New Jersey Supreme Court Rules That Voters Cannot Recall a US Senator

The New Jersey Supreme Court has held that the Constitution does not permit states to recall members of Congress. The ruling ended a Tea Party-backed effort to remove Senator Robert Menendez from office.

As I argued in two previous blog posts, US Supreme Court precedent clearly holds that the Constitution establishes the sole requirements of members of Congress. In the past, the Court invalidated a decision by the Speaker of the House not to seat Representative Adam Clayton Powell due to allegations of ethical misconduct. The Court also struck down a state law that established term limits for members of Congress. In both of these cases, the Court held that the Constitution sets forth the requirements for members of Congress and that neither Congress nor the states could alter those standards.

Furthermore, the Framers of the Constitution considered, but rejected, language that would have permitted the recall of members of Congress. The Constitution, however, allows for Congress to expel members by a 2/3 vote.

The New Jersey Supreme Court agreed with my analysis and reversed a lower court ruling that permitted the recall process to advance. Although the Tea Party frequently invokes the Constitution in its political commentary, the group made a gross misjudgment on this issue.

House Ethics Committee: Censure for Charlie Rangel

The House Ethics Committee has voted 9-1 to recommend a censure for Representative Charlie Rangel. Earlier this week, the Ethics Committee found that Rangel committed 11 violations of House ethical rules. Rangel walked out of the proceedings on the first day, but he returned the following day and delivered a very dramatic speech.

It is highly likely that Rangel calculated that the House would not expel him. The Speaker of the House cannot refuse to sit a representative simply because the individual has committed ethical violations. The Constitution, however, permits expulsion of House members by a 2/3 vote.

Rangel successfully ran for reelection with the ethics charges pending. Rangel probably believed that if he won the election, he could escape the ethics proceedings with a punishment short of expulsion. The committee's recommendation that Rangel face a censure suggests that his gamble worked.

At least a majority of the full House can impose a censure. Now, only the voters in Rangel's district can "fire" him.

Rangel Convicted of 11 Ethics Violations

The House Ethics Panel has convicted Representative Charlie Rangel of 11 of 13 ethics charges. Rangel declined to participate in the proceedings.

My Take

I suspect that Rangel made a political calculation simply to ignore the proceedings. The Constitution does not allow the House to bar duly elected members from sitting. The Constitution, however, permits expulsion, but this requires a 2/3 vote of the entire House.

Although President Obama subtly suggested that Rangel should withdraw from the election, Rangel ignored Obama and eventually won. Now that he has won, Rangel probably believes that 2/3 of the House will not vote to expel him.

The House, however, could impose a lesser sanction (such as censure) by a simply majority vote. If Rangel's calculations are correct, only the voters in his district can control his fate. They have recently spoken on this subject by electing the 80-year-old Rangel to another term.

Senator Lisa Murkowski States the Obvious About Palin: Too Dumb, Not a Leader

Senator Lisa Murkowski, a Republican from Alaska, says she would not support Sarah Palin if she ran for president. Murkowski explains that Palin lacks leadership abilities and intellect:

Alaska Sen. Lisa Murkowki told CBS News' Katie Couric today that she would not support Sarah Palin for president because Palin lacks the "leadership qualities" and "intellectual curiosity" to craft great policy.

"You know, she was my governor for two years, for just about two years there, and I don't think that she enjoyed governing," Murkowski said. "I don't think she liked to get down into the policy." The Alaska senator added that she prefers a candidate who "goes to bed at night and wakes up in the morning thinking about how we're going to deal with" important issues.

Murkowski lost the GOP primary in Alaska to a Palin-backed Joe Miller. Murkowki, however, launched a write-in campaign that appears to have been successful (officials are still counting votes). Although Murkowski states the obvious regarding Palin, sometimes the obvious is worth mentioning -- especially in a country with voters who are so vulnerable to ignorance.

Colin Powell Tells GLBT Activists Not to Press Congress on DADT

Colin Powell warns GLBT activists not to press Congress to repeal Don't Ask, Don't Tell. Even though President Obama and Secretary of Defense Robert Gates oppose the ban, Powell says that he wants the "study" of this issue to continue. He also opposes litigation challenging the ban. Unless Congress repeals the statute before Republicans take over the House, the discriminatory measure will likely remain in place for a long period of time, absent a judicial ruling enjoining its enforcement.

