As of this writing, it looks like Roland Burris, appointed to the Senate last week by embattled Illinois governor Rod Blagojevich, will eventually be allowed to take his seat. There was never much doubt about this outcome—but you wouldn’t know that from reading the newspapers. In covering the saga of the potential U.S. Senator from Illinois, the national press has shown a substantial taste for drama and limited appetite for fact.
They have reported on the rules and conditions that Sen. Harry Reid and colleagues are invoking to block Burris’s swearing-in as if these rules are clear-cut and rational. For example, a New York Times article on Wednesday, reporting on the conditions that Reid and Sen. Dick Durbin set out for recognizing Burris’s appointment, said:
They said that Mr. Burris, whose appointment was challenged because of the federal corruption inquiry surrounding Gov. Rod R. Blagojevich, has to win the signature of the Illinois secretary of state and persuade a state legislative committee considering Mr. Blagojevich’s impeachment that there was nothing untoward about his selection.
The Washington Post similarly goes on and on about race and the Senate’s great power, quoting various lawyers and politicians—and only near the end of the article bothering to mention that Supreme Court has already ruled on this issue in a way that renders all of Reid’s maneuverings a little silly.
Actually, it appears that the “conditions” imposed by the Senate Majority Leader have no valid legal or historical precedent., and that this little obstacle course is just something Reid and Durbin staffers made up in order to buy themselves some time. Even Jesse White, the Illinois Secretary of State being held responsible for this conundrum, said that his signature is largely ceremonial, and not required to make the Burris appointment valid. (In an interview with the Chicago Tribune, an angry White complained that Reid was “strapping me in a wheelchair and pushing [me] down four flights of stairs. I don’t like that.”)
No matter what Blagojevich did, the Illinois secretary of state doesn’t actually have veto power over the governor’s actions. The whole thing is sort of like a pharmacy saying that a prescription from a doctor is void because it wasn’t signed by the nurse.
The Senate’s imaginative state legislative committee requirement is just asinine. Blagojevich is presumed innocent, has not been indicted, and remains the governor of Illinois, invested with all the powers of that office. No one actually thinks that Burris paid Blago for this appointment. The Senate can’t just choose to impose ridiculous and haphazard conditions for gaining admission, as if the swearing-in process were an episode of Double Dare.
While it appears there is some precedent for Sen. Reid’s gamesmanship, it is a decidedly sordid one. In the aftermath of the Civil War, the Southern states elected many people prominent in the Confederacy back to Washington. Republicans refused to seat them. This gross abuse of power senatorial is the origin of the idea that the Senate has some vast power over its own membership.
Reid’s gamesmanship has also been explicitly repudiated by the Supreme Court. In 1967, the House voted to deny Rep. Adam Clayton Powell his seat because he was rumored to have misappropriated some committee money for personal use. Powell sued, and, in 1969, the U.S. Supreme Court decided that the House had acted unconstitutionally:
Unquestionably, Congress has an interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership .