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Senate Dems Will Seat Burris
Harry Reid and Dick Durbin have just released a statement confirming that Roland Buriss' appointment to the Senate now meets all legal requirements, and he will be seated in an orderly fashion later this week.
Full statement after the jump.
"The Secretary of the Senate has determined that the new credentials presented today on behalf of Mr. Burris now satisfy Senate Rules and validate his appointment to the vacant Illinois Senate seat. In addition, as we requested, Mr. Burris has provided sworn testimony before the Illinois House Committee on Impeachment regarding the circumstances of his appointment.
"We have spoken to Mr. Burris to let him know that he is now the Senator-designate from Illinois and as such, will be accorded all the rights and privileges of a Senator-elect.
"Accordingly, barring objections from Senate Republicans, we expect Senator-designee Burris to be sworn in and formally seated later this week. We are working with him and the office of the Vice President to determine the date and time of the swearing-in.
"As we had outlined to Mr. Burris, a path needed to be followed that respects the rules of the Senate. We committed to Mr. Burris that once those requirements were satisfied, we would be able to proceed. We are pleased that everything is now in order, we congratulate Senator-designee Burris on his appointment and we look forward to working with him in the 111th Congress."
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I hope that Franken uses the line "I may be the most junior senator, but...." a ton.
January 12, 2009 4:17 PM | Reply | Permalink
Well, since he's been seated this sets the precedence for Franken to now be seated without a signature from the SoS?
Or did the IL SoS do the final signature?
January 12, 2009 4:19 PM | Reply | Permalink
Burris has both the SoS and Gov. signatures. Franken has neither.
January 12, 2009 4:31 PM | Reply | Permalink
"Should a contest be brought against a senator-elect prior to his being sworn in, the chamber's custom has been to seat the individual contingent upon his credentials being in order. (10) Thus, the precedent has been that a senator-elect has a "prima facie" right to the seat, while the contest brought against him is being investigated. Moreover, the individual is considered seated "without prejudice" to himself or to the office. This pseudo-legal arrangement allows the Senate to remove the individual by a simple majority vote, should a subsequent investigation find him not to be entitled to the seat. Otherwise, the Senate's only course of action would be "expulsion," which would require a two-thirds majority (12)." Partisanship and Contested Election Cases in the Senate, 1789-2002, Jeffery A. Jenkins, Northwestern University. Studies in American Political Development, 19 (Spring 2005), 53-74, Cambridge University Press. (Author's emphasis)
The Senate has precedent and tradition for seating someone without credentials- just as Franken does not have credentials now. So WHY can't Franken be seated? Franken has a "prima facie" right to BE seated, in fact.
Can anyone explain why Franken can't be seated because this whole credentials/certification canard is falling apart ???
January 12, 2009 4:21 PM | Reply | Permalink
I would like to add that contingent means both "not logically necessary" and "dependent on or conditioned by something else". It means two completely different and opposing things- I call that wiggle room.
January 12, 2009 4:29 PM | Reply | Permalink
The Senate has precedent and tradition for seating someone without credentials- just as Franken does not have credentials now. So WHY can't Franken be seated?
I believe the reason is that in most states a certification is given independent of a legal contest where as in Minnesota, a certification can not be signed until AFTER the contest. My understanding is that the Senate will not seat a senator unless he or she has been certified.
The idea of seating a senator "provisionally" seems to that the person in question has been officially CERTIFY as the winner but is waiting the results from a legal "contest".
If my understanding is correct, Franken is not in a position to be seated "provisionally" by the Senate. And according to Secretary of State Mark Ritchie, Franken is not yet in a position to be certified as the winner.
January 12, 2009 4:54 PM | Reply | Permalink
Okay, that's a good explanation. This has been sooo confusing. I've been looking for answers to these questions for days, with mutiple different answers available, so it's hard to know what to believe. State rules vs. Senate rules, it's enough to make your head explode.
Aaaargh! Can you tell I live in MN?
