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.