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Blagojevich vs. the Senate

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Posted on Jan 5, 2009
AP photo / M. Spencer Green

Gov. Rod Blagojevich, right, announces his choice of former Illinois Attorney General Roland Burris to fill President-elect Barack Obama’s U.S. Senate seat.

By Stanley Kutler

Understanding the Constitution sometimes is like interpreting the Talmud.  Two scholarly readings bring forth three opinions. Article I, Section 5, of the Constitution is rather straightforward: “Each House shall be the judge of the Elections, Returns and Qualification of its own Members. ...”  The rest of the sentence involves quorums and adjournment definitions, while other parts of the section involve the right of each house to make its own rules, including punishments of its members, and the keeping of journals. These clauses are rich in history, deeply rooted as they are in parliamentary experience from Tudor and Stuart days, and are essential to the whole doctrine of separation of powers in the American Constitution.

Small, obscure passages in the Constitution occasionally emerge and contribute to contemporary political disputes and their resolution. On Dec. 30, embattled Gov. Rod Blagojevich of Illinois, who allegedly tried to auction off Barack Obama’s vacated Senate seat to the highest bidder, announced that he was nominating Roland Burris, a locally known, undistinguished African-American politician, to take that seat when the new Congress convened. Senate Democrats have drawn a line in the sand, and they promise to reject any Blagojevich nominee, fearing the taint of corruption.

Meanwhile, the governor has proclaimed his absolute right to name a senator, and he disingenuously has wrapped himself in support from African-American leaders who would justifiably like to see more than zero African-Americans in the Senate. Still, Blagojevich’s veil of spite and cynicism is all too transparent.

Most historical examples of Congress’ right to judge the qualifications of its members clearly give the argument to the Senate Democrats. During Reconstruction, after the Civil War, President Andrew Johnson insisted that he had the power to readmit the seceded states, while Congress insisted on its own power in the development of policy. Eventually, the dispute boiled down to a simple, practical issue of Congress’ constitutional right to determine the qualification of its members. 

After the war, Southern states, believing that they had the unquestionable right to return to the Union—as if secession had never happened—elected numerous former Confederate officials, including the vice president of the defunct Confederacy, to represent them in the postwar Congress. The congressional Republicans refused to seat these new members, in effect saying they were not fit to serve. Reconstruction ran a meandering course, but the power of Congress to determine the seating of its own members never was repudiated. Some argued that Congress had abused its power, but abuse of a properly endowed power is no argument against its existence. 

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In 1918, Milwaukee voters elected Socialist Victor Berger to the House of Representatives, which promptly denied Berger his seat. In that era of the “Red Scare,” the New York Assembly similarly refused to seat five duly elected Socialists. Berger had actively opposed American participation in World War I, earning the enmity of the Wilson administration and a federal indictment under the Espionage Act. Berger was convicted in February 1919, and trial Judge Kenesaw Mountain Landis sentenced him to 20 years in prison. The U.S. Supreme Court, however, overturned the conviction in 1921 on the ground that Landis had been blatantly prejudiced.

Berger’s 1918 election came while he was under indictment. After his conviction, the House determined him unfit to serve. In December of that year, Wisconsin held a special election and Berger won again. And again the House refused to seat him. The seat remained vacant until the nation returned to “normalcy,” and Berger lost to a Republican.

The Supreme Court’s 1969 decision, restoring Adam Clayton Powell to his House membership, is regarded by some as the court’s modern, authoritative interpretation of Article I, Section 5. Powell had won plaudits for his skillful shepherding of labor and education legislation, but allegations surfaced in the mid-1960s that he had misappropriated committee funds for his personal use. The Democratic Caucus stripped him of his committee chairmanship, and the full House voted in March 1967 to deny him his seat. Powell won a special election in April but did not return to Congress. Instead, he sued, and in June 1969 the Supreme Court ruled that the House had acted unconstitutionally. The ruling interpreted the constitutional clause to mean that qualification for membership simply was confined to age, citizenship and residency.   

Powell v. McCormack is the Supreme Court’s only interpretation of the qualification clause. The intervention was not timely, coming more than two years after Powell had been excluded. It was unprecedented and unsupported by the constitutional clause. The decision simply ignored both the history and purpose of that clause. The constitutional proviso is there precisely so Congress is not forced to accept politically rigged, perhaps corrupt, choices. The court’s judgment does not wipe out constitutional history. The examples of congressional autonomy and power are clear, important precedents for our history.

Chicago Tribune columnist Steve Chapman described Burris as a man who has left few impressions, save for a 12-year stint as state comptroller and numerous electoral defeats when he sought higher office. When the Blagojevich scandal broke, Burris described the governor’s behavior as “appalling,” but after his selection to the Senate, Burris simply said that “I have no comment on what the governor’s circumstance is.” During his years in public office, no prosecutor found grounds to indict Burris, which is, Chapman drily noted, “not something Illinois voters take for granted.”