January 12, 2009 5:01 PM | Reply | Permalink
Certification IS the required credential. So no, there is no precedent for seating without credentials. In all the cases people keep bandying about, the Senator in question had a certificate. They just came from states that allowed certification while the election was still being contested. Minnesota does not.
This is really not that complicated.
January 12, 2009 5:04 PM | Reply | Permalink
"This is really not that complicated."
Then why has it been so hard to find a decent answer to a few questions?
January 12, 2009 5:09 PM | Reply | Permalink
Because so many people pretend to know the answer when they don't have a clue what they're talking about. It really is pretty simple: no certificate (signed and countersigned) - no seat.
January 12, 2009 5:29 PM | Reply | Permalink
well, how about presenting your assertions in a manner that do not make others for fell stupid for not understanding this mess, especially when considering how the Senate leaders have done plenty to make this even more confusing?
January 12, 2009 5:33 PM | Reply | Permalink
and that should be "feel" instead of "fell".
January 12, 2009 5:34 PM | Reply | Permalink
(Advance apologies to josephcast if this answer seems to be lacking in decorous tone. It's not personal.)
I don't understand why people keep drawing parallels between Franken and Burris. Their situations simply are not analogous.
Burris was appointed to his seat in a legal manner by the only person who could make such an appointment under Illinois law. The Senate *could* refuse to seat him, as Jesse White still hasn't signed the actual certificate. However, that could get hung up in court for quite some time, and Senate Rule II could get blown up in the process (not to mention, say, the electoral chances of a certain Senate Majority Leader in 2010).
Franken was certified by the state canvassing board as the winner of a recount in his Senate election. However, the certification has not been signed by EITHER the SoS or the governor, both of whom (correctly) quote MN election law that deems the contest as yet unresolved.
One case is a legal appointment that ends the replacement appointment process as defined by that state's laws. The other is a legal process that renders it legally impossible to certify a winner. The Senate has much better things to do than try and override state law in either case.
January 12, 2009 5:03 PM | Reply | Permalink
It's an issue of state law.
According to the info I've seen, under Minnesota law Franken can't get the certificate until the election contest is completed. He is not "officially" authorized, by the state of Minnesota, as the winner of its election. So it's not really up to the Senate to decide to seat him - though possibly they could seat him provisionally - it's that the state of Minnesota isn't agreeing he's the senator yet. Which appears to pretty clearly be something they can do under their own elections laws.
That's different than the Burris situation, where Burris had been appointed by the person who, like it or not, had the authority to appoint him - there wasn't really any question about that - and the SOS was just supposed to formalize the paperwork. that's a whole different thing.
January 12, 2009 5:33 PM | Reply | Permalink
This whole situation stinks. I still think the Dems handled it correctly, as if they would have embraced him with open arms the GOP would have used it against them.
January 12, 2009 4:26 PM | Reply | Permalink
Ok GOP you win. We'll take that extra Senate vote. Hmm... now that you mentioned it, I think the Franken matter should be handled similarly. The people of Minnesota need to be represented too.
Well well, this representation idea is really kind of neat. You could base a country on it or something. Now that we are on the same page about this, let's do something about our good friends in Washington DC...
January 12, 2009 4:35 PM | Reply | Permalink
Weak.
Why not hold out until Blago is out of office & Quinn nominates someone else?
If nothing else, the Senate knows how to stall.
January 12, 2009 4:27 PM | Reply | Permalink
Porkbelly:
Because that would almost certainly lead to two persons having a colorable claim to the seat.
Having two Senators for that seat is worse than having none.
January 12, 2009 4:33 PM | Reply | Permalink
No it wouldn't. Quinn could have rescinded the appointment, then appointed someone else.
January 12, 2009 4:35 PM | Reply | Permalink
Yes, but the order rescinding the appointment could be challenged in court.
This is better than letting two people think they are rightfully appointed to the same seat.
January 12, 2009 4:41 PM | Reply | Permalink
No it can't. Art I Sec 5 of the Constitution give sole authority to the US Senate. Their decision is final.
January 12, 2009 4:43 PM | Reply | Permalink
man's best:
Right. So then we could have another court fight about the authority to rescind.
