Blagojevich vs. the Senate

Understanding the Constitution sometimes is like interpreting the Talmud. Two scholarly readings bring forth three opinions. Article I, Section 5, of the Constitution is rather straightforward: "Each House shall be the judge of the Elections, Returns and Qualification of its own Members. ..." The rest of the sentence involves quorums and adjournment definitions, while other parts of the section involve the right of each house to make its own rules, including punishments of its members, and the keeping of journals. These clauses are rich in history, deeply rooted as they are in parliamentary experience from Tudor and Stuart days, and are essential to the whole doctrine of separation of powers in the American Constitution.

Small, obscure passages in the Constitution occasionally emerge and contribute to contemporary political disputes and their resolution. On Dec. 30, embattled Gov. Rod Blagojevich of Illinois, who allegedly tried to auction off Barack Obama's vacated Senate seat to the highest bidder, announced that he was nominating Roland Burris, a locally known, undistinguished African-American politician, to take that seat when the new Congress convened. Senate Democrats have drawn a line in the sand, and they promise to reject any Blagojevich nominee, fearing the taint of corruption.

Meanwhile, the governor has proclaimed his absolute right to name a senator, and he disingenuously has wrapped himself in support from African-American leaders who would justifiably like to see more than zero African-Americans in the Senate. Still, Blagojevich's veil of spite and cynicism is all too transparent.

Most historical examples of Congress' right to judge the qualifications of its members clearly give the argument to the Senate Democrats. During Reconstruction, after the Civil War, President Andrew Johnson insisted that he had the power to readmit the seceded states, while Congress insisted on its own power in the development of policy. Eventually, the dispute boiled down to a simple, practical issue of Congress' constitutional right to determine the qualification of its members.

After the war, Southern states, believing that they had the unquestionable right to return to the Union--as if secession had never happened--elected numerous former Confederate officials, including the vice president of the defunct Confederacy, to represent them in the postwar Congress. The congressional Republicans refused to seat these new members, in effect saying they were not fit to serve. Reconstruction ran a meandering course, but the power of Congress to determine the seating of its own members never was repudiated. Some argued that Congress had abused its power, but abuse of a properly endowed power is no argument against its existence.

In 1918, Milwaukee voters elected Socialist Victor Berger to the House of Representatives, which promptly denied Berger his seat. In that era of the "Red Scare," the New York Assembly similarly refused to seat five duly elected Socialists. Berger had actively opposed American participation in World War I, earning the enmity of the Wilson administration and a federal indictment under the Espionage Act. Berger was convicted in February 1919, and trial Judge Kenesaw Mountain Landis sentenced him to 20 years in prison. The U.S. Supreme Court, however, overturned the conviction in 1921 on the ground that Landis had been blatantly prejudiced.

Berger's 1918 election came while he was under indictment. After his conviction, the House determined him unfit to serve. In December of that year, Wisconsin held a special election and Berger won again. And again the House refused to seat him. The seat remained vacant until the nation returned to "normalcy," and Berger lost to a Republican.

The Supreme Court's 1969 decision, restoring Adam Clayton Powell to his House membership, is regarded by some as the court's modern, authoritative interpretation of Article I, Section 5. Powell had won plaudits for his skillful shepherding of labor and education legislation, but allegations surfaced in the mid-1960s that he had misappropriated committee funds for his personal use. The Democratic Caucus stripped him of his committee chairmanship, and the full House voted in March 1967 to deny him his seat. Powell won a special election in April but did not return to Congress. Instead, he sued, and in June 1969 the Supreme Court ruled that the House had acted unconstitutionally. The ruling interpreted the constitutional clause to mean that qualification for membership simply was confined to age, citizenship and residency.

Powell v. McCormack is the Supreme Court's only interpretation of the qualification clause. The intervention was not timely, coming more than two years after Powell had been excluded. It was unprecedented and unsupported by the constitutional clause. The decision simply ignored both the history and purpose of that clause. The constitutional proviso is there precisely so Congress is not forced to accept politically rigged, perhaps corrupt, choices. The court's judgment does not wipe out constitutional history. The examples of congressional autonomy and power are clear, important precedents for our history.

Chicago Tribune columnist Steve Chapman described Burris as a man who has left few impressions, save for a 12-year stint as state comptroller and numerous electoral defeats when he sought higher office. When the Blagojevich scandal broke, Burris described the governor's behavior as "appalling," but after his selection to the Senate, Burris simply said that "I have no comment on what the governor's circumstance is." During his years in public office, no prosecutor found grounds to indict Burris, which is, Chapman drily noted, "not something Illinois voters take for granted."

