The Rule of Law, Not the Rule of Men

Why the Senate should seat Burris

Steve Chapman | January 5, 2009

One of the axioms of American democracy is that we are a government of laws, not of men. We are supposed to follow the requirements of our Constitution and statutes even when they yield results we don't like—say, freeing a person who appears guilty. We are about to find out if Democrats in the U.S. Senate want to follow the rule of law or indulge their own preferences.

The dilemma arises because of Illinois Gov. Rod Blagojevich's decision to appoint a replacement, Roland Burris, for the seat left vacant by President-elect Barack Obama. I have no desire to be represented in Washington by Roland Burris, but then, I have no desire to be represented in Springfield by Blagojevich. The truth, though, is that both were chosen by legitimate, democratic procedures, and until they are removed by legitimate, democratic procedures, we—and the Senate—have an obligation to put up with them.

Given his pending indictment and impeachment, it took a lot of gall for the governor to act. But the facts remain: He is the governor, and state law confers on him the unchecked authority (and, by implication, the responsibility) to fill a vacant U.S. Senate seat when the term has less than two years to run.

The Illinois General Assembly could have acted years ago to require special elections in such circumstances, or it could have acted last month. But it didn't. Which means Blagojevich has every bit as much right to name a successor as he does to veto legislation, administer the budget, and sleep in the governor's mansion.

Democratic senators find these facts inconvenient. So, in a show of unity, they say they will refuse to let Burris take his seat. In the event he shows up on Capitol Hill to begin his new job, The Chicago Tribune has reported, "armed police officers stand ready to bar him from the Senate floor."

The senators insist they may shut the door to Burris because the U.S. Constitution says, "Each house shall be the judge of the elections, returns and qualifications of its own members." But that doesn't mean the right to exclude anyone they wish. If it did, a Democratic Senate would be perfectly entitled to refuse to admit any Republican, and vice versa.

What it means is that the Senate may ensure members meet the requirements established in the Constitution. Each senator is supposed to be at least 30 years old, a U.S. citizen for at least nine years, and a resident of the state he or she represents.

In a 1969 case involving Adam Clayton Powell Jr., who was barred from the U.S. House of Representatives because of corruption allegations, the Supreme Court said that "in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution" and that "since Adam Clayton Powell Jr. was duly elected by the voters of the 18th congressional district of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership."

Nor does it matter that Powell was elected by his constituents and Burris was not. It's not Burris' fault that there was no election. Like Powell, he secured his seat under the procedures set out by his state.

It's far more plausible to say that the Senate isn't obligated to accept Burris if his appointment involved illegality—say, if he promised Blagojevich something tangible in exchange, as the governor allegedly sought from other prospects. But so far, no one has alleged, much less proven, anything of the kind. It's one thing for the Senate to conduct an investigation to remove all doubt. But it shouldn't use that pretext to endlessly delay what it can't legally prevent.

If the Senate thinks Blagojevich's presumption is intolerable, after all, it has another option, and one explicitly sanctioned by the Constitution: Seat Burris and then expel him.

The problem is that would require a two-thirds vote, and Republicans might not be willing to go along. For that matter, some Democrats might balk at inflicting such a harsh punishment on someone whose only sin is an excess of ambition and vanity—which is not exactly rare in Washington.

When faced with a result that accords with the law, senators have a duty to accept it. In this instance, it won't be pleasant. But if the rule of law only told us to do what is pleasant, we wouldn't need it.

COPYRIGHT 2008 CREATORS SYNDICATE, INC.

Comments

nobody u no and a big fan of j|1.5.09 @ 7:19AM|#

more proof of what a racist country we live in.

Other Matt|1.5.09 @ 8:31AM|#

Blagojevich is an evil genius who I hope sticks around making things difficult for a long time. He's doing a marvelous job of pulling the ILLinois political "machine" into the light. Now all we need is some mechanism to keep reminding people that Obama is a child of the same beast. Change we need, indeed.

|1.5.09 @ 8:37AM|#

I don't usually agree with Chapman, but he made some good points that I didn't really think about. Blago is just showing the rest of the country how bad the Springfield/Chicago machines really are. All of us residents already knew.

|1.5.09 @ 8:38AM|#

Blagojevich is a giving man - he just keeps giving and giving. Exposing the illinois political swamp is one thing, but to then drage the US Senate and Dem Party leadership into the whole fetid mess is genius.

