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Introduced today by Senator Jim Lembke (r):

SB 808 Implements recall elections for U.S. Senators

Sponsor: Lembke

LR Number: 5129S.01I Fiscal Note not available


Last Action: 2/16/2012 – S First Read–SB 808-Lembke Journal Page: S276

Title: Calendar Position: 15

Effective Date: August 28, 2012

Current Bill Summary

SB 808 – This act authorizes legal voters to petition for a recall election for United States senators. Petitions shall be signed by at least 8% of voters in each of 3/4 of the congressional districts, the total number of voters being based on the number of votes cast for the incumbent at the last preceding election in which he or she was elected.

If an election is held, opposing candidates are then nominated as if in an election to fill a vacancy and the incumbent shall continue to serve until the election results are declared. The election shall be held on the next day available for holding public elections that occurs at least 10 weeks after the Secretary of State verifies the petition. Senators are only subject to one recall per term.

Uh, there’s one tiny little problem with this bill:

Congressional Research Service

Recall of Legislators and the Removal of Members of Congress from Office [pdf]

January 5, 2012

….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 within each house of Congress as expressly delegated in the expulsion clause of the United States Constitution, and not in the entire Congress as a whole (through the adoption of legislation), 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 make one convicted of bribery “ineligible” to be a United States Senator, could not act as a forfeiture of a Senator’s 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.

[202 U.S. 344 (1906)]

[referring to U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)]:

….As explained in Justice Thomas’ dissent, an individual state does not possess the authority to effectuate a recall to cut short the term of a sitting Member of the United States Congress, and such Member is beyond the reach of the people of the state “until the next election”:

In keeping with the complexity of our federal system, once the representatives chosen by the people of each State assemble in Congress, they form a national body and are beyond the control of the individual States until the next election.

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 … for his vote on some bill … The Senator would still be able to serve out his term; the Constitution provides for Senators to be chosen for 6-year terms … and a person who has been seated in Congress can be removed only if two-thirds of the Members of his House vote to expel him….

So much for originalist intent. Yet, wasting legislative time and energy is certainly still in vogue.