Recalls an important element of limiting government.

Rhetorical questions I have heard on the recall: Is a recall justified if what the politician did was legal? What about just allowing the election process to solve it? Why spend the effort on a recall, it doesn’t overturn the law? Shouldn’t we focus on the law in question? What does the recall accomplish? Is it worth the tax payer expense?

My thoughts and questions:

Legality: Almost everything a legislative body does is de facto legal, particularly if it is conducted by the sitting majority. To this end we have, in the past, declared laws banning speaking ill of the government (Alien and Sedition Act) legal and, in the present, declared warrant-less wiretaps and electronic collections legal. You could argue that these examples where/are extra constitutional and thus not legal; however, both of these examples where blessed by the judiciary, so are in fact legal in the sense the government has declared itself within its bounds of authority.

Constitutional Democracy/Republic: The bounds of authority for the government are defined by its respective constitutions. In Colorado, these bounds are the US and Colorado Constitutions. Constitutional governments are limited in that they should not oppress a minority, regardless of the will of the majority. If the majority should decide that those of Japanese descent should not be free, the Constitution is there to protect the Japanese minority from such a thing. Of course it doesn’t always work, and most certainly didn’t work in my example, so how to proceed?

Elections: The idea of a recall is not new. It was originally in the Virginia plan, but was rejected in the Convention. Madison was a big believer in elections at the time of the convention. Our Madisonian system is based on his beliefs at the time. However, it didn’t quite go how he thought. He believed that elected officials would never blatantly violate the constitution. One, he depended on “men of honor” to not knowingly exceed their authority, next he believed that other “men of honor” in government would force any exceeding their authority to stay in line, and lastly, he believed that the voters would punish those that exceeded their authority at the end of the term or during bad behavior. He wrote:
“If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure for a limited period, or during good behavior.” — James Madison, Federalist No. 39, January 1788

Limiting an Unlimited Government: It turns out that Madison was wrong on several points on how our government would operate. PLEASE don’t take my word for it, take Madison’s! During the “Alien and Sedition Act” time frame, Madison himself attempted to invent ways of limiting an Extra-Constitutional General Government with Jefferson. Together they wrote the Virginia and Kentucky Resolutions, which attempted to nullify the Alien and Sedition Act (which made it a jailable offense to criticize the president and other government officials). They wrote it in secrete because such a writing was forbidden. They committed the crime of sedition as defined by the act; an act which forbade free speech in direct violation of the First Amendment. However, they felt they had no choice. The majority was in favor of the act and the government had blessed it. They minority could not fix the issue through voting (they were the minority after all), so they attempted to use the 10th Amendment to nullify the act in Virginia and Kentucky. There simply was no way for Madison to petition for redress in the Madisonian system if the majority and judicial was in agreement.

Redress: The lack of accountability in the Madisonian system was not lost of some of the newly forming states. While the Convention rejected the recalls in the final US Constitution, many states did not. Colorado added recall to its constitution in 1912. There are many examples where the governments of the united states reject the will of the majority (Bailouts, NSA/DEA surveillance, et al), but the instances where they abuse the minority are near countless. The first, and most common, redress is the courts. It costs a large amount of money, requires standing (you have to be legally injured prior to using the court), takes years, and often is used to silence the person seeking redress. The next is petitioning your elected official (directly related to Morse/Giron) and as we experienced this year, this may not work. Elections, as you argue, are an option. However, consider the voting public has a memory of less than 2 months, unless continuously encouraged to remember. We saw this during the bailouts, ~85% disapproval during the bailout, ~85% voted back in office two months later. A recall allows the public (majority or minority) to get an unaccountable politician to account for his actions. It keeps the issue in the spotlight, doesn’t hide it in a 3 year court proceeding, nor allow voters to forget 1.5 years later (in our case).

Cost: I am a fiscal conservative, more than most. I know the election costs tax payer money, they all do. But, first I ask, who is at fault for the lost money? Is it the persons that received injury from the government or the government that exceeded its authority by moving beyond the will of the people? Is it the constituents or the representative that moved beyond the will of his/her constituents? Next, what do you think will cost more to the tax payers of Colorado? The election or the law suit that the 55 counties have filed against the State of Colorado? The tax payers are paying for both the defense (Attorney General’s Office) and the plaintiff’s (55 Sheriffs of Colorado and their legal team). To top it off, the tax payers are paying the court as well!!! From a fiscally conservative point of view, shall we leave politicians unaccountable for really bad laws and let the tax payers finance the legal battles, or should we spend the money now and hold politician’s accountable to reduce the risk of such bad laws from being created? From a rights point of view, does cost supersede constitutionally guaranteed rights?

Jason Upchurch
RLC Colorado Vice Chair

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