Lewis Gould
History Professor and Author
Tuesday, January 6, 2009
3:00 PM
Senate officials this morning rejected Roland Burris's effort to be seated as the successor to President-elect Barack Obama, telling the former Illinois attorney general that he lacked the requisite approval of state officials to be sworn in with the rest of the class of 2008 in today's launch of the 111th Congress.
Lewis Gould, professor emeritus at the University of Texas at Austin, well-known authority on the American presidency and author, of "The Most Exclusive Club: A History of the Modern United States Senate," was online Tuesday, Jan. 6, at 3 p.m. ET to discuss
A transcript follows.
In an e-mail interview with washingtonpost.com, Gould said, "Not since the 1920s, when the Senate refused to seat two elected Senate candidates because of corruption in the financing of their campaigns, has the upper house of Congress acted as it did with Roland Burris today. This episode illustrates the power of the Senate to decide on the qualifications of its prospective members but it also raises thorny political and legal questions that will be sorted out during the next several weeks. Once again, "the most exclusive club" of the United States Senate shows its capacity to put itself in the forefront of American politics.
____________________
Lewis Gould: Hello, everyone. The Senate today took controversial action in responding to the appointment of Roland Burris as a new senator from Illinois. Yet such an event is not a unique development in the history of the Senate, as history shows. Let's chat about some of these precedents and the Burris case in the hour ahead. Lewis L. Gould
_______________________
Northern Virginia: Do you think the power of governors to appoint interim senators (except perhaps for very short terms) should be replaced with automatic special elections?
I do not understand why there is one rule for the House and a different one for the Senate. Is it the difference in expense between a House district election and a Senate statewide election? Or the difference in the term length?
Lewis Gould: The problem with the Senate arises from the original process by which senators were elected by state legislatures down to 1913. The Seventeenth Amendment says that governor can call a special election or the legislature may delegate to the governor the power to make a temporary appointment until an election can be held. The states have responded in different ways, hence the divergent procedures for the House and Senate.
_______________________
Fairfax County, Va.: How will the situation change if Gov. Blagojevich is impeached?
Lewis Gould: Presumably a new governor would make a new appointment that the Senate would find acceptable.
_______________________
Falls Church, Va.: Why did this "spectacle," as the Post has termed it, even occur? The classy way for each side to handle Mr. Burris's appointment is simple. Mr. Burris should have waited until the Illinois Secretary of State ratified his appointment (or was ordered by a court to do so), and the Senate should have admitted Mr. Burris on a provisional basis. The Senate could have treated him as Congress treats Eleanor Holmes Norton. Then, if Mr. Burris is ratified, the Senate would have no furious backpedaling to do, and if Mr. Burris is not ratified, he would been seen in a better light for having waited.
Lewis Gould: Senator Harry Reid could have used your advice which seems wise in the circumstances.
_______________________
Bethesda, Md.: The Democratic caucus seems to believe that the U.S. Senate is similar to a private club in which members have the right to decide whether others are worthy of membership. The Senate did not act to expell former Senator Ted Stevens even after his criminal conviction, so its behavior now seems hypocritical. What is the constitutional basis for its refusal to seat the apparently legal appointee of the state of Illinois? What are the limits of these claimed powers or can they be used to exclude anyone whom states appoint or elect?
Lewis Gould: The Senate has wide discretion in judging the qualifications of its members, as the Constitution specifies in Article I, section 5, but it is not absolute both in a legal sense and a political sense. On the Stevens case, had he not been defeated in the election, there would have been a process of expelling him.
_______________________
Johnson City, Tenn.: Why did the Senate not expel members who are found guilty of crimes? e.g. Ted Stevens
Lewis Gould: They can and have, but the process is more complex than seeing a guilty verdict in the newspapers and telling the senator to clean out the office. There have to be hearings and appropriate action. What happens in a convicted senator prevails on appeal?
_______________________
Bay St. Louis, Miss.: Mr. Gould,
Please get down to brass tacks on this. In your opinion, should the gentleman from Illinois be seated in the Senate? Why or why not?
Lewis Gould: I'm not in the "should" business on this one, but I suspect that in the end Burris will be seated unless there are other developments. Now if a new Illinois governor appoints someone else, then we could have two senators with sets of valid credentials fighting it out.
_______________________
Lexington, Ky.: I know that you have written a lengthy history of the Senate. Do you deal there with the two cases from the 1920s that you mentioned in your introduction?
Lewis Gould: I hope it is not too lengthy for folks to read. The Most Exclusive Club: A History of the Modern United States Senate (2005), p. 111, mentions the cases of William Vare (Pennsylvania) and Frank L. Smith of Illinois (there's that state again). There is a good discussion of the Vare precedent on the History News Network website today.
_______________________
Washington, D.C.: If it is true that the Senate rules require the signature of the governor and the secretary of state, then it seems like the secretary of the senate was technically correct this morning. Really, the issue is the refusal by the Illinois secretary of state to sign the certification. