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Reiding Mr. Burris Out of the Senate

By Isaac MacMillen

It's official—Senate Majority Leader Harry Reid (D-NV) has rejected embattled Illinois Governor Rod Blagojevich's choice for the U.S. Senate. Roland Burris, selected to fill out the remaining two years left in President-elect Barack Obama's Senate term, was informed that he does not have the proper credentials to serve in the Senate. Mr. Burris is now consulting with his lawyers to determine his next course of action.

The legal question surrounding the rejection is whether the Senate has the authority to reject members it deems unqualified. While the Senate has engaged in expulsion proceedings against its members, none have been expelled since the Civil War, although senators convicted since then have chosen to leave office rather than face threatened expulsion. And not since the 1970's has the Senate refused to seat an aspiring member.

Senator Reid maintains that Mr. Burris must meet the requirements specified in Senate Rule 2. The rule states that the state's governor and secretary of state must both sign the “Certificate of Appointment.” In the case of Mr. Burris, the Illinois secretary of state has refused to sign the certificate, citing the ethical cloud of corruption charges surrounding the governor.

Supporters of Reid would point to Article I, Section 5 of the Constitution for justification. The first two paragraphs state:

“Section 5. Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.

“Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.”

The key word to define here is “qualifications.” Do they include extra-constitutional requirements (such as the exact following of the Senate's Rule 2, mandating the secretary of state's signature)? Or are they limited to judging constitutional qualifications only (age, citizenship, residency)? Mr. Reid appears to be staking his position on the first definition; Mr. Burris, on the second.

The options facing Mr. Burris and his attorneys include filing suit against the Illinois secretary of state (which he appears to have done), or against the Senate—or to negotiate a deal with Senate Democrats. Burris mentioned earlier in December that, if appointed, he would not seek re-election. Such a deal might satisfy those who publicly worry about him being tainted by the Blagojevich scandal—and who privately worry about his re-election against a Republican candidate.

If Mr. Burris chooses to sue the U.S. Senate, he may have precedent on his side. The Supreme Court took up a similar issue in the case of Powell vs. McCormack, in which a representative was barred from taking his seat in the House due to corruption charges. In its decision, the court stated that the Congress is not legally allowed “a discretionary power to deny membership by a majority vote.” Senator Reid has not brought up the matter to a vote, instead relying on the secretary of the senate, who refused to approve Mr. Burris' membership. If a majority vote was not enough to convince the court, then surely the lone actions of the secretary of the senate will not pass muster.

Ultimately, as ALG News previously reported, Mr. Burris has been legally appointed to the U.S. Senate in accordance with Illinois law. But, that's an inconvenient truth Mr. Reid seems intent upon ignoring.

And the Seventeenth Amendment to the Constitution is fairly clear that “When vacancies happen in the representation of any State in the Senate… the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”  And that is exactly what the Governor did, following the applicable Illinois law that gave him the power to make the appointment.

So, the only question remaining is whether a deal will be reached before the courts decide if the extra-constitutional requirements Senate Democrats are using to bar Mr. Burris are enough to nullify the appointment. Either way, it's an embarrassing mishmash. All of which makes one wonder if, perhaps, the Founding Fathers didn't know what they were doing when they left Senate appointments up to popularly-elected state legislatures in the first place. But, then, we know how the Democrats feel about “original intent.”

Isaac MacMillen is a contributing editor of ALG News Bureau.


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