Yesterday, when the Milwaukee Journal Sentinel posted my op-ed describing the history surrounding enactment of the Wisconsin recall, I expected the usual suspects to flood the comment thread. The process usually goes something like this: I spend weeks swimming in microfilm and documents at the State Historical Society in order to produce a fact-based report. Then, anonymous commenters explain how wrong I am because, well, they know how to turn on their computer.
One comment early in the morning struck me, mostly because it contained complete sentences. The commenter’s name was “Fallone,” and criticized me for failing to mention the circumstances of the 1911 recall effort, in which the recall resolution was amended to exempt the judiciary from the recall process because some senators thought it would be abused by socialists. Of course, in the report that served as the basis for my op-ed, I talk all about the 1911 recall effort and the move to exempt judges; but given the limited space allotted to me by the Journal Sentinel, I didn’t mention it yesterday. The commenter ended his critique of me by saying “The Journal Sentinel does the public a disservice by printing polemics masquerading as objective history.”
By 4:34 P.M. , Marquette law professor Ed Fallone had read my original piece, and -oops – realized I discussed everything he wanted me to about the 1911 election in my “polemic” writings. But obviously, he had it out for me, so he needed a new specious line of argument, which he lays out on the Marquette University Law School Faculty blog. Not only is his critique of my research weak, it doesn’t even lay a finger on my central thesis; that the recall isn’t being used in any way envisioned by the constitutional amendment’s original authors.
Fallone begins with this questionable syllogism:
The original push to add recall provisions to the Wisconsin Constitution, conducted during the 1911 legislative term, was clearly modeled on the nationwide campaign to adopt recall provisions. I have previously written about the history of the recall movement here. None of the other states that recall advocates in Wisconsin looked to as models in 1911 had exempted executive branch officials from the recall power. Moreover, far from being directed at judges, the original provisions in 1911 were amended in response to criticism so that they exempted judges from the scope of the recall (see page 139 of this history by the Legislative Research Bureau).
Given this record, it is impossible to conclude that the original legislation adopting recall provisions was primarily directed at the removal of elected judges. However, the original legislation was rejected by the voters in 1914, and did not become part of the Wisconsin Constitution. Mr. Schneider appears to argue that when the recall provisions were introduced once again, in 1923 by State Senator Henry Huber, they were no longer intended to apply broadly to all elected officials. Apparently we are to believe that between 1911 and 1923 the intent of the recall provision had changed from an intent to apply the recall to all elected officials except judges to an intent to apply the recall provisions primarily to judges.
Is it really the position of a Marquette law professor that two legislatures, a dozen years apart and comprised by almost entirely different members, could come to two different conclusions about how the recall amendment should be drafted? The move to exempt judges in 1911 was due to the concerns of a handful of senators fearful of socialist dirty tricks; it’s impossible that either those senators were either gone, or their fear of socialists had been ameliorated? Is it far-fetched to think that in 1923, new legislators buoyed by the progressive surge in popularity, thought they could pass a more expansive recall amendment?
Take, for example, the issue of concealed firearms. A decade ago, legislators drafted a very modest proposal to allow concealed-carry. It never made it past the governor’s veto. Now, ten years later, emboldened by a changing political landscape, the GOP passed a much more expansive concealed-carry law, knowing many of their political obstacles had been eliminated. By Fallone’s reasoning, this new law never would have passed because it was rejected 10 years ago.
I have a mountain of evidence that suggests that the only real question on the ballot in 1926 was whether judges should be recalled. Fallone’s evidence is simply his confusion that different legislatures twelve years apart draft different constitutional amendments for different reasons.
Fallone also criticizes me because, in reaching my conclusion, I use statements by opponents of the recall:
Second, it is never proper to attempt to divine the original intent of a constitutional provision by relying upon the arguments of its opponents. Almost all of Mr. Schneider’s evidence in support of his proferred interpretation comes from editorials and statements of persons who opposed the ratification of the recall provisions. The statements of opponents are no evidence at all of the intention of supporters.
Of course, he ignores the sections where I use statements by supporters of the recall to demonstrate that it would be used almost solely against judges. Take this editorial from the Wisconsin State Journal, a paper that supported the recall of executive offices:
“Men and women of Wisconsin, going to vote Tuesday, will be confronted by the recall amendment. Do we want it?
This is not a very hard or complicated thing to understand. The proposal is that if 25 per cent of the number who voted for governor at the last election petition for it an election shall be held to say whether an elective officer stays or goes.
In Wisconsin, this would amount to little in the case of any official except a judge. For the men who propose it have hedged it with such conditions that an official could not be recalled until he had been in office at least 13 1/2 months. What was left on a 2-year term would not be important enough to hold a recall election on…
The best thing the proposers of the recall seem able to bring up is that they have so hedged it with restrictions that it would be hard to use. A fine reason surely! If a recall is needed, it ought be made easy to use – not so hard that only wealthy interests or organizations which have piled up large funds for political purposes can employ it.”
A later editorial explains that while they favor the idea of the recall, they oppose the way it would affect judges:
“In our judgment, [the recall] is an instrument of popular control of public administration which is useful as applied to executive officials. Its use as to these, we believe, is in its potentiality more largely than its practice, because the frequency of our elections of administrative officers gives the whip-hand over them in any case, and so the recall as it affects them serves more than anything else as an admonition.
We believe the recall as applied to the judiciary, however, positively to be detrimental to public service…”
Virtually every account of the recall amendment in major Wisconsin newspapers in October and November of 1926 referred to it as the “judicial recall,” or the “recall of judges.” If Fallone would like to do his own research to prove otherwise, he is welcome to it. Here are just a few:
Burr Jones Asks Defeat of Recall: Ex-Justice of Supreme Court, in a Letter to Journal, Points out Evils of Measure – Wisconsin State Journal, October 29, 1926.
Lawyer Supports Judicial Recall, Says Judiciary Should Not be Exempt, Milwaukee Journal, November 1, 1926
Lawyers of State Unite to Beat Recall Measure, Milwaukee Sentinel, October 26, 1926
Lawyers Unite Against Recall, Milwaukee Sentinel, October 26, 1926
Prelate Also Opposes Recall of Judges, Milwaukee Sentinel, October 31, 1926
On Wisconsin: The Recall, Wisconsin State Journal, October 31, 1926
Vote “No” on Recall, Bar Advises, Milwaukee Sentinel, October 28, 1926
“Judicial Recall,” Wisconsin State Journal, October 29, 1926
Furthermore, if Fallone would like to point to any politician in the state with a 2-year term who has been recalled, or who has even been the subject of an attempted recall, even in the height of recall fever in which we find ourselves right now, I’d be happy to correct myself. But all the evidence shows that it was the understanding then, has been the understanding throughout the state’s history, and is currently the understanding that it is implausible to recall politicians with 2-year terms.
We get it. Ed Fallone likes the recall. In his own derivative history of the recall, Fallone cites the need to lessen the influence of the American Legislative Exchange Council (ALEC), which has become a shibboleth for individuals who are either anti-Scott Walker or who don’t have proper ventilation in their offices. The only people who say ALEC is secretly pulling Scott Walker’s strings are people who are trying to defeat Walker. But wait – weren’t we supposed to not draw conclusions based solely on someone’s opponents?
I am willing to show my work. The professor has none to show.