WHY DON’T DEMOCRATS USE RECALL TO CHANGE U.S. SENATE JURORS IN A TRUMP IMPEACHMENT TRIAL?

Remember McCain-Feingold?

Sure you do. At one time (like, 2002), it was the THE “ultimate” in campaign finance reform law in these United States. It’s largely history now, eviscerated by court decisions, the rapid evolution of campaign financing, and some unintended consequences of the law itself.

The “Feingold” was Russ Feingold — a rock star liberal icon Democratic three-term U.S. Senator from Wisconsin. But then Feingold got upset by an unknown millionaire Oshkosh businessman named Ron Johnson in the Republican “wave” election year of 2010. And then Feingold lost a re-match with Johnson in 2016.

So, if you’re a Wisconsin Democrat, you absolutely HATE Ron Johnson, right? And after Johnson’s unsteady performance trying to defend President Donald Trump on NBC-TV’s “Meet the Press” this past Sunday under a barrage of unfriendly questions from host Chuck Todd, maybe you sense you have an opening.

Johnson’s current term does not end until after the 2022 election, but he is a perfect candidate for voter recall by electors who want to get rid of him, meaning cheesehead Democrats. Wisconsin’s Constitution, amended in 1926, permits the recall of all officeholders (local, state, judicial and congressional). Wisconsin is one of nine states that provide for the right of recall to extend to recalling members of its federal Congressional delegation.

A separate law that can be used to get rid of incumbent lawmakers is term limits. But the U.S. Supreme Court ruled back in 1995 (in a close 5-4 decision) that term limits was unconstitutional as it applied to the U.S. Congress on the grounds that state constitutions cannot impose a qualification for federal office not found in Article I of the U.S. Constitution.

However, a case can be made that recall is not a qualification for office, but a state-imposed method for voters to use to reconsider their choice of an elected official.

There are some caveats.  In 1967, a federal district court in Idaho held that U.S. Senator Frank Church was not covered under Idaho’s recall law. The New Jersey Supreme Court in 2010 said U.S. Senator Robert Menendez could not be recalled under the New Jersey recall law. A Michigan Circuit Court stopped a recall petition against Congressman Tim Walberg in 2007.

But none of those cases has any precedential value in Wisconsin. In fact, the Attorney General of Wisconsin in 1979 issued an opinion that the Wisconsin election agency could not reject a petition for the recall of a member of Congress. The Wisconsin Elections Commission published in February 2018 a Recall Manual for Congressional, County and State Officials. That Commission is the filing agency for the recall of a U.S. Senator from Wisconsin.

There is historical precedent in Wisconsin for recall. A recall effort was launched in 1954 against U.S. Senator Joe McCarthy by a small-town newspaper editor. The “Joe Must Go” campaign was very much a grassroots effort that fell short. In 1990 a recall petition drive was launched against Congressman Dave Obey; it, too, was unsuccessful.

However, Wisconsin voters by 2012 were successful collecting enough signatures (signatures must equal 25% of the total vote last cast for governor in a jurisdiction in both Wisconsin and Michigan) to hold a June 2012 recall election against the incumbent governor, Scott Walker. In 2011-2012 a dozen state senators faced recall elections. Three senators lost their recall elections.

Michigan’s 2012 recall law revisions used Wisconsin’s recall law as their model. Both states allow the incumbent and challenger to appear on the recall ballot. The question is no longer in the abstract, “Shall Scott Walker, governor be recalled: yes or no?” Instead, a recall election features the incumbent facing off against a challenger. A primary election may be held to determine who the challenger is to the incumbent. Governor Walker survived his June 2012 recall election against Democrat Tom Barrett, the Mayor of Milwaukee, receiving 53% of the vote.

Recall today is firmly a part of Wisconsin’s political culture. Recall in Wisconsin, unlike Michigan, does not require lengthy “clarity” hearings, under which the Board of State Canvassers can send recall proponents back repeatedly to redraft their reason or reasons for recall, finding deficiencies in clarity or “truth.” Wisconsin does not require recall petitions to even state a reason for recalling a state-level public official. A recall petition drive starts when petitioners register a recall committee. That starts a 60-day clock to collect 668,327 valid signatures to recall U.S. Senator Johnson (the same 60-day time limit applies in Michigan).

Wisconsin Democrats could launch a recall petition drive against Sen. Johnson later this month. Circulators could be standing outside municipal polling stations on November 5, where the likelihood of finding registered voters is high, and roam tailgates outside football stadiums across the state collecting petition signatures. Certainly there must be someone in Wisconsin similar to Michigan political list broker Mark Grebner and has therefore already compiled a mailing list of all the Scott Walker and 12 state senator recall petition signers from 2011-2012.

A special primary recall election would be scheduled for a Tuesday six weeks after signatures are determined to be sufficient. That determination is to be made within 31 days after the signatures are turned in to the filing officer. The Democratic party primary winner would then face off against incumbent Ron Johnson in a recall election held four weeks later. The victor of the recall election would finish out the term expiring January 3, 2023.

It’s quite possible that a Ron Johnson recall election could coincide with Wisconsin’s presidential primary, which will be held on April 7, 2020. Democrats are likely to dominate voter turnout on that date.

If the U.S. Senate is still engaged in a Trump impeachment trial in early April, Ron Johnson might find himself sitting back home in Oshkosh ruing his decision to appear on Meet the Press, and a new solon from Wisconsin might be in the U.S. Senate voting “Guilty.”

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