Of course, you are correct that the Senate could in effect decide by fiat under Art. I, but that would create, you know, another shitstorm.
Article I also gives the Senate the power to avoid unnecessary shitstorms. You can look it up.
January 12, 2009 4:57 PM | Reply | Permalink
It would not be the first time the Senate has had to resolve two rival claims for the same seat.
January 12, 2009 5:08 PM | Reply | Permalink
man's best:
Correct again. And always accompanied by a shitstorm. They prefer not to add to the shitstorm's worth of shitstorms that are already storming shit, so they decided to avoid this one.
Which is well within their Article I authority.
January 12, 2009 7:06 PM | Reply | Permalink
Shameful. What happened to the expulsion option?
Reverting "Harry Reid: At Least He Knows How to Stand Up To Democrats" back to just "Harry Reid".
January 12, 2009 4:34 PM | Reply | Permalink
Another self-aggrandizing narcissist in the Senate. Sweet.
January 12, 2009 4:40 PM | Reply | Permalink
The rule of law does have some meaning. Isn't bending laws to fit a person's view of them what we dislike about Bush so much. Or does that only come into play when the rules are bent in a way that we don't like.
January 12, 2009 4:41 PM | Reply | Permalink
It's arguable that the facts of the Burris case could be distinguished from Powell v. McCormick based on the election/appointment distinction, so I don't think the concept of adhering to the rule of law is necessarily implicated.
January 12, 2009 4:53 PM | Reply | Permalink
The very tone of this answer could be the petitioner's Exhibit A in Burris v. US Senate. :)
January 12, 2009 4:56 PM | Reply | Permalink
Stop it. You're being logical. :)
January 12, 2009 4:55 PM | Reply | Permalink
Reasons to seat Burris, and not to seat Franken (yet):
Burris:
1) Burris was lawfully appointed by the sitting Governor of Illinois. There is no exception to the law authorizing the sitting Governor to appoint someone to fill a vacant senate seat, regardless whether the Governor is a crook or nut job.
2) There is no evidence that there was anything improper in Blago's appointment of Burris.
3) The Illinois Supreme Court ruled what documents are required to complete the appointment process.
4) The Senate initially was initially opposed to Burris on principle. Politically popular but not supported by law. They backed off and then said Burris could only be seated if his appointment was complete and lawful. That process has been completed. In short, the State of Illinois has laws explaining how a vacancy is to be filled and those laws have been satisfied. If the people of Illinois are unhappy with the procedures, they, through their legislature, can change the procedure. Since they haven't done that yet, the current laws remain valid.
5) By adhering to the rule of law, they get the political cover of saying they didn't rush to accept Burris, but the law requires him to be seated, and the benefit of an additional Dem. vote.
Franken:
Minnesota also has laws defining how a Senator is to be elected and certified. That certification has not been completed yet. When that process is completed and Franken has the proper papers in hand, it is reasonable to assume that he will be seated, as well.
The Constitution grants the Senate the right to confirm a person's qualifications. The S. Ct. has defined those qualifications to be the person's age, citizenship and residency. The Senate also has the authority to confirm the process, but that authority is rightfully limited to making sure the State's procedures were completed properly. Anything more gives the Senate the power to arbitrarily and inappropriately reject individuals duly elected or appointed.
January 12, 2009 5:00 PM | Reply | Permalink
You sow the seeds of my disagreement in your own words:
Given the circumstances of Blagojevich's arrest (alleged attempt to sell the Senate appointment), the Senate would have more than sufficient justification to refuse to seat Burris pending a full investigation of the circumstances of the appointment. Even if they couldn't bar him permanently, they could stall it long enough. They'd refer the matter to the black hole known as the Rules Committee, from which not even light ever emerges (but strangely, plenty of hot air). In a month, Blago will be gone, Quinn could rescind the appointment and appoint someone else, and the Senate could act to accept the new appointment.
I don't understand why they spent their ammo on this ridiculous SoS signature argument.
January 12, 2009 5:18 PM | Reply | Permalink
The problem with the stall approach (as I've mentioned numerous times on here) is that, when they're done stalling, no court in the land would uphold throwing out the Blago appointee unless you could produce evidence that said appointee was involved in "Pay-Rod".
