Thursday, January 1, 2009

Can the Senate Refuse to Seat Burris?
Mike Rappaport

Akhil Amar and Josh Chafetz have an essay out in Slate arguing that the Senate has the power to exclude Roland Burris from a Senate seat.  Eugene Volokh and Brian Kalt disagree.   

Amar and Chafetz argue that if the Senate concludes that Burris was selected through a corrupt appointment process, it is perfectly permissible for it to exclude him, analogizing the process as one produced through bribery.  This is an interesting argument.  They seem to be right that if the appointment was made through bribery, the Senate could choose not to seat the appointee.  The Senate is, after all, made the "the Judge of the Elections, Returns, and Qualifications of its own members." 

In this area, one must distinguish between who gets to decide and what the Constitution requires of the decisionmaker.  At least as a matter of original meaning,there is a strong argument that the Senate gets to decide whether the appointment here was legitimate, since it probably falls under the judging elections clause.  It is possible that the Supreme Court would review the Senate's decision here -- whether that is contemplated by the original meaning or not -- although my guess is that the Court would at least confer substantial deference on the Senate. 

A separate question is whether the Senate would be correct to refuse to sit Burris under the theory that Amar and Chafetz propose.  Here, I have my doubts.  It is true that Blagojevich's initial selections were influenced by bribery and corruption, but those picks were not made.  There is no evidence that Blagojevisch's selection of Burris was tainted by those considerations.  While one might doubt Blagojevich's character in general, that is probably not a sufficient reason to refuse to recognize his pick.  Consider the following analogy.  Amar and Chafetz write:  "At the founding, Senators were elected by state legislatures. If the Senate believed that legislators in a given state had been bribed into voting for a particular candidate, the Senate could refuse to seat him."  That is true, but if the same state legislature produced another candidate, without any evidence of bribery, the Senate should not be allowed to refuse to seat him.  

Finally, one might wonder what would happen if the Senate excludes Burris and the case is taken to the courts.  Would the deference that the courts are likely to confer on the Senate be enough to allow the exclusion?  Hard to know.  But whatever the result, the Senate would have been wrong to have excluded Burris.

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Mike Rappaport


"... there is no evidence ..."

We've heard that before. If there were no cloud over the appointment process, lack of evidence would be enough. But there is a cloud of suspicion over the appointment process, so the bar is now higher. Lack of evidence is not enough.

Posted by: LarryD | Jan 2, 2009 6:23:07 AM

It is hard to say the appointment wasn't influenced by bribery. There may not have been a bribe to appoint Burris, but the choice of Burris was almost certainly influenced by the bribery allegations. He appointed someone who would be hard to accuse of offering a favor in return, precisely because he would otherwise be accused of getting a bribe.

Posted by: Nobody | Jan 2, 2009 6:54:17 AM

Blago had the authority to make the appointment per the 17th Amendment and Illinois statute, and Burris is qualified per the Constitution. Barring direct evidence of malfeasance for the particular appointment, it's a tough argument to sustain.

Elections? There was no election, so it can't be judged by the Senate. And Amar and Chafetz don't make that argument--they go to "returns," the report of the appointment. Once again, barring evidence of corruption in the particular appointment, not much to work with there but arbitrary deprivation of the legitimate 17th amendment and statutory authority of the guv. The sum of the relevant facts on "returns" would seem to be that Blago had the Constitutional and statutory authority to make the appointment, and did so.

The Illinois legislature could have stripped Blago of his appointment power for the seat by scheduling a special election. Indeed, they had a floor vote scheduled three weeks ago to do just that, and Illinois Dems cancelled the vote, perhaps out of fear that under the negative-publicity circumstances the GOP could snipe out the seat. But they did not, and the Blago appointment of Burris is legally solid and Constitutionally legitimate.

But let's assume they do in fact refuse to seat Burris without any direct evidence of malfeasance, and the courts uphold it. At that point there is nothing to stop any Senate majority faction from refusing to seat any OR ALL Senators from the other party on similarly shaky legal grounds. Sure would take care of that cloture problem, eh? Or suppose they just decide they don't like a particular state, and vote to not seat ANY Senator from that state...under the expansive reading offered by Amar and Chafetz that'd be perfectly legitimate.

The GOP is laughing itself silly over the spectacle of the Senate Dems sitting in the driver's seat with a bladder control problem, arguing over where to stop for Depends.

Posted by: Tully | Jan 2, 2009 7:55:31 AM

Without necessarily arguing it, it could be considered that Roland Burris would be unacceptable to the Senate on the basis of a conflict, or the appearance of a conflict of interest, in that Blagojevich could be construed to have received benefit(s) from Burris in the form of monetary campaign contributions, or, as is actually the case according to Tribune columnist and current best authority on the doings of the Cook County Machine John Kass, in the form of having entered a gubernatorial primary election for the specific purpose of draining off African-American votes to clear the way for Blagojevich's ultimate election.
Really, Illinois is a much bigger mess that non-local observers tend to appreciate.
Burris' record should not be presumed to be clean, either, especially in ethics violations (if not criminal ones). As yet another Machine operative, there is little reason to believe his past is unassailable. Time, and a bit of digging, should anyone besides Kass start it, will likely unearth more questionable activities.
And that, even before the notice being paid to his monument to himself in the Chicago cemetary where he plans on being buried.

