The Record [Bergen County, N.J.]
Tuesday, November 23, 2010
SETBACK FOR RECALL MOVEMENT MAY BE TEMPORARY
BY JOSHUA SPIVAK
Supporters of the quick hook for federally elected officials were dealt a severe blow last week as the state Supreme Court ruled that Sen. Bob Menendez, as well as all other federal officials, are not subject to a recall vote.
The decision, overturning a lower court ruling allowing the recall to go forward, agrees with other court rulings that the recall cannot be utilized at the federal level. But recall proponents are not done yet. And there could be a chance, though most likely very small, that they could survive to fight another day.
The decision did leave some room for hope for the recall proponents. Two of the judges dissented, arguing that the recall should have been allowed to progress, as did the appellate court judges. While this doesn’t have any practical effect, it does mean that the proponents were able to convince at least two high-level judges of their argument.
Since they have promised to appeal the decision to the U.S. Supreme Court, they have to hope to do better. The recall backers also have another case in the hopper, as recall proponents are also trying to recall North Dakota Sen. Kent Conrad, and had been threatening a recall of Louisiana’s Mary Landrieu.
Recall backers are hoping that their side of history gets the best of a Supreme Court argument. The recall goes back to the beginning of the country – it made its first appearance in 1631 in the Massachusetts Bay Colony. A recall provision was also included in the Constitution’s predecessor document, the Articles of Confederation, though it apparently was never exercised.
Unfortunately for the recall proponents, history takes a sharp turn for the worse once the Constitutional Convention met. The famed Virginia Plan, proposed by Gov. Edmund Randolph, 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. But the convention struck the provision out.
The lack of a recall played a major part in the Anti-Federalist attack on the Constitution. Two major Constitution opponents, Luther Martin of Maryland and John Lansing of New York, stressed the absence of a recall for senators and the senators’ freedom from popular control as reasons to reject the Constitution.
George Washington cited
Recall proponents and the dissenting New Jersey judges also cite a letter of George Washington to his nephew that references a recall. However, the Anti-Federalists lost, and lost badly. The recall was not put into the Constitution, and the view of others, most notably Alexander Hamilton, carried the day. When James Madison proposed his Amendments to the Constitution, the recall was nowhere to be found.
This wasn’t the end of the recall. In 1790, Rhode Island proposed granting the right to recall, as did Virginia in 1803 and 1808. It also came back to life in the debates surrounding the 17th Amendment, which stripped from the state legislatures the rights to elect senators and put it in the voters’ hands, though it was not included in that amendment.
At this time, William Howard Taft wrote a book denouncing the recall, which he memorably cited as the “hair-trigger form of government.”
In addition to all this historical hurdle, in the 1995 case of United States Term Limits v. Thornton, the United States Supreme Court mentions in both the decision and the dissent that federal officials are not subject to the recall. Proponents may take some solace in the fact that four of the justices who participated in the Thornton case have since been replaced.
If the North Dakota Supreme Court allows the Conrad recall to go forward, the U.S. Supreme Court may feel a need to clarify the constitutionality of the recall. If it doesn’t, there’s probably a good chance the court will just let the states’ high court decisions stand.
If the recall goes forward, it might be some time before we see a wave of federal recalls. The recall is only available against statewide officials in 18 states, and a number of those limit it to state officials. And in the 102-year history of the state-level recall, only two governors and about 20 or so state legislators have ever faced a recall.
Thanks to technology and more money being used, that would probably change in a hurry if a recall were approved for federal officials. But any flood would probably take some time.
Recall backers had a bad day last Thursday. The New Jersey court’s decision is clearly a setback in their attempt to remove federally elected officials.
But their fight is clearly not over. We may still have to wait and see if senators are subject to the recall.
Joshua Spivak, a public relations executive and attorney, is a senior fellow at the Hugh L. Carey Institute for Government Reform at Wagner College.