Rod Blagojevich has appointed (former state attorney general and first African American to win statewide office in Illinois) Roland Burris to fill Obama's Senate seat. Why? My guess is that Blago finds himself with impeachment looming and no bargaining power. Everyone was telling him not to make the appointment, but since they weren't offering any incentive, bleep them.
Harry Reid is saying that the Senate will refuse to seat any Blagojevich appointment on the grounds that the appointment will be tainted. Can the Senate do that? Maybe not. The Constitution says this:
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 Behaviour, and, with the Concurrence of two thirds, expel a Member (Art 1, Sec. 5).
But here's the problem: it looks as though a member can only be expelled or excluded (not seated) for something that person has done. Whatever the Governor is guilty of, there is no reason to suspect Mr. Burris of any wrong; so the Senate would have to rely on the first highlighted passage above. It would seem that Senator Reid is proposing to exclude Burris on the grounds that Blagojevich's taint renders his any appointment unqualified. Or something like that.
But on that ground, there is Supreme Court precedent, and it doesn't look good for Reid. See the Volokh Conspiracy. In Powell v. McCormack (1969), the Court ruled that
in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution.
It will be difficult, I expect, for the Senate to show that Burris is not at least thirty years old (he's 71), or that he is not an inhabitant of Illinois. That makes it very problematic for the Senate to refuse to seat Mr. Burris. Eugene Volokh thinks that the exclusion is bound to fail.
It seems to me that there is a ray of hope for Reid. The Court in Powell relied heavily on the Constitutional Conventions debates, and in turn on the principle of democracy:
Had the intent of the Framers emerged from these materials with less clarity, we would nevertheless have been compelled to resolve any ambiguity in favor of a narrow construction of the scope of Congress' power to exclude members-elect. A fundamental principle of our representative democracy is, in Hamilton's words, "that the people should choose whom they please to govern them." 2 Elliot's Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel.
So the Court limited the exclusion power of the House of Representatives (and by implication, that of the Senate) in order to protect the power of the voters to choose whom they please. But Adam Clayton Powell, Jr., was elected by the people of his district. Burris is a vacancy appointment by a governor, and so a large part of the force behind the original decision is removed. That would give the current Court a way to go if it decides to back up the Senate Democrats.
It seems clear to me that the best option would be a special election. That would let the people decided, and besides, they might decide on a Republican. But it seems to me the case for excluding Burris is weak, and largely the product of hysteria combined with the desire of the Democrats not to be tainted by the Illinois scandal. It may be that Reid is putting principle over political interest, or that he wishes to appear to be doing that but is counting on the Court to stop him. Take your pick.
I expect Burris will be seated. I also expect that, due to his age and other factors, he will not be candidate for reelection. The people of Illinois will have their say soon enough. But this is a four star boondoggle, soon perhaps to be playing before the nation's highest court. You can't buy this kind of entertainment, except from a governor of Illinois. Blagojevich reminds me of the William H. Macy character in Fargo. Slimy and incompetent in equal proportions, and capable of digging himself into a hole so deep and wide that a lot of other people fall into it. God bless, you, Governor Blagojevich. For political junkies like me, you are the gift that keeps on giving.
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