Joshua Spivak 01

Following Senator Mitt Romney’s (R) expressing interest in hearing from witnesses at the Trump Impeachment Trial, Utah State Representative Tim Quinn (R) has proposed a law that would grant Utah voters the power to recall their US Senators, if they can gather signatures of 25 percent of “active voters.”

Quinn’s claims his proposal is not about Romney, but rather an attempt to strike a balance between people who are unhappy with the six-year term for Senators and those who want to repeal the 17th Amendment, which allows direct election of Senators.  

But the proposed law is odd for a number of reasons. For one, Utah is one of only 11 states that doesn’t allow recalls on either the state or local level. Additionally, the bill only targets one specific office is unusual, but not unheard of – Illinois also only allows one state-level official to face a recall, its Governor.

But most out of the ordinary is that Quinn’s bill will only target a federal official. Based on the long history of the recall, there is every reason to believe that such a law will be considered unconstitutional.

Quinn is not the first to come up with the idea of recalling a federal official. The Articles of Confederation included a recall provision that was apparently never used. The Virginia or Randolph plan at the Constitutional Convention originally proposed that members of the first house of the legislature, who were slated to be directly elected by the people, should be eligible to face recall efforts. But the recall idea was killed early in the convention and not brought back. Opponents of the Constitution, the anti-federalists, made the lack of a recall against Senators one of the big issues of their failed effort to reject the Constitution.

The recall was in eclipse throughout the whole country during the 19th century. It was until the early part of the 20th Century when Los Angeles was the first city to adopt it in 1903 and Oregon the first state in 1908. At the time, there were debates surrounding the adoption of the 17th Amendment that allowing direct election of Senators should be coupled with a recall law for them. However, that proposed limit on Senators did not go anywhere.

In the ensuing years, 19 states have adopted laws that allow for the recall for some or all state-level officials. Nine of those states also provide it for federal officials. There have been recall attempts threatened against US Senators, such as Joe McCarthy, Frank Church, Russell Feingold, John McCain, Kent Conrad, Mary Landrieu and Robert Menendez. But none have gotten anywhere near the ballot.

It’s not just because they didn’t get the signatures. The Church recall attempt was thrown out by a district court. The Menendez recall was stopped in a 2010 New Jersey Supreme Court decision, which ruled (4-2) that no federal officials are subject to a recall. While this was a state court ruling, there are good reasons to assume that the federal courts would hold the same way.

The U.S. Supreme Court decision striking down term limits for federal officials in 1995 featured a long dissent from Justice Clarence Thomas. Both this dissent, as well as the decision, specifically notes that federal officials are not subject to the recall. There are counterarguments centered around a George Washington letter sent to his nephew suggesting that recalls are allowed for senators, but the Court decision, and Thomas’ very clear statements claiming that a recall is not allowed, is very likely too high a hurdle to overcome.

An attempt to adopt the recall just for US Senators is not a new idea. But there is every reason to believe that Senator Romney, and Senator Lee, have little to fear from such a bill.

Joshua Spivak is a senior fellow at the Carey Institute for Government Reform at Wagner College in New York.