Senate Majority Leader Harry Reid has been saying all along that the Senate’s intent to block anyone appointed to the chamber by Gov. Blagojevich is not about the appointee, but about the process of the appointment by the accused gov.
If Blago appointee Roland Burris does get blocked (likely) and does pursue the Senate seat in court (also likely) a precedent will be set because a case like this has never come before the courts.
Larry at ArchPundit, traditional media like the Chicago Tribune, national political pubs like Politico, and many others are all referring to Powell vs. McCormack as a precedent, but that case really was different in several respects.
First, Rep. Adam Clayton Powell was an incumbent Congressman who had been reelected by his constituents in 1966 despite the allegations of corruption against him. There were no allegations of impropriety regarding the actual election process however.
Second, despite his election to the office, the House adopted HR 1 in 1967 refusing to seat Powell and, among other things, setting up a special investigative committee to look into the allegations against him. Speaker John McCormack presided over the chamber as HR 278 was passed later that year, accepting that special committee’s recommendation and again refusing to seat him.
Third, HR 1 passed by 363 to 65 (well above a 2/3rds majority) to exclude him and form the select committee but HR 278 to confirm the committee’s findings and have him excluded and declare his seat vacant passed by only a simple majority (307 to 116).
The key factors in my non-lawyerly opinion (maybe actual lawyer Team America will stop by) are:
- Powell was elected by the people, in an election apparently free from any improprieties
- The House voted to exclude Powell, first temporarily (which passed by more than 2/3rds) and second permanently (by less than 2/3rds). They did note vote to expel him.
There is some gray area here so that is why a precedent will be set if it goes that far.
Article I, Section 5 of the Constitution says each chamber of the legislature is the sole judge of elections, the sole definer of rules for governing itself. It also says that each chamber has the ability to expel a member upon the vote of a 2/3rds supermajority.
Roland Burris has been appointed, not elected. Though it does clearly state the Senate is the judge over the integrity of elections for its members, the Constitution does not state anything about the Senate being the judge of an appointment process to fill an open seat.
The court will need to define whether or not the Senate has the power to judge the integrity of an appointment process as well as the Constitutionally-defined power to judge the election process.
Also, Majority Leader Reid has so far advocated excluding anyone – no matter their qualifications as an individual – appointed by Gov. Blagojevich due to the nature of the allegations against him (in part, that he tried to extort Senate hopefuls who sought his appointment).
The exclusion aspect – not even allowing someone in the proverbial front door – may be a sticking point. Again, the Constitution does not specifically say anything about excluding someone who is otherwise nominally eligible for the office.
The Supreme Court did say in the Powell case that the legislature may not “exclude” anyone who is otherwise qualified under the Constitution’s provisions (for the Senate, a US citizen over the age of 30 which Burris certainly fulfills). But the decision also specifically cites the lack of a 2/3rds majority in the HR 278 vote for said exclusion.
It’s quite likely that more than 2/3rds of the Senate would vote to exclude Burris. And, if the courts force the Senate to accept him because he is “qualified” under the Constitution, the Senate may then opt to expel him which is very clearly allowed under the Constitution (the Constitution does not require that a rationale for expulsion be given by the supermajority voting to expel a member).
Bottom line, there seems to be enough gray area here for Reid to make a good argument that the Senate has the right to exclude an appointee because the appointment process itself was improper and lacked integrity. Further, if Reid can achieve a 2/3rds supermajority for such a move it bolsters his argument for setting such a precedent.
However, if he wants to be extra sure to make it stick he should put a super-majority together to just expel (rather than exclude) any Blagojevich appointee from the 111th Congress outright.
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December 31, 2008 at 6:06 pm
Dave
The dems are in deep do do. when Hot Rod was first arrested the dems were unanimously saying that we needed a special election, then as time went on and the dems realized that they could lose the seat and shelved the idea, only to have Blagocrook appoint a tainted senator. Burris has given Blago $20,000 for his campaign coffers and has also recieved almost $300,000 in state contracts for his company…..sure sounds like pay to play to me. Of course it’s not the 1.5 mil that JJ Jr. was going to pay for the seat but it’s still 20 grand.