I really hope Mister Harry has the sargent of arms throw Burris out just becuase he wasn't vetted by lords of the DNC.

KipEsquire|1.5.09 @ 8:57AM|#

Nor does it matter that Powell was elected by his constituents and Burris was not."

Actually it makes all the difference, and indeed reinforces Chapman's thesis (despite his total misreading of Powell).

There was no "election" and no "returns," hence Article I, Section 5 simply doesn't apply to Burris. And since the Seventeenth Amendment confers upon the Senate no analogous "judge power" over vacancy appointments, no such power exists. QED

|1.5.09 @ 9:03AM|#

Good piece by Chapman.

Imagine if the Illinois was facing a flooding, and the governor's signature was required to call out the National Guard to stack sandbags.

How about if Illois was going to get $127 million in highway money, and the governor needed to sign the approval.

Does anyone think the Secretary of State would refuse to endorse his signature?

Illinois can't have a non-governor. There needs to be a governor carrying out the functions of that office, or the system can't work.

If he's a lousy one, remove him. Until then, Blago's the governor.

|1.5.09 @ 9:06AM|#

I stumbled into some lefty blog the other day (Kos, maybe) and the theme of the day was apparently "Why we must eradicate the anti-democratic practice of allowing governors to appoint people we don't approve of to the Senate!"

I wonder how outraged they are about that looming Kennedy appointment.

|1.5.09 @ 9:06AM|#

I wonder which wingnut web site ran a piece making the point that Blagojevich was just bringing the Chicago political machine to light, and making vague insinuations that Obama is somehow to blame for this.

|1.5.09 @ 9:07AM|#

P Brooks,

Actually, Kos has been on a tear, denouncing the appointment of Caroline Kennedy, for weeks now.

JB|1.5.09 @ 9:12AM|#

The consitutional interpretation is incorrect. The House and Senate DO have the right to exclude any member they please. The wording is clear cut: "Each house shall be the judge of the elections, returns and qualifications of its own members." The Consitution provide minimum qualifications (age, residence, etc.), but, through this clause, also provides leeway for the application of additional requirements.

The Senate is free to dismiss Burris because his ties knots are untidy. Like many things, the Constitution provides no mechanism to enforce reasonable standards. We have relied on the judgement and discipline of both houses (for better or worse), to adhere to constitutional limits.

|1.5.09 @ 9:15AM|#

I don't know, JB. "Shall be the judge." We have actual judges appointed in the federal government, and they don't get to rule however they want, but only in accordance with the law. They judge whether the standards of the established law have been met.

JB|1.5.09 @ 9:28AM|#

I know of no other law that governs this besides the two clauses in the constitution. Any ruling consistent with the law has only these small pieces of text from which to form an opinion. The clause are succinct and allow great leeway for the Senate.

|1.5.09 @ 9:34AM|#

Right, two clauses. One establishes standards, the other says each house is to act as the judge of those standards.

|1.5.09 @ 9:40AM|#

HA HA HA
I didn't read this Chapman article!
His unbridled insipidness can't hurt me.

I don't usually agree with Chapman, but he made some good points that I didn't really think about.

Good piece by Chapman.

Oh no. I'm not falling for that again. You're not getting me that easy.
LA LA LA LA LA LA LA LA LA LA LA LA LA LA LA LA
I can't hear Steve Chapman hee hee.

|1.5.09 @ 10:00AM|#

Why is Harry Reid so preoccupied with the taint on Roland Burris's seat?

JB|1.5.09 @ 10:03AM|#

joe, I agree with your conclusion to a certain extent, but also contend both houses have leeway to judge the qualifications of each member above and beyond those minimums established by the constitution. Each senator must have certain qualifications (age, residency, citizenship) as per the first clause. The second clause makes no reference to the first one in its limitations. It does NOT state that the legislature can only judge qualifications with respect to the aforementioned requirements. Hence, the second clause allows the senate to establish additional standards if it so pleases.

|1.5.09 @ 10:09AM|#

Maybe, JB.

