? Senators in 111th Congress

The results of this past election are not yet settled. The 111th Congress began yesterday but members will not meet until Tuesday when they will be sworn in and the first session begins. As it stands right now, Senator Clinton's seat is still being occupied by her until she resigns for her office to become Secretary of State. The Minnesota seat is still being contested between incumbent Sen. Norm Coleman and Al Franken. At first, Sen. Coleman appeared to have won the election but a recount has, so far, found Al Franken to be the actual winner. It is expected that the Coleman campaign will continue to challenge through the courts. That leaves us with Sen. (or rather, President-Elect) Obama’s open seat that disgraced Illinois Governor Rod Blagojevich tried to fill by appointing former Illinois Attorney General Roland Burris.

Blago’s appointment is extremely interesting to me. I mean, this is the kind of political drama that I love. The governor, early last month, was arrested and accused of soliciting bribes—in particular, a pay to play scheme involving Sen. Obama’s vacated seat. Under Illinois law, when a senate seat is vacated, the governor appoints a replacement that will hold the seat until the next election. (After a quick reading of the Illinois constitution, I did not find a section where his appointment must be approved by the state legislature.) Obviously selling a Senate seat is illegal but the Governor has not yet been convicted of a crime so he is still legally the state’s Governor and thus, the only person that has the power to fill Obama’s seat.

Of course the legislature and even his own lieutenant governor have called for him to step down but he won’t do it. The Senior Senator from Illinois, Dick Durbin has called on the legislature to strip Blagojevich of his authority to name a senator and to call for a special election. (Which the Republicans would love to have.) A letter signed by all Senate Democrats said that they would not seat any appointment made by the governor. Now this is where it gets interesting.

Article I, Section 3:

…No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected be an inhabitant of that State for which he shall be chosen.

The above is the only federal requirements for a person to be seated in the Senate. The US Supreme Court has even ruled that Congress can’t add any more requirements for this office. For example, Congress can’t pass a law that says, “oh yeah, a person can’t be appointed to this chamber by a governor undergoing a criminal investigation.”

However, the senators say that they are empowered to refuse to seat a member under...

Article I, Section 5:

Each House shall be the Judge of Elections, Returns, and Qualifications of its own Members…

There is historic precedence for refusing to seat members of Congress but we’re going back to the Civil War and Reconstruction to find it. After the Civil War, the defeated states sent their delegations to Washington only to find that they would not be seated. Many people see this as northern spite but the reasoning came from Article I, Section 5 because Congress viewed that southern states were no longer republican in nature (because the south only enfranchised white men) and a republican government was guaranteed by the US constitution for all citizens (Article IV, Section 4). If a southern state was not a genuine republic, then it could not send a delegation to the Capitol.

Personally, I don’t see how the senators can use the Article 1, Section 5 argument. Gov. Blagojevich’s appointment of Burris is clearly lawful. It is in line with Illinois law because the Governor is still the governor and he has not been found (yet, perhaps) of being unable to perform the duties of his office. So they can't say that this appointment is made under an errant government. It is also in line with the U.S. Constitution and fulfills Aricle I, Sec. 3 because Burris is over thirty years old, a resident of Illinois, and legally appointed to the office by its governor.