Harry Reid Just Got Put In Check

I think the answer is “no.” Roland Burris was appointed to the U.S. Senate today by embattled Illinois Governor Rod Blagojevich. How much he paid for this honor is yet to be determined (Blagojevich, alone of all the people paying attention, insists that he is innocent of any wrongdoing).

Burris himself seems to be a fine choice. His resume indicates a reasonable background of governmental and political service and substantial intellectual ability. He has been practicing law for a long time, won election to and served without significant incident as Illinois’ Attorney General for four years, and ran for U.S. Senate in the 1990’s, coming in second in the Democratic primary to Paul Simon.

But this doesn’t matter. What matters is that Democrats need to squash the taint of corruption like an obnoxious bug, which means hammering down, hard, on Blagojevich and anyone associated with him. So Blagojevich could nominate Jesus Christ or Mahatma Gandhi or Abraham Lincoln for the post, and Harry Reid would still refuse to seat him.

Or, at least, he will try. The Constitution appears to give the Senate the power to deny a seat to anyone who shows up claiming to have been elected or appointed to that body. Article I, Section 5 says that “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members … and, with the Concurrence of two-thirds, expel a Member.” No limitations or criteria for judging or expelling the Member is included in the Constitution. So it would seem that the Senate can, by a majority vote, decide that Burris is not a validly-appointed Senator and refuse to admit him to within their number.

But wait. Consider the case of Powell v. McCormack (1969) 395 U.S. 486. Adam Clayton Powell, Jr. was re-elected to the House of Representatives from the 18th Congressional District of New York in the election of 1966. But it turned out that in a previous term, Congressman Powell and a lot of his staffers had submitted transparently and grossly inflated travel reimbursement vouchers. When Congressmen tell you that your expense report is obviously padded and you look like you’re suckling from the public teat in a way that embarrasses the whole institution, well, you are.

After deliberating on the issue for a while, the House refused to seat Powell. Importantly, the vote to exclude him from initiating membership in that Congress was 307 in favor and 116 against, more than the two-thirds requirement that would have been necessary to expel Powell had he been seated. However, Speaker McCormack had ruled, while presiding over the debate, that a majority vote would have been sufficient to pass the resolution to refuse to seat Powell. McCormack’s claim in 1966 is the same claim being advanced today by Senator Reid with respect to his resistance to seating Senator-Designate Burris.

So ultimately, the question became whether the Court could intervene in this decision at all — that is, whether or not the Court could properly issue an order saying, “Seat the man, he was elected,” or if the Court was required to say, “Congress, you have to tend your own house as you see fit.”

The Court undertook a detailed analysis of the minutes of the Constitutional Convention concerning this subject and found that “the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the “indisputable right [of the people] to return whom they thought proper” to the legislature.”

Then, the Court looked at the case of William McCreery, who had been elected to the House from Maryland in 1808, when a lot of the Framers were still serving in Congress. Despite the fact that he did not meet the eligibility requirements of Maryland law (that he have been a resident of Maryland for at least seven years before being elected), he did win his election; his opponent complained that McCreery shouldn’t even have been on the ballot and asked the House to invalidate the certificate of election. But the House confined itself to analyzing whether McCreery met the standard required of him by the Federal Constitution, ignoring the Maryland law’s 7-year residency requirement. McCreery was over 25 years of age, a citizen of the United States, and a current resident of Maryland, so he got seated.

This led the Powell Court to rule that Congress’ only valid inquiry as to whether Powell could be seated or not was to determine that Powell was indeed over 25 years of age, a citizen of the United States, and a resident of the state of New York. The House could be the final judge of that, but since all the parties agreed that he was, the Court ruled that Powell was entitled to his seat:

… analysis of the “textual commitment” under Art. I, § 5 (see Part VI, B(1)), has demonstrated that, in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.

Now, there is no doubt that Senator-Designate Burris meets the Constitutional standards set forth in Article I, § 3 for eligibility to membership in the Senate. Rod Blagojevich is, as of this moment, the Governor of Illinois — he might soon be impeached and removed from office, but that hasn’t happened yet. There is a vacancy in Illinois’ Senate delegation caused by the elevation of Illinois’ junior Senator to the Presidency; Barack Obama cannot hold both offices at once. The Seventeenth Amendment to the Constitution provides that a state may authorize a Governor to make temporary appointments to the Senate until the next election cycle rolls around and a special election can be held, and Illinois (like most if not all of the States) has indeed passed such a law and failed to repeal it in the face of the Blagojevich scandal. So Powell makes very clear that Blagojevich’s appointment of Burris compels the Senate to seat him. Q.E.D.

That means that Reid has no option but to seat Burris, and then if he wants to make his point, he needs to muster sixty-five other votes to expel Burris after seating him — and as noted above, there is no evidence that Burris himself is complicit in Blagojevich’s corruption and he seems to be otherwise well-qualified for the position.

Blagojevich may well be a corrupt bastard. He might wind up with a new career in road sign manufacturing. He is apparently an arrogant bastard, too. But he is the Governor of Illinois and he appears to have pulled off a fait accompli. Congratulations, Senator-Designate Burris. And good luck facing the voters of Illinois in 2010.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.