It’s Not About the Recall, It’s About the First Amendment

Review of case briefs, case law research, and consultation with a number of attorneys, judges, and legal professionals contributed to the writing of this article.

Tea Party activists might be smarter than some would like to think.  And depending upon the outcome of a court case later this month, they might also play a role in setting legal precedent.

When New Jersey state election officials denied their submission to initiate a recall effort against U.S. Senator Robert Menendez, calling it unconstitutional, a grass-roots recall committee’s constitutional instincts kicked into full gear.  Attorneys for the committee, themselves Tea Party activists, filed to appeal the agency decision and began writing their supporting brief.

Meanwhile, seemingly everyone was now weighing in as a legal expert.  Some insist the decision is simple:  NJ has no constitutional authority to recall a US Senator; despite what its state constitution says, that authority is reserved for the federal government alone.  For weeks now, legal scholars, political pundits and the media have been chattering online about the case, now before the Appellate Division in the Superior Court of New Jersey, some treating it more like a sideshow and an outlet to take pot shots at Tea Partiers than a legitimate court proceeding with real constitutional significance.

But Dan Silberstein and Richard Luzzi, attorneys for the Committee to Recall Robert Menendez, a committee initiated by members of the Sussex County Tea Party, see this case in an entirely different light.  They insist this case is not about whether a recall order from the state is judicially enforceable against a United States Senator, rather, it’s all about protecting the first amendment right to free speech. And they are taking the matter very seriously.  Based upon recent developments in the case, apparently so are several others, including some high profile legal experts and the courts.

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New Jersey’s State Constitution is unconstitutional.  That’s apparently what one New Jersey election official seems to think.

A committee seeking approval from the state to petition registered voters on whether to move forward with a special election to recall US Senator Robert Menendez was denied that request, in a letter on January 11^th which stated that the US Constitution does not provide for such a proceeding.

But in 1993, the people of New Jersey overwhelmingly voted to reserve for themselves “the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress” (emphasis added), and in 1995 made this amendment to their state constitution under Article I, 2b.

This has left many New Jersey voters wondering why Secretary of State Nina Mitchell Wells, a member of the Executive Branch, not the Judicial Branch, would take it upon herself and her position to declare the NJ state Constitution unconstitutional.  After reviewing the committee’s preliminary appeal statement, a judge in the Superior Court of NJ Appellate Division has just issued an order allowing a motion to accelerate the appeal.

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Yesterday, Democrats on the Senate Finance Committee torpedoed efforts to require Mediciad applicants to show IDs. We noted that, with fraud running at around $100 billion in Medicaid and Medicare, this might not have been the wisest vote. Well, it turns out Democrats on the Senate Committee are perfectly fine with a 10% fraud rate.

Today, the Committee voted on an amendment from Sen. Cornyn which would have delayed expansions in Medicaid until steps had been taken to get its error/fraud rate down to 3.9%, the average of all government programs. Details below:

Cornyn Amendment #C30 to America’s Healthy Future Act of 2009

Short Title: Reducing waste, fraud, and abuse in the Medicaid program.

Description of Amendment: Prior to implementing the mandatory Medicaid program expansions in the Chairman’s Mark, the Secretary of Health and Human Services must certify that states have implemented program integrity and quality improvement measures specified in the Chairman’s Mark and that the Medicaid program’s average Payment Error Rate Measurement is less than 3.9 percent.

Offset: No offset needed.

 Republicans

CHUCK GRASSLEY -yes, ORRIN G. HATCH -yes, OLYMPIA J. SNOWE -yes, JON KYL -yes, JIM BUNNING -yes, MIKE CRAPO -yes, PAT ROBERTS -yes, JOHN ENSIGN -yes, MIKE ENZI -yes, JOHN CORNYN -yes

Democrats

MAX BAUCUS -no, JOHN D. ROCKEFELLER -no, KENT CONRAD -no, JEFF BINGAMAN -no, JOHN F. KERRY -no, BLANCHE L. LINCOLN -no, RON WYDEN -no, CHARLES E. SCHUMER – no, DEBBIE STABENOW -no, MARIA CANTWELL -no, BILL NELSON -no, ROBERT MENENDEZ – no, THOMAS CARPER -no

Not Agreed to (10-13)