Tuesday, January 24, 2012

Perpetual recalls as constitutional amendment

Wisconsin used to elect governors to two year terms. We amended our constitution in x to extend the gubernatorial term to four years, presumably because we think it takes at least that long to give an administration a fair shot at implementing its vision of state government.

But I guess we're going to back to two. Bill Kraus (who people have finally stopped calling a Republican) wonders if this season's recalls will be followed by a return to sanity:

Will, when this is all over, the combatants come to their senses and take a pass on the use of recalls to protest misguided (subjective) votes and procedures instead of high crimes and misdemeanors as reasons for impeachments and recalls, and revert to the more traditional representative government remedy for incumbents’ bad policies and votes--the next election?
Not a chance.

I don't think that the Democrats and public employee unions will remove Scott Walker from office, but, if they do, they can expect the threat - and perhaps the fact - of recall to become the new normal.

The problem is this: There is no argument for recalling Governor Walker other than a dislike for his policies. He hasn't committed a high crime or misdemeanor. He has used the power that voters gave him and angered the party of government. he has been no less peremptory and partisan than Jim Doyle. Notwithstanding what appears to be a year and a half long proctological examination by the Milwaukee County District Attorney, we have yet to see any allegation of wrongdoing by the Governor. (And, no, even the charges that Dan Bice's scofflaw sources think are coming won't amount to that unless he himself is involved. Give me eighteen months and I can find campaigning by political appointees in any one's administration.)

While one might think that the Democrats' success in collecting lots of signatures is indicative of a belief that this is special, I'm not so sure. Given the right policy decision by a Democratic (i.e., one that outrages the conservative base), I think that Republicans could do the same thing. Look at the way that they matched unprecedented Democratic turnout efforts in the Supreme Court and summer recall elections. The public employee unions are good at this type of organization, but technology has not only made this type of mobilization easier, it has also leveled the playing field.

I don't see it happening immediately if a Democrat unseats Walker and a sufficiently conservative Democrat (think Tim Cullen) might avoid it altogether because he or she won't do anything that arouses opposition (and satisfies the left), Even someone further to the left who will rally the Republican base in opposition (think Kathleen Falk) is unlikely to face recall in what will essentially be a two year term.

But imagine a new Democrat elected in 2014 who, like Scott Walker, attempts to implement significant and substantive policy changes. Don't think for a moment that recall will be off the table.

Escalation is a game that everyone plays.

If you don't want perpetual recalls, vote for Walker.

Or support a return to two year terms.






19 comments:

Anonymous said...

Scott Walker is an arrogant jerk who made no effort to reach out to the other side, but instead decided to "drop the bomb," as he described it to the fake Koch. Tommy Thompson would never have acted this way. If you want to be Governor, you need to be the leader of all the people, and that requires that you have some respect for your political opponents.

Billiam said...

Like Doyle? Save your sanctimony...

Ed Fallone said...

Rick:

You are well aware that the recall provisions of the Wisconsin Constitution were never intended to be limited to instances of wrongdoing in office:

http://law.marquette.edu/facultyblog/2011/11/13/the-original-intent-of-the-recall-power/

These broad recall provisions are part of the foundational law of our state. While I understand that you do not like the fact that one million state voters have exercised their right to demand a recall, the fact that they have done so should not be criticized -- any more than I should criticize someone for exercising their constitutional right to carry a gun or for choosing to engage in a peaceful protest.

Attempting to characterize the recall as an illegitimate form of "constitutional amendment" is the sort of sloganeering that is best left to the talk radio types.

John Foust said...

Follow the logic: Because something happened once, it'll happen again and again.

Or maybe the Professor is just trying to send us a message that there are many WisGOP who think they should recall the next Democratic governor.

Rick Esenberg said...

Ed, nice to hear from you.

Two things. First, I don't know if there was any original understanding regarding limitations on the recall power or, if it was or was not, intended to be limited to instances of wrong doing. I have not studied the history of Art. XII, sec. 12 and I don't read your post as reflecting such a study. It certainly doesn't contain enough information from which one could form a judgment one way or the other.

Second, I've never argued for any justiciable limitation the recall power. I tend to think that, even if we could conclude that it was intended for extraordinary circumstances, that there would be no judicially manageable standard for enforcing such a limitation and we'd have to conclude it is akin to a political question.

Third (and implicit in the first two points), I am not arguing that frequent use of the recall power would be constitutionally "illegitimate" in the sense of transgressing some judicially enforceable consitutional command. What I am suggesting is that we may wind up - as a de facto matter - frustrating the purposes of going to a four year term and that this, as Bill Kraus (who is not, I think, a lawyer) suggests may be bad public policy.

