In case you were wondering, we can’t recall Members of Congress

Posted by Clyde Middleton on Nov 30 2009 Filed under Politics. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

So Congress ignores the polls on specific legislation, ignores the polls on increased government spending in general, and ignores the polls on their own impending retirements in the 2010 general. They ignore the tea-party marches, the thousands of letters and calls, and the revelations about ACORN and falsified climate data. They allow the Administration to fail to prosecute voter intimidation and to investigate ACORN. Congress is, quite clearly, acting wholly outside the interests of the voters. The liberals in charge of Congress and the White House are marching to their own drummer. They refuse to acknowledge our words and refuse to learn about the malfeasance around them. What can we do except wait to vote them out? Unfortunately, not much.

Here’s the operative language – Article I, Section 5, clause 2, of the Constitution:

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

The Supreme Court of the United States has not ruled directly on the issue of recalling a Member of Congress. This would require, for example, a specific instance of recalling a Member of Congress that was challenged by appeal and found its way to SCOTUS. SCOTUS has, however, ruled on the fringes – and close enough to understand how recalls would be viewed.

SCOTUS issued an opinion in 1906 in the matter of Burton v. United States (202 U. S. 344 (1906)). Burton was nailed for, in essence, taking bribes. The Idaho trial court declared as part of his sentence that he was ineligible to serve (kinda sorta – see the words below) in the US Senate. Here’s the operative part (202 U. S. at 369):

Allusion has been made to that part of the judgment declaring that the accused, by his conviction, “is rendered forever hereafter incapable of holding any office of honor, trust, or profit under the government of the United States.” That judgment, it is argued, is inconsistent with the constitutional rights of a Senator to hold his place for the full term for which he was elected, and operates of its own force to exclude a convicted Senator from the Senate, although that body alone has the power to expel its members. We answer that the above words in the concluding part of the judgment of conviction do nothing more than declare or recite what, in the opinion of the trial court, is the legal effect attending or following a conviction under the statute. They might well have been omitted from the judgment. By its own force, without the aid of such words in the judgment, the statute makes one convicted under it incapable forever thereafter of holding any office of honor, trust, or profit under the government of the United States. But the final judgment of conviction did not operate ipso facto to vacate the seat of the convicted Senator, nor compel the Senate to expel him or to regard him as expelled by force alone of the judgment. The seat into which he was originally inducted as a Senator from Kansas could only become vacant by his death, or by expiration of his term of office, or by some direct action on the part of the Senate in the exercise of its constitutional powers. This must be so for the further reason that the declaration in § 1782 that anyone convicted under its provisions shall be incapable of holding any office of honor, trust, or profit “under the government of the United States” refers only to offices created by, or existing under the direct authority of, the national government, as organized under the Constitution, and not to offices the appointments to which are made by the states, acting separately, albeit proceeding, in respect of such appointments, under the sanction of that instrument. While the Senate, as a branch of the legislative department, owes its existence to the Constitution and participates in passing laws that concern the entire country, its members are chosen by state legislatures, and cannot properly be said to hold their places “under the government of the United States.”

SCOTUS seems to sidestep the issue we care about – can a Member of Congress be removed by other than expulsion as discussion in Article I, Section 5, clause 2, of the Constitution – but they were merely answering the question presented. Fair enough. And now that the long quote is above, so you see the following excerpt in context, let’s pull out the operative language:

The seat into which he was originally inducted as a Senator from Kansas could only become vacant by his death, or by expiration of his term of office, or by some direct action on the part of the Senate in the exercise of its constitutional powers.

That seems pretty clear. Once we elect a Member of Congress, we lose control of his or her tenure except in those very limited circumstances.

SCOTUS is not being unduly restrictive nor creative in its position. As early as 1807, the issue was addressed (see pp 5, 6 of the embedded doc below as source for the next two quotes):

The spirit of the Constitution is, perhaps, in no respect more remarkable than in the solicitude which it has manifested to secure the purity of the Legislature by that of the elements of its composition …. Yet, in the midst of all this anxious providence of legislative virtue, it has not authorized the constituent body to recall in any case its representative.

Interestingly, this may not have been a well-considered position that the Framers took, but instead may have evolved merely by taking an opposite approach to the predecessor document, the Articles of Confederation and Perpetual Union:

The Constitutional Convention of 1787 considered but eventually rejected resolutions calling for this same type of recall [recall of Senators by the state legislatures as provided in the Articles of Confederation]. … In the end, the idea of placing a recall provision in the Constitution died for lack of support — at least from those participating in the ratifying conventions. The framers and the ratifiers were consciously seeking to remedy what they viewed as the defects of the Articles of Confederation and some of their state constitutions, and for many of them this meant retreating from an excess of democracy.

The Articles of Confederation were quite clear (see Article V):

For the more convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislature of each state shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each state, to recal its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the Year.

There has been a bit more judicial activity on the issue, but nothing that supports a position of using recall. See the full doc below for a comprehensive read.

So they die, quit, get expelled by 2/3s of their own membership – or we wait it out. Sigh …

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