Now you have Blago saying that he had to appoint Burris because of the dems dragging their feet on the special election legislation. This has given the dems a black eye, and i’m pretty sure when this circus is finally over all of this mess will still be fresh in everyones minds.
Ps: I makes me chuckle when i think about Rods campaign commercial that showed Topinka dancing with Ryan, I can only imagine what the Republicans commercials are going to be like in 2010
January 1, 2009 at 11:46 am
robnesvacil
True enough Dave.
But, again, remember that the GOP never really distanced themselves from Ryan other than a few slaps on the wrist and some generic pooh-poohing. Heck, a lot of conservative partisans were more upset with his leniency on death row inmates than his own pay-to-play BS.
Unilke the Ryan scenario, it is the Dems who are now leading the charge to impeach Blago and get rid of him. It may not completely absolve the party in everyone’s minds (if you ask me, Emil Jones has as much to do with why Blago survived as long as he did in that office).
Besides, Hynes and Giannoulias, and L-Madigan to a degree, have been operating against Blago for years now. And historically GOP primaries in this state have been very fractured as hard-line conservatives butt up against moderates.
2010 will be a mess for sure — both in the races for Governor and Senator.
January 2, 2009 at 5:50 pm
Dave
I think Ryans situation is completely different than Blagos. Ryan decided not to run for another term and at that time there were only investigations swirling around him (the feds have been investigating Rod for 5 years) and by the time Ryan was actually indicted, he was already gone as govenor.
In this case we have a sitting govenor that has been arrested, is going to be indicted shortly and refuses to step down. Not only that but Rod is giving the middle finger to all the politicians, president elect, and everyone else that has called for him to resign. Now we have this tainted senate appointment to deal with and the dem senators refusing to seat Burris, i just keep wondering what will Blago do next?
Hopefully the legislature can spped up the impeachment process and get this madman out of the govenors chair before he inflics more dammage on the state.
January 2, 2009 at 7:50 pm
robnesvacil
Yes, yes.
Demanding that people make political donations in order to get what they want out of a politician is completely different than demanding that people make political donations in order to get what they want out of a politician.
The only difference is that Ryan isn’t nearly as delusional as Blago who still thinks he’s running for president in 2016…
January 4, 2009 at 2:57 pm
Atoning Unifex
It will be interesting to see what Reid does. It seems clear to me that depsite his desire otherwise, Jesse White will be forced to sign off on the appointment (will probably go to IL Supreme Court).
This has become a racial issue (odd in our current post-racial Obama utopia). I think Reid might find less Senate Dems behind him than he now thinks.
I predict Burris spends at least 6 mos as our Senator. It won’t make much difference anywhere.
I am amused when people paint politics in this state as Democrat vs Republican. There is no effective Republican party in IL. Given the geographic-political gerrymandering in our state, politicians know they have to have a ‘D’ behind their name no matter what.
What we have in IL is a 3 party system. 2 camps of sometimes bickering Democrats and a vestigial Republican party.
I think our deranged governor might do us a real service in bringing down at least this crop of corrupt IL politicians.
January 5, 2009 at 11:09 am
45superman
I hope I can be forgiven for getting slightly off-topic here, because my comment is not so much about whether or not the Senate can block the Burris appointment (I honestly have no clue how that will turn out), but about how unsuitable Burris is for any political office.
I refer to his hard push for the death penalty for a pretty clearly innocent man, presumably because he figured that a big, splashy case like that would help his gubernatorial campaign. In other words, he was apparently willing to kill an innocent man in furtherance of his political ambitions.
I certainly hope the Senate finds a way to block that S.O.B.
