The Senate can block Burris

[ProSense]

THE UNITED STATES CONSTITUTION

<...>

Section. 5.

Clause 1: Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Clause 2: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Clause 3: Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Clause 4: Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

link

Franken may seek Senate’s help to win race

Ironically, here is Bush's election theft crony Hans A. von Spakovsky arguing against Congress exercising its Constitutional authority:

In 1974, New Hampshire had an election as close as the Coleman-Franken race. Former Republican Rep. Louis Wyman won the Senate seat by only 355 votes over his Democratic opponent, John Durkin. Durkin requested that the secretary of state recount more than 32,000 contested ballots, many of which had been challenged for insubstantial reasons, such as a checkmark being made by the voter instead of an “X.” The recount gave Durkin the victory with only a 10-vote margin.

Wyman appealed to the state Ballot Law Commission and requested another recount. With staff from the Senate Rules Committee carefully monitoring its actions, the Ballot Law Commission conducted a recount that thoroughly reviewed and extensively checked all of the contested ballots, finding numerous errors from the previous recount. The commission determined that Wyman had won by two votes — and a three-judge federal court rejected Durkin’s challenge to the constitutionality of the commission’s procedures.

Durkin then did what Franken is threatening to do: He appealed to the Senate (handing his petition to Democratic Whip Robert Byrd, in fact). The Senate Rules Committee spent months attempting to recount the ballots and refused to seat Wyman despite New Hampshire’s certification of his win. The Senate seat stood vacant for nine months until New Hampshire decided to hold a special election in which the two candidates faced each other again. This time, Durkin won.

The Constitution specifies under Article I, Section 5, that each house of Congress “shall be the Judge of the Elections, Returns and Qualifications of its own Members.” However, that power should not be used by a majority for political purposes to override the electoral choices of voters. It should be exercised only in situations where states grossly abuse their right to conduct elections under federal law (such as intentional racial discrimination). Article I, Section 4 gives states the authority to prescribe the “Times, Places and Manner of holding Elections for Senators” unless Congress has altered such laws or regulations. Congress has made no laws regarding absentee ballots other than the Uniformed and Overseas Citizens Absentee Voting Act, the federal law governing voting by overseas civilians and military personnel. That law is not at issue in Minnesota.

For the Senate to use its power to supersede Minnesota’s constitutionally authorized rules governing absentee ballots to assure that the majority party candidate wins would be the ultimate abuse of power. It would suppress the political rights of the minority party (and disregard the choices of voters). Unless there is evidence of voter fraud or that election officials violated the law in a manner that could have affected the outcome of the election, the Senate has no business interfering in Minnesota’s election process or disputing the state’s certification of the winner.

James Madison called the ability of Congress to regulate the qualifications of its members a “dangerous power” — one that that could be “devised by the stronger in order to keep out partisans of a weaker faction.” Such behavior by the legislature, he said, “can by degrees subvert the Constitution.”

(emphasis added)

On the first point, I think trying to sell a Senate seat qualifies.

On the second emphasized point, wow. Where was Hans went Bush was stealing elections? Oh that's right, helping out.







edited typo

[ProSense]

1. No comment? n/t

[Leo The Cleo]

4. Stupid Jack A$$es

If congress did this they might be the dumbest suckers on earth. With things in flux, they'll need all hands on deck. The Gov't did his job. He appointed a Senator. That case is closed.

[ProSense]

17. Evidently, the case isn't closed.

Blagojevich is an idiot and he forfeited his right to appoint anyone by being a belligerent asshole.

[Blarch]

21. not true.

[ProSense]

22. What's not true? n/t

[Blarch]

33. Just because he is an asshole.

doen't mean he loses his powers as Gov.

[ProSense]

34. People don't get criminal complaints filed against them just because they're assholes.

Discussing the sale of a Senate seat is not just being an asshole.

[snowbear]

2. Ferris Burris day off?

.
.

[suston96]

3. Senate cannot "block" any nominee if the nominee meets constitutional qualifications.....

See other threads on this topic.

Also see Powell v McCormick where USSC says precisely what I just posted.

In January 1967, following allegations that Powell had misappropriated Committee funds for his personal use and other corruption allegations, the House Democratic Caucus stripped Powell of his committee chairmanship. The full House refused to seat him until completion of an investigation by the Judiciary Committee. In March the House voted 307 to 116 to exclude him. Powell won the special election in April to fill the vacancy caused by his exclusion, but did not take his seat.

Powell sued in Powell v. McCormack to retain his seat. In June 1969 the Supreme Court ruled that the House had acted unconstitutionally when it excluded Powell, a duly elected member, and he returned to the House, but without his seniority. Again his absenteeism was increasingly noted.<5>


http://en.wikipedia.org/wiki/Adam_Clayton_Pow

The USSC ruled that neither the Senate nor the House can add to minimum qualifications in the Constitution.

