Fumble

In the ongoing Roland Burris saga, I’ve already written that Illinois Secretary of State Jesse White’s will refuse to certify Burris’ appointment, which is required for Burris to take his place in the Senate.

But it’s questionable whether or not White has the legal authority to defy Governor Blagojevich. In all likelihood he doesn’t, and Burris’ will probably take him to court and win his certification.

Unfortunately, Senate Democrats are hitching themselves to White’s gambit and will use Burris’ lack of a certification to keep him from being inaugurated tomorrow:

The first thing the Senate leadership plans to do is to demand, under Rule 2 of the Standing Rules of the Senate, a certificate containing “the name of the person elected or appointed, the date of the certificate, the name of the governor and the secretary of state signing and countersigning the same, and the State from which such Senator is elected or appointed.”

Oh, snap! At Harry Reid’s urging, Illinois Secretary of State Jesse White is refusing to sign such a certificate.  No idea whether White’s refusal to sign is legal or not, but that little technicality should be enough to keep the Democrats from having to seat Burris when he shows up on Tuesday.

This means that, as soon as the courts overturn White’s obstinance, Senate Democrats won’t have any justification for blocking Burris.

Then there’s this:

In a conference call with reporters, [Texas Senator John] Cornyn said Republican Senators fear that Senate Democratic leaders may try to seat Franken next week even if an official winner has not been declared in the election. But the Texan said Republicans are prepared to launch a filibuster to prevent Franken from being seated until state officials declare a winner and all legal challenges are exhausted.

“There will be no way that people on our side of the aisle will agree to seat any Senator provisionally unless a certificate of election has been signed” and all court cases about the Senate race have been completed, Cornyn said.

I wrote this morning that, according to Minnesota’s election law, Minnesota can’t certify a winner in the Senate election until Norm Coleman’s legal challenges are decided in court. In other words, Coleman can prevent Franken from being named the official winner of the election for as long as he can keep his case in the courts. And now Senate Republicans are using the same justification Senate Democrats are using with Burris to block Franken.

Yeah, it’s a mess.

I’ve come to the conclusion that Burris should be seated.  He should be expelled from the Senate as soon as he takes office, but he should be seated. Because seating him is a constitutional question, while expelling him is a political question.

Rod Blagojevich is the Governor of Illinois.  He has all the power and authority of the Governor of Illinois, including the ability to fill vacant Senate seats.  And Roland Burris meets all the constitutional requirements to be a United States Senator. The Supreme Court ruled in Powell v. McCormack that the Senate can’t keep someone from taking office if they’re constitutionally eligible, which Burris is.

But like I said, expulsion is a political question–the Senate can expel any member for any reason.  And in this case, Burris certainly should be expelled;  he was appointed to the seat Blagojevich was trying to sell to the highest bidder.  His appointment raises questions as to whether or not Burris struck some sort of deal with the Governor. There’s no evidence he did but, considering the nature of the Blagojevich scandal, Burris should have anticipated that he would get dragged into this by virtue of his acceptance.

Where does that leave things? In poor shape, unfortunately.  If the courts compel White to certify Burris, the Senate will have to seat him.  Expulsion could be the next step, but Senate Democrats would look bad for trying to do an end-run around the constitution and they’ll look like failures when Burris is inaugurated despite all of their efforts.  And now they’ve backed themselves into a corner with Franken, meaning that the Senate now has no good justification to seat Franken until Coleman has his days–or weeks, or months–in court.

All in all, Senate Democrats bungled the Burris issue from the start, and now they’ve left themselves open to criticism from a lot of places. I’m not really sure where they can go from here–hopefully they can think of something I haven’t.  Because, to me, this looks like a pretty big fumble, unfortunately.

Advertisements