Posted on 12/30/2008 7:15:34 PM PST by Congressman Billybob
Governor Rod Blagojevich is under investigation by the Illinois legislature to be possibly impeached and removed from office for various forms of corruption, including the apparent offer to sell the now-vacant Senate seat of Barack Obama for upwards of $1 million in benefits for himself and or his wife. The Governor has also been indicted criminally in federal court on similar charges.
Initially, the Governor announced that he would not exercise his power of appointment, which right now all Governors possess to fill vacant Senate seats whenever they occur. Under present law, the Governor’s appointment is good only until the next general election. Then, the people decide the question by electing someone to the remaining years of the term of the original holder of the Senate seat.
When the criminal charges were announced, followed by the beginning of impeachment proceedings in the Illinois House, the proposal was made that the legislature there would provide for a special election to fill the now-vacant Obama seat. However, the Democrats in the legislature, who are in the majority, recognized that the Republicans might win that special election.
That possibility that the seat might change party hands, gave the Democrats pause. So, they left the appointment in the hands of the Governor, despite his obvious ethical and criminal problems. Now the Governor has gone back on his former pledge not to use the power, and has chosen former Attorney General, Roland Burris, to fill the Senate seat.
It is a cynical ploy, since Burris both a black man, and a friend and donor to Governor Blagojevich. Both Senate Majority Leader Harry Reid, and later President-Elect Barack Obama, announced their opposition to seating anyone in the Senate who was chosen by the current Governor.
The critical question now is, can Blagojevich get away with it? Will the appointment stick, despite the Governor’s problems?
The answer is no. But much of the commentary this afternoon on the Blagojevich-Burris appointment has missed the constitutional point.
We begin with the Constitution. In Article I, Section 5, it states: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members....” Adam Clayton Powell was a legendary scofflaw who was regularly reelected from his Harlem District, though he was on the run from the local sheriff and could only go into his District on Sundays.
Eventually, the House had had enough of his antics, and decided not to seat him after his latest reelection. Powell sued to get his seat back, and in 1969 in Powell v. McCormick, the Supreme Court ruled that Powell had been duly elected. Therefore, the House had to seat him, and could only expel him by the required two-thirds vote, which the House promptly did. Ronald Burris, the nominee, in an interview late today, threatened to bring a suit against Majority Leader Reid, if he is not seated.
If, however, there is an apparently legitimate claim that there are problems with the appointment, as with elections where the House or Senate said there were problems, the House or the Senate has the power to ignore what has happened at the state level, and seat or not seat whomever it chooses.
The most recent example of this was in 1996. Rep. Bob Dornan claimed that his narrow defeat by Loretta Sanchez was based on fraudulent votes by illegal aliens in Orange County. After a 14-month probe, the House ruled that there was fraud in the election, but Sanchez “was not responsible for it.” It confirmed Sanchez’s election.
It was more than two decades ago that the Indiana Secretary of State certified that a Republican had narrowly won a House seat. That was the official result. Then the House investigated the election, awarded more votes to his Democratic opponent, and seated him.
A cynic might note that the Democrats controlled the House in each instance, and the Democrat was seated. Still, these two instances demonstrate that “each House shall judge ... the elections of its members.”
So, if Harry Reid is on the ball, he will not only refuse to seat Burris, he will announce that under the circumstances there are “questions” about the legitimacy of his appointment. He will invite Governor Blagojevich to come testify under oath. The Governor’s new lawyer (since his current one has just resigned) will advise him not to testify under oath. And that will be the end of that.
- 30 -
John / Billybob
What a shock, NOT! The press always get the law wrong. A fifth grader knows more about the law than they do.
Brilliant analysis from Billybob, as usual.
Congressman,
Do you know what time you will be on? I would like to catch you if I can.
Thanks for your fine work.
You have that knack of making something complex more understandable. Thanks for the edumacation, JA.
Only in Chicago. This stuff just gets better every day. (And a great distraction from having to think about “that 0ne” taking the oath of office.)
Happy New Year bump!
“This is the essence of what I will discuss tomorrow morning with Jerry Agar on WLS in Chicago.”
What time??
I don't really see any way that Burris won't be seated.
Here's why:
1) There are no allegations or questions about Burris. He hasn't been accused of any misconduct. He meets the constitutional requirements for the office. There's no way to disqualify him based on who he is.
2) Blago is still governor of Illinois. He hasn't been impeached. He hasn't been indicted. He certainly hasn't been convicted by either the legislators or a jury. And Illinois law says the governor appoints the replacement when a Senator steps down. There's no way a court is going to find any question in whether Blago had the authority to make the appointment. He did have that authority.
3) Correct me if I'm wrong here, but in Powell v. McCormick, didn't the courts say that Article 1 Section 5 was limited to questions of constitutional qualifications and questions about the election results. There was no election, and there's no question about Blago's authority to make the appointment. And there's no question that Burris meets the constitutional requirements.
The last thing the Illinois legislature, Patrick Fitzgerald or Barack Obama want is an actual impeachment of Blago, because he would then have the right of discovery and presentation of evidence and sworn testimony from LOTS of folks, including Obama, who'd really rather not be put under the spotlight... /g
All of these fine folks have really grabbed the tar baby with this one, and just about the only option they have is to either kill Blago or continue tap dancing via constant media distractions until the public's eyes glaze over and they can quietly reach an accommodation with Blago and let this all quietly fade away...
John
The legalities of this aside, Reid and the Senate Democrats all have an incredible image problem if they take the steps you’ve outlined. Black America will not be satisfied by mere nuances of Constitutional law.
Thanks for setting things straight.
When the house senate and presidency are split between the parties there is a fair amount of isle crossing in the senate and it is hard to make a filibuster stick. But when one party has the house senate and presidency the out of power party tends to stick together to block as much of the in power party agenda as possible
If Obama can’t get his agenda passed because Reid refused to seat a Democratic senator, there will be hell to pay with his more liberal senators who see this first year as the best leftist chance since 1933.
Look for McConnell to force a cloture vote on nearly every bill that comes up. Refusing to seat a sure vote for cloture in order punish Blago and please the press is not a very bright thing for Reid to do. I doubt if Reid has the votes to make it stick.
Reid has said several times that he has the votes to do something when in fact he does not.
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Gosh....a high-profile discussion of who is eligible for higher office!!! Imagine that!!
If they throw him out for being appointed by a crook, to be consistent, half the officials in Illinois would have to resign.
Also, if the Pubbies merely voted Obama-style ("present"), the Dems couldn't get the 2/3 to throw him out.
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