Analysis: Must Senate seat Burris?

By Lyle Denniston
on Dec 31, 2008 at 8:25 pm

NOTE TO READERS: This post is another in a series exploring the meaning and scope of prior Supreme Court rulings — here, the June 16, 1969, decision in Powell v. McCormack (395 U.S. 486).

Analysis

Twice in recent days, the Democrats in the U.S. Senate have said, with unqualified confidence, that they have the power to refuse to accept “anyone appointed by [Illinois] Gov. [Rod] Blagojevich” to take the Senate seat vacated by President-elect Barack Obama.  The claim has been widely discussed, with many observers saying, with complete confidence, that the Senate has no such power.  That conclusion appears to rest mainly on one precedent: the Supreme Court’s decision in Powell v. McCormack in 1969.

The Senate’s Democratic leaders have yet to spell out all of the reasons why they disagree, including the full dimensions of the power they claim to bar a Blagojevich nominee — aside from an unexplained reference to “our Constitutional authority under Article I, Section 5.”

But one thing is already very clear: the Senate’s Democratic leadership is drawing a sharp distinction between its power to judge the qualifications of any Senate nominee, and its power to judge the validity of the process by which that nominee was selected.  The Supreme Court decision in the Powell case bears directly on the former, but maybe not — or, at least, not so directly — on the latter.

No one doubts that former Illinois Attorney General Roland W. Burris — Gov. Blagojevich’s choice — has the qualifications that the Constitution demands of a Senator: at least 30 years old (Burris had his 71st birthday last Aug. 3), a citizen of the U.S. for at least nine years (Burris was born in Centralia, Ill., no doubt is a citizen by birth and has never renounced that citizenship), and be a resident of the state he would represent (Burris is a life-long Illinoisan).  Those are the only qualifications specified in Article I, Section 3 of the Constitution.

But the Senate’s leaders say that is not the issue.  In their statement on Tuesday, they said: “This is not about Mr. Burris; it is about the integrity of a governor accused of attempting to sell this United States Senate seat.” (The leadership statement, and a separate statement by President-elect Obama supporting their position, can be read here.)

The Senate Democratic leaders’ spokesman, James Manley, told news organizations on Tuesday: “We are not making a judgment about the qualifications of the appointee, but about whether [the] appointment itself was tainted by fraud.  We believe we are entitled to do that.  This is like judging the integrity of an election, free from fraud or corruption.”

The Constitution’s Article I, Section 5 says simply that the Senate (like the House) is “the judge of the elections, returns, and qualifications of its own members.” When the Supreme Court judged the House’s exclusion in 1967 of New York Democratic Rep. Adam Clayton Powell after a House probe of allegations of corruption, the Justices focused on the word “qualifications.”  (Before the case was decided by the Supreme Court, Powell was reelected and was seated. The case remained a live one, though, because Powell sought repayment of the pay he had been denied after his exclusion.)

The Supreme Court’s conclusion was a simple one: “The House is without power to exclude any member-elect who meets the Constitution’s requirements for membership.”

Three things that lie behind that statement are noteworthy now: first, it referred to one who had won election (rather than gained an appointment); second, the House did not question the legitimacy of Powell’s election in 1966 prior to exclusion, and third, the Supreme Court itself did not look behind that election to see if it had been conducted properly. Thus, the ruling was confined to whether the individual had the three constitutional qualifications of age, citizenship and residence.  

If that is all that Powell stands for, it raises questions that Senate leaders appear already to have answered for themselves. Among them: Is the power of the Senate (or House) to judge the mode of selection the same whether one was chosen by election or appointment? Does a state have any more power to control the method of filling a vacancy in one of its Senate seats than it does to hold an election for such a seat? How much deference, if any, does the Senate owe to the state’s mode of appointing a Senator?  Is a “taint” perceived in the mode of appointment a sufficient justification for excluding the appointee?

Those and other questions may well have to be answered ultimately by the courts, perhaps the Supreme Court.  But the situation with the Senate vacancy in Illinois is a rapidly developing one, and much could change before any court case developed.  The Senate, for example, could simply take its time to investigate Blagojevich’s selection of Burris (or anyone else the current govenor chose) until after something happens in Illinois in the effort to impeach Blagojevich.   That, apparently, is one option that is being explored.

But some tentative answers may be suggested to some of the legal and constitutional questions.

There is no doubt that, under Illinois law, Gov. Blagojevich had the legal authority to select Roland Burris.  The Illinois code is straightforward on the subject.  It says:

“When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.”

The Illinois Attorney General, Lisa Madigan, earlier this month sought to question Gov. Blagojevich’s authority under that provision, citing federal criminal investigators’ contentions that he sought to sell the Obama seat for personal gain.  That, Madigan contended, meant that any one appointed would be “tainted by the allegations in the federal complaint.”  But the Illinois Supreme Court refused, without explanation, to consider that and other legal challenges by Madigan. (UPDATE: Late Wednesday, appointee Burris asked the Illinois Supreme Court to confirm his appointment as a matter of state law. Even if he were to prevail on that plea, it would not necessarily govern the question of the Senate’s duty to seat him.)

On the Senate’s authority to judge the mode of selection of new members, the courts have been quite deferential.  There is no indication that the courts, if drawn into the issue, would evaluate congressional action regarding the mode of selection any differently in the case of an appointed member than for an elected member.

The Supreme Court, in the Powell decision, did not question the authority of a house of Congress under Article I, Section 5, except as to qualifications of the member-elect personally.  It mentioned in passing a few cases — notably, during the Civil War — when individuals with constitutional qualifications were excluded after being elected, but it did not do so to challenge the general power to judge the validity of election results otherwise.  The first exclusions in history of a member-elect, in fact, were based on the two individuals’ “aid and comfort to the Confederacy.”  But that was about their personal loyalty, not about the mode of election — the same distinction that was present in the Powell case.

A Congressional Research Service study in 2007 of the status of members charged with or convicted of crime (found here) generally focuses on the authority of a house of Congress to act on members’ qualifications, not their mode of selection — again, the situation in Powell’s case.

A house of Congress’s authority to judge an election (and, perhaps, an appointment) would appear to take precedence over any state method of selection, under the Supremacy Clause and the specific grant of authority under Article I, Section 5. 

Thus, the Senate may well be in a position to look behind a Blagojevich appointment and apply a federal Senate standard of propriety regarding the appointing authority (the governor) — so long as it did not add a new “qualification” as such for the individual chosen.

“Taint,” in that sense, may well be a federal question, and a “political question,” at that, and that could put the issue beyond the scope of judicial review — again, so long as the Senate were careful to make clear that the “taint” attached to the process, not to the appointee.

Of course, attorneys for Blagojevich, and for Roland Burris, no doubt would argue that the process and the appointee could not be separated so neatly, and that any reliance upon a perceived “taint” would necessarily attach to the appointee and be, therefore, a new “qualification” that would run afoul of the Powell precedent.