----- Original Message -----
From: Minuteman Civil Defense Corp
To: Undisclosed-Recipient:;
Sent: Saturday, June 02, 2007 5:35 PM
Subject: recall

Whelp, I fell right into this one. I checked before I sent that last message to make sure the facts were right and there is a recall going on in Arizona, I found groups are working on it, but...............if the below report is correct.......a Senator or House Rep can not be recalled by "We the People. Our only method of recall is BY VOTING! We simply have to do what the French did and show up at the polls. We do not even need the 85% the French had, to beat these people out of office. So what we need to do is get the people out for the vote in the next election. I do not see how anyone can forget what they are trying to do here to us, our country, and our kids futures, everyone needs to stay mad and show them and their followers they can lose their cushy jobs and retirement to the voters.

If anyone cannot see that this whole can of worms is a conspiracy by our government officials I have a bridge plus some swamp land I am willing to sell for HALF PRICE! If you consider some of the most recent presidential or executive orders Bush has signed like the doing away with Habeas Corpus, the eminent domain decisions and other things that don't come to mind at the moment, the Gardner, Kansas rail yard called the "Intermodle" that goes right along with the KC Smart Port and then picture the SPP, the North American Union, NAFTA, the NAFTA super highway and then CHEAP LABOR to build all of this stuff the big picture is complete.

The folks in Olathe, Kansas were so delighted when the railroad a few years ago announced that they were putting (10+) overpasses over the busiest streets in town which would create a quiet zone for 11 different crossings, no whistle blowing. They have have needed overpasses for the last 25 years and all of a sudden........Walla.................we gonna build you overpasses! Why? Because there is going to be more than double the train traffic (80 to 100 now) going through that town that is why. The entire town would be a parking lot. Why? Because of the Intermodle going in at Gardner, Kansas and the KC Smart Port going in at KCMo if it still goes and all indications are that it will.

The Intermodle was slipped by the general public until it was a done deal. BNSF had bought up properties and closed on them before We the People knew the impact of the thing thanks to a mayor and city council who were pushing the deal "for the growth of the city" they say, I think there was one city councilman who was against it, so now there are some expensive houses in that area with a 15 acre rail yard in the neighborhood if not across the street. There was also some shady real estate deals going on before the houses were bought up but they say no one knew when they sold or bought acreage that the rail road was going to come in and buy it up in a couple of years.

If a couple of hard working ladies from the KC Mo area (one which is an MCDC member) had not gone through the freedom of information act and dug out the history of the Smart Port deal it would still be in denial as well as the NAFTA Super Highway. It's been fairly recent that they are now admitting the Smart Port deal however they still have their secrete meetings so there is a lot going on we do not know about. Because of this, lookout, there goes the freedom of information act if they could "git er done!"

Do you ever wonder why Lu Lac, El Centro, La RAZA, the ACLU and the list is long, why they get federal funding? Do any of the opposition groups like the MCDC, FAIR, and that list goes on and on as well, why do they not offer us federal funding? Because we are the opposition and they hate opposition! They do not tell us the truth on most things folks, “Ignorance is Power” and that is where they had us, and if you want them to continue to run things the way they have and the way it is and continue to screw our country up worse than they have then don't do anything! You can stay with the apathetic crowd and government will accommodate you. If you want changes, YOU NEED TO CHANGE and DO SOMETHING and if nothing else VOTE in the next elections. That's not near enough but we will take any help we can get and wouldn't it be a hugh victory and a great feeling about yourself when we see the door slam on Teddy, Nancy, Harry and most all of the rest, it takes all of us to do it and we have their attention, lets keep it!

Ed Hayes

Heart of America Chapter Director

Kansas Director

Minuteman Civil Defense Corps

913 620 0771

===================================================================================

Congressional Research Service

The Library of Congress

Report for Congress

Received through the CRS Web

Order Code RL30016

Recall of Legislators and the

Removal of Members of Congress from Office

Updated March 20, 2003

Jack Maskell

Legislative Attorney

American Law Division

--------------------------------------------------------------------------------

Page 2

Recall of Legislators and the Removal of Members of

Congress from Office

Summary

Under the United States Constitution and congressional practice, Members of

Congress may have their services ended prior to the normal expiration of their

Constitutionally established terms of office by their resignation or death, or by action

of the House of Congress in which they are a Member by way of an “expulsion,” or

by a finding that in accepting a subsequent public office deemed to be “incompatible”

with congressional office, the Member has vacated his congressional seat.

