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 then being served, whether that Senator or Representative holds the office by election or by appointment, 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 reference election. As used in this article, the reference election for an office is the most recent general election at which that office was filled by the electors of the State or district, whether the person then chosen is the Senator or Representative named in the petition or another; and where the boundaries of a district have been altered since that election, the total votes cast shall be reckoned by the votes cast within the district as constituted when the petition is filed, in the manner Congress shall by law provide under section 11. The petition shall be filed with the executive authority of the State, which shall determine and certify its sufficiency; and the manner of verifying and of challenging a petition shall be prescribed in each State by the legislature thereof, but the Congress may at any time by law make or alter such regulations.

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 total number of votes cast on the question is not less than one-half of the total votes cast for that office at the reference election. The times, places, and manner of holding a recall election shall be prescribed in each State by the legislature thereof, but the Congress may at any time by law make or alter such regulations. The election shall be held not later than ninety days after the petition is certified; and if no day within that period has been appointed, it shall be held on the first Tuesday after the ninetieth day. The result shall be certified by the executive authority of the State, and removal shall take effect upon that certification.

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.

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.

Who can be recalled, and against what (Sections 1 and 2). An earlier draft permitted removal from "the term for which that Senator or Representative was elected," and keyed both thresholds to "the most recent general election therefor." Between them those two phrases exempted the least accountable Members in Congress.

A Senator appointed under the seventeenth article of amendment was never elected to the term being served, so on the face of the article no such term existed to cut short - the one class of Senator no voter ever chose was the one class no voter could remove, which inverts the purpose of the article. Section 1 now reaches whoever holds the office, by election or by appointment, and borrows section 4's own phrase, "the term then being served," rather than inventing a new one.

The reference election is defined once, in section 2, and section 3 takes it from there. It is the most recent general election that filled the office, whoever won it. That answers three separate cases with one rule. For an appointed Senator it is the election of the person they replaced - a legitimate measure of the seat's electorate, which is what both thresholds measure since the personal-vote floor was dropped. For a Member seated at a special election it is deliberately the prior general rather than the special that seated them: special-election turnout is anomalously low, and keying to it would make a quarter-petition and a half-quorum trivially cheap to reach, which is the minority-rule failure the quorum exists to prevent. And where a district has been redrawn, the count is reckoned within the district as it stands when the petition is filed, so the bar is set by the electors who will actually vote on the removal. Reckoning a prior election's votes across new boundaries is precinct-level work, beneath the register of a constitutional provision, and section 11 exists to let Congress provide for it.

One consequence is intended and should be stated. Section 4 bars a petition during the first year of the term then being served, and for a Senator appointed partway through a term that year may already have passed, so the appointee can be petitioned at once. That is the right result: an appointee received no votes from anyone, and the grace period exists to protect a fresh electoral mandate, which an appointment does not confer.

The turnout quorum (Section 3). Removal requires both a majority on the question and turnout on the question of not less than half the votes cast at the reference election. A Member cannot be removed by a low-turnout special election attended mainly by the people who organized it, which is the direct answer to the charge that recall is minority rule. The quorum counts votes cast on the question, not ballots cast: a voter who turns out for other contests on the same ballot and skips this one is not counted toward it.

An earlier draft set that second condition as a personal-vote floor - removal votes had to exceed the number of votes the Member received when elected. It was replaced because it varied by accident rather than by principle. A Representative elected in a low-turnout midterm faced a materially lower bar than one elected in a presidential year, purely from when they had run. A Senator's floor was set by an electorate six years gone. After a re-map the floor was set by voters no longer entitled to vote on the removal. And in the degenerate case a Member who won a plurality in a high-turnout three-way race could carry a floor no special election could reach, which is not a Member who is hard to recall but one who cannot be recalled at all - the opposite of the intended failure mode. Keying the condition to the office's electorate rather than to one candidate's history keeps the safeguard and removes the accident, and the reference election that electorate is measured at is now defined in section 2 for every class of Member.

