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A Tea Party's Quixotic Effort to Recall the Senate

05/10/2010 05:12 am ET | Updated May 25, 2011

It was a dogcatcher from St. Maries, Idaho who took the first step in trying to recall U.S. Senator Frank Church in the spring of 1967. The petition was rebuffed in court, but soon a wealthy California backer and groups with names like 'The Liberty Lobby' and 'Victory in Vietnam Committee' followed.

They claimed that the Idaho Democrat's opposition to the war in Vietnam was contributing to American deaths and providing aid and comfort to the enemy. They vowed that if they were successful, other dove senators like J. William Fulbright of Arkansas and Wayne Morse of Oregon would be next.

In October 1967, a federal judge rejected their petition as unconstitutional. A congressional term is determined by the U.S. Constitution and cannot be altered by a state, he ruled.

But never mind the Constitution: a Tea Party group from a rural northern New Jersey county is trying to recall Senator Robert Menendez.

His offense? Generally, being a Democrat. New Jersey is one of eighteen states that currently allows recall elections, and the explanation posted on the offshoot blog of the Sussex County Tea Party Patriots reads as follows:

We believe [Menendez] has voted for unconstitutional bills, including healthcare and cap and trade. He also has consistently voted for legislation favoring illegal immigration and irresponsible fiscal spending. After using all means available to us to communicate our objections to Senator Menendez regarding these issues, and being ignored, we believe he has left us no other choice but to seek remedy by removing him from office.

(That's all in capital letters, by the way.)

If their organizing effort is anywhere near as slapdash as their reasoning, they've got problems. Even if they are somehow able to get the necessary signatures of over 1.3 million registered voters, Menendez has relatively decent approval ratings and could very well survive a recall.

Though it's really the principle of the thing, since like Frank Church, no U.S. Senator has ever been recalled.

Representatives of the Sussex County Tea Party filed their notice of intent to get petitions back in September, and after New Jersey election officials ignored them for two months, they sued for a response.

The state took the Frank Church defense--we don't have the authority to certify this--but the Tea Partiers had shed light on an inaccuracy in Article 1 of the New Jersey state Constitution, which says, "The people reserve unto 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."

But a mistake doesn't make the New Jersey Constitution right. It's an open-and-shut case of the Supremacy Clause -- the federal Constitution trumps the state's. So after flirting with a states' rights 'Supremacy Clause be damned!' argument, the Tea Partiers decided to try something else.

Last week, the Tea Party lawyers received a hearing before the three-member state Appellate Court, arguing instead that it is a First Amendment right to recall one's U.S. senator. A decision is pending.

"We are not arguing today for Senator Menendez's recall," the Star-Ledger quoted Tea Party lawyer, Dan Silberstein. "We are arguing simply for the right to express our dissatisfaction with Senator Menendez."

Which returns to the question, 'Why Menendez?' His voting record is not extraordinary for a member of the last two Congresses. He and his Democratic colleague Frank Lautenberg are practically identical on the issues. What makes Menendez so different?

First and foremost, he is the only Latino in the U.S. Senate -- one of a scant two racial minorities. As the head of the Democratic Senatorial Campaign Committee, he is a member of the party's leadership. There's also an (apparently) ongoing federal criminal investigation into his House days.

But really, all that's just the icing on the cake. The actual reason is that Menendez is not up for reelection until 2012 -- this is an attempt to expand the 2010 playing field. Menendez is a mere cipher for the Democratic policies that the Tea Partiers don't like, and their effort to remove him from his elected term just goes to show why the 'Tea Party' is so improperly named.

The Tea Party's desired form of government seems more akin to the ritualistic referendums of town meetings in colonial New England than the later uprising that sired a democratic republic. Their effort to remove the elected representative of the people for having a different ideology shows that they do not believe in the institution set up by the Framers whose mantle they claim -- the same Framers whose Constitution didn't even allow for the popular election of senators, let alone their recall.

Still, these Tea Partiers believe that if they can win a court decision in New Jersey (an outcome that would undoubtedly yield an appeal), then they can inspire those in the seventeen other recall states to force votes on Democratic senators not up for reelection this year. That way, they may have a chance at winning a "majority" in the Senate -- all sixty seats necessary.