It's less than crystal clear.

|1.5.09 @ 10:11AM|#

joe @ 9:30 is exactly right.

I was interested to see that Lawrence Tribe had written a piece (can't remember where, now) saying the Senate did have the authority to refuse to seat Burris.

His argument, however, was weak, weak, weak. Basically, he said that the reference to "elections and returns" included appointments and allowed the Senate to refuse to certify an appointment by a Governor if they didn't like the Governor.

Hence, the second clause allows the senate to establish additional standards if it so pleases.

And just what standard would be applied to block Burris?

|1.5.09 @ 10:13AM|#

Defining the word "qualifications" in excess of the Constitutional minimum qualifications would give the legislature members a veto power over the electorate.

LibertyMark|1.5.09 @ 10:13AM|#

My mind is torn asunder...

I actually agree with Chapman. I said to myself that I would never again give consideration to any pixels that poured out of his keyboard after that squalid inflation article of his.

|1.5.09 @ 10:19AM|#

Lamar is right, as well. I don't think the SCOTUS would ever say that "qualifications" is an empty vessel into which the Senate can pour whatever arbitrary or partisan nonsense that they want.

You look around for what "qualifications" could mean, and lo, there are Constitutional minimum qualifications. Doesn't seem terribly hard to me (or to the Powell Court).

JB|1.5.09 @ 10:43AM|#

If qualifications means only those established by the first clause and nothing else, then the second claus is moot. The Senate must seat ANYONE who meets the age, residency, and citizenship tests. Had Stevens won, a felony conviction would then not be enough to refuse to seat him, as the constitution allows no such exclusion. The qualifications clause was put in place for such a situation where the integrity of the process or candidate was in question. Like most powers, it may drift into partisan usage, perhaps now for Stuart Smalley, but the constitution cedes to the judgement of the legislative branch. The Constitution is not a very explicit document.

|1.5.09 @ 10:54AM|#

JB: it is for the electorate to decide if the felony conviction disqualifies Stevens to be in office, not the other members of the Senate. The Senate can judge the candidate's qualifications, but it is for the electorate to pass judgment on the candidates disqualifications.

|1.5.09 @ 10:57AM|#

Expulsion is available for people like Stevens.

Nick|1.5.09 @ 11:17AM|#

...but...Stevens wasn't re-elected...he's gone...

|1.5.09 @ 11:20AM|#

If qualifications means only those established by the first clause and nothing else, then the second claus is moot.

No, it isn't, because it gives the Senate power that it otherwise would not have to refuse to seat an ineligible Senator.

Had Stevens won, a felony conviction would then not be enough to refuse to seat him, as the constitution allows no such exclusion.

That's right.

The qualifications clause was put in place for such a situation where the integrity of the process or candidate was in question.

Right as to the integrity of the election process (because the Constitution refers to "elections and returns"), but not right as to any other process (such as appointment) or as to the integrity of the candidate. There is simply no language in the Constitution that can be stretched that far. "Qualifications" cannot be an empty vessel, and can be defined by reference to the Constiutional qualifications; I see no textual basis for any middle ground that allows the Senate to say, hmm, this guy was appointed by a Governor who is a little too sleazy for us, so no thanks.

|1.5.09 @ 11:45AM|#

There's a problem with this, RC:

Right as to the integrity of the election process (because the Constitution refers to "elections and returns"), but not right as to any other process (such as appointment) or as to the integrity of the candidate. There is simply no language in the Constitution that can be stretched that far.

When that article was written, Senators were elected by state legislatures, just as Senate replacements like this are, the appointment-by-governor being a delegation of that power by the state legislature.

If the Senate can judge the legitimacy of one process carried out under the state legislature's authority to fill Senate seats, why wouldn't it have authority to so judge the legitimacy of another process by which the state legislature carries out its duty?

Harry Reid|1.5.09 @ 11:54AM|#

Please Daddy, don't hurt me!

|1.5.09 @ 11:57AM|#

Do us little people in Illinois still have to pay federal taxes if we don't get representation in Washington? Should we declare war on Nevada? (that would be gnarly awesome - do it Rod) I'm looking into Militia round trip packages to Vegas.

|1.5.09 @ 12:18PM|#

joe, even if we take the step that says "elections and returns" includes appointments under your delegation theory, there is no question that Burris' appointment is valid under IL law.