How a recall is actually run (Sections 2 and 3). An earlier draft created the right and said nothing about the machinery: who receives a petition, who verifies it and to what standard, who calls the election and how soon, who certifies the result, and when removal takes effect. Section 11 gave Congress power to enforce the article but placed a duty on no one, so a State officer who simply declined to schedule a recall left the electors with a right and no way to exercise it. That is the same shape of gap that sent the question of a State's power over a sitting Senator into litigation in the first place.

The allocation follows article I, section 4, clause 1 deliberately, and nearly in its words: the times, places, and manner are prescribed in each State by the legislature thereof, but the Congress may at any time by law make or alter such regulations. A recall is an election for a Senator or Representative in every sense that matters, and writing the same allocation in the same cadence forecloses the argument that it is some other kind of proceeding governed by nothing.

The remedy for a State that will not act is a self-executing date, not a duty. A duty clause needs someone to enforce it, which puts a court between the electors and their election and reproduces the delay it was meant to cure. Instead the article appoints the day itself: the election is held not later than ninety days after certification, and if no day within that period has been appointed, it falls on the first Tuesday after the ninetieth. An officer who refuses to schedule the election accomplishes nothing by refusing. This is the technique of the twentieth article of amendment, whose dates operate of their own force, rather than that of the fourteenth, which pairs a command with a power to enforce it.

Ninety days is chosen rather than assumed. Federal law requires absentee ballots to reach overseas and military voters forty-five days before a federal election, and ballot preparation and certification of the petition consume weeks before that clock can start; ninety days clears both with margin and sits inside the sixty to one hundred twenty-five days State recall statutes use. The verification period is deliberately left to the State, subject to section 11: a constitutional provision that specified signature-matching standards and cure periods would have stopped being a constitutional provision, and the appointed default already bounds what a slow-walking officer can cost.

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.

The mechanism is realistically Senate-only. A House term runs two years, and section 4 bars filing during the first, so the earliest a petition can be filed against a Representative is January of the second year. Verifying a petition signed by a quarter of the reference election's vote occupies the late winter, on a timetable section 2 leaves to the State; section 3 then puts the election within ninety days of certification, which lands it in the late spring or early summer at best; and removal then triggers a writ of election under article I, section 2, clause 4, whose special election seats a successor weeks before the general election at which the seat is on the ballot anyway. Slippage at any stage produces a seat that is simply vacant until that general election. For a Representative, recall at best exchanges the last months of a term for a vacancy. The article applies to both chambers because there is no principled reason to write it otherwise, but its practical work is done against six-year Senate terms, and a reader should be told that rather than left to work it out. The ninety-day ceiling is now the article's own; the remaining slack in the House timetable is the verification period, which legislation under section 11 can compress but this article does not.

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 granting Congress and the States an express power to treat those entities differently in this one field, and to bar their election spending outright.

It does that as a grant of power and nothing else. An earlier draft closed the section with "The rights enumerated in this Constitution are the rights of natural persons." That sentence was scoped to nothing - not to elections, not to this article - so on its face it revised the whole Bill of Rights, and would have stripped churches, unions, universities, newspapers, and every business, as entities, of Fourth Amendment protection against warrantless search, of the Fifth Amendment's takings and due process guarantees, of free exercise, of jury trial, and of the associational protection of NAACP v. Alabama. Section 10 would not have saved it: Section 10 bars construing this article as a grant of power, and a declaration of who holds rights is not a grant, so Section 10 never reaches it - and Section 10 names only the press.

The sentence was deleted rather than scoped. Sections 7 through 9 already grant every power this article needs: Section 7 the power to regulate and limit raising and spending, Section 8 the power to distinguish and to prohibit, Section 9 the power to compel disclosure. No provision here depends on a declaration about who holds constitutional rights, so even confined to this article the sentence would have been a rule of construction with nothing to construe - keeping the attack surface and adding no capability.

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 turnout quorum 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.