The Constitutional Right of Recall

The largest newspaper in Wisconsin, the Milwaukee Journal-Sentinel, continues to take the editorial position that the public’s right to recall elected officials should only be exercised in cases of misfeasance in office or of criminal conduct.  The editorial page actively disparages the use of the recall process in cases where voters simply disagree with the policy choices of their elected representatives.  Recent examples of this editorial position can be seen here, and in the decision to excerpt a similar editorial published by the newspaper USA Today here.  On this past Sunday, Steven Walters commented in the Journal-Sentinel on possible amendments to the Wisconsin Constitution intended to modify the existing recall provisions and to bring them into line with the more limited scope advocated by these editorials.

I have commented on this issue before.   The editorial position of the Milwaukee Journal-Sentinel is misguided.  In particular, in editorializing against the exercise of the recall power, the Journal-Sentinel fails to account for both the specific text of the Wisconsin Constitution and the understanding of the recall power among the founding generation of our country.  The key to understanding the proper scope of the recall power is the basic conception of “the sovereignty of the people.”

As explained by Michael Kammen, emeritus Professor of History at Cornell University, in his 1988 book Sovereignty and Liberty: Constitutional Discourse in American Culture, the period immediately before and after the adoption of the United States Constitution saw a debate among the public concerning what it actually meant for the people of the United States to hold the ultimate sovereignty in our system of government.

On the one hand, some argued that popular sovereignty was largely a myth, and that the sovereign power of the people only manifested itself on the specific dates of regularly scheduled elections.  In between these elections, went this argument, the sovereign power to govern rested solely in the hands of those representatives of the people who had been elected by the voters.

In opposition to this view, many argued that the sovereign power of the people was in fact very real and that this power was exercised on an ongoing basis even during the period in between elections.  As I have explained in this article in the Wake Forest Law Review, conceptions of limited government in America rest on the idea that the people are the ultimate sovereign and that government only possesses the powers that are delegated to it by the people.  The recent growth of the Tea Party movement in the United States is an expression of the resurgence of this basic concept in contemporary political discourse.  Central to this idea of delegated authority is the principle that elected representatives must act in accord with the wishes of the public, and that the failure to do so is in and of itself sufficient grounds for that representative to be recalled before the end of their term in office.

Consider this quote from George Washington, in a letter to his nephew in 1787:

The power under the [federal] Constitution will always be in the People.  It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own chusing; and whenever it is executed contrary to their Interest, or not agreeable to their wishes, their Servants can, and undoubtedly will be, recalled.

(quoted by Kammen at page 24)

The Wisconsin Constitution clearly reflects and adopts the principle of an active popular sovereignty by creating the unlimited right to recall elected officials.  This is demonstrated by the fact that under Article XIII, Section 12, the power of recall is placed solely in the hands of the public, in the form of a recall election.  Not only does Section 12 explicitly refer to the “right” of recall, this section places the exercise of this removal power in the hands of the people as opposed to in the hands of their elected representatives.  Section 12 is also notable in that it does not limit the grounds of a recall election in any way.

The impeachment power, in contrast, is treated in Article VII, Section 1 of the Wisconsin Constitution.  Removal of elected officials via impeachment is clearly a power delegated to the representatives of the people, with specific powers granted to the Senate (trial) and the Assembly (commencement of proceedings).  Specific procedures must be followed during the impeachment process, in accord with the fact that those officials subject to removal by impeachment are entitled to an official opportunity to defend their conduct.  Most significantly, the impeachment power that is delegated to the people’s representatives is limited to the narrow grounds of “corrupt conduct” or the commission of “crimes and misdemeanors.”  The use of limiting language in Article VII, in terms of both procedure and grounds, and the absence of any similar limitations on the right of recall in Article XIII, clearly express the intent of the drafters of the Wisconsin Constitution to allow for a recall prior to the end of a representative’s term on virtually any grounds so long as a sufficient segment of the public desire that result.

Obviously, the editorial page at the Milwaukee Journal-Sentinel does not like the existence of such an unbounded power in the hands of the people.  As Professor Kammen makes clear, historical efforts to restrict and contain the exercise of popular sovereignty by the people have generally been based on a distrustful view of human nature.  Opponents of popular sovereignty do not trust the general population to make informed or wise choices.  Instead, they would structure the institutions of government in such a way that the ultimate power is placed in the hands of an elite and therefore more trustworthy class.

When it comes to the federal constitution, it appears that the opponents of popular sovereignty won the battle and succeeded in limiting the ability of the general public to influence the direction of public policy in any way other than by casting regularly scheduled electoral votes.  Kammen attributes this result to “a diminished faith in the capacity of ordinary folk” in the years after 1787 (Kammen at p. 29).  The importance of popular sovereignty at a national level fell into a decline in the following two centuries that the Tea Party Movement has only recently attempted to reverse.

However, state constitutions are different from the federal constitution.  In multiple provisions, state constitutions reflect an intent to give the sovereign will of the people a greater role in the determination of public policy at the state level than it enjoys at the federal level.  For example, the existence of provisions providing for state-wide voter initiatives, most commonly identified with California, reflect a desire to provide a means for the people at large to exercise their sovereign will and create laws independently of their elected representatives.  It remains to be seen whether the backers of the Tea Party Movement, so concerned about limiting federal power in order to promote individual freedom, will rouse themselves to defend the idea of popular sovereignty at the state level.

