ACRU Senior Fellow Robert Knight wrote this column appearing December 17, 2010 on The Washington Times website.
If ever a Congress epitomized the need for more accountability, it’s the 111th lame-duck gang. Sorry, that’s unfair to gangsters. With most Americans distracted by holiday plans, Senate Majority Leader Harry Reid, Nevada Democrat, has sprung another Christmas surprise, vowing to ram through a far-left agenda in the waning days of 2010. Last year, he put a giant lump of coal in Americans’ stockings with Christmas Eve passage of Obamacare.
This year, he has tried to force through a pork-loaded $1.1 trillion spendathon, dumping the nearly 2,000-page omnibus bill into the hopper four days before the Senate was supposed to adjourn. That hit a snag when Republicans actually revolted. But he also wants to ram through consent of the New START and amnesty for illegal aliens (the Dream Act) and overturn the military law barring homosexuality. Who knows what other tricks he has up his Grinchly sleeve?
Mr. Reid, who has called opponents “evil mongers,” was re-elected in November to another six-year term. So what is a Nevadan who is appalled at Mr. Reid’s arrogance to do?
Nevada is one of 11 states with broadly worded recall laws that allow petitioners to give citizens a chance to recall public officials – which may include members of Congress and senators – before their terms end. In fact, given the performance of the 111th Congress, 2011 may become the Year of Recall.
Here’s Nevada’s language:
Every public officer in the State of Nevada is subject, as herein provided, to recall from office by the registered voters of the state, or of the county, district, or municipality which he represents. (Article 2, Sec. 9)
When I called the Nevada secretary of state’s office, a nice lady asked me, “Is this about Harry Reid? No, you can’t recall U.S. senators.” The office sent a 1978 letter from the secretary of state that says pretty much the same thing.
The letter acknowledges that “there are no cases directly interpreting the language of Article 2, Section 9 regarding its applicability to federal officers.” But citing cases involving other offices and noting that the provision describes officers “in” the state and not “of” the state, the letter concludes that the U.S. and state constitutions bar recalling U.S. senators. As Bill Clinton might say, it depends on what the meaning of “in” is. But we’re still left without a federal court ruling.
Recall cases are pending against sitting U.S. senators in New Jersey (Robert Menendez) and North Dakota (Kent Conrad). The New Jersey state constitution has explicit language allowing recall of federal officials:
The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress. The Legislature shall enact laws to provide for such recall elections.” (Article 1, Sec. 2b)
The New Jersey Supreme Court ruled 4-2 on Nov. 18 that the provision was unconstitutional, but Tea Party plaintiffs plan to appeal. In North Dakota, the state’s high court has yet to rule on a petition denial by the secretary of state. In 1997, Wisconsin courts approved a recall petition effort against two U.S. senators over partial-birth abortion. Although the effort failed, the process was confirmed.
The U.S. Constitution allows states to set their own electoral procedures. As the late American Civil Rights Union constitutional attorney John Armor noted:
There are two main reasons why the right of recall can be established for all elected officials, including Members of Congress. One is that the Constitution delegates general election law to the states. The other is that the 10th Amendment reserves to the states and the people all rights not delegated to the national government.
Armor also pointed out that the 17th Amendment reiterates that election details are left to the states.
The American Civil Rights Union has found that 11 states – Arizona, Colorado, Louisiana, Michigan, Montana, Nevada, New Jersey, North Dakota, Oregon, Washington and Wisconsin – have constitutional or statutory provisions for recall of “all,” “every” or “any” elected officials. Together, these states have 21 incumbent U.S. senators, whom recall petition drives could put on the ballot in a special election. They include Democrats and Republicans. For more information, go to www.recallcongressnow.org.
Recall has deep roots. The plaintiff’s New Jersey brief cites a letter from George Washington, who wrote on Nov. 10, 1787, just after presiding over the Constitutional Convention:
The power under the Constitution will always be in the People. It is entrusted for certain defined purposes … and whenever it is executed contrary to their Interest, or not agreeable to their wishes, their Servants can, and undoubtedly will be, recalled.
Recall predates the U.S. Constitution in Colonial governance. It appears in the Massachusetts Charter of 1691. The current recall laws are mostly a product of the Progressive Era (1890s to 1920), in which “more” democracy was seen as a check on big banks, trusts and industrial giants.
Today, the Establishment has shifted from the private to the public sector. Rogue legislators are tearing up the Constitution, spending wildly and accumulating dangerously high public debt. They also are taking a wrecking ball to traditional cultural values.
Discontent with Congress is at an all-time high, according to Gallup’s 2010 Confidence in Institutions survey, which ranks Congress at the very bottom of a long list, with just 11 percent of Americans registering a “great deal” or “quite a lot” of confidence” in Congress (as contrasted with the military, which garners 76 percent).
Some critics say the 1995 U.S. Supreme Court ruling in U.S. Term Limits Inc. v. Thornton, striking down term limits for federal officials, applies to recall. But the court said term limits harm accountability by limiting the public’s right to choose its representatives. By contrast, recall affords more accountability.
If cases arise in several states, the issue will finally face constitutional scrutiny.
Meanwhile, it wouldn’t hurt for the “world’s greatest deliberative body” to know that a restive citizenry is determined to hold it more accountable.