Under Article I, Section 5, clause 2, of the Constitution, a Member of Congress

maybe removed from office before the normal expiration of his or her constitutional

term by an “expulsion” from the Senate (if a Senator) or from the House of

Representatives (if a Representative) upon a formal vote on a resolution agreed to by

two-thirds of the Members of the respective body present and voting. While there

are no specific grounds for an expulsion expressed in the Constitution, expulsion

actions in both the House and the Senate have generally concerned cases of perceived

disloyalty to the United States, or the conviction of a criminal statutory offense which

involved abuse of one’s official position. Each House has broad authority as to the

grounds, nature, timing, and procedure for an expulsion of a Member. However,

policy considerations, as opposed to questions of authority, have appeared to restrain

the Senate and House in the exercise of expulsion when it might be considered as

infringing on the electoral process, such as when the electorate knew of the past

misconduct under consideration and still elected or re-elected the Member.

As to removal by recall, the United States Constitution does not provide for nor

authorize the recall of United States officers such as Senators, Representatives, or the

President or Vice President, and thus no Member of Congress has ever been recalled

in the history of the United States. The recall of Members was considered during the

time of the drafting of the federal Constitution in 1787, but no such provisions were

included in the final version sent to the States for ratification, and the specific

drafting and ratifying debates indicate an express understanding of the Framers and

ratifiers that no right or power to recall a Senator or Representative from the United

States Congress exists under the Constitution. Although the Supreme Court has not

needed to directly address the subject of recall of Members of Congress, other

Supreme Court decisions, as well as the weight of other judicial and administrative

decisions, rulings and opinions, indicate that: (1) the right to remove a Member of

Congress before the expiration of his or her constitutionally established term of office

is one which resides exclusively in each House of Congress as established in the

expulsion clause of the United States Constitution, and (2) the length and number of

the terms of office for federal officials, established and agreed upon by the States in

the Constitution creating that Federal Government, may not be unilaterally changed

by an individual State, such as through the enactment of a recall provision or a term

limitation for a United States Senator or Representative. Under Supreme Court

constitutional interpretation, since individual States never had the original sovereign

authority to unilaterally change the terms and conditions of service of federal

officials agreed to and established in the Constitution, such a power could not be

“reserved” under the 10

Amendment.

--------------------------------------------------------------------------------

Page 3

Contents

EXPULSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

RECALL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Constitutional History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Constitutional Amendment; Pro and Con . . . . . . . . . . . . . . . . . . . . . . 10

--------------------------------------------------------------------------------

Page 4

Senators: Seventeenth Amendment, Clause 1; Representatives: Article I, Section 2.

Article I, Section 5, cl. 2.

See discussion in Deschler’s Precedents of the United States House of Representatives,

Volume 2, Chapter 7, § 13 (1977), and VI Cannon’s Precedents of the House of

Representatives, § 65 (1935); note, e.g., United States Constitution, Article I, Section 6.

There is also a “disqualification” provision in the 14

Amendment, Section 3, where a

person maybe “disqualified” from holding congressional office for engaging in insurrection

or rebellion against the United States or giving aid or comfort to our enemies after having

taken an oath to support the Constitution. This provision may be used to “exclude,” that is,

not to seat a person elected to Congress for failing to meet the qualifications (see discussion

concerning House “exclusions” and disqualifications, presumptively on 14th Amendment

grounds, of socialist and pacifist Victor Berger of Wisconsin in 1919, and again in 1920,

VI Cannon’s Precedents, §§56-59; also Powell v. McCormack, 395 U.S. 486, 545, n.83

(1969)). Removal of a seated Member on such grounds would still appear to require the

specific action of the relevant House of Congress.

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 800-805 (1995); Cook v. Gralike, 531

U.S. 510, 522-523 (2001); Justice Joseph Story, Commentaries on the Constitution, Vol. I,

§ 627 (1883).

Recall of Legislators and the Removal of

Members of Congress from Office

The term of office established in the United States Constitution for a United

States Senator is six years, and for a Representative in Congress, two years.

