Recall Reform in the Wake of the Caucus Scandal

The NW has an editorial out this week calling for recall reform:

Wisconsin is one of 18 states that permits recall elections of local or state officials. But the state constitution does not specify appropriate grounds for recalls. In past editorials we have argued that the recall of state legislators solely on the basis of a vote on a policy issue is an abuse of the law – an act of political mischief. The recall election is a tool that should be reserved for cases when immediate removal from office is necessary; not as a weapon to punish a legislator for a controversial vote. That is clearly what has happened in in Wisconsin.

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While Wisconsin's constitution is silent on proscribed grounds for recalls, 12 states spell out in various degrees of specificity when an elected official can be recalled. We happen to like the language of Georgia's law.

"Act of malfeasance or misconduct while in office; violation of oath of office; failure to perform duties prescribed by law; willfully misused, converted, or misappropriated, without authority, public property or public funds entrusted to or associated with the elective office to which the official has been elected or appointed. Discretionary performance of a lawful act or a prescribed duty shall not constitute a ground for recall of an elected public official."

They're not alone. Rep Robin Vos is planning on introducing a bill that will change the recall process:

Rep. Robin Vos, R-Rochester, says he's drafting a constitutional amendment that would require future recall petitions to include a reason for recall related to the elected representative's official responsibilities.

Vos told WisPolitics this afternoon he's looking to pattern the amendment after other states that list specific reasons for recall, potentially including convictions for felonies or misdemeanors and ethics violations. 

And right there we run into a significant problem, one that Wisconsin has faced before and failed spectacularly to resolve. Convicting a state legislature of the kinds of wrong-doings in office that would qualify them to be recalled under Vos' proposal or a loose reading of the spirit of the Georgia law (even though it conspicuously lacks the word "conviction" in the text) is next to impossible in Wisconsin. The Caucus Scandal drove that point home quite nicely.

The kinds of offenses of office that would presumably make a legislator eligible for recall were exactly the kinds of things that were routine during the caucus era -- how many legislators paid a political price for their conduct? Almost none. In fact, both the Governor and a Supreme Court Justice were members of the Assembly just before the scandal broke. One of the staffers involved is now in charge of counting votes in Waukesha county. How many paid a legal price? No more than five elected officials.

I've noticed that the further one is from the Capitol building, the more likely the incident is to be forgotten. This is unfortunate since in many ways the origins of the division and partisanship so evident in the state these days can be found in the details of the scandal. One of those details was the fierce debate surrounding the jurisdictions where the legislators being prosecuted were to be tried. Republicans made the case that they could not get a fair trial in Dane county, while Democrats argued that being tried back in home counties with friendly district attorneys and juries was hardly appropriate, and vice versa.Who secures the convictions that would instigate a potential recall is something we have been arguing about in another context for a decade now with no resolution.

Let me be clear about this: the primary reasons for the division in Wisconsin are likely due to a series of economic and demographic changes that have occurred over the last few decades, but this division is exasperated by the fact that we send our elected officials into an environment in Madison that simply has not resolved the largest political scandal in the state's history in any way that can be called adequate.

So far as I can find, there's never even been an official report or investigation into the length and depth of the caucus abuses, which could have stretched back a generation. There certainly isn't one available online. This says a lot about how serious the Wisconsin legal system is about keeping legislative accountability. Short of devising a separate court system specifically designed for state legislators accusing of misconduct in office, there's really no incentive for legislators to draw the blueprints for the gallows they may hang themselves on in the future.

The strange sense that the recall law currently makes is that it holds the actions of an elected official in the hands of the very people that elected he or she. This is essentially what happened to Gary George, whose corruption caused him to be recalled in 2003 prior to being convicted of misconduct. This brings up a fundamental flaw in Vos' proposal. Once a legislator is convicted of an abuse of office he goes to jail. He cannot physically be present to carry out his duties and would likely be expelled from the body. Once convictions are handed out recalls become unnecessarily complicated tools for executing an obvious course of action.

The problem is, that sometimes, in fact far more often than not, recalls are about taking less than obvious courses of action. Should George Petak have been recalled over the public financing of Miller Park in 1996? There were certainly some people who suspected him of getting some sort of deal for changing his no vote to a yes and used that false suspicion to rally support around his ouster. What about Jeff Wood and his three DUIs in as many months while in office? The DUIs had nothing to do with corruption, but were hardly becoming a state legislator -- is that enough to warrant a recall? Not according to his own constituents, who didn't lift a finger against him. What about Recall Jim Holprin version 1.0? The idea of recalling someone over a disagreement over Indian spearfishing rights today seems down right quaint, but at the time there were literally fist-fights erupting over the issue.

One of the great mysteries that shrouds any democracy is why do "the people" do what they do? There isn't a soul alive who can tell me adequately why Randy Hopper was recalled on Tuesday. Was it because of his support for Scott Walker? His personal issues? Did people like the other candidate better? Did they not like the shirt he wore the day he knocked on their door? Is it a combination of these and other factors? If so, what were the proportions and rank of importance? Who knows? In a democracy the reasons why "the people" vote one way or another are really academic in contrast to their ability to make the decision. Elected officials and bureaucrats should never have to ask "the people" to justify why they vote the way they do.

Which brings us back to the recalls themselves. Lost in the unfortunate race to provide instant analysis was the fact that there were efforts to recall 16 state senators these last few months: 8 Republicans and 8 Democrats. The GOP could only manage to find the required signatures to trigger elections in 3 races, and they are not likely to win any of those. The Dems triggered 6 races and won two. So in the largest and most chaotic and wildest and most enthusiastic and best publicized recall extravaganza the nation has ever seen, the success rate was a mere 12.5% and at a financial cost several multiples above normal cycle races. Those are long shot odds, at best. Even during the GOP Wave of 2010 Dems still won 40% of competitive races for the Senate.

Most strategists are going to look at those numbers and say it's just not worth it, that large scale recall efforts to unseat multiple legislators at the same time are neither cost effective nor practical**.  There might be a recall in a swing district here or there in the years that follow, but those will probably fall out of favor once they too prove to be elusive.

The premise of both Vos' and the NW's position is that it's too easy to recall an office holder. It's not. Recalls maybe used for reasons specific individuals disagree with, but "the people" really don't need to have a reason to recall someone -- this is sort of the divine right of voters in any democracy.

**Wisconsin Dems are not going to arrive at this conclusion next year. Remember, they only need to flip one of ten seats, they'll have Scott Walker at the top of the ticket (and even if they fail to unseat him, turnout could knock-out undercards), and the DPW could find keeping heat on Walker worth the cost in the long run.