In this contest of wills—the governor’s rightful authority to appoint a senator as opposed to the Senate’s power to judge the qualification of its members—the last word simply belongs to the Senate. Will it stand by its line in the sand? If Senate Democrats hope to launch Obama’s initiatives quickly, with fewer than 60 Senate seats on the Democratic side, they may need every vote they can get and need them right away. Seating Burris would mean that the Democrats would have to endure suspicion (however ill-founded) that he was tainted with the mark of corruption. Will constitutional principle or expediency prevail? Alas, expediency is the law of life in politics. 

Stanley Kutler is the author of “The Wars of Watergate” and other writings.


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By Leisure Suit Larry, January 8, 2009 at 8:24 am Link to this comment
(Unregistered commenter)

thebeerdoctor

“The democratic leadership just may turn out to be a brand new class of despicable clowns.”

Oh shit, I’m ROFLMAO… “BECOME”  Where the hell have you been?

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By altara, January 8, 2009 at 8:18 am Link to this comment
(Unregistered commenter)

BURRIS THE PERSISTENT

After trying unsuccessfully to sell the President-elect’s Senate seat, accused Illinois Governor Rod Blogojevich gave it away by appointing an unblemished journeyman politician, Roland Burris. This was less a “clean” appointment action than an effort to embarrass those opposing the Governor. He succeeded.

Senate Majority Leader Harry Reid and other Democratic leaders said emphatically that any appointee of the Illinois Governor would be so tainted that the Senate would never accept him.
They underestimated Roland Burris. Mr. Burris showed up, was turned away, but then hung around claiming that he was the junior Senator from Illinois, holding press conferences, and picking up supporters and endorsements.

He wore Mr. Reid down. The grounds for rejection were really quite shaky. The Illinois governor was still in office, performing his other governing duties. Backtracking daily, Harry Reid was finally reduced to reliance on the fact that the Illinois Secretary of State had not signed the appointment certificate. A slender reed indeed.

Roland Burris will be accepted as Illinois Senator. Blago will smile. And Mr. Burris can add another “Burris the Trail Blazer” to his worshipful mausoleum.

homer   http://www.altara.blogspot.com

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PatrickHenry's avatar

By PatrickHenry, January 7, 2009 at 7:54 pm Link to this comment

What ever happened to innocent until proven guilty?

Guilty or innocent, the Gov hasn’t even been indicted.

He represents Illinois and those folks have a right to be represented, damn all other states opinions.

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By dihey, January 7, 2009 at 5:24 pm Link to this comment

PE Obama badly needs to meet with Roland Burris for a refresher course in US Constitutional Law.

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By KDelphi, January 7, 2009 at 1:19 pm Link to this comment

Oops! PE Obama just changed his mind on Burris—not politically motivated at all…right…

At least the self-righteous did not get to inherit Obama’s seat…

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By J. Scott, January 7, 2009 at 12:12 pm Link to this comment

It seems that in Marbury v. Madison the Supreme Court of the United States was established as the final arbitrator of the U.S. Constitutional issues – not Congress.

The case of Roland Burris may entail arguments about the ideas contained in Articles I and III of the U.S. Constitution, and Amendments X and XVII to the U.S. Constitution.

If not resolved out of court, could the issues surrounding the appointment of Roland Burris evolve into a real Constitutional crisis?

P.S. Did Illinois Secretary of State, Jessie White, commit an impeachable offense when he did not certify the duly elected Illinois Governor’s signature on the official document appointing Burris?

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By J. Scott, January 7, 2009 at 11:13 am Link to this comment
(Unregistered commenter)

It seems that in Marbury v. Madison the Supreme Court of the United States was established as the final arbiter of the meaning of the Constitution of the United States.

The case of Roland Burris may entail arguments about the ideas contained in Articles I and III of the U.S. Constitution, and Amendments X and XVII to the U.S. Constitution.

If not resolved out of court, could the issues surrounding the appointment of Roland Burris evolve into a real Constitutional crisis?

P.S. Did Illinois Secretary of State, Jessie White, commit an impeachable offense by not certifying the duly elected Governor of Illinois signature on the official document appointing Burris?

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By thebeerdoctor, January 6, 2009 at 2:02 pm Link to this comment

Stanley Kutler’s article is opinionated nonsense. The Governor Rod has not been convicted of anything yet. It was up to the Illinois legislature to remove him if they deemed him to be unfit. In the meantime, he has performed his constitutional obligation to appoint someone to replace Barack Obama’s Senate seat. That has been done. What’s with this holier than thou posturing on the part of the democrats. Obama, for calling for Blago’s resignation, just because Patrick Fitzgerald has indicted him, reveals he must not be the great legal scholar he is cracked up to be. The last time I heard, a person is considered innocent until proven guilty in a court of law.
The democratic leadership just may turn out to be a brand new class of despicable clowns.