In this contest of wills--the governor's rightful authority to appoint a senator as opposed to the Senate's power to judge the qualification of its members--the last word simply belongs to the Senate. Will it stand by its line in the sand? If Senate Democrats hope to launch Obama's initiatives quickly, with fewer than 60 Senate seats on the Democratic side, they may need every vote they can get and need them right away. Seating Burris would mean that the Democrats would have to endure suspicion (however ill-founded) that he was tainted with the mark of corruption. Will constitutional principle or expediency prevail? Alas, expediency is the law of life in politics.

Stanley Kutler is the author of "The Wars of Watergate" and other writings.

Comments

[freddiefranks]

Very informative, thank you! I admit I know very little about this topic, but it's very interesting, and I didn't sense any bias (only an opinion) in your article. Nowadays that's really hard to find. People seem to want to convince others first, by any means, and then work out the facts.

[aepelbaum]

I am wondering why my comments are disappearing. Reid has no rights to deny Illinois lawful choice for Obama's replacement. He is violating the constitution this way. Majority leader of the senate can not be allowed to do it.

[freddiefranks]

Obviously you haven't read this article at all. The whole thing is about explaining why the Senate DOES have Constitutional grounds for investigating and (potentially) denying Burris the seat. I doubt they will: "Expediency is the law of the land", but they can.

[aepelbaum]

What is worse: Blagoevich attempt to sell former Obama's senate seat or Reid attempt to force his choice of such replacement on Blagoevich and the refusal to accept Blagoevich's choice, as it is not his(Reid's) choice? If Blagoevich should be indicted for his behavior, Reid should be indicted also. Is not it so? I am sure that it is. Besides, Reid is openly violating constitution now, is he not?

[freddiefranks]

That would be valid if Reid was actively proposing another candidate (whom he has no right to appoint), or even looking for ways to appoint said candidate. He isn't. He simply doesn't want Burris. At least not very much, and I can see why. He isn't breaking any laws.

[aepelbaum]

The behavior of Reid is outrages. Yes, he is not Obama's staff, but he is no dictator either. So, he HAS NO LEGAL RIGHTS TO DENY THE SEAT TO THE LAWFULLY APPOINTED JUNIOR SENATOR. FROM ILLINOIS. If he does not understand and see it clearly, he simply can not be the senate majority leader. Without the basic notion of what democracy is about he can not occupy such leading position. PBS news yesterday informed that Reid didn not accept Burris only because his (Burris') credentials lack the signature of Illinois Secretary of State-Jessy White. Burris is lawfully appointed and his candidacy fits all required criteria. So, White should be obliged to submit his signature, or asked to resign, if he does not want to follow laws and his duties in this case. He was sworn to uphold the laws of Illinois. If he does not want to do it, he simply must go.

[bettybp]

I wonder if the refusal to seat Burris yesterday was just another Token stand taken by Reid & Co. and that after that little whiff of backbone, they'll simply back down and say, well, OK, as they've done in many instances where they should have stood up to demands that make no sense at all - like letting Blago go ahead and appoint a senator while under investigation for something as reprehensible as selling a senate seat.
Where is common sense in all these whirlwinds of nonsense?

[freddiefranks]

In short: Reid is not exactly known for backbone. I doubt he has the political equivalent of cartilage, to be honest.

No wonder Democrats were afraid that Obama'd be timid (as Kerry had been - we saw how that went). It's a staple in high-level Democratic politics. Both houses of Congress need new leaders.

[billw8017]

This is what I like about the Huffington Post: a nice objective article that covers the ground. The comments are also very interesting. I thought the reference to Amendment 14.3 showed background knowledge.

I think Reid is making a mistake. As pointed out here, Blagojevich has not been indited, and Fitzgerald has, himself, to carry a little of the shame of the politicized US Attorneys because he was NOT one of those fired. Leaking evidence as he did is a classic example of trial by publicity, and you must wonder what he does have. Reid didn't have to do anything; he should just call and make Fitzgerald show his hand, soon enough then to act in perfect justice.

[carnelld]

There are some basic fundamental questions that should be answered. If Reid and the Democratic Senate leadership can deny a Senator appointed by a Governor, to determine his fitness, what will happen when the Republicans get a majority. They play hard ball. They could hold up the credentialing process on any Senator (appointed or elected) to determine the fitness of the Senator. They might send the Senator's situation to the Rules Committe for further study. Just the idea of Saxby Chambliss(Georgia), John Mcain, Richard Shelby(Alabama), et al, making the decisions as to who is suitable for the Senate is a disturbing proposition.
This is a slippery slope. Regardless of what happens, I think the courts should clarify this situation before the Republicans get back in the majority. Clearly, leadership is needed. Fienstein is correct. Maybe it is better that all the Democrats don't just go along to get along. Obama made a mistake agreeing with the Senate leadership. He is attempting to be a team player, but look at his team. With Reid, Durbin, Emanuelle, Barney Frank(House of Representatives), etc who will give good sound advice.

