Legal Roundabout
IL Gov. Rod Blagojevich's shocking selection of Roland Burris for a U.S. Senate yesterday -- complete with IL Rep. Bobby Rush's plea not to "hang or lynch" Burris -- may have finally nuked the fridge for Chicago politics.
At first glance, the Burris appointment seems futile, since nearly the entire Dem establishment has denounced it. Lt. Gov. Pat Quinn, Blago's likely successor, thinks it was a "mistake" for Burris to accept the appointment. Pres.-elect Obama agrees, as does IL Sen. Dick Durbin. IL Sec of State Jesse White says he simply won't certify the pick. If he does, Senate Majority Leader Harry Reid and his fellow Dems will block the seat.
However, many legal experts concede that Blago and Burris can't be stopped. For one, they say White's refusal to certify the pick is an empty threat. According to the IL state charter, it is the "duty" of the sec/state to "countersign and affix the seal of state to all commissions required by law to be issued by the Governor." In other words, the certification of Burris "is more or less a perfunctory act," ex-FEC attorney Ken Gross told the Huffington Post.
To counter Reid's threat, legal scholars are pointing to a precedent set in the Supreme Court case Powell v. McCormack (1969). In that ruling, Rep. Adam Clayton Powell (D-NY) -- plagued by scandal, but reelected in 1966 -- was allowed to keep his seat, which had been declared vacant by House Speaker John McCormack. In an 8-1 decision, the court declared that Congress can only bar a member if he or she fails to fulfill Art. I, Sec. 3 of the Constitution, which states, "No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen."
"Burris has met all of those qualifications: he's over 30, been a US citizen for 9 years, he's an Illinois resident; he was appointed by the executive authority of the state to fill a vacancy, pursuant to Illinois law," a constitutional law professor told the Huffington Post. Attorney Pejman Yousefzadeh at Politico concurs: "[Burris] must be seated. ... He may be expelled or punished if he engages in misconduct while a member of the Senate, but I can't see how he is prevented from taking his seat."
Responding to those arguments, Reid spokesperson Jim Manley stated: "[W]e are not making a judgment about qualifications of appointee, but about whether appointment itself is tainted by fraud.... This is like judging the integrity of an election, free from fraud or corruption." In other words, the Powell and Burris scenarios are very different. The Powell case involved a questionable candidate but a legitimate process (a free and fair election). The Burris case involves a legitimate candidate but a questionable process (an appointment by a governor arrested for hawking the seat).
Nevertheless, legal experts are favoring Burris's chances. “I certainly see a reason someone would argue that the process would be tainted, but I don’t know if that gives the Senate the authority to prevent Burris from taking the seat," said Steve Huefner, former legal counsel to the Senate. Constitutional lawyer Tom Goldstein agrees: "It's clear that if Burris were elected and duly qualified, the Senate couldn't refuse to seat him. ... But what if Blago gave the seat to someone who bribed him? The Senate could probably refuse to seat that person as not genuinely fulfilling the 'qualifications' of the seat.... But there presumably was no bribe with respect to the Burris appointment, which means that he gets the seat."
Is this legal back-and-forth just the beginning? Could a standoff between the Senate and the governor's office spark a constitutional crisis? (Is that why William Quinlan, Blago's general counsel for the past four years, resigned immediately after the Burris announcement?) With Blagojevich, it's anyone's guess.
UPDATE: White's press secretary, David Druker, acknowledged to First Read that White's refusal to certify the Burris pick has little legal weight. Druker: "We've been doing a little research on this, and its a little nebulus. We do think the governor can still bring it to the U.S. Senate [without White's signature]. ... I guess you could say it was a moral stand."
(CHRIS BODENNER)
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