At that point, the Senate would have a very ugly situation - and whichever junior Senator from Illinois ultimately got shafted, said person would have very strong grounds for his own lawsuit, complete with full media coverage (not something the Senate wants).
Framing it in terms of the SoS signature gives them legal and procedural cover. But once the Illinois Supremes blew that, and Burris found the certified copy of White's signed letter acknowledging the appointment, this jig was up.
The real mistake, I think, was for them to go after Blagojevich so hard. Basically, they tried running a bluff on Blasonofabitch with king high. Blago called with deuces, and grabbed a nice pot.
January 12, 2009 5:40 PM | Reply | Permalink
I see this in the exact opposite way. Once the appointment is rescinded and a new appointment made, the Senate has absolute authority, under Art I Sec 5 as sole judge of qualifications, to decide which appointment to accept. I'd have to look up the exact case, but it's happened before.
January 12, 2009 5:45 PM | Reply | Permalink
How can the appointment be rescinded if it was made legally and Burris is sworn in? It's quite possible that I don't understand how rescinding a legal appointment would work, but even the attempt would smell pretty bad.
If the idea is to forestall a swearing-in, that's where the leverage of a federal suit comes into play. Burris is not considered part of the scheming around Obama's seat, and without significant evidence of that, not seating the legally appointed replacement is a precedent that DiFi and others just don't want to set - for good reason, I believe.
January 12, 2009 5:53 PM | Reply | Permalink
That's just it. They have more than valid grounds to not accept his appointment pending a full investigation. No swearing in until after the investigation. It's well within their Art I Sec 5 authority. No court in the country will tell them they can't investigate or that they have to seat him in the meantime.
January 12, 2009 5:59 PM | Reply | Permalink
Your idea gets back to the very precedent that the Senate doesn't want to set. I'm surprised, frankly, that you would think they should. Can you imagine what this could do to the Senate?
The Senate does not convene a rules committee investigation just to stall an appointee because they don't like the appointer. And they sure as hell don't go conducting their own investigation in this situation, where there's no evidence of guilt and many leading politicians - including the President-elect - have gone to lengths to differentiate between Roland Burris, public servant, and Roland Burris, Blagojevich appointee.
January 12, 2009 6:32 PM | Reply | Permalink
Man Best Friend
You state:
"Given the circumstances of Blagojevich's arrest (alleged attempt to sell the Senate appointment), the Senate would have more than sufficient justification to refuse to seat Burris pending a full investigation of the circumstances of the appointment". WHAT IS THE LEGAL BASIS FOR BELIEVING THIS?
And: "Even if they couldn't bar him permanently, they could stall it long enough.... In a month, Blago will be gone, Quinn could rescind the appointment and appoint someone else, and the Senate could act to accept the new appointment." WHAT IS THE LEGAL BASIS FOR BELIEVING IN THE POWER TO RESCIND?
Here is my prospective (rewritten from a post I made several days ago).
Isn't it true that a governor (any governor) has the authority of his or her office up UNTIL he or she no longer occupies that office (even if the governor is a moral basket case)? Correct?
Give the fact the the Illinois governor is still the governor (and still has the authority to act according to the power invested in his office) it seems to me that he had the authority to appoint Burris and that the appointment was in itself legal. (The appointment of Burris is not in itself tainted with "play for pay". No one as accused Burris of engaging in any legal wrong doing.
Moreover, all efforts on the part of our Democratic Senators to prevent the seating of Burris would appear to have been taken without any legal foundation.
If Burris's appointment itself did, in fact involved, a "pay for play" deal, then it would seem to me that the Senate MIGHT have had grounds for not seating Burris. More importantly, if later it was discovered that his appointment had been a "pay for play" deal, then it would seem to me that the Senate would have grounds for expelling him).
My understand of law is that you can't "punish" someone unit after you have proven them "guilty".
