Why Jesse Jackson Jr.’s Leave of Absence Was Allowed

He was MIA from Congress for months, thanks to a loophole that lets lawmakers sit out as long as they want.

Karen Bleier / AFP / Getty Images

Pressured by federal investigators, Jesse Jackson Jr.’s final congressional act exhibited some decency toward his constituents. They’ll finally have actual representation again next spring, after a special election and months of a no-show Jackson.

But the case still highlights a flaw in U.S House and Senate practice: a congressman or senator can be incapacitated and, if he doesn’t want to give up his post, there’s nothing anyone can really do.

President Obama’s home state has not merely lost another congressional seat due to population decline. It also has Jackson’s South Side district that will go unrepresented for another five months and a senator who hasn’t been to work in nearly a year.

The public seems ill served by the absences of Jackson, who resigned Wednesday amid an investigation around illegal use of campaign funds, and Illinois Sen. Mark Kirk, who suffered a stroke in January—especially with major budget and fiscal issues looming. But congressional rules largely leave it up to the individual politician to announce if and when they’re ready to return, or to assess if they’re even capable of handling the job.

“In some cases, you’ve had senators who didn’t show for years,” said Donald Ritchie, the historian of the U.S. Senate.

While Democrat Jackson quit, Republican Kirk remains a member of the Senate while enduring a typically slow recovery.

Jackson had been reelected on Nov. 6 despite taking an initially unpublicized leave of absence in June, his legal travails, not campaigning at all, and the bipolar disorder that necessitated a long stay at the Mayo Clinic in Rochester, Minn. He’s been mostly living in his Washington home with his wife, who herself is a generally absentee Chicago alderman, and their children. Kirk, who is single, has not been back to the Senate since his stroke and is living in his suburban Chicago home with caregivers.

Procedures in the House and Senate for such situations are slightly different, but the bottom line is the same: neither body is inclined to remove somebody against their will, even if they are clearly incapacitated. If Jackson had remained, and been indicted, the past practice is that he could have stayed in office until the case was resolved.

The next Congress, the 113th, takes the oath of office at noon on Jan. 3, though there is precedent for someone taking the oath elsewhere. A famous example is that of Vice President Joe Biden, elected to the Senate from Delaware in 1972 only weeks before his wife and a daughter were killed, and two sons injured, in an auto accident. He was sworn in at the hospital where his sons were being treated.

If you are a House member set to take the oath on Jan. 3, and do not, your term ends and the seat is essentially vacant. You are not on the payroll and can’t use your office. But you could take the oath of office anytime in the next two years prior to the next election. There are four years left in Kirk's term, whose mind is said by friends to seemingly be in decent shape, but he has distinct trouble communicating and getting around.

Kirk's constituents might be both sympathetic to his plight and increasingly frustrated with effectively being disenfranchised. Jackson’s resignation means the House formally declares his seat vacant, and triggers the special election. In Kirk’s case, some friends foresee him remaining in office the next four years, even given his weakened state, but simply not being able to run again.

His staff has put out occasional press releases in his name, including one Wednesday urging Illinoisans to partake in Small Business Saturday on Nov. 24 and patronize small, independent retail outlets.

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And on Nov. 4, Kirk made a rare public appearance, climbing more than three dozen flights of stairs in the Willis (formerly Sears) Tower during a fundraiser for the Rehabilitation Institute of Chicago. He did not take questions. His staff has released several videos of him, with the aim of suggesting his recovery proceeds apace. Friends privately underscore that he could not possibly resume anything resembling normal duties in the foreseeable future.

Carter Glass, a Virginia newspaper publisher turned senator, is famous for authoring the law that created the Federal Reserve System and the 1933 Glass-Steagall Act, which established the Federal Deposit Insurance Corporation and brought the separation of investment and commercial banking. But Ritchie, the Senate historian, noted how Glass took ill and was a no-show for four years until his death in 1946, refusing to step down despite many calls for him to do so.

“There is no mechanism to replace someone who is elected to the Senate,” said Ritchie. “And the Senate would not remove a guy by itself.”

In theory, an absent senator can perform most of his functions except for actual voting in the Senate chamber. He can vote by proxy in committee and his offices continue to function.

Ritchie also cited the case of Gladys Spellman, a Maryland congressman. She collapsed while campaigning in 1980 and was reelected while in a coma. She never awoke so she couldn’t take the oath of office.

After several months, her family announced she would not return. It was only at that point that the House formally declared the seat vacant, with Steny Hoyer, now No. 2 in the Democratic leadership, winning a special election. Spellman died in 1988.

There are many other recent examples, including those of Sen. Tim Johnson of South Dakota, who has returned after a stroke, and the late Sen. Edward Kennedy of Massachusetts, who was ill with cancer but did return to vote when needed prior to his death.

The possibility that a single vote might be critically important is not remote these days, given the contentious issues facing Congress. That prospect might even evoke memories of one of the most dramatic, illness-impacted votes in history.

President Lyndon Johnson was seeking to break a Senate filibuster on the legislation that would be the Civil Rights Act of 1964, but needed the vote of Clair Engel, a California Democrat who had suffered a paralyzing brain tumor.

Engel could not acknowledge his presence verbally when he was wheeled onto the floor for the dramatic roll call and the clerk called his name. He could no longer speak. But, as Ritchie recalled, he lifted an arm and pointed to one of his eyes, thus letting all know that he was voting “aye.” The so-called cloture vote passed with four more votes than the two-thirds needed. Engel died nearly two months later.

As for Jackson, he did not disclose his leave of absence for several weeks. But even while out of public view, his primary suburban Chicago office remained open.

According to Rick Bryant, his chief of staff, constituents' needs were served daily, be they requests for tickets to Obama’s inauguration or high school students looking for the congressman’s help in getting clouted into a military academy.

Now the office will shut, and they'll have to await his successor.