Ironically, Powell himself has embraced changing course on this issue in extremely measured comments. Powell, however, played a great role in crafting DADT. President Clinton promised to lift the ban, but military leaders -- including Powell -- opposed the decision. When Democrats cheered Powell's endorsement of President Obama, I questioned this stance, given his role in President Bush's unnecessary invasion of Iraq and his support for DADT. Powell's current stance would virtually ensure that the ban remain in place.

Michigan Assistant Attorney General Fired For Stalking Gay College Student

Andrew Shirvell, a Michigan assistant state attorney general, has lost his job. Shirvell made national headlines after he started targeting University of Michigan student body president Chris Armstrong. Armstrong is openly gay.

Believing that Armstrong was pursuing a "radical homosexual agenda," Shirvell stalked the student at his residence and at the University of Michigan. State officials conducted an investigation and concluded that Shirvell's conduct made him unfit for his position. According to a report of the investigation, Shirvell engaged in several inappropriate actions, including, that he:

Showed up at Armstrong's home three separate times, including once at 1:30 a.m. . .

"Engaged in behavior that, while not perhaps sufficient to charge criminal stalking, was harassing, uninvited and showed a pattern that was in the everyday sense, stalking."

Harassed Armstrong's friends as they were socializing in Ann Arbor.

Called Speaker Nancy Pelosi's office, Armstrong's employer, in an attempt to "slander Armstrong and ultimately attempting to cause Pelosi to fire Armstrong.

Attempted to "out" Armstrong's friends as homosexual — several of whom aren't gay (boldface added).

Employees and Free Speech

Mike Cox, the Michigan attorney general, carefully distinguished Shirvell's conduct from activities protected by the First Amendment. As a public employee, Shirvell's speech is entitled to constitutional protection. Cox, however, rightfully concluded that Shirvell's conduct went far beyond protected activities for public employees. Furthermore, Shirvell apparently lied to investigators -- which clearly does not implicate a constitutional right.

Recently, Dissenting Justice has commented on several clashes between speech and workplace decorum. I believe that many recent discharges or suspensions of individuals -- such as Shirley Sherrod, Keith Olbermann, and Juan Williams -- reflect a desire to avoid controversy by any means necessary. I do not agree with this kneejerk desire to sanitize speech.

The Shirvell case, however, differs from the others in many important respects. Shirvell, as a state attorney, was responsible for enforcing state antidiscrimination law and for executing his duties without prejudice. Also, as the report concludes, Shirvell engaged in harassing and potentially slanderous conduct. Furthermore, Shirvell lied to state officials who investigated his conduct. Finally, Shirvell used state time and resources to stalk and harass college students. His pattern of behavior raises serious questions about his professional and mental competence. Accordingly, this is one case in which a discharge was absolutely warranted.

Restoration of Sanity Fails: MSNBC Suspends Olbermann Over Political Contributions

NBC has suspended Keith Olbermann for donating money to Democratic political candidates without receiving permission from the network. According to several media reports, NBC requires journalists to seek prior approval from the network before making political donations. Other reports, however, suggest that the network has selectively enforced this requirement or that MSNBC commentators (like Olbermann) are actually exempt from the requirement.

Because NBC is a private company -- rather than a government employer -- it can place restrictions upon its employees' speech. Accordingly, absent some state or federal law on this issue, NBC's alleged contractual provision does not deprive Olbermann of any rights he has. The First Amendment does not apply to private, nongovernmental restraints on speech.

Nevertheless, NBC's decision to suspend Olberman is very troubling. Recently, Dissenting Justice criticized NPR's decision to fire Juan Williams after he made bigoted statements about Muslims. Although I found Williams's comments offensive, I believe that the decision to fire Williams resulted from a growing intolerance of controversial speech and ideas among the media.

The dismissals of Shirley Sherrod, Juan Williams, and many other individuals for isolated moments of controversy conflict with the American ideals of political debate and free speech. Although many liberals cheered NPR's decision to release Williams, I argued that NPR's position was not necessarily progressive. NBC's treatment of Olberman demonstrates that progressives should not tolerate kneejerk and intolerant behavior.

Clearly, room exists for employers to fire individuals when their private views impair their ability to execute their job-related responsibilities. In many instances, however, the decision to discharge or suspend individuals results from capitulation to controversy and momentary passions, rather than rational deliberation and judgment. NBC should reinstate Olbermann (I suspect he will soon return to the airwaves), and Americans should grow a lot more tolerant of ideas with which they disagree.