January 5, 2009 at 2:23 pm
robnesvacil
Super Kurt,
I agree on your comments about Burris’ record — I wasn’t as fully aware of his history until learning more the last few weeks. Then again, perennial GOP candidate Joe Burkett also had quite a lot to do with attempting to execute that same innocent man… and Burris was feeding off the DuPage State’s Attorney’s office.
But whether or not he himself is a good choice really is moot. The US Constitution says only that a Senator must be 35 years or older, a US citizen and a resident of the state they represent. That is the jist of what the Supreme Court’s Powell v McCormack decision states (that no other qualifications exist and none can be invented merely by a majority vote of a legislative chamber). There have been plenty of other SOBs elected and appointed to the Senate over the centuries.
The only options to deny someone a Senate seat are to either investigate and reject the integrity of an election or a “return” (1780s speak for “appointment”) through a majority vote or to expel a currently sitting member with a 2/3rds supermajority.
Regardless, I do believe the Senate ought to exercise its Constitutional right to investigate the propriety of an appointment and reject any such appointment made by Blagojevich due to the allegations against him. Then, we need to encourage the Illinois House and Illinois Senate to get their butts in gear and put the impeachment process on a fast-track so Quinn can appoint someone. (The state lege also ought to draft and pass a legislative approval bill so that any future appointments require an ok by the lege.)
January 5, 2009 at 2:35 pm
45superman
But whether or not he himself is a good choice really is moot.
In terms of whether or not the Senate can block him, I agree, and I tried to make that point. As I said, I hope they find a legitimate mechanism to keep him out, but I don’t know if they will.
January 6, 2009 at 12:01 pm
robnesvacil
We’re saying the same thing in different ways.
Constitutionally, Burris himself is “qualified” because he is old enough, a US citizen and an Illinois resident. That’s why I say whether or not he’s “good” is moot. (And the Senate couldn’t judge his qualifications until he’s an actual member of the Senate anyway, sworn-in and all.)
Also Constitutionally, I believe the Senate has the right (Art. I, Sect. 5) to investigate the appointment process (neverminding who was appointed … I’m talking about the process). But from what I’ve read it’s a right that has never been tested and the the word “returns” is what is in dispute… Every case til now has dealt with people who were elected and/or the election process itself.
In the modern sense, “returns” is usually taken to mean election returns (the results of the voting – do the reported returns match up to the votes cast)… Several folks more knowledgeable than I about Constitutional law are arguing that in the 1780s the word “return” meant appointment — someone who was “returned” to an open seat. (That is why I don’t think the Powell case is very relevant. That case was about an elected member’s qualifications, not the election process that put him in office.)
It’d be interesting from the pure historical aspect to see this go to SCOTUS to set the precedent and define “returns” once and for all.
Here are the pertinent clauses from the Constitution:
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.
- Article I, Section 5
January 8, 2009 at 1:06 pm
Dave
Now that Obama has changed his mind on Burris (he now thinks he’s a great politician) And Reid and the Democrats who refused to seat a tainted apointee are ready to roll over and seat Burris, this little gem gets written today to show us just what a great and honest politician Burris really is.
http://www.chicagotribune.com/news/local/chi-burris-record-08-jan08,0,4656666.story
It makes me ill to know that this guy (who now we know is “connected” to the govenor) will be our next senator. This has really given the Dems a black eye.
P.S: I also think it’s rotten of Reid and his fellow senators to make Jesse White the fall guy on this, at least White is still sticking to his word and not rolling over to please these fools.
January 8, 2009 at 2:38 pm
robnesvacil
Dave,
When/where did Obama say he thinks Burris is great? Facts, buddy. Link to your refernce.
The only thing I’ve read is that Pres.-Elect Obama told Reid to take care of the mess because there are bigger problems our nation is facing; which is abundantly true.
I doubt Burris will make it past the primary in 2010… it’s been a long time since he’s won a primary for anything.
January 9, 2009 at 7:08 pm
You want defiant? Durbin suddenly gives us defiant (maybe) « Illinois Reason
[...] 5 means by each chamber of the legislature being the sole judge of “returns” — which I discussed previously. [...]