I am also responding to those who assuage those policy concerns by suggesting that Scott Walker represents some extraordinary phenomenom. Not so. Not so at all.

Rick Esenberg said...

And, finally, I'm not telling anyone about anything that Republicans "intend" to do. I have no knowledge of that and would be shocked if "Republicans" have any "intent" regarding recall of a Governor who is not - and may never be - in office. What I am suggesting is the rather obvious point that commonplace use of a weapon by one side tends to legitimize its use by the other. If you like frequent recalls and threat of recalls, you won't care. If, like me (and apparently Bill Kraus), you don't, a successful recall here would be unfortunate beyond the merits of Scott Walker.

Ben said...

Did you feel the same way about the Republican escalation (perpetual filibuster, etc.) that prevented the large Democratic majorities of 2008 from voting on much of their platform, from EFCA, to cap-and-trade, to the public option, etc?

Respecting unwritten traditions only works when both sides do it, and unfortunately our system of government is ill-designed for the sort of all-out confrontation and obstruction that now seems to be the norm.

Anonymous said...

If Walker is unseated, recall of his successor is unlikely. First of all, the recall election's turnout is likely to be outsized. If so, the bar for recall will be set well above 540k signatures. Second, when the Dem senators were recalled last year, the Repubs couldn't collect enough signatures without hiring an itinerant band of out-of-state ex-cons. I doubt the supply of out-of-state ex-con mercenaries is large enough to collect enough signatures within a 60-day window.

Man MKE said...

The thrust of this column ought to be re-edited into the past tense. Walker isn't the first, he's just the most recent. For while his recall is the first likely to be successful against a Wisconsin governor, it is a matter of history that Repoublicans made noise several years ago about recalling Jim Doyle. They just couldn't achieve traction. And let's not forget that Republicans actually were first out of the gate in mounting state senate recalls last year -- and back then, they had nothing to say then about the GAB's shortcomings or the wisdom of the constitutional language making recalls a citizens right. The fault, dear Brutus, is not in our stars.

Anonymous said...

I support the four-year term, except let's move the start date so as to coincide with the the four-year Presidetial term. It will both save taxpayer dollars and result in higher voter turnout. On balance, Republicans will hate it, of course, since low-turnout elections favor Republicans, and since Republicans don't believe that anyone who isn't going to vote Republican should even be allowed to vote in the first place.

Sergei Rostov

jimspice said...

Why doesn't Walker Inc. just advise his legislative counterparts to craft some hurdles to the recall movement. Though constitutional amendment may beyond their reach, I'm sure they could muster some statutory ex post facto monkey wrenches that would do the job.

Tom said...

I think the idea of the threshold for recall being 25% of the last gubernatorial vote is ludicrous.

So if roughly half of the people who already voted against him don't want him in office, we have to have an election again? It should be 50%, or the vote against his strongest opponent +1, with the idea being that whatever the governor has done, it's so bad that more people who voted against him in the election now want him out.

And the comparison to Doyle is quite fair. He ran on, among other things ("I will not raise taxes"), not expanding Indian gaming.

One of the very first things he did was sign perpetual gaming contracts with tribes including major expansion of casino games. All that in spite of the constitutional amendment, recently adopted by the Wisconsin people, banning such a move.

The Wisconsin Supreme Court slapped him down for violating that constitutional amendment, but then, slightly later, the Court took up the exact same case again and overturned the first case. The difference? Doyle's handpicked replacement for Judge Sykes ruled in his favor (gee, I don't and didn't see the liberals screaming about Butler having to recuse himself from that case).

Even if you buy the lie that Walker sprung this without any warning (unions were warning that he would do this in their literature, having heard it from a Walker aide), Doyle was far worse, having broken an express promise in an unconstitutional way, and done solely on his own without legislative help.

Anonymous said...

> So if roughly half of the people who already voted against him don't want him in office

Uh, about as many people signed the petitions as DID vote for him.

George Mitchell said...

ManMKE says

"Republicans actually were first out of the gate in mounting state senate recalls last year..."

That's because they arguably violated their oath of office and went out of state to have a temper tantrum.

Anonymous said...

George Mitchell--Get real! Had Repubs did the same thing, you would be calling them heroes. It was brilliant strategy on their part. And your key word is "arguably". They may or may not have!

Dad29 said...

the Republican escalation (perpetual filibuster, etc.) that prevented the large Democratic majorities of 2008 from voting on much of their platform, from EFCA, to cap-and-trade, to the public option, etc?

Cap/Trade and the PO were opposed by some Democrats, too. That's why the tiny (R) Minority was able to stop them.

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