April 22, 2019
What is a “recall motion” and why is it critical to a constitutional republic? Why is it critical in Tennessee?
Over the last week there has been a lot of talk in the Tennessee
Legislature about a “recall motion” or a “Rule 63″ motion. That motion
is one of the few motions addressed in the Senate’s Rules of Order which
has important constitutional implications in a constitutional republic
such as Tennessee.
Tennessee’s Legislature has long used a leadership created committee
system. The constitution does not require the Legislature to use a
committee system, but it allows it. What the constitution does require
is that the elected representatives will each have an equal vote. What
the constitution does require is that the citizens of this state will be
represented in the establishment and creation of public policy by the
entire number of elected representatives not selected handfuls of
members sitting in subcommittees.
In Tennessee’s committee system, bills are first assigned to be
addressed on the floors of the respective chambers for readings on
“first consideration” and “second consideration”. These “readings” may
have had significance in the long distant past and may appear to suggest
intentional deliberation to the average citizen today, but they are for
practical purposes just a waste of time. Nothing is generally debated
in these readings and no deliberations on public policy truly occur.
Instead, following the symbolic second reading, the leadership of the
respective houses delegates bills to specific committees and
subcommittees that the leadership has created and to which the
leadership has assigned chairmen, vice-chairs and members. The
leadership, particularly of a super majority, makes sure that the
majority party controls enough votes in the committees to make the
minority party’s participation nominal.
Once a bill is assigned to the committee system, it moves about that
system in a rather formalistic manner to the outside observer with
protocols, calendars, hearings, continuances, testimony, discussion,
votes, and amendments. Unfortunately, many of the proposed amendments
are not actually put on the state’s website for the public to see or
consider until very late, if ever, in the process. That is particularly
dangerous when an amendment completely deletes all the language of the
original bill and substitutes entirely new language – sometimes with the
new language having little if anything to do with the purpose of the
original bill’s language.
The real danger to a constitutional republic arises when these
committees (often with as few as perhaps 4 or 5 members voting) are
allowed full authority to amend or defeat bills. When a committee or
subcommittee defeats a bill, it can do so by voting with enough “no”
votes, it can do so by the refusal of any committee member to move to
“hear” the bill, the refusal of any committee member to “second” a
motion to vote on the bill and other procedural moves. Another common,
too common, tactic to kill a bill is to move that it be deferred until
“the last calender of the last meeting in the last year” or even to
defer it to be heard in an unscheduled and likely never to be conducted
“summer study.”
The problem in a constitutional republic with all of these procedural
moves in the committee and subcommittee system is that many, most, or
even almost all of the House or Senate members know nothing about the
bill, its purpose, its amendments, its existence or its disposition.
The legislators who were not on the committee or subcommittee that
stopped the bill never had the affirmative duty to read it, consider it,
debate it or vote on it.
The committee system when used for final dispositions of bills is
contrary to the proper function of a constitutional republic. Why?
Because most citizens are denied any voice on the bill or the issue
through their elected officials (unless they are members of the
committee or subcommittee involved). When citizens are denied a voice,
they are fully and effectively disenfranchised. When citizens are
denied a voice, you have an oligarchy where public policy is by and
large determined by a few legislators and/or leadership.
A “recall motion” is a safety value which can and should be used on
matters of importance to the public or the constitution. In Mason’s
Manual of Legislative Procedure (which the Tennessee Legislature uses),
the motion is procedurally referred to as “withdrawing a bill from
committee”. The purpose of the motion is to bring a matter to the full
attention of the entire body of elected public representatives so that
their constitutional duties can be undertaken on serious matters. What a
recall motion mitigates against is the danger of disenfranchisement and
the effective domination of public policy by an oligarchy.
A recall motion does not of itself recall the bill from the committee
system or trigger debates on the merits of the bill. The recall motion
calls upon all of the members of the particular house, here the Senate,
to vote on whether to recall the bill from the committee system so that
there can be further consideration of the bill on the merits by all
elected members. In this instance, the bill has already been passed by
the House of Representatives on its floor hearings. Thus, the vote on a
recall motion is a vote on whether to leave the bill just as the
committee or subcommittee ended it or whether to revive the bill for
full consideration on the floor.
If a “no” vote prevails on the recall motion, the bills stays as is –
probably dead. However, if a “yes” vote prevails, then the bill is
recalled to be considered to the considered by the full body on its
merits in the particular house involved. Now, even if the recall motion
works, the full body could still kill the bill, amend the bill, refer
it back to committee, pass it or do any of a number of other things but
the citizens would at least not be so completely disenfranchised as they
were when only a small handful of legislators, legislators perhaps
acting under undue or improper pressure or misinformation, killed the
bill previously.
The most common argument by leadership to encourage “no” votes on a
recall motion is perhaps the argument that recalling bills is a “danger
to the sanctity of the committee system.” However, nothing in the
constitution requires a committee system. Nothing in the constitution
makes the optional committee system “sacred” or “sanctified”. Indeed,
the committee system is, when abused, a device of leadership that
impairs and infringes the constitutional rights of the citizens to have
their individual elected officials involved in the debate and
determination of state policy. The leadership is keenly focused on
keeping the committee system because its full exploitation allows
leadership more power to derail and stop legislation, even significant
legislation, that leadership wants to defeat — other than on the merits.
Over the last quarter century, Tennessee Firearms Association has in
several instances asked legislators to file such recall motions on
significant Second Amendment related bills. Sometimes, as with the bill
that is moving this week by Senator Mark Pody, the companion bill had
already been passed by the other house. Yet, in every instance, the
legislative sponsor reported back that they had been “approached” by
leadership and told that they did not have the votes to win a recall
motion and that it would be best for their political careers not to
bring such a motion unless they were certain that they had the votes to
win. Generally, one might conclude, that in every instance where this
has been attempted on significant issues such as life or constitutional
protections it was leadership that was working behind the scenes to kill
the bill and it was most likely leadership which had orchestrated and
choreographed the bill’s demise in the committee system.
This week a bill is up that the House has already passed. In the
Senate, the Senate Judiciary voted to send the bill to “summer study” –
effectively killing it. Senator Mark Pody has publicly said that he
would file and present the recall motion in the Senate and it is
expected this week. You should watch carefully who opposes that motion.
It does not matter what they say when they oppose the recall motion –
just watch for who it is. Make a note. Ask yourself why that
legislator wants to deny you your rights to have your elected senator
consider, debate and vote on the merits of such a bill. Why?
The recall motion is an important safety designed and intended to
limit the dangerous effects of both disenfranchisement and oligarchical
power in a constitutional republic. Let’s see if it allowed to preserve
the function of a constitutional republic this week. John Harris
Executive Director
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