The recall provisions in the Wisconsin Constitution are a right possessed by the people of Wisconsin.  The Wisconsin Constitution intentionally places this right in the hands of the public, and it is intentionally left unbounded.  To interpret this right to be limited solely to conduct which would also constitute grounds for impeachment would be to eviscerate the right.  Such a result would not only be duplicative of the separate impeachment provisions of the Wisconsin Constitution, it would also limit the ability of the voters of Wisconsin to exercise their sovereign power in any form other than by casting a vote every few years in a regularly scheduled election. One likely result of the removal or limitation of the possibility of a recall would be to make elected officials less accountable to the public and to amplify the influence wielded by lobbyists and corporate donors during the interval in between elections.

The text of the Wisconsin Constitution has been under assault over the past year.  The Wisconsin Supreme Court has construed the “open doors” provision of the Constitution, guaranteeing public access to the legislature, in a manner that renders it largely meaningless.  The Office of the Attorney General argued in court filings that the “publication” requirement of the Constitution could be satisfied without following statutory procedures that call for the participation of the Secretary of State.  Today, there is news that the League of Women Voters will file a lawsuit contending that the new Voter ID law contravenes the right to vote contained in the Wisconsin Constitution.  The recall provisions of Article XIII, Section 12, are now in the crosshairs, and are being subjected both to editorial criticism and to legislative “reform” proposals.

Personally, I have faith in human nature.  I believe that the public at large is capable of making wise and informed decisions on public policy.  I also believe in the oft-stated principle that it is the people at large who are the ultimate sovereigns in America.  Popular sovereignty is not a myth.  However, I also know that if we stop believing in popular sovereignty, if we stop behaving as if the principle is real, and if we accept the premise that the people at large cannot be trusted, then we will undoubtedly succeed in transforming today’s right into tomorrow’s myth.

This Post Has 5 Comments

  1. Tom Kamenick

    Two thoughts:

    1) What if this becomes a pattern? What if every single January another round of recalls start, and instead of having 2 and 4 year election cycles, we have 1 year election cycles? Being stuck in a perpetuum of campaign ads is not a pleasant thought, especially when we’ll have spring non-partisan elections, summer recalls, and fall partisan elections.

    2) If we want people to act as quickly as possible as a check on the way the politicians vote, why not just go to a direct democracy? That’s the logical end result for increasing popular sovereignty. In today’s information age, anybody could propose a law, have it posted on a website where people could read it, write wikis to summarize it, join discussion forums to debate it, and log into a secure voting website to vote on it.

  2. Dean Strang

    Might I take a cue from Governor Walker in offering a modest proposal for compromise? Perhaps we could agree that recalls would be limited to cases of actual malfeasance in office, but that all elected state officials would have to be re-certified every year to remain in office? To be re-certified, they would have to garner a simple majority of all persons eligible to vote, not just of those actually voting. Once re-certified, bear in mind, those elected officials would be allowed to discuss, enact or enforce legislation only on topics directly affecting the state’s revenues; all other topics would be off the table (no voter ID, no changes in tort limits, no changes to the criminal code, and so on). Naturally, too, any increase or decrease in revenues would be limited strictly to the CPI.

    This modest proposal would give the state’s voters the tools necessary to manage the challenging fiscal problems we face. Folks, look: keeping public employees like our elected officials with a more stable seat at the table, and allowing them to be heard on other issues, just is an expensive entitlement for them that we no longer can afford. Right?

  3. Ed Fallone

    “[N]o law shall be enacted to hamper, restrict or impair the right of recall.” Wisconsin Constitution Article XIII, Section 12(7).

    Since the recall provisions were added to the state constitution in 1926, they have been invoked rarely. The cut off for petition signatures in order to trigger a recall is sufficiently high enough to discourage the kind of rampant abuse that Tom imagines.

    My post merely defends the text of the Wisconsin Constitution as written. Dean’s “modest proposal” mocks the recall provision as if it were some novel and unprecedented change to the status quo. In fact, the right to recall elected officials is the status quo. I suppose that one might mock all sorts of individual rights guaranteed by the constitutional text. Mockery hardly constitutes a serious argument for the repeal of Article XIII.

    Perhaps the possible future use of Article XIII’s provisions, even if ultimately unsuccessful, is what motivated Governor Walker to adopt (at least for media purposes) a more conciliatory attitude towards the opposing party. If so, then it would appear that, even if rarely invoked, Article XIII can serve a useful purpose.

    [Note: Since posting this comment, I have re-read Dean’s comment above and concluded that the subject of his criticism is the dysfunctional legislative process in Madison, and not the Constitution’s recall provision. I apologize if I mischaracterized the point of Dean’s “modest proposal.”]

  4. Mike Bertrand

    The point of the First Amendment (speech and press provisions especially) is to allow people the means to form and reform public opinion between elections. Barring these tools, elections mean little.

    Certainly the MJS is misguided about recalls; they are also out of keeping with the vast majority of Wisconsinites, 78% of whom think the recall option in the state constitution is a good
    thing, according the Badger poll last month.

  5. A. Westrup

    Let’s hope that the governor (of any party) doesn’t wake up one morning and decide that women should no longer have the right to work. What recourse would I have if I didn’t have the right to try to start a recall effort?

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