Under

the Constitution and congressional practice, Members of Congress may have their

services ended prior to the normal expiration of their constitutional terms of office

by their resignation, death, or by action of the House of Congress in which they sit

by way of an “expulsion,”

or by a finding that a subsequent public office accepted

by a Member is “incompatible” with congressional office (and that the Member has

thus vacated his seat in Congress).

Although considered in the Federal Convention

of 1787, there was never a provision adopted in the Constitution for the “recall” of

Members of Congress, and thus no Member has ever been recalled in the history of

the United States. Individual States have never had the authority, and thus could not

have “reserved” such power, to unilaterally change the terms and conditions of

service of federal officials agreed upon and created in the federal Constitution.

This

report discusses briefly the manner in which a Member of Congress maybe removed

from office by “expulsion,” and then examines the issue of recall of legislators.

EXPULSION

Members of Congress may be involuntarily removed from office before the

normal expiration of their constitutional terms by an “expulsion” from the Senate (if

a Senator) or from the House of Representatives (if a Representative) upon a formal

--------------------------------------------------------------------------------

Page 5

CRS-2

Brown, House Practice, 104

Cong., 2d Sess., “Voting,” at p. 908 (1996).

Cushing, Elements of the Law and Practice of Legislative Assemblies in the United States,

Sections 683-684, at 268-269 (Boston 1856); notealso Hiss v. Bartlett,68 Mass. 468 (1855).

Powell v. McCormack, 395 U.S. 486 (1969). See also footnote 3, supra, as to 14

Amendment disqualification for treasonous conduct.

See case of Senator William Blount of Tennessee, expelled on July 8, 1797, and found not

subject to impeachment. III Hinds’ Precedents, §§ 2294-2318 (1907).

In addition to actual expulsions, note House Committee on Standards of Official Conduct’s

recommendations for expulsion of a Member for bribery in “Abscam” matter (H.R. Rept.

97-110, 97

Cong., 1

Sess. (1981)), and of another Member after conviction for receipt of

illegal gratuities, Travel Act violations and obstruction of justice (H. Rept. 100-506, 100

Cong., 2d Sess. (1988)). See also Senate Select Committee on Ethics recommendation in

S. Rept. 97-187, 97

Cong., 1

Sess. (1981), after Senator’s conviction in “Abscam” matter.

It should be noted, however, that the Senate Select Committee on Ethics recommended the

expulsion of a Senator in 1995 who was not convicted of any crime, but who was found by

the Committee to have abused the authority of his office in making unwanted sexual

advances to women, enhancing his personal financial position, and for obstructing and

impeding the Committee’s investigation. S. Rept. 104-137, 104

Cong., 1

Sess. (1995).

vote on a resolution agreed to bytwo-thirdsof the membership of the respective body

who are present and voting.

The United States Constitution expressly provides at

Article I, Section 5, clause 2, that: “Each House may determine the Rules of its

Proceedings, punish its Members for disorderly Behaviour, and, with the

Concurrence of two-thirds, expel a Member.”

An expulsion is a process, generally inherent in parliamentary bodies, which is

considered to be a self-disciplinary action necessary to protect the integrity of the

institution and its proceedings.

An expulsion is different from an “exclusion.” An

“exclusion” is not a disciplinary matter against a current Member, but rather a

decision not to seat a Member-elect, by a simple majority vote of the House or

Senate, upon a finding that the Member-elect is not entitled to a seat either because

of a failure to meet the constitutional qualifications for office (age, citizenship and

inhabitancy in the State), or that the Member-elect was not “duly elected.”

Members of Congress are not removed by way of an “impeachment” procedure

in the legislature, as are executive and judicial officers, but are subject to the more

simplified legislative process of expulsion.

A removal through an impeachment

requires the action of both Houses of Congress — impeachment in the House and

trial and conviction in the Senate; while an expulsion is accomplished merely by the

House or Senate acting alone concerning one of its own Members, and without the

constitutional requirement of trial and conviction.

An expulsion from the Senate or the House of Representatives is considered the

most severe form of congressional self-discipline. While there are no specific

grounds for an expulsion expressed in the Constitution, expulsion actions in both the

House and the Senate have generally concerned cases of perceived disloyalty to the

United States Government, or the conviction of a criminal statutory offense which

involved abuse of one’s official position.

