"Senator Burris"--get used to that sound

As anyone reading this no doubt knows, indicted Illinois Governor Rod Blagojevich appointed former Roland Burris to fill the Senate seat vacated by Obama after he was elected President. Burris himself seems unobjectionable, having had an honorable career in Illinois politics--serving as both Comptroller (1979-91) and Attorney General (1991-95).

The issue is with the Governor who appointed him, especially given that the charges against Blagojevich include endeavoring to cash in his power to appoint a replacement for Obama. The Democratic leadership in the Senate has vowed to block the Burris selection for that reason, citing its ability under Article I, Section V of the Constitution that states that "Each House shall be the judge of the elections, returns and qualifications of its own members" As legal experts have pointed out, the Supreme Court case of Powell v. McCormack, 390 U.S. 486 (1969) would seem to make the exercise of that power inapplicable in this case.

That case centered on the reelection of Adam Clayton Powell, Jr. to the House in 1966. He had been a committee chairman in the 89th Congress and had been accused of misrepresenting travel expenses and ordering illegal salary payments to his wife. When the 90th Congress convened in 1967, it voted to deny Powell his seat. A lawsuit was brought against the House and some of its officers by Powell and 13 voters of his Congressional district which went up to the Supreme Court which held, in an 8-1 decision, that the clause regarding qualifications was limited to the constitutional qualifications regarding age, citizenship and residence. The opinion, written by Chief Justice Warren, placed great emphasis on the importance in a republic of the electorate getting to chose its own representation.

This would seem to preclude Reid acting on his threat to not seat Burris, has being appointed by an indicted governor doesn't fall with the eligibility requirements. However, Reid is taking the position that the appointment itself is tainted by fraud. This would tie into the "elections" and "returns" part of Art. I, Sec. 5 and not the qualifications part. One should note that the grounds used against Powell concerned his actions in the House, not his actions as a candidate. This would seem to flank Powell v. McCormack. One example of this was the reelection of Theodore Bilbo to the Senate in 1946. The majority (of the opposite party, incidentally) move to not seat him on the grounds that he had incited violence against black voters and had taken bribes. Bilbo died before the matter was resolved. An earlier example was in 1927 in William Vare had been elected to the Senate from Pennsylvania. The Senate refused to seat him on the grounds of fraud committed by him in both the primary and the general election.

In both cases, it was the Senator-elect who had been guilty of corrupt practices. In this case, the taint is on the Governor who appointed him. Unless the Senate can find some evidence of a corrupt bargain in which Burris was involved, it's hard to see how the Bilbo and Vare cases are of precedential value. However, reports discussing the people to whom Blagojevich was referring to during the wiretapped conversations don't mention Burris. The Constitution, in specifying what Congress can judge in seating its members, has limited the latter's discretion to what would appear to be corruption in the election process itself.

The other issue is that Art. I, Sec. 5 talks about the Senate judging elections and returns, not appointments. Although this seems like a technical quibble, the fact is that, although there can often be disputes about who won an election, the recipient of an appointment is going to be obvious. On the other hand, this clause was part of the original Constitution, which had state legislatures elected Senators so the clause would seem to cover selections by the political branches of the state. Further, such judgments aren't just a question of who won but of the validity of the votes cast, so there is still a corruption issue.

Given all that, it doesn't seem that Reid has sufficient grounds to bar Burris. But he can certainly stall things for a bit. The Illinois law that covers this issue, 10 ILCS 5/Art. 25, Sec. 8, requires that Burris run in 2010 and again in 2012. He has a weak track record in running for higher office, having lost Democratic primaries for Governor in 1994, 1998 and 2002 and Mayor of Chicago in 1995. Further, he would be 73 when the first election took place, making his age a factor. If Burris insists on taking the seat, nothing prevents someone like, Jesse Jackson, Jr. from running against him in a primary, with the support of the Democratic Senatorial Campaign Committee. With a primary challenge facing him and his attempt to sit in the Senate hanging fire in the courts, he may decide that it's too much trouble and withdraw, allowing Blagojevich's successor to make an appointment.