Proposing an amendment on recall and on money in elections

JOINT RESOLUTION

Proposing an amendment to the Constitution of the United States relating to the recall of Members of Congress and to the regulation of money in elections for public office.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein),

That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:

ARTICLE -

Part ARECALL OF MEMBERS OF CONGRESSCopy link

Sec. 1Copy linkA Senator or Representative in Congress may be removed from office before the expiration of the term for which that Senator or Representative was elected, by vote of the qualified electors entitled to vote for that office, in the manner provided by this article.

Sec. 2Copy linkA recall election shall be held upon the filing of a petition signed by qualified electors entitled to vote for the office, equal in number to not less than one-fourth of the total votes cast for that office at the most recent general election therefor.

Sec. 3Copy linkThe question submitted at a recall election shall be whether the Senator or Representative named in the petition shall be removed from office. The Senator or Representative shall be removed if a majority of the votes cast on the question are in favor of removal, and if the number of votes cast in favor of removal exceeds the number of votes received by that Senator or Representative at the election to the term then being served.

Sec. 4Copy linkNo petition shall be filed against a Senator or Representative during the first year of the term then being served, nor more than once during any term. No Senator or Representative removed under this article shall be appointed or elected to fill the vacancy so created.

Sec. 5Copy linkA vacancy created by removal under this article shall be filled in the manner provided by article I, section 2, clause 4, or by the seventeenth article of amendment, as the case may be.

Sec. 6Copy linkThe power of each House to punish or expel a Member under article I, section 5, clause 2, is not affected by this article.

Part BMONEY IN ELECTIONSCopy link

Sec. 7Copy linkCongress and the States may regulate and set limits on the raising and spending of money to influence elections for public office, including limits on contributions to candidates and on expenditures made independently of candidates.

Sec. 8Copy linkCongress and the States may distinguish between natural persons and corporations, labor organizations, and other artificial entities in exercising the power granted by section 7, and may prohibit such entities from spending money to influence elections for public office. The rights enumerated in this Constitution are the rights of natural persons.

Sec. 9Copy linkCongress and the States may require the disclosure of the natural persons who are the source of money spent to influence elections for public office.

Sec. 10Copy linkNothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press, or to regulate or suppress any communication on the basis of its viewpoint or of the political opinions expressed therein.

Part CENFORCEMENTCopy link

Sec. 11Copy linkCongress shall have power to enforce this article by appropriate legislation. Legislation enacted before ratification of this article, and expressly conditioned upon such ratification, shall take effect upon ratification.

DRAFTING NOTES

Not part of the resolution.

Why an amendment and not a statute

Recall of a Member of Congress cannot be created by ordinary legislation. Removal before the expiration of a term rests exclusively in each House under the Expulsion Clause, article I, section 5, clause 2. In Burton v. United States, 202 U.S. 344 (1906), the Supreme Court held that a Senate seat "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," and declined to read a federal criminal statute as working a forfeiture of the seat.

The Framers considered recall and rejected it. The Articles of Confederation, article V, gave the States power to recall their delegates; the 1787 Convention did not carry that power forward. Luther Martin objected to the Constitution on precisely this ground, and the New York ratifying convention defeated a proposed Senate-recall amendment in 1788.

Every attempt to create recall below the constitutional level has failed. In Committee to Recall Robert Menendez from the Office of U.S. Senator v. Wells, 204 N.J. 79 (2010), the New Jersey Supreme Court struck that State's recall provision as applied to a United States Senator, holding that "the text and history of the Federal Constitution, as well as the principles of the democratic system it created, do not allow the states the power to recall U.S. Senators." No Member of Congress has ever been recalled. The Congressional Research Service, in Recall of Legislators and the Removal of Members of Congress from Office (RL30016), concludes that a constitutional amendment is the only available mechanism.

