Can You Recall a Member of Congress?

Trying to recall a member of Congress is an idea that has likely crossed the minds of voters in every congressional district in the U.S. at one time or another. The concept of buyer's remorse applies just as fittingly to the choices citizens make in who represents them in Washington, D.C., as it does their decisions on which house to buy or which mate to marry. However, unlike mortgages and marriages, which can be ended, elections are permanent.

No Recall Mechanism

There is no way to recall a member of Congress before their term ends, nor has there ever been. No U.S. senator or member of the House of Representatives has been recalled by the electorate. Americans are unable to remove an elected member of the House or Senate from office because there is no recall mechanism set forth in the Constitution.

The framers of the Constitution actually debated whether to include a recall provision but decided against it as a result of the arguments of some state legislators during the ratification process. A Congressional Research Service report cited Luther Martin of Maryland who, while speaking to the state Legislature, lamented the fact that members of Congress "are to pay themselves, out of the treasury of the United States; and are not liable to be recalled during the period for which they are chosen." There were failed attempts in some states, including New York, to amend the Constitution and add a recall mechanism.

Attempts to Circumvent the Constitution

Voters in Arkansas amended their state constitution in 1992 with the belief that the 10th Amendment left the door open for states to limit lawmakers' length of service. The 10th Amendment states that "The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people."

In other words, the Arkansas argument went, because the Constitution didn't provide for a recall mechanism the state could. Arkansas's constitutional amendment banned House members who had already served three terms or senators who had served two terms from appearing on the ballot. The amendment was an attempt to remove elected officials through the use of term limits.

The Supreme Court held, in U.S. Term Limits, Inc. v. Thornton, that the state's amendments were unconstitutional. The court essentially supported the notion that the right to choose representatives belongs not to the states but to its citizens. Justice Clarence Thomas wrote:

"In keeping with the complexity of our federal system, once the representatives chosen by the people of each State assemble in Congress, they form a national body and are beyond the control of the individual States until the next election."

Removal of a Member of Congress

Even though citizens cannot recall a member of Congress, the individual chambers can remove members of the House of Representatives or Senate by way of expulsion. The House or Senate can expel a member if there is the support to do so by at least two-thirds of the members.

There doesn't have to be a specific reason, but in the past, expulsion has been used to punish House and Senate members who have committed a serious crime, abused their power, or been "disloyal" to the U.S. The House has expelled only five of its members and the Senate 15 in the history of the United States, the majority for showing disloyalty to the Union during the Civil War.

Recall of State and Local Officials

Voters in 19 states can recall elected officials at the state level. Those states are Alaska, Arizona, California, Colorado, Georgia, Idaho, Illinois, Kansas, Louisiana, Michigan, Minnesota, Montana, Nevada, New Jersey, North Dakota, Oregon, Rhode Island, Washington, and Wisconsin, according to the National Conference of State Legislatures.

Additional References

• “Recall o Legislators and the Removal of Members of Congress from Office.” EveryCRSReport.com, Congressional Research Service, 5 Jan. 2012.
• "U.S. Term Limits, Inc. v. Thornton." oyez.org.
• “U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).” Legal Information Institute, 22 May 1995, law.cornell.edu.