In the United States Senate, 15 Senators

have been expelled, 14 during the Civil War period for disloyalty to the Union (one

--------------------------------------------------------------------------------

Page 6

CRS-3

Note expulsions of Senators Mason, Hunter, Clingman, Bragg, Chestnut, Nicholson,

Sebastian, Mitchell, Hemphill, and Wigfall (1861), Breckinridge (1861), Bright (1862),

Johnson (1862), and Polk (1862). The expulsion order regarding Senator Sebastian was

later revoked. United States Senate Election, Expulsion and Censure Cases, 1793-1990, S.

Doc. 103-33, 103d Cong., 1

Sess., at pp. 95-108, Cases 36, 38, 39, 40 (1995).

Senator William Blount of Tennessee, July 8, 1797, United States Senate Election,

Expulsion and Censure Cases, 1793-1990, supra at 13-15, Case 5.

Representative-elect John B. Clark of Missouri (1861), Representative John W. Reid of

Missouri (1861), and Representative Henry C. Burnett of Kentucky (1861). II Hinds’

Precedents, supra at §§ 1261,1262; House of Representatives Exclusion, Censure and

Expulsion Cases, Comm. Prt., 93rd Cong. 1

Sess. at 143-144 (1973).

H.R. Rpt. No. 96-1387, 96

Cong., 2d Sess., In the Matter of Representative Michael J.

Myers(1980), 126 Congressional Record28,978 (October 2, 1980); H.R. Rpt. No. 107-594,

107

Cong., 2d Sess., In the Matter of Representative James A. Traficant, Jr. (2002), and

H.Res. 495, 107

Cong., 148 Congressional Record H5393, July 24, 2002 (daily ed.).

In Senate see, e.g., S. Rept. 97-187, supra, (Senator resigned in 1982 prior to final Senate

floor consideration, Riddick’s Senate Procedure, S. Doc. 101-28, at 270 (1992)); and 1995

resignation of Senator after Committee recommendation of expulsion in S. Rept. 104-137,

supra. In the House, note resignations of two Representatives, one in 1981 and the other in

1988 after Committee recommendations of expulsion in H. Rept. 97-110, supra, and H.

Rept. 100-506, supra; case of Rep. B.F. Whittemore, recommended for expulsion by

Military Affairs Committee for sale of Military Academy appointments, who subsequently

resigned in 1870, and who was then censured in abstentia by the House (II Hinds’

Precedents, supra at § 1273); and House censure of John DeWeese after his resignation

(also for the sale of Academy appointments), but before the committee reported the

resolution of expulsion. II Hinds’ Precedents, supra at § 1239. See also expulsion

resolutions, reported from an ad hoc committee, for bribery, and subsequent resignations

during House consideration of resolutions, by Representatives William Gilbert, Frances

Edwards, and Orasmus Matteson, in 1857 (II Hinds’ Precedents, supra at § 1275).

In re Chapman, 166 U.S. 661, 669-670 (1897); United States v. Brewster, 408 U.S. 501,

519 (1972); Story, Commentaries on the Constitution, Vol. II, § 836 (1883).

expulsion was later revoked by the Senate),

and one Senator was expelled in 1797

for other disloyal conduct.

In the House of Representatives, five Members have

been expelled, including three during the Civil War period for disloyalty to the

Union.

Two other House Members have been expelled, one in 1980 after

conviction of conspiracy and bribery in office, and the other Member in 2002 after

conviction for conspiracy to commit bribery,receiving illegal gratuities, fraud against

the Government in receiving “kickbacks” from staff, and obstruction of justice.

Although actual expulsions from Congress are fairly rare, it should be noted that

Several Members of Congress have chosen to resign from office rather than face what

was apparently perceived as an inevitable congressional expulsion.

The authority within the Constitution of each House of Congress to expel one

of its own Members is unrestricted on the face of the constitutional language, except

as to the requirement for a two-thirds approval. Although such authority appears to

be extensive as to the grounds, nature, timing, and the procedure for the expulsion

of a Member,

policy considerations, as opposed to questions of power or authority,

may have generally restrained the Senate and the House in the exercise of their

--------------------------------------------------------------------------------

Page 7

CRS-4

H. Rept. 94-1477, 94

Cong., 2d Sess. 2 (1976), where House Committee on Standards

recommended against expulsion since Member’s conviction “while reflecting on his moral

turpitude, does not relate to his official conduct while a Member of Congress.”

