they have at all times, unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.” (emphasis added)

Since our government is framed by our constitution and amendments are the means by which we “alter” or “reform” it, then the power to amend the constitution clearly belongs to “the people.” And the provision relied on by the plaintiffs does nothing to change that inasmuch as it begins with, “the people shall approve and ratify such amendment or amendments.”

In other words, the whole of the constitution, giving meaning to all the words in the constitution, means that “at all times” the power over the constitution belongs to all “the people” and not just to the people who choose to vote in a gubernatorial election, as the plaintiffs argue.

Given the clear statement that amendments are to be approved by “the people,” what are we to make of the language about votes in the governor’s election? We are to make of it exactly what the state has said for years—it establishes a minimum number of votes that an amendment must receive to be adopted.

The Framers clearly did not want a minority number of “the people” to change the constitution that governs all the people. Yet that is exactly the result if the plaintiffs’ interpretation is correct; it can lead to an absurd result.

Assume 1,000,000 vote for an unopposed gubernatorial candidate (which some might say is pretty close to the choice we just had), and 600,000 of them vote for an amendment while the other 400,000 vote against it. Then assume another 1,000,000 Tennesseans, inflamed against the amendment, vote against it. The total votes on the amendment are 600,000 in favor and 1,400,000 against it.

According to the plaintiffs’ theory, the amendment is approved! That’s because the other 1,000,000 votes against it don’t count: those “people” don’t count because they didn’t vote for a gubernatorial candidate.

The bottom line is this. When it is something they want, like a constitutional right to abortion, the plaintiffs praise judges who find words in the constitution like “privacy” and “abortion” that simply are not there.

Then, when the people, by popular vote, repudiate the imaginations of judges that find words in the constitution that aren’t there, the plaintiffs sue based on a myopic reading of only certain words that are there to the exclusion of other words.

So, the plaintiffs want to make up and “insert” into the constitution words they like and ignore the ones they don’t like. In doing so, rather than showing their respect for the “people” and the constitution, the plaintiffs have shown their duplicity and their disdain for both.

This blogpost first published in The Tennessean, Opinion section, November 13, 2014.

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David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Does a Politician’s Christianity Really Matter?

Because I have been a state senator and now lead a state organization dedicated to promoting public policies that respect God’s design for marriage and family, life, and religious liberty, I talk to a lot of state politicians and political candidates, particularly at election time. Therefore, it’s not surprising that most who talk to me this time of year are professing Christians. But a conversation I had the other day raised a question about the extent to which one’s Christianity matters.

Many who know me would be surprised to hear such a statement coming from my lips. I don’t say it because a person’s character or the basis for his or her understanding of right and wrong doesn’t matter to me. It matters a lot. But that’s not enough.

I say this because being a Christian doesn’t mean that the candidate for office understands anything about how our form of government is supposed to work. We would not hire a person to handle our finances, run our businesses, treat our illnesses, or do much of anything else simply because they said they were a Christian, even one we might call “devout.”

As a case in point, I spoke with a candidate for office the other day that, based on what I know, I would fully expect to see in the eternal presence of God. But the first thing out of the person’s mouth set off alarm bells for me and required a quick tutorial in the doctrine of separation of powers.

This person, whom I respect, mentioned that when it came to abortion I probably had more trust in the legislature to handle the issue correctly, the implication being that maybe the judiciary was either more trustworthy or better able to balance this sensitive issue. I quickly assured this person that I didn’t trust the legislature either and that, in my case, my distrust was based on real-life experience.

Then I explained that the issue wasn’t about the branch of government in which we should put more trust to make abortion policy, but to which branch of government the enactment of public policy had been entrusted under our state and federal constitutions.

There is only one real, right answer to that question: the legislature. And we’re in the mess we’re in today because, in part, both our politicians and a solid majority of Americans have apparently forgotten that. We only care about whether we get the result—the policy—we want.