Nor can the result be reached by private agreement. A pre-signed conditional resignation is revocable by the Member until it takes effect, and whether it is honored is a question for the chamber rather than a court. An agreement bargaining away the tenure of a public office is the classic case of a contract void as against public policy, and a court ordering specific performance would be vacating a congressional seat in the teeth of Burton and the Expulsion Clause. Whether money damages could be recovered on such a promise appears to be untested. Any design that depends on the enforceability of such an instrument should be understood as resting on political and reputational pressure, not on law.

Why the two subjects travel together

Part B is the amendment the Act's own drafting notes already contemplate. Sections 401(b), 401(c), and 401(d) of the Act conflict with Citizens United v. FEC, 558 U.S. 310 (2010), and SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010), and will be enjoined. Part B removes that conflict at its source rather than litigating it.

The two parts address the same defect from opposite ends. Part B governs the money that reaches a Member; Part A governs what constituents may do when it works. Separated, each is a familiar proposal that has failed on its own for decades. Combined, they are a single question - whether the holder of a federal office answers to the people who elected them - and a State legislator asked to ratify votes on that question once.

The cost is coupling: a State that would ratify one and not the other must reject both. That is a real risk and should be stated plainly to anyone asked to support this.

Choices in Part A

One-fourth of votes cast (Section 2). State thresholds run from twelve to twenty-five percent of the votes cast at the last election for the office. The ceiling of that range is used here deliberately. A federal recall reachable at a low threshold becomes a permanent instrument of the losing party, and the objection that this converts every seat into a rolling election is the first one a skeptical reader will raise.

The prior-vote floor (Section 3). Removal requires both a majority on the question and more removal votes than the Member received when elected. A Member cannot be removed by a low-turnout special election in which fewer people vote to remove them than voted to elect them. This is a stronger safeguard than any State recall provision contains, and it is the direct answer to the charge that recall is minority rule.

The first-year bar and the once-per-term limit (Section 4). Standard in State recall provisions. Prevents a recall campaign beginning the morning after a certified election.

Separate election, no simultaneous successor (Sections 3 and 5). The question is removal only. The seat is then filled by the ordinary vacancy machinery - writ of election in the House, State-law appointment or election in the Senate. The California model, which pairs the removal question with a replacement ballot on which the incumbent may not run, permits a successor to take office on a small plurality and is not followed here.

Section 6 preserves expulsion. Recall is added to the constitutional structure, not substituted into it. Each House retains its own power over its Members, and nothing in this article gives the electorate a role in it.

Choices in Part B

Section 8 is the operative provision and the one most likely to be attacked. It resolves what Citizens United left in place - that the speech protections of the First Amendment extend to corporate entities in the election context - by locating the enumerated rights in natural persons. This is drafted narrowly: it grants a power to distinguish and to prohibit spending, and does not purport to strip artificial entities of legal personality for any other purpose.

Section 10 is not decoration. An amendment granting power over election-related spending without an express press and viewpoint-neutrality carve-out will be characterized, accurately, as a grant of power to incumbents to regulate criticism of themselves. Section 10 is the provision that makes Part B defensible in that argument, and it should not be traded away in negotiation.

Known weaknesses

Part A creates a national campaign infrastructure aimed at individual seats. Whether the one-fourth threshold and the prior-vote floor are together sufficient to prevent well-funded serial recall attempts is an empirical question this drafting cannot answer. It is the strongest good-faith objection to Part A.

Section 11's conditional-effectiveness clause is unusual. Congress routinely conditions a statute's effective date on a future event, but conditioning it on ratification of the very amendment supplying the power to enact it is not a common pattern, and the authority for it is thin. If it fails, the consequence is delay rather than invalidity: the enabling title would need to be re-enacted after ratification.

Ratification of anything is the binding constraint. No amendment has been ratified since 1992, and that one was pending for two hundred and two years. The seven-year window in the resolving clause follows modern practice and is short relative to the difficulty. Nothing in this document should be read to suggest the path is likely - only that it is the only one that is lawful.