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By dihey, January 6, 2009 at 12:35 pm Link to this comment

The newest bad joke of the anti-Burris legion is that the ruling of the US Supreme Court in Powell vs. McCormack does not apply to Burris because Powell was a House member! How desperate these Constitution-violators have become and, sadly to say, PE Obama is among them.

I wish that this case was accepted by the Supreme Court tomorrow for a record-setting speed-of-ruling because the Court will undoubtedly teach a scathing lesson to these dancers around their “Golden Calf” of made-up dictatorial laws.

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By alons, January 6, 2009 at 11:43 am Link to this comment
(Unregistered commenter)

Reid should resign.  What an asshole.  He won’t fight when we need him to.  And now this?

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By KDelphi, January 6, 2009 at 10:55 am Link to this comment

BTW—you know that PE Obama is siding with Reid, right, Obama aupporters?

You also know that the governor is out on bail….if there are others APPOINTED (not elected) in the same situation , I dont know about it. I am surprised they did not admit him (if not seat him) today.

It matters not at all to me, but it does give the GOP more ammo. Obamam has given them plenty enough.

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By marcus medler, January 6, 2009 at 4:34 am Link to this comment
(Unregistered commenter)

I find it sad that this is a major national issue. It smells of media hype and political posturing. The Gov. has yet to be tried. He may have done nothing criminal. His crime may be a big, foolish mouth. This appointment seems to be proper and objections to the choice and method is the business of Illinois. Why the Senate wants to become involved is a mystery to me. The constitution also allows for impeachment. We have seen the sages of congress only invoke this (since Nixon) for sex or political bickering. I think the prospective senator should be seated. The points made above are valid and germane. However, it needs the addition of the fact, that many senators are certainly guilty of having big, foolish mouths.

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By prole, January 6, 2009 at 12:27 am Link to this comment

It’s all irrelevant. Strictly a procedural matter in a petty turf war. Burris is a card-carrying Democrat. Anyone the Senate Democrats appoint/approve would be likewise. Neither Rod nor Harry have any intention of appointing a Green candidate or a socialist. Democrats and Republicans share a common goal - to preserve the fetid two-party system. Their power and privilege depend on it and that of those who call the shots behind the scenes. Anyone appointed to the seat will - like Obama - have to be a corporate Uncle Tom and an AIPAC toady. The rest is just about personality and skin tone, just like the Obama phantasm. It’s so deeply ingrained in American politics, no one gives it a passing thought anymore. Every one essentially agrees on policy objectives, so what’s left but personal vanity and hollow symbolism.
    Long ago, the postbellum Congress’s insistence on preventing the defeated and devastated Southern states from democratically choosing their own representatives after the War Between the States was a typically short-sighted policy based on partisan expediency. It led directly and deliberately to the whole sordid “carpetbagger” politics that blighted the former Confederate states for so many years; and set back the process of full reconciliation and reunification many decades. For a century afterward, in fact, the South’s resentment toward Republicans led to blanket voting for Democrats and was one of the pillars of that Party’s national electoral sucess, before the crafty Nixon finally hatched a new Southern strategy for Republicans. If Abraham Lincoln had lived to continue as president after the Civil War, it’s unlikely such vindictive policies would have been pursued or that Reconstruction would have been so harsh. Such “abuse of a properly endowed power is” a very powerful “argument against its existence”.  “Alas, expediency is the law of life in politics”.
    The refusal to seat Berger, the Wisconsin socialist, was even more revealing of Congress’ true colors. Not only did it once again show the political establishment’s complete contempt for democracy and the will of the people but it was a blatant demonstration of the American government’s true purpose - to serve private capital. That’s still the overarching purpose of every Congress and Administration and both major parties down to the present day. The infamous Espionage Act of 1917 - which the great Eugene Debs was also framed with - was nothing short of fascist legislation. It was the brainchild of a ‘liberal’ Democratic president, the ruthless Woodrow Wilson. It’s intent, in fact, has parallels in the USA PATRIOT Act, the FISA and other contemporary authoritarian legislation supported by Republi-crats. Reid and Blagojevich (and Stevens and DeLay) may disagree on the limits of the political spoils system - but there’s no disagreement over the strict limits of the ideological system.

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By KDelphi, January 5, 2009 at 10:58 pm Link to this comment

His qualifications are not at issue.