[Yukari Yakumo]

5. One problem with that argument

In January 1967, following allegations that Powell had misappropriated Committee funds for his personal use and other corruption allegations, the House Democratic Caucus stripped Powell of his committee chairmanship. The full House refused to seat him until completion of an investigation by the Judiciary Committee. In March the House voted 307 to 116 to exclude him. Powell won the special election in April to fill the vacancy caused by his exclusion, but did not take his seat.

Powell sued in Powell v. McCormack to retain his seat. In June 1969 the Supreme Court ruled that the House had acted unconstitutionally when it excluded Powell, a duly elected member, and he returned to the House, but without his seniority. Again his absenteeism was increasingly noted.<5>

Burris, OTOH, was not elected to his seat. So using this case as a counter-argument is likely moot.

[kevsand]

10. He was legally appointed.

Under the law, that's exactly the same as being elected. For better or worse, there's no provision in the Constitution for avoiding smells.

[onenote]

11. election v. appointment is not a legally significant distinction

Powell v. McCormack is anything but moot. Just because Powell was elected and Burris was appointed doesn't mean the two cases are legally distinguishable. The decision in Powell didn't hinge on the fact he was elected, it hinged on the fact that he met the basic qualifications to serve. If Burris meets those -- including the qualification that his selection to be senator was made in a constitutional manner -- then the Powell case would indicate the Senate has no consitutional authority to refuse to seat him.

[ProSense]

25. That has nothing to do with this.

This is not about Burris' qualifications, it's about Blagojevich getting to make the appointment. The Senate can block the appointment based on the criminal complaint against Blagojevich, which includes planning to sell the Senate seat.

[davidpdx]

6. There were some good threads over on 538 about this

http://www.fivethirtyeight.com/2008/12/blago-will-try-to-seat-senator-but-reid.html
http://www.fivethirtyeight.com/2008/12/reid-has-few-ways-to-block-burris.html

[cherokeeprogressive]

7. A governor who's been convicted of NOTHING upholds the law as written in his state...

He appoints a man who will be the ONLY African American senator, that man is plainly qualified, and a bunch of rich white guys not only disapprove of his appointment, but promise to block it?

What am I missing here?

[Enrique]

8. i'm with the rich white guys

IL deserves a legitimate senator.

[olkaz]

16. I know, what a radical notion, right?

ANY CHOICE BLAGOJEVICH MAKES IS TAINTED

This means Burris has to be investigated. Wanna have Rod pick somebody else?

That pick has to be investigated.

This is a waste of time, and the Senate needs to refuse to seat/expel the pick, Burris or whoever it is.

(Burris is a good guy, but I am utterly dumbfounded that he would accept the offer in the first place.)

[Blarch]

24. They can't refuse Roland.

And I expect the Senate to follow the law.

[olkaz]

30. They most certainly can.

The issue would be tied up in court long enough for the impeachment hearings in Illinois to proceed and allow Pat Quinn to appoint the replacement.

I am not a lawyer or an expert on constitutional matters, but it seems to me Harry Reid can buy a lot of time even without being able to officially refuse to seat Burris.

[AZ Criminal JD]

44. No they can't

Even if Blago was impeached there would be no vacancy for the new governor to fill. Blago has validly filled it. Reid is talking through his hat for political purposes and everyone knows it.

[Swamp Rat]

9. k&r

[shayes51]

12. I think they should let this go.

The man seems qualified, and we have so many other problems to worry about.

[peaches2003]

13. The Senate Dems will ruin the Obama Adm

The Powell case Supreme Court ruling will take the day. He meets the qualifications for being a Senator under the Constitution and until Blago is impeached he had the right to appoint him. Leave it alone. Harry Reid will turn the country against the Dems in Congress before Obama is even inaugurated.

HAS ANY POLITICAL PARTY IN THE HISTORY OF THE COUNTRY BEEN ABLE TO SNATCH DEFEAT FROM VICTORY LIKE THIS DEMOCRATIC PARTY?

[Unsane]

14. Obama apparently agrees with Senate Dems on this.

so....wtf are you talking about?

[Clio the Leo]

15. Yeah, I think the problem is that accepting Burris....

.... comes across like an edorsement ...... well, that's not the right word ...... of Blago. Accepting Burris implies ... or could be miscontrued to appear .... that you're saying Blago is innocent. Too easy for the Republicans to attack.

And the Dems. clearly want Blago out of the picture.

[peaches2003]

41. It's not saying Blago is innocent

Accepting Burris is simply saying Blago is still the governor, has not been charged with a thing, and has done nothing by appointing Burris that he does not have the right to do as governor. The Senate will lose in the SCOTUS and Reid will look even weaker than he already does.

Who is causing Obama all the turmoil and criticism since the election and he isn't even inaugurated yet? The Dems, not the Republicans. The Rethugs always back their President no matter what. All I have heard in the last few weeks is bitching by factions of the Dem Party over everything Obama has done. We create our own problems. The "defeat out of the hands of victory" mantra has been true and said for years about the Dem Party and rightfully so. No one is ever good enough.