That’s the only reason I can think of to explain why Congress and voters aren’t throwing out members of Congress right and left for not impeaching a President (and any President) who essentially keeps enacting or changing the law through executive orders and impeaching activist judges who violate the Constitution by twisting its words and by encroaching upon the legislature’s constitutional prerogatives.

Fortunately, at least for this one candidate, I think my little “refresher course” on constitutional government set things rights. But my point is that candidates who don’t understand our form of government and their responsibilities under that form of government aren’t the type I’m looking for, no matter how often they are in church or how personally holy they are.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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The ‘New’ Haslam-Ramsey Campaign

It was this time four years ago that Mayor Bill Haslam, now the governor, and Lt. Gov. Ron Ramsey, who was also lieutenant governor back then, were campaigning against each other. Now they seem to be on opposite sides of another campaign. And the campaign may just help you decide how to vote on a critical matter in November.

The campaign I’m speaking of is actually two intertwined campaigns. Gov. Haslam and Lt. Gov. Ramsey both support Amendment 2 to the state’s constitution. Haslam is spearheading a campaign to pass Amendment 2. Ramsey, on the other hand, is spearheading another campaign that bears on the pros and cons of Amendment 2. Haslam says Ramsey will “muddy the waters” in connection with his campaign for Amendment 2.

So what is Amendment 2 and what are these “campaigns” about, on which two of our state’s top political leaders seem to differ? Amendment 2 will determine how we decide who will sit on our state’s Supreme Court. The two campaigns highlight different ways Amendment 2 can be viewed by voters.

The Facts about Amendment 2

The language in our state constitution that would be changed by the amendment currently says the judges of the Supreme Court “shall be elected by the qualified voters of the state.” Of course, we’ve not had contested Supreme Court elections in years. Instead, the governor appoints someone to the court and then, at the next election, that person runs unopposed in a yes-no retention election.

Amendment 2 would modify the current appointment-retention election system to add some accountability on the front end of the appointment process by giving the legislature the authority within a certain period of time to reject a gubernatorial nominee. That is certainly an improvement over the current process.

The Voters’ Choices

Now, if a person wants to have contested Supreme Court elections, he or she should vote against the amendment and hope that legislators will assume a “no” vote means voters want contested elections. However, there’s no guarantee a majority of them will think that way. After personally fighting over this issue at the state Capitol for 20 years, I can assure you that many legislators who support Amendment 2 will fight hard against any legislative proposal for contested elections.

But I suspect there will be a number of voters who fall into a “middle” group—some will not want to trust the legislature to return to contested elections, and some will want to avoid contested elections. So what do they do?

The Determinative Issue

These voters will have to decide whether there should be some form of judicial accountability after the governor and the legislature agree to put someone on the court. If the answer is “yes,” then the version of accountability Amendment 2 offers voters is a yes-no judicial retention election. These voters must, therefore, determine whether retention elections can provide the kind of accountability they want.

That is where Ramsey’s “campaign” and Haslam’s concerns about it get interesting.

Ramsey is raising money (on his own time) and making presentations to different organizations to convince voters not to retain the three Supreme Court judges that will be up for a retention vote in August. According to statements made to various media outlets, Ramsey thinks that campaigning against a judge’s retention is a perfectly fine thing to do.

In fact, Ramsey thinks the campaign can demonstrate to voters that retention elections can be an effective means of judicial accountability. That, he thinks, will help Haslam’s campaign to pass the amendment.

But the Governor apparently disagrees. He thinks Ramsey’s campaign muddies the water by injecting into the judiciary the “politics” that he hopes to avoid with the approval of an appointment-retention election.

And therein lies the rub. Are retention elections supposed to be meaningful or simply “for show?”

Perhaps the best way for voters to let Haslam and Ramsey know which side of this question they are on come November will be whether they vote to retain or reject the judges up for “election” in August.  Kicking these judges off the bench should send a clear message to our state’s politicians that voters want some kind of meaningful ongoing judicial accountability.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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