Note discussion in S. Rept. 2508, 83

Cong., 2d Sess. 20-23, 30-31 (1954), concerning

McCarthy censure; and H. Rept. 27, 90th Cong., 1

Sess. 26-27 (1969).

Powell v. McCormack, supra at 508, 509; Alexander Hamilton, II Eliot’s Debates 257;

note II Hinds’ Precedents § 1285, p. 850-852, discussion of jurisdiction of House after re-

election of Member when the “charges against [the Member] were known to the people of

his district before they reelected him.”

Report of the House Judiciary Committee, H. Rept. 570, 63

Cong., 2d Sess. (1914), VI

Cannon’s Precedents of the House of Representatives, § 398, 557-558.

“Congress has demonstrated a clear reluctance to expel when to do so would impinge ...

(continued...)

authority to expel. Such restraint has been particularly evident when the conduct

complained of occurred prior to the time the Member was in Congress,

or occurred

in a prior Congress, when the electorate knew of the conduct and still elected or re-

elected the Member.

The apparent reticence of the Senate or House to expel a

Member for past misconduct after the Member has been duly elected or re-elected by

the electorate, with knowledge of the Member’s conduct, appears to reflect in some

part the deference traditionally paid in our heritage to the popular will and election

choice of the people.

In 1914, the Judiciary Committee of the House detailed

various policy considerations in expulsions for past misconduct:

In the judgment of your committee, the power of the House to expel or punish by

censure a Member for misconduct occurring before his election or in a preceding

or former Congress is sustained by the practice of the House, sanctioned by

reason and sound policy and in extreme cases is absolutely essential to enable the

House to exclude from its deliberations and councils notoriously corrupt men,

who have unexpectedly and suddenly dishonored themselves ....

But in considering this question and in arriving at the conclusions we have

reached, we would not have you unmindful of the fact that we have been dealing

with the question merely as one of power, and it should not be confused with the

question of policy also involved. As a matter of sound policy, this extraordinary

prerogative of the House, in our judgment, should be exercised only in extreme

cases and always with great caution and after due circumspection, and should be

invoked with greatest caution where the acts of misconduct complained of had

become public previous to and were generally known at the time of the member’s

election. To exercise such power in that instance the House might abuse its high

prerogative, and in our opinion might exceed the just limitations of its

constitutional authority by seeking to substitute its standards and ideals for the

standards and ideals of the constituency of the member who had deliberately

chosen him to be their Representative. The effect of such a policy would tend

not to preserve but to undermine and destroy representative government.

The authority to expel has thus been used cautiously, particularly when the institution

of Congress might be seen as usurping or supplanting its own institutional judgment

for that of the electorate as tothe character or fitness for office of someone the people

have chosen to represent them in Congress.

--------------------------------------------------------------------------------

Page 8

CRS-5

(...continued)

on the electoral process.” Bowman and Bowman, “Article I, Section 5: Congress’ Power

to Expel — An Exercise in Self-Restraint,” 29 Syracuse Law Review 1071, 1101 (1978).

G. Theodore Mitau, State and Local Government, Politics and Processes, 90 -93 (Charles

Scribner’s Sons 1966); Comment, “The Use and Abuse of Recall: AProposal for Legislative

Recall Reform,” 67 Nebraska Law Review 617, 621-625 (1988).

II Hinds’ Precedents, supra at §§ 813-815; Remick, The Power of Congress in Respect

to Membership and Elections, Vol. I, pp. 531-532 (1929).

RECALL

In some States, State legislators and other State or local elected officials maybe

removed from office before the expiration of their established terms not only by

action of the legislature itself through an expulsion (or for executive officers, through

an “impeachment” and conviction by the legislature), but also by the voters through

a “recall” election procedure. While an expulsion is an inherent authority of

legislative bodies incident to their general powers over their own proceedings and

members, recall is a special process outside of the legislature itself, exercised by the

people through a special election. Recall provisions for State or local officers

became popular in the “progressive movement, ”particularly in the western and plains

States, in the early part of the 20

Century.

Constitutional History.