The Gov has the power to fill Senate vacancies, Blago is the Gov, etc.

Of interest here, is the language of Amendment 17, which actually distinguishes between election to fill a vacancy and appointment by a governor. It isn't terribly conclusive, but certainly doesn't help the case that "elections" includes appointments.

When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that 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.

|1.5.09 @ 12:56PM|#

Check out the tombstone/monument Senator-to-be-maybe Burris has prepared for himself. And some close-ups so you can read some of the text.

|1.5.09 @ 1:58PM|#

I think short of proving that Burris attained the seat through nefarious means, the inevitable court case will be decided in his favor.

|1.5.09 @ 2:09PM|#

You make a good case, RC.

damn it all|1.5.09 @ 2:52PM|#

Now the government is worried about the law vs. the man?

Isn't that like rearranging the deck chairs on the titanic?

Day late and a dollar short for that isn't it?

I love bad government at work!

Mad Max|1.5.09 @ 3:45PM|#

At first my assumption was that the Dems need an illinois senator right away to have votes for cloture.

However, seeing the partisan lineup on this, apparently this isn't a big Dem concern. They seem to think that if they reject Burris, Blago will soon be out of office and his successor will appoint an acceptable Democrat.

Mad Max|1.5.09 @ 3:46PM|#

From the article:

"The Illinois General Assembly could have acted years ago to require special elections in such circumstances, or it could have acted last month. But it didn't."

Though it's not a slam-dunk, I think the legislature, even now, could authorize a special election to fill the seat before 2010.

Mad Max|1.5.09 @ 3:53PM|#

As to the authority for the Senate judging gubernatorial appointees, I think it can reject corrupt appointments. Back when Senators were elected by state legislatures (not voters), the Senate rejected a guy who had basically bought his seat from the legislators. I imagine the Senate could reject a guy who had bribed the voters (with his own money, that is - it's perfectly legal to bribe voters by promising them someone else's money).

Similarly, I suppose the Senate could reject a guy who bought his seat from the gov. They should look into Burris' case to see if Burris bought the seat - though I doubt Blago was that blatant. If Blago tried to sell the seat to someone else (not Burris), that doesn't mean Burris should be automatically excluded.

Russ 2000|1.5.09 @ 4:10PM|#

What Illinoisan can forget the fine reign of Roland Burris as Comptroller where the state was in dire need of emergency funding every year he was in office?

Not that the state is any better now, Burris just simply set a new, lower standard.

Trevor Shepherd|1.5.09 @ 5:51PM|#

That death chamber thing was pretty creepy. I think they should reject his butt just based on that issue alone. Anyone preparing to die, that is -- being so incredibly well-prepared to die is of big concern. I mean everyone might die someday, probably will, but this guy is a little too enthusiastic about it. I think he has a case if this goes to court, but one look at those pictures of his death chamber, let's just call that "exhibit A", and the justices would laugh him right out of court.

More seriously, I'd just love it if the Senate blocks Burris and he sues and the justices rule that he does not have standing to sue ! Ha, that would be so cool and then maybe we'd finally be able to get some reform on this "standing" thing.

Richard Stands|1.6.09 @ 1:31PM|#

I also do not generally agree with Mr. Chapman's posts. But it's important to give credit where it's due. This was a thought-provoking article. My compliments.

|1.6.09 @ 9:36PM|#

Being from Illinois my feeling is the legislature sets the rules for filling the seat. They chose not to hold a special election or impeach this scumbag years ago. They've made our bed and it's not up to Harry Reid to say whether we have to lie in it.

|1.6.09 @ 9:40PM|#

These are also the same people who gave Ted Stevens a seven minute standing ovation. I rest my case.

|1.7.09 @ 12:21AM|#

These are also the same people who gave Ted Stevens a seven minute standing ovation. I rest my case.

... which of course leads to the conclusion that the other senators found out how little it took to buy a seat, and were Jealous.