[bettybp]

Food for thought... If we had what England has, Blago, Bush & Cheney, plus many many more would have been gone long ago with a simple vote of No Confidence...

[eden4barack08]

Here's a question on the Illinois State Constitution :

SECTION 9. GOVERNOR - APPOINTING POWER
(a) The Governor shall nominate and, by and with the
advice and consent of the Senate, a majority of the members
elected concurring by record vote, shall appoint all officers
whose election or appointment is not otherwise provided for.

http://www.ilga.gov/commission/lrb/con5.htm

Doesn't that clearly state that the appointment must also have the "advice and consent of the Senate.."? Would that mean the IL state Senate, and if so, I don't remember Blago getting that "advice and consent". So what's up, am I reading this wrong? Why is everybody just mentioning the governor as having sole power of this appointment with no need for further scrutiny or approval by other members of the state of IL, prior to even getting to the Capitol Senate?

[Freedomscap]

Because I read that to mean, that the governor is given the appointment power, and that the Illnois Senate agree to give him, the governor, that appointment power.

[THINKB4USPEAK]

In St Louis, one of our more tenacious investigative reporterstracked the Ill gov down to ask him about his use of a private (though taxpayer financed) jet. B-dog came across as evasive and arrogant. I see nothing different today. This guy is just a repug-in dem's-clothing, trying to sabotague the Obama term before it even begins. Expect to see more ploys like this. It's like the fall of the Roman Empire, with the
senate endlessly debating trivialities as the empire collapses around them.

[dugi]

Kutler's argument about the refusal to seat confederates after the civil war might be compelling if it were not for section 3 of the 14th amendment which establishes a specific qualification addressing that situation (a qualification that is overlooked by the other bloggers who cite the qualifications to be a Senator).

[akababs]

Illinois needs a senator in congress, it does not necessarily need a black senator and more specifically, it does not need this black man as senator.

[gobeavs]

You gotta love this,blood sport politics, this is the way it always has been, just never been so public before.
Blogo was genius when he made this pick, look what a fire storm it has set off.
Woohoo, now it is getting fun

[Appleton]

To state that the decision in Powell v. McCormack "did not wipe out constitutional history" is to say nothing at all. Neither did abolishing slavery nor granting women the right to vote. Instead, appropriate amendments were adopted and ratified to override constitutional history.

The Seventeenth Amendment provided for the election of senators by popular vote and gave the states the power to authorize their governors to make appointments to fill unexpired terms. One of its purposes was to eliminate the evils inherent in a system in which politicians serving at one level of government chose politicians to serve at another level of government. The Court in the Powell case emphasized the importance of direct elections by narrowly construing Congress' authority to pass upon the qualifications of its members.

The efforts of the Senate in the Burris case ignore the constitution and the Powell decision. Contrary to Sen. Reid's opinion, there is no "institutional prerogative" permitting the imposition of extra-constitutional criteria for membership in the club. As a Democrat, I strongly oppose any efforts to ignore the rule of law, whether they originate in the legislative or executive branch. Have we learned nothing from the past eight years?

[cmrced]

According to the Powell decision, the Congress does not have the authority to judge the qualifications of a duly elected or appointed member beyond whether that member meets the minimum qualifications set out in the Constitution. And even if the Congress did have that authority, what qualifications does Roland Burris not have? Everyone acknowledges his competance and integrity and having been elected three times as State Controller and once as Attorney General certainly qualifies him as sufficiently "distinguished." Even the process by which he was appointed is not tainted because Blaogojevich did not sell the Senate seat or benefit in any way from the appointment. The fact that he might have tried to do that if Patrick Fitzgerald hadn't had him arrested is irrelevant. It would be absurd if the Congress could overrule the wishes of the voters or a duly authorized public official. And the Supreme Court has said as much.

[NABNYC]

The premise of the article is that the Senate can reject Burris based on HIS qualifications, but no one has ever questioned his qualifications. He meets all the criteria for serving in the Senate. He is a U.S. citizen, of a certain age, not a felon. He wins and Harry and the Senators who are opposing him lose. And they also look like real jerks.

It is not the job of the Senate to dictate to Illinois how to resolve any state-level laws. The Illinois law says the governor picks the new Senator. The governor picked someone who meets all the criteria for service. The Senate has no grounds to attack Burris. They don't like the governor, but that's an entirely separate matter.

They are also are failing to recognize that the Boy Scout Prosecutor has not even filed an indictment yet. We have not even heard any facts to support charges against the governor beyond allegations that the governor used the Bleep word and Talked Trash. But nobody accused Burris of any crime or improper behavior.

Burris was legally appointed by a person authorized and directed to make the appointment. The Senate has no legal grounds to deny Burris his seat. http://NABNYC.blogspot.com