January 12, 2009 5:54 PM | Reply | Permalink
Art I Sec 5 of the Constitution has been quoted so many times here, I'm not going to repeat it. The US Senate is the sole judge of the qualifications of its members. While Blagojevich may still be the legal governor, any appointment that is a result of bribery is clearly illegal and invalid. The Senate has the final say in deciding whether the appointment is legal, and, by extension, has the right to investigate on its own. Inherent in this is the ability to delay seating Burris pending the investigation. There is nothing obligating them to seat him immediately just because there are no currently known facts proving the appointment is illegal.
As long as the appointee has not been accepted as Senator, I know of no bar to rescinding the appointment. As before, the Senate is the sole judge of the legality of such a move.
January 12, 2009 6:12 PM | Reply | Permalink
Hi Mans Best Friend
I believe are correct that the Senate has constitutional rights regarding the seating of members of its body. but my understanding is that those rights are relatively limited.
Mr. E's post outline how he sees those restricted rights. Mr. E states states:
The Constitution grants the Senate the right to confirm a person's qualifications. The S. Ct. has defined those qualifications to be the person's age, citizenship and residency. The Senate also has the authority to confirm the process, but that authority is rightfully limited to making sure the State's procedures were completed properly. Anything more gives the Senate the power to arbitrarily and inappropriately reject individuals duly elected or appointed.
I think Mr. E is probably correct on this matter.
January 12, 2009 10:24 PM | Reply | Permalink
Is this a surprise to anyone?
And, if this was going to be the ultimate result -- and many of us assumed it would be -- why didn't the Democrats just seat Burris last week?
January 12, 2009 5:22 PM | Reply | Permalink
I'll take "Democratic FUBAR" for $100.
What is "because they'd screw up a one-car funeral"?
January 12, 2009 5:25 PM | Reply | Permalink
The "Blago Wins" on the headline out front is a bit of a stretch.
January 12, 2009 5:28 PM | Reply | Permalink
TPM's front page has a headline that screams: Blago Wins, but the same thing could have been said of Pyrrhus's victory (http://en.wikipedia.org/wiki/Pyrrhic_victory)...
Some victory!
January 12, 2009 5:31 PM | Reply | Permalink
He can savor making the Senate leadership look like chumps - for 15 to 20.
January 12, 2009 5:32 PM | Reply | Permalink
I doubt he'd get more time than Lyin' George Ryan.
But a nice felony conviction, disbarment and complete disgrace should render Pay-Rod useless.
Ironically, the Senate would've gotten much farther this time if they'd done what they usually do best: nothing.
January 12, 2009 5:47 PM | Reply | Permalink
Blago is a lot more directly involved than Ryan, and they have a lot better case. I'll be surprised if he doesn't get at least 10 years.
And to the extent that doing nothing is better than looking like chumps, then yeah, doing nothing would have been better. Blago called their bluff and they wet their pants. Lieberman called their bluff and they wet their pants. See a pattern here?
January 12, 2009 5:53 PM | Reply | Permalink
But Ryan's demonstrated corruption went way, way back before he was governor. He was part of the fake-ID scam back when he was SoS. And the Blago case, stunningly, may not be as open-and-shut as one would think.
For the record: Yes, I agree entirely that he's guilty and should go to jail. I'm just saying that Genson and Adam aren't lightweight attorneys, and Blago's comical failed attempts at pay-for-play may end up being used - in his defense.
January 12, 2009 6:25 PM | Reply | Permalink
Regarding Franken:
Credentials are needed for Franken to be seated- he doesn't have the Gov. and Sos signatures.
Question 1: I've seen it tossed about that according to the Supreme Court the only credentials the Senate can recognize are did he win the election? yes, it's been certified by the MN canvassing board. and is he a citizen, correct age, etc.
My question is this legally the only credentials the Senate can ask for? Or is there more to it? Do they need that certification from the Gov. and Sos? I realize the State needs these to certify the winner, but does the Senate need these to seat?
Question 2: Regarding Burris, Feinstein seemed to indicate the SoS signature was unnecessary. Isn't that a necessary credential? Why would the Senate be willing to overlook that particular credential?
