Should California expand the power of recall to include our Congressional delegation?
This could make an interesting prospect for a new ballot initiative. An amendment to the California Constitution that expanded the current law to include "all" elected officials, and which, as a safety value legally, encouraged candidates for Congress to voluntarily submit to the recall process by printing "Voluntarily Agrees to Recall Process" next to their names on the ballot, might make the 2008 election season even more interesting!
California has played a leading historical role in the empowerment of the people through the direct-democracy devices of initiative, referendum, and recall. It was California that was among the first state to enact these tools in 1911. While until the 1980s, California was best known for the initiative process, the use of the recall tool made a big jump forward in the aftermath of the Prop. 13 landslide, and became more than just a local device, when California Supreme Court Justice Rose Bird was successfully recalled. Yet there continued to be many other unsuccessful recall efforts of statewide officers — that is, until 2003!
The first successful recall of a California Governor made national news, and put recall on the political map in an entirely new light in California politics. But California’s recall law currently covers every elected official in the state except 55 of some of our more important officials: our Congressional delegation in Washington, D.C. Under our state constitution and the Elections Code, recall only applies to "state" officials and local officials. The law is easily interpreted as excluding U.S. Congressmen and U.S. Senators from the recall process.
There are some interesting legal arguments at the extreme that try to interpret current law in California to include recall of Federal officials, principally the two Senators, but they are all losers, in my opinion. The arguments go like this: Senators are "state" officials that are selected to represent state interests on a federal level in state elections. The 17th amendment transfers the electoral power to the people from the state legislature for the selection of U.S. Senators. The recall is the exercise of the electoral power of California citizens, the people not the legislature. The 17th Amendment describes the process on how to fill seats in the Senate when they become vacant. The argument states that since it is expected that seats will become vacant for whatever reason, that removal from office by the will of the people is a valid act under the U.S and California Constitutions, that is not prohibited by any language in the 17th Amendment, and therefore our U.S. Senators should be subject to recall.
Recall opponents, on the other hand, can state that a Senator’s term is so firmly established in the U.S. Constitution that it cannot be affected by the will of the people thru recall. Opponents to Federal recall will also cite Article 1, Section 5, Clauses 1 & 2, which empowers each house of Congress to be the judge of elections, returns and qualifications of its members and grants them the ability to expel a member with a 2/3 vote. This assumes that the power “to expel” lies solely with each body of Congress and is exclusive of the will of the people thru recall process. Thus, for Federal offices holders, "impeachment" becomes the only legal method for removal, as the argument goes. And it is a quite strong one.
Nevertheless, some other state constitutions have apparently including ALL elected officials in their states as being subject to recall, including Federal officials. Arizona’s state constitution, for example, empowers the people to recall "all" elected officials. In 2001, this provision inspired a group to establish a "Recall McCain" committee and to begin collecting signatures to recall the U.S. Senator. The group apparently didn’t collect the requisite number of signatures and the issue was never litigated.
California has always been a trail-blazer when it comes to initiative, referendum, and recall. Thus, picking up on Arizona’s recall law and taking it a step or two further might make some sense, after all, why should a U.S. Senator or Member of the House be immune from recall when the Governor isn’t? And in a "people power" state like California, including recall of Federal officeholders would "complete the picture" of our ballot-box democracy. But, given the complexities of enacting such a new and far-reaching reform, I think our Congressional delegation will not need to worry about recall petitions anytime soon.
December 18th, 2006 at 12:00 am
The Supreme Court said pretty clearly that states cannot impose any election rules on Congress beyond those in the Constitution (remember the term limits debate?). How would a recall provision get around that ruling?
December 18th, 2006 at 12:00 am
Douglas Johnson is correct; under the U.S. Constitution, states can no more establish recall for federal officials than they can term limits or residency requirements.
Also, the most famous California recall before Gray Davis was not Rose Bird (she was defeated for re-election, not recalled). Rather it was the short-lived Assembly Speaker Doris Allen.
December 19th, 2006 at 12:00 am
Rick is right, Rose Bird was not recalled, rather, she failed to be “reconfirmed.”
It took more than the recall of Doris Allen for real Republicans to win the Assembly in 1992, there was also a character named Paul Horcher that had to be recalled. Recall in those two cases was a tool that helped stop Democrat meddling with the election of a true Republican Speaker, Curt Pringle.
But with due respect for Rick’s view from D.C. on the U.S. Constitution, there was indeed a McCain recall legally initiatied in Arizona in 2001, only to be dropped after 9/11, before any legal challenge was mounted. Arizona’s law allowing for recall of “all” elected officials remains in their state constitution. I don’t doubt for a minute that had sufficient signatures been submitted, that McCain’s next move would have been to go to the courts, probably successfully. But given partisan gerrymander in California, perpetual office holders in Congress, and the “blue” Senators we are straddled with, the idea of opening recall for Federal officials does raise at least my pulse rate, however unlikely the reality may be.