Posted by: WPZ | Jan 2, 2009 9:23:27 AM

Article one does give each House the right to judge the 'Elections, returns, and qualifications of its members', but here, the examination is being applied to the Governor, who in Illinois has the statutory duty to appoint the senator in these cirumstances. Blagojevich is still the Governor; the state legislature has done nothing about that yet, and the federal authorities have not given them further reason to do anything. The beef here is between the Illinois delegation (Durbin, Obama) who would like their wishes respected, and the Governor, who absent any federal indictment or action by the Legislature, has the authority to do his job. What we have here is an inter-party feud spreading from Springfield/Chicago to Washigton. Mr. Burris is in no way the object of this mess.

Posted by: Dan W. | Jan 2, 2009 10:45:40 AM

Given the contortions of many seeking to impute new 'meaning' to parts of the Constitution, I find it difficult to keep from laughing when some of the same people are all of a sudden trying to hold the Senate to the 'original intent' of the Constitution (no aspersions to anyone here, I'm talking about various political operatives and pundits, mostly).

I mean, didn't Obama accept the idea the the 2nd Amendment actually meant citizens could be forbidden to own firearms? He supported DC right up until it lost its case. Why shouldn't he and others support an interpretation of the First Article that allows the majority right to refuse to seat anyone it doesn't like for any reason whatsoever?

And I agree with the above. What happens if SCOTUS supports Burris being seated and the Senate just ignores them, a la Andrew Jackson, the Court, and the Cherokee Indians? What's SCOTUS going to do? Make angry faces at the Senate?

I'm looking forward to several showdowns that will make very many turn their cards face up. It'll be interesting to see who is standing where when it comes to power and the Constitution.

P.S. as a long-time former IL resident who did some research related to the 1994 election in which Burris was a primary candidate for the Dem nomination for Governor, let me say that Burris is Steve Urkel without the annoying voice and laugh. Reasonably bright, non-threatening, over-confident in his own abilities, and relatively oblivious to reality. He's an empty suit long propped up by the Machine for its own purposes. Be interesting to know what the Machine thinks of this.

Posted by: JorgXMcKie | Jan 2, 2009 11:24:22 AM

Laurence Tribe argues that the Senate doesn't have to seat Burris: (

"It matters not that the criminal standard of proof beyond a reasonable doubt has not yet been met and might never be: The question for the Senate isn't whether the Illinois governor truly is a crook, but whether reasonable observers would deem the process too crooked to produce a credible result.

"The task of deciding whether public trust would be unacceptably compromised by seating any appointee of a governor whose overheard comments had poisoned the public well should not be confused with the task of deciding whether someone is guilty of election fraud or of corruptly conspiring to sell a public office for personal gain."

Posted by: LarryD | Jan 2, 2009 12:12:49 PM

Dear Mr. Rappoport: How seriously are we to take the Amar&Chafetz and Tribe bunkum? This seriously: when they begin howling that the Senate should refuse to seat Al Franken because of the corrupt practices involeve in his alleged election, and not before. These three clowns are merely sucking up to The One, hoping for a job later on. The real reason they bawl that Burris shouldn't be seated is straightforward: it only takes a simple majority to refuse to seat. Kicking Burris out takes two thirds. I stick with my earlier prediction: The One's administration is going to be the greatest, gaudiest show since US Grant's terms.

Final note: why not mention the proximate cause of all this, viz: The One's resigning his seat on 14 November. He didn't need to resign until 11:59 AM on 20 January. Even his hero Kennedy didn't resign until 22 December 1960. But his native instinct to pass the buck and dodge any possible hard votes on lame-duck bailout bills, combined with his laziness made him jump. Result: Big Rod starts lusting after appointment gold earlier than he otherwise would have. There's a good possibility that Fitzgerald's wiretaps would not have caught Big Rod at all. Even if they had, it would have been later, with more distance between The One and Big Rod.

Bring on the popcorn.

Sincerely yours,
Gregory Koster

Posted by: Gregory Koster | Jan 2, 2009 4:20:10 PM

Now read this! Reid is getting involved at a different level. He wants the appointment to be weighed by the possibility that the appointee could win in the next election for the Senate seat. No thought to the needs/desires/representative actions of the people of Illinois. Say then, just let Nevadans pick the appointee!
Go Harry!

Now it is perfectly clear why the democrats do not want to seat Burris. Let the blogsphere run with this.

Posted by: Mike Mahoney | Jan 3, 2009 12:38:44 PM