[ProSense]

18. Obama's statement:

“Roland Burris is a good man and a fine public servant, but the Senate Democrats made it clear weeks ago that they cannot accept an appointment made by a governor who is accused of selling this very Senate seat. I agree with their decision, and it is extremely disappointing that Governor Blagojevich has chosen to ignore it. I believe the best resolution would be for the Governor to resign his office and allow a lawful and appropriate process of succession to take place. While Governor Blagojevich is entitled to his day in court, the people of Illinois are entitled to a functioning government and major decisions free of taint and controversy,” said President-elect Obama.

link

[S_E_Fudd]

19. Nope...Supreme Court has ruled on this...

The Senate can only block those not meeting the constitutional requirements...

IN this case Burris does meet them so the Senate cannot keep him from being seated.

[ProSense]

20. No, they haven't

This is not the Powell ruling, which was about qualifications. This is about the state's (Blagojevich) abuse. He does not get to make the appointment.

[Blarch]

26. not true.

"Blago's abuse" is alleged at this point.

[ProSense]

28. Blagojevich forfeited his right to make the appointment.

He did in fact discuss selling the Senate seat with others. Abuse doesn't mean conviction.

[Blarch]

36. You mean...

Allegedly selling the seat.

[ProSense]

37. No, I mean

actually discussing selling the seat. He didn't allegedly have the discussion.

[JFKfanforever]

32. Senate cannot block his being seated but...

whether or not he gets committee assignments, is up to the
Democratic caucus.  Burris has impressive bona fides, speaks
cogently and is a rather likeable chap.  The odds are in his
favor I would say. 

[benny05]

23. Your post is well written

But I fail to understand why this is posted under Presidential.

[ProSense]

27. Try again. n/t

[benny05]

29. OK, what does this have to do with the Presidency?

If someone challenges your post, then an appropriate response is in order. You posted this under Presidential. To me, it should be GD, but maybe it was put under Presidential to garner more attention. What does this specifically have to do with the Presidency or Presidential election? Say so.

[ProSense]

31. This is the political forum. Is there another?

This is where all political news related to the elections have been posted, whether it's about Obama or Al Franken and other political discussions. Also, why are you questioning this thread? Is this the only Burris or Blagojevich post in GD-P?

[benny05]

35. You have raised an important point

Mods, and Admins, perhaps Presidential should be more for posts related to Presidential elections, President-elect or the Presidency, and a separate forum should be called "political."

Regarding your post, if you had posted Obama's response to Burris' appointment, that would have been more related to the Presidency.

And actually, there are threads going on in the Illinois forum, as you can imagine.

[stillcool]

39. Doesn't GDP revert back..

to GDPolitical..eventually?

[ProSense]

38. "Why might the Senate conclude that Burris has not been properly appointed by Illinois' executive"

<...>

Why might the Senate conclude that Burris has not been properly appointed by Illinois' executive authority? Well, for starters, it looks like the Governor might be corrupt and was trying to sell the seat.

But, you might respond, the Governor has not been convicted of anything. Surely he is innocent until proven guilty.

True enough. But Article I, section 5 does not contemplate a criminal proceeding. Rather, it contemplates that the Senate will be the judge of the circumstances of election (or in this case, after the Seventeenth Amendment, an appointment.).

And if the Senate decides that Burris has received his appointment in suspicious circumstances, the question is whether the Supreme Court could overturn their judgment or whether it must defer to it. The answer to that question comes from none other than Powell v. McCormack: In that case the Court said that the Constitution provided a textually demonstrable commitment to judging the qualifications listed, but no others. However, the same constitutional text gives the Senate the authority to judge the elections and returns of its members. If the Senate determines that Burris has not been duly elected (or, under the Seventeenth Amendment, duly appointed), Powell might seem to suggest that courts should defer to that judgment under the political question doctrine.

Is the argument I have presented foolproof? Probably not. I can think of a number of different issues to raise in objection. As new ideas come in, I will try to list them below.

However, what I have said is enough to suggest that the question of whether the Senate can seat Burris is not open and shut. It is very likely that the Senate would have a fairly plausible argument for refusing to seat him. And the Supreme Court would have a fairly plausible argument for deferring to the Senate's decision.

Let me conclude by saying that I have not yet made up my mind whether I think this is a good thing or a bad thing. Perhaps it would be better to just have the matter settled, so perhaps the Senate should just allow Burris to be seated so that we can get on with the country's business. What I do believe is that the Senate may have more options in this case than one might think.

link

[ColesCountyDem]

43. Actually, the Senate's power is limited to expulsion, not exclusion.

The ruling in Powell v. McCormack, 395 U.S. 486 (1969) makes this quite clear.

http://www.oyez.org/cases/1960-1969/1968/1968_138/

[stillcool]

40. Why hasn't the Illinois Senate..

moved to impeach this guy? I don't understand why they would think that he would not appoint a person to that seat as long as he is the Governor of the state. Is something going on that is more important than the Senate seat, or do they have so little cause that they can't do anything?

[ProSense]

42. von Spakovsky knows all about being blocked

Repubs angry Dems blocked Bush crony/partisan hack FEC nominee decide to hold FEC hostage

Breaking: Spakovsky Withdraws as FEC Nominee