The United States Constitution does not provide for nor authorize the recall of

United States officials such as United States Senators, Representatives to Congress,

or the President or Vice President of the United States, and thus no United States

Senator or Member of the House of Representatives has ever been recalled in the

history of the United States. As early as 1807, a Senate Committee examining the

question of the Senate’s duty and broad authority to expel a Member, noted that such

duty devolves to the Senate not only because of the express constitutional grant of

authority, but also as a practical matter because the Constitution does not allow for

a “recall” of elected Members of Congress by the people or the State. The

Committee noted specifically that the Constitution had set out numerous provisions,

qualifications and requirements for Members of Congress to prevent conflicts of

interest and to assure a certain degree of fealty to constituents, but did not give a

Member’s constituency the authority to recall such a Member:

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.

The recall of United States Senators or Representatives had been considered

during the time of the drafting of the federal Constitution, but recall provisions were

rejected and were not included in the final version of the Constitution sent to the

--------------------------------------------------------------------------------

Page 9

CRS-6

The Articles of Confederation of 1777 had contained a provision for recall of United

States Senators by the state legislatures. Section V stated that the state legislatures would

have “a power reserved in each state to recall its delegates, or any of them, at any time

within the year and to send others in their stead ....” At the Constitutional Convention at

Philadelphia, “Randolph’s Propositions” of May 29, 1787 proposed for recall of popularly

elected representatives, but this was not accepted by the Convention. I Elliot, Debates on

the Adoption of the Federal Constitution, 143-144, 172 (1888).

3 Farrand, Records of the Federal Convention of 1787, 173 (Appendix A).

II Elliot, Debates on the Adoption of the Federal Constitution, 289 (1888); note also

discussion of state ratifying debate on lack of authority for state recall in the federal

Constitution, in Herbert S. Swan, “The Use of Recall in the United States,” from The

Initiative, Referendum and Recall, National Municipal League Series, (William Bennett

Munro, editor), at p. 298, n.2 (1912).

Thomas E. Cronin, Direct Democracy, The Politics of Initiative, Referendum, and Recall,

at 129 (Harvard University Press 1989).

202 U.S. 344 (1906).

States for ratification.

The ratifying process in the States evidences debate over this

lack of inclusion of a recall provision. Luther Martin of Maryland, for example, in

an address delivered to the Maryland Legislature, criticized the proposed Constitution

because the Senators “are to pay themselves, out of the treasury of the United States;

and are not liable to be recalled during the period for which they are chosen.”

New York, an amendment was defeated in the 1788 ratifying convention which

would have allowed the state legislatures to “recall their Senators ... and elect others

in their stead.”

This history indicates an understanding of the Framers and ratifiers

of the Constitution that no right or power to recall a Senator or Representative from

the United States Congress existed under the Constitution as ratified. As noted by

an academic authority on the mechanisms of “direct democracy”:

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.

Judicial Decisions.

Although the Supreme Court has not needed to directly address the subject of

recall of Members of Congress, other judicial decisions indicate that the right to

remove a Member of Congress before the expiration of his or her constitutionally

established term of office is one which resides in each House of Congress as

established in the expulsion clause of the United States Constitution, and not in the

entire Congress as a whole, nor in the State legislatures through the enactment of

recall provisions. In Burton v. United States,

the Supreme Court ruled that a

provision of federal law which on its face purported to makeone convicted of bribery

“ineligible” to be a United States Senator, could not act as a forfeiture of a Senator’s

--------------------------------------------------------------------------------

Page 10

CRS-7

202 U.S. at 369.

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995); Cook v. Gralike, 531 U.S. 510

(2001).

514 U.S. at 832-835.

514 U.S. at 800-802. The Court stated: “As we have frequently noted, ‘[t]he States

Unquestionably do retain a significant measure of sovereign authority. They do so, however,

only to the extent that the Constitution has not divested them of their original powers and

transferred those powers to the Federal Government.’ Garcia v. San Antonio Metropolitan

Transit Authority, 469 U.S. 528, 549 (1985); ... see also New York v. United States, 505 U.S.

144, 155-156 (1992).” 514 U.S. at 801-802. (Emphasis in original)

514 U.S. at 802.

office, since the only way to remove a Member under the Constitution was by the

Senate exercising its authority over its own Members:

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.

The concept that the States do not, individually, possess the authority to change

The terms or qualifications for federal officers agreed upon bythe States in the United

States Constitution, has been confirmed by the Supreme Court in modern case law.

