A FP diary by SusanG, here, cited a link to a Congress Matters diary here. For some reason, comments were disabled on this FP diary.
The Congress Matters article makes a very broad claim that the Senate has virtually unlimited power to refuse to seat a new Senator. That simply didn't sound right to me, so I've done a little checking. It turns out the Senate does have nearly unlimited power to censure and expel, but not to exclude a new member from being seated.
Below, I'll give you a link to prove my point ... and you'll even be allowed to comment! :-)
First, let's be clear about the Constitutional basis for the powers the Senate has to censure, expel and exclude members. Those powers are found in Article I, Section 5. The relevant portion reads as follows:
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.
Much has been said about the Senates power to exclude Burris from assuming his seat. Here is some Congressionally-provided evidence which questions that accepted wisdom.
The Congressional Research Service produced a paper on the powers of the Senate regarding censure, expulsion and exclusion. It's title is, "Expulsion and Censure Actions Taken by the Full Senate Against Members" (pdf). Beginning on page 6, under the heading, [Expulsion] "Distinguished from Exclusion", the CRS says, with footnotes (emphasis mine):
It should be noted that the disciplinary action of expulsion is different than, and is distinguished from, the action of exclusion. An exclusion is where the Senate (or the House) refuses to seat a Member-elect, generally upon the objection of another Member or Member-elect, by a simple majority vote on the grounds that such challenged Member-elect has either not met the three standing constitutional qualifications of office (age, citizenship, and inhabitancy in the state from which elected), or was not "duly elected."12 The authority of the Senate to exclude a Member-elect by a simple majority vote of the body — although there had been some legitimate minority argument to the contrary in the past — is now clearly understood to be limited to questions of whether a Member-elect meets the constitutional qualifications for office,13 or the question of whether the Member-elect had been "duly elected" (a question which is generally resolved in a so-called "contested election" case).14 The Supreme Court in Powell v. McCormack stated clearly that "the Constitution leaves the House [and the Senate] without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution."15
The precedents in the Senate which pre-date the 1969 Powell v. McCormack decision, and which consider moral character and/or past misconduct in assessing the "suitability," "fitness," or "qualifications" of an individual who was duly elected by the voters of a state in an "exclusion" proceeding, are, therefore, of suspect relevance and value as a precedent concerning this issue at the present time. As explained in Deschler’s Precedents, "The [Powell] decision apparently precludes the practice of the House or Senate, followed on numerous occasions during the 19th and 20th centuries, of excluding Members-elect for prior criminal, immoral, or disloyal conduct."16
I'm sure I've irritated a number of people regarding the Burris appointment. I'm sorry for that, but this attempt to stop him from sitting has nothing to do with Blago and will ultimately bite us in that butt if it is actually pursued to it's logical end, e.g. SCOTUS. Reasons this is a bad course to pursue?
The Congressional Research Service seems to be telling us that the Senate will ultimately lose a fight to exclude Burris.
- Fitzpatrick rushed Blago's arrest to prevent sale of a Senate seat. He hasn't pursued a similar course now that Burris has been appointed. Why not? Because he has no incriminating evidence (Occam's Razor).
- Much as everyone hates Blago, he had every reason to make this a clean (no pay-for-play) appointment, since he's under intense scrutiny.
- Blago has the lawful power to make the appointment.
- Burris is qualified by age, residence and citizenship (Constitutionally quallified).
- Burris has served honorably in public office for years. No one has named a legal blemsish.
- Burris has made every indication that he will not acquiesce to "exclusion" from HIS seat and will take it to court. A case he will win, as evidenced by the CRS article cited.
- Democrats need every vote we can get in the Senate. We only delay gaining the Burris vote by dragging this sad punish-Blago-thru-Burris case to ultimate failure.
- Though distasteful, all actions taken to date appear to be lawful. Every argument I've seen for excluding Burris seems to derive from distaste, not law.
NOTE: I've read and answered the following issues so often, please don't raise them again:
- Burris is tainted because he accepted the appointment - Get real. "Taint" is not grounds for exclusion, nor is it legal grounds, nor is it true of Burris who has manned his government posts honorably.
- Any Blago appointment is tainted by his attempts at personal gain - So far no one I've seen has evidence Blago was asking for more than political tit for tat. Personally, I expect it was more than that, but there's no evidence. The fact that Fitzpatrick has requested more time is indication he may have a problem proving it.
- Burris can't be elected in 2010 - we abide by the laws of today. The appointment is legal. Democratic strategy for elections two years in the future do not carry the force of law.