Questions surround Blagojevich appointment

Illinois Gov. Rod Blagojevich’s appointment to President-elect Obama’s Senate seat has prompted a flurry of legal questions about the Senate’s ability to block it.

Senate Majority Leader Harry Reid (D-Nev.) is refusing to seat former state attorney general and comptroller Roland Burris because of the federal charges that Blagojevich tried to sell the Senate seat to the highest bidder.

{mosads}Even though there is no evidence that Burris was caught talking about the Senate seat with Blagojevich on the wiretap or involved in any of the allegations, Reid has stood strong in his pledge to block any Blagojevich appointment.

While there are several related instances of the Senate blocking someone from being seated, none involve the refusal to seat a governor’s appointment because of ethics concerns involving the governor rather than the person selected for the Senate seat.

At the press conference announcing the appointment, neither Burris nor Blagojevich responded to a reporter’s inquiry about whether they plan to mount a legal challenge if Reid refuses to seat Burris when members of Congress take their oaths of office next week.

Reid’s office says the Senate has the power to block the appointment under Article 5, Section 1 of the Constitution.

According to that section, “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…”

It also says that each House may “punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.”

It does not explicitly say whether the Senate can rule against gubernatorial appointments for open Senate seats.

It may be a moot point if Illinois Secretary of State Jesse White continues to refuse to certify Burris’s appointment, as required.

Reid was still concerned enough on Tuesday about the legal questions involved that he held a conference call with other senators on the topic. Afterward, he issued a statement reaffirming his unwillingness to seat Burris.

After the Burrris announcement was first reported, most commentators cited the 1969  Powell v. McCormack Supreme Court case involving scandal-tarred Harlem-based Rep. Adam Clayton Powell as evidence that the Senate could not block an appointment.

Powell sued the Speaker of the House to demand that he be permitted to take his seat. The Supreme Court ruled 7-2 that a House of Congress only has the explicit powers laid out in the Article 5, Section 1. It can rule on qualifications such as age and citizenship requirements and can judge elections but cannot prevent a member from being seated because of ethical concerns.

The next year Powell lost his seat to Rep. Charles Rangel (D-N.Y.).

Since 1913, only four senators have been refused to be seated by the Senate, although about a dozen were rejected before 1913 when state legislatures were in charge of the process.

Associate Senate Historian Don Ritchie said the four examples mostly follow a similar process by which the senator is seated but then investigated by the chamber’s Rules Committee to determine whether any charges against the senator have merit.

That was the case with Sen. Mary Landrieu, Ritchie noted for example.

The Louisiana Democrat won a narrow election in 1996 and was seated while the Rules Committee probed charges of voter fraud before ultimately exonerating Landrieu after 10 months.

But Ritchie conceded the Blagojevich situation was different.

“We really haven’t had a case like this,” he said. “There’s just nothing quite comparable.”

There are several cases, however, that could have some legal bearing on the Burris appointment.

Bruce Ackerman, a professor of law and political science at Yale, said if there is any allegation of corruption involved in the appointment, the Senate has a right to review the case. But it is unclear whether the upper chamber has the power to block an appointment rather than review any allegations surrounding it and oust a sitting senator afterward.

Ackerman cited the 1912 case of William Lorimer, the “blond boss” of Chicago, who was ousted after a Senate investigation found that bribes had been paid to Illinois state legislators to get him the seat.

At the time, under the U.S. Constitution, state legislators had the task of choosing U.S. senators. Lorimer’s case led to a change in the Constitution to allow a state’s voters to elect senators.

Ritchie also cited a 1941 case in which the Senate was forced to choose between two Senate appointments, one from West Virginia’s outgoing governor and one from the states’s incoming governor.

The outgoing governor, Homer Holt, belonged to the more conservative faction of the Democratic party than his successor, Matthew Neely, a senator with two years left in his term who created the Senate opening with his successful gubernatorial bid.

Holt appointed the equally conservative Clarence Martin, but Neely named Fairmont State College President Joseph Rosier the day he became governor. A deeply divided Senate Committee on Privileges and Elections took nearly four months to determine that Rosier should be seated.

 J.T. Rushing contributed to this article.