Jack Maskell

“ Adams expressly recognized, however, the absence of the authority of a constituent body to recall or to instruct a United States Senator: “The Senate of the United States is a branch of the legislature; and each Senator is a representative, not of a single State, but of the whole Union. ”

“ 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. ”

“ 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. [9] 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. ”

“ While an expulsion is an internal 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. ”

“ 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 Members of Congress “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.” [27] In 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.” ”

“ 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. ”

“ Another constitutional scholar explained that the formation of the United States government as a distinct, sovereign entity was unlike the former confederation, and the former Continental Congress created by the Articles of Confederation where the colonial legislatures selected the delegates for the state/colony and could “instruct and recall them,” such as a sovereign state could do with its ambassador to another country or to a multinational entity. ”

“ 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 to the character or fitness for office of someone the people have chosen to represent them in Congress. ”

“ 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. ”

“ 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 .... ”

“ 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. ”

“ The dissent in the Term Limits case thus conceded that, regardless of their view of the authority of each state in setting qualifications or conditions on the “selection of Members of Congress” under the Tenth Amendment, once a Member of Congress is seated, such a Member is not subject to recall, and the only way to remove that Member prior to the expiration of his term is expressly delegated to that Member’s house of Congress in the expulsion clause of Article I, Section 5. As again explained by Justice Thomas, even if a state wishes to “punish one of its Senators ... ”

“ 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. ”