MARCH 25, 2010
THE LONG DEBATE OVER A SENATORIAL RECALL
By JOSHUA SPIVAK
With 2010 shaping up to be a good electoral year for the conservative movement, some activists are trying to expand the Democratic losses beyond just those incumbents facing a tough race in November. These activists have been calling for the recall of several Senators, including Bob Menendez (D-N.J.) and Mary Landrieu (D-La.). Up until now, the recall proponents have been stymied by the belief that federally elected officials such as Senators and House Members are simply not subject to the recall.
But a New Jersey state appellate court decision has, at least temporarily, upended this barrier. The court ruled that a recall against Menendez can go forward. While this decision is almost certain to be appealed, and many legal commentators believe, overturned, it does point out that the idea of recalling Senators goes back all the way to the beginning of the United States.
The Constitution’s predecessor, the Articles of Confederation, included a recall provision for its members. Under that system, the state legislature would have the power to remove the offending official. While this form provides a different relationship between the elected official and the general population, the principles and the debates that engulfed the issue had not substantially changed. According to recall proponent John Lansing, the recall was never exercised by any of the states throughout the brief history of the Confederation.
It was therefore natural that the Constitutional Convention of 1787 would take up the recall idea. It was proposed by Virginia Gov. Edmund Randolph in his presentation of the Virginia Plan on May 29. The plan would have allowed the recall of the members of the first house of the legislature, who were slated to be directly elected by the people. A few weeks later, the convention struck out the recall and to our knowledge, did not discuss it again.
But the argument for the recall became a strong component of the Anti-Federalist attack on the Constitution. Key opponent Luther Martin stressed the absence of a recall for Senators and the Senators’ freedom from popular control. But this idea of tightly binding the Senators to their states was strongly opposed by the Federalists, most notably Alexander Hamilton.
The topic gained new life when the Constitution was sent to the states to ratify. In the New York Ratifying Convention, an Anti-Federalist introduced a measure calling for the recall of Senators by state legislatures, arguing that states would have “little or no check” on Senators who have a six-year term of office. Echoing complaints of most recall advocates, Lansing, an opponent of the new Constitution said: The Senators “will lose their respect for the power from whom they receive their existence, and consequently disregard the great object for which they are instituted.”
On the other side, Hamilton fiercely denied the premise that the state legislatures would be more in tune with the will of the people, and argued that the recall would prevent the Senators from being able to make difficult decisions. Hamilton, of course, prevailed. By the time the New York Convention finally ratified the Constitution, enough states had ratified to form the government. However, there were still attempts to bring up various amendments to the new Constitution. Rhode Island, the last state to ratify in 1790, proposed 21 amendments, including granting state legislatures the power to recall their federal Senators. The recall of Senators came up twice more in the early years, as the Legislature in Virginia attempted to bring the topic up as a constitutional amendment in 1803 and 1808. The 1808 amendment was met by resolutions of disapproval from six states.
The recall of Senators made a brief reappearance during the debates surrounding the 17th Amendment, which mandated the direct election of Senators. This was during the Progressive Era, when the recall made its greatest mark, and was adopted by many Western states. The proposal to allow a recall of Senators did not go anywhere and was not included in the 17th Amendment. There have been attempts to recall Senators and House Members, most notably one against then-Sen. Frank Church (D-Idaho), but they were all shot down.
Regardless of how a court rules on any appeal, the New Jersey ruling will not result in a wave of recalls against Senators, or even of Representatives. There have only been two statewide recalls, both governors, in the century-long history of the recall, and only about 20 recall votes of state legislators (13 were removed). It is simply too hard to get the recalls on the ballot for it to be a regular weapon. However, a look at the early history of our government shows that the allure of the recall has always been there.
Joshua Spivak, a public relations executive and attorney, is a senior fellow at the Hugh L. Carey Institute for Government Reform at Wagner College in New York.