Senate Appointment Imbroglio Has Deeper Roots in Illinois

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Let us stipulate, based on FBI wiretaps released by U.S. Attorney Patrick Fitzgerald, that Illinois Gov. Rod Blagojevich (D) tried to parlay a Senate appointment into campaign boodle and is therefore a greedy sleazeball. But let us further stipulate that his ultimate choice for the job, former Illinois Attorney General Roland Burris (D), was no part of that "pay to play" scheme. What grounds, then, does the Senate have for blocking Burris' appointment?

My read, as a non-lawyer who is familiar with the case law and Congressional precedents, is that the Senate has no legitimate grounds for denying Burris his seat. The governor was exercising his obligations under the Constitution and state statute to fill the vacancy left by President-elect Barack Obama's resignation. The only questions before the Senate are whether Burris meets the constitutional qualifications to be a Senator and whether the governor's appointment of Burris was properly executed.

The 1969 Supreme Court decision in Powell v. McCormack makes clear that in exercising its power to "judge ... the elections, returns and qualifications of its own members," neither house can impose additional qualifications on an elected (or appointed) Member than those enumerated in the Constitution: citizenship, age and residency. Burris, who is 71, is clearly over the requisite age of 30 to be Senator; is a U.S. citizen; and has been a resident of Illinois since birth. The Senate may not add the further qualification that the appointing power must be purer than Caesar's wife.

Ironically, the origin of the existing constitutional authority of governors to appoint people to fill Senate vacancies can be traced in part to Illinois. Many historians credit Illinois with inadvertently putting the 17th Amendment to the Constitution over the top in Congress because of another scandal involving a Senator. That's the amendment that took the election of Senators out of the hands of state legislatures and gave it directly to the people. The amendment also left it to the state legislatures to determine whether vacancies in the Senate should be filled by special election or gubernatorial appointment.

Public dissatisfaction with state legislatures electing Senators grew in the late 1800s as the system became increasingly characterized by deadlock and corruption. From 1891 to 1905 there were 45 deadlocks in 20 states over electing a Senator. Over that same period, the House of Representatives passed 19 resolutions calling for the direct election of Senators by the people, only to see them die in the Senate.

By 1909, the Populist, Socialist and Democratic parties all called for the direct election of Senators, 33 states had called on Congress to pass such a constitutional amendment, and 29 states had adopted methods by which voters could express Senatorial preferences. An unfolding scandal in Illinois helped further that cause. The Illinois Legislature had been deadlocked for five months in trying to elect someone to the Senate. Finally in May 1909, on the 95th ballot, it elected seven-term Rep. William Lorimer (R) amid charges of bribery and corruption.

A year later Lorimer rose in the Senate to call for the chamber to investigate charges made in the Chicago Tribune that Members of the state Legislature had been bribed to elect him. A subsequent Senate investigation exonerated him on grounds that he had no knowledge of any bribery, there was no proof of it, and that those alleged to have accepted the bribes would not have made a difference in the vote anyway. The Senate upheld the report 46-40 in March 1911.

A month later, more evidence came to light in another Chicago paper of a $100,000 business slush fund used to bribe Members of the "jackpot legislature" to elect Lorimer. The Senate again referred the matter to its elections committee, which concluded that an election case could not be reopened by the Senate. This time, however, the Senate voted 55-28 on July 13, 1912, for a minority report and resolution that held that "corrupt methods and practices were employed in [Lorimer's] election, and that the election, therefore, was invalid."

Insurgent Republican Sen. Joseph Bristow of Kansas had revived the direct election constitutional amendment in December 1909, six months after Lorimer's arrival in the Senate. The issue was batted back and forth between the two houses over the next two years and was finally cleared for the states on May 13, 1912, shortly before the Senate invalidated Lorimer's election. In less than a year the constitutional amendment was ratified by the requisite three-fourths of the state legislatures.

Just as necessity is the mother of invention, in politics, scandal is often the mother of reform. The Illinois Legislature had a chance this time to pre-empt the governor's appointment by calling for a special election, but pulled back for fear a Republican might win. The 17th Amendment clearly affords states the option of holding special elections to fill vacancies. The excuse given not to do so was that such an election would be both costly and time-consuming. The state is clearly paying a steeper price for its refusal to act, and the Senate is now threatening to delay or deny the seating of a duly appointed Senator.

Both legislatures have succeeded in bobbling the succession to the seat previously held by the person they should now be devoting the full measure of their attention to helping as president. Instead they have become parties to a mass distraction that helps no one.

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