How the Senate Can Stop Blagojevich [View All]

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jurisprudence

How the Senate Can Stop Blagojevich

It easily has the power to block the governor's appointment of Roland Burris.

By Akhil Reed Amar and Josh Chafetz

Does the Constitution allow the Senate to refuse to seat Roland Burris, Illinois Gov. Rod Blagojevich's surprise appointee? In a word, yes. Here's why.

Following English parliamentary tradition and early Colonial and state practice, the framers made the Senate its own gatekeeper and guardian. Each house of Congress is "the Judge of the Elections, Returns, and Qualifications of its own members," according to Article 1, Section 5 of the Constitution. 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.

Because of the word "returns" in Section 5, what is true of elected Senators is equally true of appointed Senators. According to the Oxford English Dictionary, a "Return" in the time of the framers involved a report of an appointment made by a sheriff or other official. If the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process. (Alternatively, we might think of an appointment as an "election" by one voter.)

A simple majority of the Senate would suffice to exclude Burris. Majority rule is the general default principle established by the Constitution, except where text, structure, or tradition indicates otherwise. When the Senate tries to expel a member who has already been seated, the rule is two-thirds (as it is when the Senate sits as an impeachment court). But the framers clearly understood that majority rule would apply when the Senate was judging the accuracy and fairness of elections or appointments.

The power to judge elections and returns has been used on countless occasions in American history, at both the state and federal level, to exclude candidates whose elections and appointments were suspect.

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What are the counterarguments in favor of seating Burris? Both he and Blagojevich say that the Senate should not hold the governor's sins against his would-be senator. To be sure, there is no evidence Burris bribed the governor to get this seat. But imagine if Burris had won election only because other candidates were wrongly and corruptly kept off the ballot. Surely the Senate could properly deem this an invalid election. Similarly, it now seems apparent that there were candidates that Blagojevich refused to consider for improper reasons—because one refused to "pay to play" early on, or because another is at the center of the impending criminal case against the governor. With the appointments process so inherently and irremediably tainted, the Senate may properly decide that nothing good can come from a Blagojevich appointment.

(And let's not feel too sorry for Burris, who, after all, has shown dubious judgment in accepting the nomination, given the circumstances. Weeks ago, Senate leaders announced that no Blagojevich appointee would be allowed to sit. What is Burris thinking? Many other ­arguably better ­candidates doubtless refused to have any dealings with Blagojevich once his crimes came to light; Burris got his shot at the Senate at their expense.)

Nor does it matter, from the Senate's point of view, that Blagojevich hasn't yet been convicted. In this context, the Senate itself is a judge, in the words of the Constitution, and can decide facts for itself. It need not follow the rules of criminal courts. That means it need not find Blagojevich guilty beyond reasonable doubt, as a court would if his liberty were in jeopardy. It is enough for the Senate to reject Blagojevich's appointee if a majority of senators are firmly convinced that Blagojevich is corrupt and that any nomination he might make is inherently tainted by such corruption.

The Senate has been called upon to judge the return of an appointed Senator at least twice.

In 1893 (before the 17th Amendment provided for the direct election of senators), the Montana legislature adjourned without electing a senator. After the adjournment, Gov. John E. Richards appointed Lee Mantle to fill the vacant seat. By a three-vote margin, the Senate determined that a vacancy the legislature knew about and did not fill was not the sort of vacancy that the governor had the power to fill himself. Accordingly, Mantle was denied the seat.

In 1913, just after the 17th Amendment was ratified, Sen. Joseph Johnston of Alabama died. The Alabama legislature was in recess, and the governor appointed Frank Glass to fill the vacancy. The last provision of the 17th Amendment reads, "This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution." If this clause was read as attached to the Senate seat, then the 17th Amendment did not yet apply to it, and Glass was properly chosen under the pre-17th Amendment procedure. If, on the other hand, the amendment applied to the individual senator, then it was operative with regard to the Alabama seat. In that case, the appointment of Glass was unconstitutional, and the seat would have to be filled by special election. The Senate determined that the latter was the correct interpretation. Glass did not get the seat, which was filled instead by a special election.

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Why might the Senate conclude that Burris has not been properly appointed by Illinois' executive authority? Well, for starters, it looks like the Governor might be corrupt and was trying to sell the seat.

But, you might respond, the Governor has not been convicted of anything. Surely he is innocent until proven guilty.

True enough. But Article I, section 5 does not contemplate a criminal proceeding. Rather, it contemplates that the Senate will be the judge of the circumstances of election (or in this case, after the Seventeenth Amendment, an appointment.).

And if the Senate decides that Burris has received his appointment in suspicious circumstances, the question is whether the Supreme Court could overturn their judgment or whether it must defer to it. The answer to that question comes from none other than Powell v. McCormack: In that case the Court said that the Constitution provided a textually demonstrable commitment to judging the qualifications listed, but no others. However, the same constitutional text gives the Senate the authority to judge the elections and returns of its members. If the Senate determines that Burris has not been duly elected (or, under the Seventeenth Amendment, duly appointed), Powell might seem to suggest that courts should defer to that judgment under the political question doctrine.

Is the argument I have presented foolproof? Probably not. I can think of a number of different issues to raise in objection. As new ideas come in, I will try to list them below.

However, what I have said is enough to suggest that the question of whether the Senate can seat Burris is not open and shut. It is very likely that the Senate would have a fairly plausible argument for refusing to seat him. And the Supreme Court would have a fairly plausible argument for deferring to the Senate's decision.

Let me conclude by saying that I have not yet made up my mind whether I think this is a good thing or a bad thing. Perhaps it would be better to just have the matter settled, so perhaps the Senate should just allow Burris to be seated so that we can get on with the country's business. What I do believe is that the Senate may have more options in this case than one might think.

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Frank Smith