Stopping the Imperial Senate

How can we prevent Senate Democrats from forcing through ObamaCare against the will of the American people?

There is a story about legendary chess grandmaster Aaron Nimzowitsch, who detested cigar smoke. In the great New York tournament of 1927 his opponent Milan Vidmar took out his cigar case and began to fiddle with it. Nimzowitsch became agitated and complained to the tournament director. But he is not smoking, the director replied. “He is threatening to!” shouted the distraught Nimzowitsch. Vidmar got the better of Nimzowitsch in New York. The threat was enough.

The GOP could learn a valuable lesson from Dr. Vidmar and protect the country from a disaster in the making. If the Senate Democrats force passage of ObamaCare through “reconciliation,” what will individual Democrat Senators have done? First, they will have ignored the clear and consistent message of the American people in poll after poll. In some states those who oppose the bill outnumber those in favor by 20 points or more. Second, they will have taken the unprecedented step of passing major social legislation without bipartisan support—in fact without a single opposition party vote. Third, they will have violated Senate rules which allow only a limited and technical role for reconciliation, not a use that to all intents and purposes abolishes the Senate’s 60 vote rule for substantive policy issues.

It is reasonable to conclude that this represents a series of morally indefensible actions on the part of the Senators involved. On the first point, they have treated the opinion of the people who elected them with contempt. On the second point, they have acted irresponsibly. On the third point they have cheated when the stakes were so huge that faithful adherence to the rules was essential. Take the three points together, and you have despicable behavior, behavior unworthy of a U.S. Senator.

Elected representatives have been recalled for much less than this. California’s Governor Gray Davis was recalled simply for failing to halt runaway legislative spending, and that doesn’t come close to the immorality of jamming through legislation of massive national import with parliamentary tricks and ruthless partisanship over the strong objection of the American people. Recalls are as a rule both difficult and dangerous. They easily create a backlash in favor of the incumbent as the electorate becomes irritated with a process that seems to question its judgment in having elected the individual in the first place. In 1967, the attempt to recall Frank Church probably strengthened his position for reelection, which he won by a large margin. But given the mood of the country with respect to ObamaCare, that danger is now minimal.

What of the difficulty of the process? The answer to this is that there are severe limits to what can be done, but that there are nonetheless some real opportunities. Only eighteen states provide for recall of U.S. Senators: Alaska, Arizona, California, Colorado, Georgia, Idaho, Kansas, Louisiana, Michigan, Minnesota, Montana, Nevada, New Jersey, North Dakota, Oregon, Rhode Island, Washington and Wisconsin. (The question whether state recall statutes are legally enforceable for federal offices is not completely clear, but I’ll return to that in a moment.) That is 18 states, so a total of 36 senators are potentially subject to recall. Of these, 11 are at the moment Republicans, which leaves us with 25. A recall would be pointless for 7 of those, because they are up for reelection this year. Among the remaining 18, only Kent Conrad has said that “Reconciliation cannot be used to pass comprehensive health care reform.” We are thus left with 17 senators in 12 states: Alaska’s Begich; California’s Feinstein; Colorado’s Udall; Louisiana’s Landrieu; Michigan’s Levin and Stabenow; Minnesota’s Franken and Klobuchar; Montana’s Baucus and Tester; New Jersey’s Lautenberg and Menendez; Oregon’s Merkley; Rhode Island’s Reed and Whitehouse; Washington’s Cantwell; Wisconsin’s Kohl.

All but four of these are states carried by Gore, Kerry and Obama. Anything is possible in a climate in which a Republican took Ted Kennedy’s Senate seat, but it would certainly be hard to get a blue state to recall a Democrat. However, the chances are quite good in the three states carried by both George W Bush and McCain: Alaska, Louisiana and Montana. And then there is Colorado, which Bush carried twice.

If we look at the mood in these four states, it’s clear that their five Democratic Senators are all vulnerable. In Alaska, Mark Begich’s approval rating has fallen to 35% according to a recent Public Policy Polling poll. In Colorado, Mark Udall’s approval numbers had dropped into minus territory already by April of 2009, and that was a time when Obama’s numbers were still high. But when you add to this the fact that Obama’s current polling in Colorado is worse than his national average, that the incumbent Senate Democrat up for reelection this year is now behind by 14 points, and that in an especially ominous poll Coloradans say they trust the judgment of the American people more than their political leaders by 74 to 11 percent, this looks to be fertile ground for a recall. In Louisiana Mary Landrieu’s polls plummeted following the Louisiana purchase, and the state’s incumbent Republican Senator is 24 points up in his reelection campaign this year. In Montana, a recent poll showed a huge margin against ObamaCare (74 to 26) and Max Baucus’ approval rating instantly dropped 20 points to 44% because of his role in promoting it. If Baucus or Jon Tester vote for ObamaCare by reconciliation in this climate of opinion in their state they can expect a firestorm.

But states vary in the difficulty of mounting a recall: some make it easy, while in others the hurdles are almost impossible to overcome. Fortunately, Alaska, Colorado and Montana are among the easiest. In Alaska and Colorado, the number of signatures needed to qualify a recall petition is 25% of the vote received in the last election by the person to be recalled. That means roughly 38,000 signatures for Begich and 50,000 for Udall—easily doable. In Louisiana and Montana the number is a percentage of the total eligible voters (not those who actually voted) in the last election. In Louisiana, that percentage is one third, which means 800,000 signatures, and that would be hard to do. But in Montana the percentage is a mere 10%, so it would take only 75,000 to recall Tester or Baucus, and that is feasible. Recall efforts would create the kind of national attention that would generate more than enough money to finance the collecting of signatures.

To be sure, there are many ways in which recall drives can fail. There is a school of legal thought which holds that a recall interferes with the federally determined term of six years, and is thus unconstitutional. I don’t find this convincing, but some people I respect do. The least we can say is that it is not clear what the U.S. Supreme Court would do. The outcome could well be that U.S. Senators can’t be recalled after all—we simply don’t know. But back to Dr Vidmar: just take out the cigar case and fiddle with it, and see what happens. The threat is a powerful one. If tomorrow the state Republican chairs in these four states were to announce that any vote for ObamaCare by reconciliation would trigger a drive to recall the Senator who cast it, these five would have to decide whether they wanted to take the risk.

At the very least, the recall drive would be embarrassing to them, and would provide a forum in which the full extent of their betrayal of their constituents, of responsible government, and of Senate rules and traditions could be spelled out, discussed, publicized, denounced. And in the worst case scenario, the Supreme Court might decide that those state statutes are not in fact unconstitutional. It might hold, say, that the six year term only specifies a limit; after all, Scott Brown was not elected to a six year term, and nobody thinks that unconstitutional. Or it may hold that a recall from a six year term is an action that cancels the term completely, and does not change the definition of a full term. My hunch is that that is what the court would do, because it makes the most sense. But we just don’t know—and the point is that the Senators can’t know either. We can be sure that they don’t really want to cast this vote. The announcement that they will face a recall effort could easily be enough to tip them over the edge. Go to it, Alaska, Colorado, Louisiana, and Montana.

John Ellis is President of the California Association of Scholars, and a Professor Emeritus at the University of California, Santa Cruz.