I just wish that , if the “pay to play” duopoly was going to “take a pricipled stand”—they would do it concerning something more consequential.

Some Dem is going to be seated,and it should probably be an Af Am. I dont think that failure to seat Burris is about race, at all.

Cave on (MORE—thay are getting ready to) tax cuts for business (the middle class doesnt really need tax cuts either), cave on Iraq, cave on Bush impeachment—-but hold the line on Richardson and Burris!

What are the Dems trhing to do—take a “moral stand”? That will be the day…neither party has stood up to Bush on any principle at all..

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By John, January 5, 2009 at 5:54 pm Link to this comment
(Unregistered commenter)

I agree with Whitebeard.

To say that the Senate has the final say who gets seated leads to absurdity. Why have elections if the Senate itself is the ultimate arbiter of who gets seated?

If anything, the most of the precedents cited here to support the notion that legislative bodies can determine their own membeship—doing things like rejecting a socialist candidate—underlines the absurdity of the propostion.

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By Tom, January 5, 2009 at 5:31 pm Link to this comment
(Unregistered commenter)

Andrew Jackson would be proud.

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By dihey, January 5, 2009 at 2:39 pm Link to this comment

P.S. It is very disturbing that PE Obama, who has been called a “Constitutional Scholar” on this site, does not get it. Was McCain correct after all?

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By dihey, January 5, 2009 at 2:36 pm Link to this comment

When our Constitution speaks on “qualification”, in this case for a Senator to be seated, it has nothing to do with “distinguished” or “accomplished”. That is irrelevant. I am not a Constitutional scholar but to me “qualification ” means:

1. The person is a US citizen (including naturalized citizens).
2. The person has the required age.
3. The person was legally elected or appointed.

Since Mr. Burris conforms with all three requirements this simple soul dihey concludes that the Senate’s refusal to seat him is an illegal roadblock and a terrible precedent for the future.

Because of this the US Supreme Court should accept Burris’ case on a very fast track. After all it did not take them very long in 2000 to rule in Bush vs. Gore.

My hunch is that the framers of the Constitution wanted to keep “traitors” out of the Senate.

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By felicity, January 5, 2009 at 11:01 am Link to this comment

whitebeard - I agree.  Also, I was amused by Kutler’s less than complimentary assessment of Burris implying that the ‘other’ Senators are highly qualified when too many of them are basically sleeze bags.

Let’s face it.  Washington is a town that pays more attention to loyalty (cronyism) and discretion (protect our own at all costs) than to vision or success.

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By whitebeard, January 5, 2009 at 10:11 am Link to this comment

To use that clause to say that the Senate can refuse to seat elected or duly-appointed members solely at its arbitrary discretion means that one party given enough votes could eliminate the other party from membership by refusing to seat them. Such would give new life to criminal autocrats like Frist, DeLay, Rove, et. al., and their threat of nuclear options.

Should the Supreme Court uphold such an interpretation, a Consitutional amendment is needed, NOW.

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By thebeerdoctor, January 5, 2009 at 8:54 am Link to this comment

Considering that the Governor of New Mexico has had to withdraw from consideration for Commerce Secretary, due to a “pay to play” investigation in his own state, isn’t this much ado about nothing? Obama wants to rise above the taint of Blagojevich? A money hungry politician who, if he had more power, would like to play rough. Yet President-elect Obama sees no problem with appointing Wall Street slicks to fix the economy. The more I observe the President-elect and his team, the more ridiculous they become.

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By alexis smith, January 5, 2009 at 8:46 am Link to this comment
(Unregistered commenter)

All those bastards in the US Senate are deal-making crooks, just like Blago. That is the only reason they are so vehement in opposing the appointment of Burris. They are afraid the public will realize the truth. We all know that’s what’s going on.

The bottom line is that Burris is qualified and a legitimate appointment. The Dems will succeed in blocking him taking his seat, but they will look like the douche bags they are and they will pay the price for it.

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By Leisure Suit Larry, January 5, 2009 at 7:04 am Link to this comment
(Unregistered commenter)

Gawd I love this stuff. The Democrats are once again set to implode over a race issue (as they did in ‘68) they are set to reject the only non-white face in the ole-boys-club, thereby undoing all the race-mending Obama’s win at the top accomplished.  The D party will not win without Illinois in 2012, and the Democrats will not take the state without the black vote

What a ride. 

The end result is that Governor Rob did what he set out to do.. derail a liberal frieght train… Some good comes from every bad.

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By L. Fleming, January 5, 2009 at 6:19 am Link to this comment
(Unregistered commenter)

Roland Burris in NOT undistinguished. He is in fact distinguished and accomplished! [read] Qualified. Check the record. Maybe not to YOU. But then who are you??? Are you as accomplished as Roland Burris?

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