Question 3: Why can't the Senate seat Franken provisionally?
Question 5: Why can't Pawlenty offer a provisional certification? I've heard it isn't in MN law. Does absence of a law on provisional seating make it illegal? Could Pawlenty make a "provisional" certification if he wanted to (not saying that he would)?
Question 6: Am a confusing MN and IL laws and that's really the problem here?
Question 7: Are others confusing certifying a winner for the State of MN with seating a Senator for MN?
Help would be appreciated. I'm really confused do in large part to our Senate's actions and statements on these matters.
January 12, 2009 6:12 PM | Reply | Permalink
Confusion further compounded by statements like the one by Amy Klobuchar that states we should provisionally seat Franken.
January 12, 2009 6:14 PM | Reply | Permalink
I ask too many questions.
January 12, 2009 9:12 PM | Reply | Permalink
Alright, my question is, why do the Dems even PRETEND to have spines? They just fold in the end, always, no matter how much big talk they throw around. Just save yourself the embarrassment and acknowledge you are going to give in from the beginning:
http://www.thepersonalispolitical.com/2009/01/harry-reid-teaches-folding-101.html
January 12, 2009 9:40 PM | Reply | Permalink
"Both White and Illinois Attorney General Lisa Madigan say no law requires a secretary of state's signature on appointments. And they point to a portion of the Senate rules that merely recommends the way to write a certificate of appointment, saying it should be signed by the secretary of state.....
One fuzzy portion of the rule might back up the Illinois officials. It says that the Senate must 'keep a record' in a 'wellbound book' that includes the names of the governor and the secretary of state "signing and countersigning the same." But it doesn't explicitly say the signature is required to claim the seat; it just addresses the requirement for the Senate to keep a record."
http://www.salon.com/wires/ap/2009/01/07/D95IJT881_fact_check_burris/
The same logic can be applied here:
Senate Rule 3:
3. The Secretary of the Senate shall send copies of the following *recommended* forms to the governor and secretary of state of each State wherein an election is about to take place or an appointment is to be made so that they may use such forms if they see fit.
THE *RECOMMENDED* FORMS FOR CERTIFICATE OF ELECTION AND CERTIFICATE OF APPOINTMENT ARE AS FOLLOWS:
CERTIFICATE OF ELECTION FOR SIXYEAR TERM
To the President of the Senate of the United States:
This is to certify that on the __ day of __, 19_, A__ B__ was duly chosen by the qualified electors of the State of __ a Senator from said State to represent said State in the Senate of the United States for the term of six years, beginning on the 3d day of January, 19__.
Witness: His excellency our governor __, and our seal hereto affixed at ___ this __ day of __, in the year of our Lord 19__.
By the governor:
C__ D__,
Governor.
E__ F__,
Secretary of State.
*'s are my emphasis. Recommendations are not rules.
"But Reid would not commit to waiting until the state issues a certificate, which, under Minnesota law, can only happen once Coleman's legal contest is resolved.
'We're just going to do it when it's necessary,' Reid said."
http://www.boston.com/news/nation/washington/articles/2009/01/07/fact_check_senate_rule_fuzzy_on_seating_burris/
Hmmmmmmmmm. Reid? A strategy here?
"The Senate of the United States shall be composed of two Senators from each state."
"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."
"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."
Constitution of the United States, Article I.
Seat Franken. Majority rules.
January 12, 2009 11:21 PM | Reply | Permalink
The above is entirely a pipe dream, I'm afraid.
(1) Franken doesn't have signatures from either Pawlenty or Ritchie.
(2) The Republican governor and the Democrat SoS *agree* that Franken cannot yet be seated.
(3) The Senate will never (as in never, never ever) get involved in resolving such a state election unless there are no legal remedies left in the state.
Relax. Franken will be seated when Minnesota's legal process has run its course. Coleman is an asshat, true, but he's also less than 0.001% behind Franken. It's not unreasonable for him to explore all legal avenues of overturning the recount. There would be plenty of people here screaming for Franken to do the same if the situation was reversed.
January 13, 2009 1:24 PM | Reply | Permalink