Thursday, November 19, 2009

Can Alaska U.S. Senator Mark Begich Be Subject To A Recall Election Over His Role In Facilitating Anchorage's "Budgetgate" Scandal

Update March 27th, 2010: It may be possible to recall Mark Begich in the future. A New Jersey appeals court has ruled an effort to recall Senator Robert Menendez is valid. See updated post HERE.

The release of the 60-page Wheeler Report on November 18th, 2009, which concluded that “Mayor [Mark] Begich knew that revenues for the 2008 and the 2009 budgets were reasonably certain to be less than appropriations and that the shortfall would have a significant impact on the Municipality’s financial well-being, but did not timely report this to the Assembly", has triggered outrage amongst many Alaskans. Some commenters to the Anchorage Daily News story have suggested that a recall of Mark Begich would be desirable; there's actually a RecallBegich website.

How much did Begich overstate the balance in the city's coffers? According to Dan Fagan on November 16th, Begich inflated the amount of money in the fund balance by close to $30,000,000. The rosier the picture Begich painted, the better the chance the Assembly would go along with his expensive labor contracts to make good on promises made to his Big Labor supporters.

According to page 11 of the Wheeler Report, Begich may have had some indication as early as June 11th, 2008 that revenues were a potential problem area and might be significantly below appropriations. Even if Begich didn't have a clue in June, the report suggests that Begich reasonably should have known as early as July 8th, 2008 that there would be problems. Yet in his own response to question #1, Begich claims he did not pick up on it until later, and first communicated his concerns to the Anchorage Assembly on October 17th, 2008. The deadly combination of sweetheart union contracts and the sudden economic crisis abruptly catapulted Anchorage from the black down into the red. Begich released that questionnaire to the public, along with an official statement of reaction to the Wheeler Report.

In his statement, Begich immediately went into attack mode, accusing the Sullivan Administration, in concert with a handful of Assembly members, of "tarnishing" the record of his [Begich's] administration. He claims that the Anchorage Assembly was fully apprised of all financial information related to the Municipality throughout his terms as mayor, holding multiple work sessions, issuing reports and memos, and fully answering all questions. But he didn't answer the classical "Watergate" questions of "what did he know" and "when did he know it".

So can Mark Begich be recalled? From this website we get the following information. Article XI, Section 8 of the Alaska State Constitution, entitled "Initiative, Referendum, and Recall", states, "All elected public officials in the State, except judicial officers, are subject to recall by the voters of the State or political subdivision from which elected. Procedures and grounds for recall shall be prescribed by the legislature". However, AS 15.45.470 states, "The governor, the lieutenant governor, and members of the state legislature are subject to recall by the voters of the state or the political subdivision from which elected". U.S. Senators and Representatives are omitted. This same information is also posted on the Alaska Division of Elections website.

There is a reason for the omission. According to information posted on Senator Richard Lugar's website, it is not constitutionally permissible to remove a President, Senator, or Representative from office via recall. On page two, it states, "As to removal by recall, the United States Constitution does not provide for nor authorize the recall of United States officers such as Senators, Representatives, or the President or Vice President, and thus no Member of Congress has ever been recalled in the history of the United States". Under Supreme Court constitutional interpretation, since individual States never had the original sovereign authority to unilaterally change the terms and conditions of service of federal officials agreed to and established in the Constitution, such a power could not be “reserved” under the 10th Amendment.

This interpretation has been upheld by Federal courts, most notably in 1967, when a Federal court dismissed a suit which attempted to compel the Idaho Secretary of State to accept petitions recalling Senator Frank Church of Idaho. In the unreported decision, the court found that Senators are not subject to state recall statutes, and that such a state provision is inconsistent with the provisions of the United States Constitution. A constitutional amendment would be required to give states the power to recall their members of Congress.

So no, we're stuck with Mark Begich until 2014. But even if we could launch a recall against him, the bar is correctly set high. AS 15.45.510 states that the grounds for recall are lack of fitness, incompetence, neglect of duties, or corruption. The burden of proof would be upon the petitioner. The growing Budgetgate scandal does not appear to have met any of the criteria yet.

And realistically, it doesn't hurt to have at least one lawmaker with the majority party in Congress. It compensates slightly for Begich's lack of seniority. Nevertheless, Mark Begich knows that if it wasn't for the Department of Justice, he would never have defeated Ted Stevens. The election would have been close, but Stevens would have been re-elected. Perhaps that explains Begich's defensive posture.


  1. May I please have permission to post this on

  2. It looks like we can recall Begich.