Wednesday, January 7, 2009

Democrats Continue To Block Burris From Senate With Specious Legal Arguments & Tactics; Reid Makes Illinois Secretary of State “The Fall Guy”

Top Senate Democrats have now met with Roland Burris (link) and continue to block him (link) from taking his rightful seat in the Senate, publicly justifying their actions on legal arguments they know are as thin as can be. The real issue is that they are afraid a Blagojevich appointee will be a tainted candidate and pull down the Democratic ticket in Illinois in the 2010 elections.

The Democrats have blustered mostly about a Constitutional basis for refusing to seat Burris (link). My formal exposure to constitutional law was the one course I had on the subject in law school. However, over the years I have read and followed many Court decisions and it never ceases to amaze me how some Justices (as well as liberal law professors) can serve up fantastically contorted legal arguments – stretching definitions to the breaking point and splitting hairs into microspace -- to justify the specific ways they want cases to come out. So anything can happen if a Constitutional argument reaches a court.

The Constitutional argument the Democrats have floated is based on Article I, Section 5, Clause 1, which states: “Each house [of Congress] shall be the Judge of the Elections, Returns and Qualifications of its own Members." Since the Burris appointment is not an election, and the issue is not Burris’s personal qualifications (age, citizenship, and residency, from Article I, Section 2, Clause 2), then for the Senate to have review power (to be the ‘Judge”) over the Burris appointment that appointment must be a “Return.”

The one commentary I can find in support of Democratic Senator Reid’s assertion that the Senate can “Judge” the Burris appointment and find it unacceptable is by law professors Akhil Reed Amar and Josh Chafetz writing in Slate (link).

They first argue that the Senate’s power to “Judge” includes determining whether the “Senate believed that legislators [who originally were the ones to “elect” Senators] in a given state had been bribed into voting for a particular candidate,” and if so finding then “the Senate could refuse to seat him.” The legal support they offer for this contention is “English parliamentary tradition and early Colonial and state practice.” Then they turn to the definition of the word “Return.” The authors state that “[a]ccording 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,” and conclude therefore that the power to judge a “report” of an appointment is the power to judge the appointment itself and not just the veracity of the report of an appointment.

Assuming that this predicate is correct (and there are people who argue it is not; see discussion at the Volokh Conspiracy site here), what evidence does the Senate now have to “judge” that the appointment of Roland Burris was corrupt and on that basis refuse to seat him? Amar and Chafetz write:
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.
So, these law professors argue that based on evidence not yet “proven,” not even examined, and only alleged in a criminal complaint (not yet even an indictment), the Senate can find that the appointment of Burris is sufficiently tainted by the general allegations leveled at Democrat Governor Blagojevich by federal prosecutor Fitzgerald. In other words, they argue that the Senate can properly deem the Burris appointment to be corrupt by finding the appointer Blagojevich to be corrupt in general, without adducing any specific evidence that the Burris appointment itself was corrupt.

My goodness, if suspicion of being associated with corruption were a bar to serving in the Senate, then much of the Democrat leadership would need to resign immediately [e.g., Reid with the suspicious Nevada land deals; Dodd’s below market rate mortgage from a prominent lender affected by his committee’s decisions]. How far could the Senate go in refusing to seat someone? (Law Professor William A. Jacobson ponders this at his weblog Legal Insurrection here). Journalist Dennis Byrne, a long-time commentator of the Chicago political scene, sees the absurdity in Reid’s public position based on this legal argument of guilt by association with a person or persons generally thought to be corrupt; he writes in the Chicago Tribune (link; and at his weblog here):
[Reid’s] refusal to seat Burris is so arbitrary that it could set a precedent theoretically allowing Republicans, once back in control, to refuse to seat Democrats simply because they're from Chicago—which, come to think of it, isn't a bad idea.
Steve Chapman writing at Reason Online (link) states:
It's far more plausible to say that the Senate isn't obligated to accept Burris if his appointment involved illegality—say, if he promised Blagojevich something tangible in exchange, as the governor allegedly sought from other prospects. But so far, no one has alleged, much less proven, anything of the kind. It's one thing for the Senate to conduct an investigation to remove all doubt. But it shouldn't use that pretext to endlessly delay what it can't legally prevent.
As such, Senator Reid appears to be on very thin ice when he asserts that he can block Burris from serving based simply on a general sense that Governor Blagojevich is corrupt in the absence of any evidence that the Burris appointment itself was corrupt, again assuming in the first place that the Senate has the power to “judge” this appointment.

Reid and the Democrats almost certainly know this argument is untenable, which is why their first line of defense against Burris is to rely on the Illinois Secretary of State’s refusal to “certify” the appointment. However, even though no one other than partisan Democrats seems to be arguing that such certification is anything beyond a formality (a “ministerial” task), the lack of certification does give the Democrats a pretense to keep Burris out of the Senate until such certification is obtained. So right now Illinois Democrat Secretary of State Jesse White, himself black, carries water for the national Democrats in providing this pretense upon which to block Burris.

White, although sticking to his pledge to not certify anyone appointed by Blagojevich, is not happy about this ploy by Senate Democrats – he says he’s been made the fall guy. My guess is that he’s been hearing from a lot of blacks who want Burris seated. The Chicago Tribune reports today (link):
Illinois Secretary of State Jesse White said this morning he has been made "the fall guy" by the U.S. Senate, which he said is using him as an excuse to not seat Roland Burris. "They could have seated him without my signature; my signature is not required," he told WGN-AM 720's John Williams…. White said, "My signature is mostly ceremonial, rather than a point of law… They played a little bit of a game with [Burris] yesterday." Asked by Williams if he had been made "the fall guy," White said, "You're absolutely correct."
If and when the White certification gambit fails, then the fall back position is the Constitutional argument, which Reid must be very reluctant to use. Reid no doubt hopes to stall until Illinois Democrats can remove Blagojevich from office, thus providing Democrat Patrick Quinn, now Lieutenant Governor, the power to appoint the new Senator. However, Democrats would still need to show that the Blagojevich appointment was invalid before a Quinn appointment could be entertained. In any case, Democrats do not want a special election for the seat – they might well lose it.

In reality, this fight is about the fear among Democrats that a Blagojevich – appointed Democrat Senator on the top of the Democrat ticket in the 2010 election in Illinois will be disastrous for them, costing them not only the Senate seat but others as well.

Burris now has petitioned the Illinois Supreme Court (updated link: analysis at Legal Insurrection here) to compel Secretary of State White to certify his appointment. If Burris persists and wins, and if Democrats fail to remove Blagojevich soon enough, and if public outcry becomes loud enough, Democrats may try to compromise with Burris – offer to seat him in exchange for his promise not to run for election in 2010 – or capitulate to him altogether.

John M Greco