The Supreme Court found in U.S. Term Limits, Inc. v. Thornton, that the authority

of the individual States over the elections of federal officials under Article I, § 4, cl.

1, is not a broad authority for an individual State to substantively change the

qualifications, length or number of terms of federal officials established within the

United States Constitution.

The Court in U.S. Terms Limits, Inc. noted that the

States do retain significant sovereign authority in many areas, but that the States

transferred and delegated certain powers and authority to the national government

within the instrument creating that entity, the Constitution. With respect to powers

in relation to the federal, national government, and any powers deriving exclusively

from and because of the existence of that national government, the States must look

to the United States Constitution for grants or delegation of authority to them.

With respect to the Tenth Amendment andthe “reserved” authority of the States,

the Court clearly explained that determining qualifications and terms for federal

offices, created within the Constitution, were “not part of the original powers of

sovereignty that the Tenth Amendment reserved to the States,” and thus whatever

authority States have over the terms, qualifications and elections of federal officers

must be a “delegated” authority from the Constitution.

Such authority could not be

a “reserved” power of the States, since the States could not “reserve” a power it did

not have as part of its original sovereign authority, that is, a power relative to

something which did not exist before its creation in the Constitution:

Petitioners’ Tenth Amendment argument misconceives the nature of the right at

issue because that Amendment could only “reserve” that which existed before.

As Justice Story recognized, “the states can exercise no powers whatsoever,

which exclusively spring out of the existence of the national government, which

--------------------------------------------------------------------------------

Page 11

CRS-8

514 U.S. at 802. “[A]s the Framers recognized, electing representatives to the National

Legislature was a new right, arising from the Constitution itself.” 514 U.S. at 805; Cook v.

Gralike, supra at 522.

531 U.S. at 522.

Article I, § 2, cl. 2, and Article I, § 3, cl. 3; Members of the House are to be “chosen every

second Year by the People of the several States ....” (Article I, § 2, cl. 1), and Senators are

chosen for terms of “six Years” each. Article I, § 3, cl. 1, and Seventeenth Amendment:

“The Senate of the United States shall be composed of two Senators from each State, elected

by the people thereof, for six years ....”; Article I, § 5, clauses 1 and 2.

Members of Congress are federal officials, not State officers, and owe their existence and

authority solely to the federal Constitution. As explained by the Supreme Court:

In that National Government, representatives owe primary allegiance not to the

people of a State, but to the people of the Nation. As Justice Story observed,

each Member of Congress is `an officer of the union, deriving his powers and

qualifications from the constitution, and neither created by, dependent upon, not

controllable by, the states ....’ 1 Story § 627. Representatives and Senators are

as much officers of the entire union as is the President. 514 U.S. at 803.

United States Constitution, Article VI, clause 2. See, for example, with respect to

qualifications for candidates to federal office, Danielson v. Fitzsimmons, 44 N.W. 484

(Minn. 1950)(state law prohibiting felon from running for congressional office found

invalid); Ekwall v. Stadelman, 30 P. 2d 1037 (Ore. 1934); Shub v. Simpson, 196 Md. 177,

76 A.2d 332, appeal dismissed, 340 U.S. 881 (1958), (state statute requiring congressional

candidates to reside in congressional district found invalid.)

the constitution does not delegate to them .... No state can say, that is has

reserved, what it never possessed.” 1 Story § 627.

Re-emphasizing this meaning of the Tenth Amendment’s “reserved” authority vis-a-

vis federal officials, the Court later explained in Cook v. Gralick:

The federal offices at stake “aris[e] from the Constitution itself.” ...

Because any state authority to regulate election to those offices could not precede

their very creation by the Constitution, such power “had to be delegated to, rather

than reserved by, the States.”

The United States Constitution expressly establishes the exclusive qualifications

for congressional office, sets the specific length of terms for Members of the House

and for Senators, and places the authority within each House of Congress to judge the

elections and qualifications of, and to discipline and remove, its own Members.

These provisions of the United States Constitution, with respect to federal officials,

have supremacy over State laws and provisions, and State laws in conflict with such

constitutional provisions have been found by the courts in the past to be invalid.

Although the language of some State recall laws might be broad enough to include

Members of Congress, or might even explicitly include such federal officers, such

statutes would not appear to be effective in overriding the provisions of the United

States Constitution with regard to terms of office, elections and removal of Members

--------------------------------------------------------------------------------

Page 12

CRS-9

Biennial Report and Opinions of the Attorney General of the State of Oregon 313, (April

19, 1935): “Should this [state] constitutional amendment be so construed as applying to the

recall of a Representative in Congress it would to that extent be inoperative.” If a recall

election for a Member of Congress were actually held under a state provision, it is most

likely that the ultimate effect would be “advisory” only, having perhaps significant political,

but not legal, import.

68 Opinions of the Attorney General 140, 146, 148 (Wisconsin 1979): “In the foregoing

discussion I have attempted neither a resolution nor a comprehensive analysis of the

constitutional issue. Enough has been said, however, to show that the question of

constitutionality is one that is arguable and open to debate. The Wisconsin Supreme Court

has provided guidance to administrative bodies called upon to perform their ministerial

duties under circumstances raising doubts as to the constitutional validity of the result. ...

Accordingly, in the event petitions for the recall of a United States senator are presented to

the Elections Board, you should proceed to carry put your responsibilities ... unless and until

directed otherwise by a court of law.”

See New York Times, October 1, 1967, p. 47, col. 1.

Biennial Report and Opinions of the Attorney General of the State of Oregon 313 (1935).

See also opinion and brief of Senator Walter George, then Chairman of the Senate

Committee on Privileges and Elections, reaching the same conclusion as to the lack of

constitutional authority of a State to terminate or cut short by recall the constitutionally

established term of a United States Senator or Representative, 79 Congressional Record

10688-89 (July 3, 1935).

of the United States Congress,

and thus, as noted above, no Member of Congress

has ever been recalled in the history of the United States.

In interpreting state recall statutes, the Attorney General of Wisconsin did note

in an opinion on May3, 1979, that an administrative agency, the state election board,

upon presentation of a valid petition to recall a Member of Congress under the

Wisconsin Constitution, had no authority, in itself, to adjudicate and reject such

petition without a ruling from a court.

However, in a specific ruling from a court,

a federal court in 1967 dismissed a suit which attempted to compel the Idaho

Secretary of State to accept petitions recalling Senator Church of Idaho. In the

unreported decision, the court found that Senators are not subject to state recall

statutes, and that such a state provision is inconsistent with the provisions of the

United States Constitution.

In Oregon, the Attorney General similarly ruled in an opinion on April 19, 1935,

that the State’s recall provisions could not apply to a Member of Congress, who is

not actually a State official, but who holds his office pursuant to the United States

Constitution and is a federal constitutional officer. The opinion found that such

recall provisions would interfere with the Congress’ exclusive constitutional

authority over the elections and qualifications of its own members, noting that the

“jurisdiction to determine the right of a representative in Congress to a seat is vested

exclusively in the House of Representatives ... [and] a Representative in Congress is

not subject to recall by the legal voters of the state or district from which he was

elected.”

--------------------------------------------------------------------------------

Page 13

CRS-10

Constitutional Amendment; Pro and Con.

For a recall provision to be enforceable against a Member of Congress, it would

appear that a constitutional amendment would need to be adopted by the requisite

number of States authorizing such procedure in the United States Constitution.

Although there has been some call for a constitutional amendment authorizing

national “referenda” or “initiatives,” there has not been significant movement for a

national recall provision.

Supporters of recall provisions see this mechanism as a device to assure regular

and close oversight of elected public officials, and to make elected officials more

continuously, rather than periodically, responsible and responsive to the will and

desires of the electorate. With recall procedures available, it is argued, there is no

need for the electorate to tolerate an incompetent, corrupt, and/or unresponsive

official until that official’s term is over.

Those who oppose recall note that recall petitions generally need only a

relatively small minority of the electorate to force a recall election of an official.

With the threat of a recall election ever present, it is argued that an official may be

deterred from, and penalized for, taking strong and clear political positions that could

offend even a small, but vociferous and active political group. It is contended that

such small special interest or “single-issue” groups might effectively stymie an

official by constantly occupying the official with the potential need to campaign and

run in a recall election. It is also argued that complex governmental programs and

policies may often need to function and to be evaluated in the long run, over time; but

with the threat of immediate recall, Members may be further deterred in supporting

long-term plans and programs for the country which may not bring immediate, short-

term benefits to constituents.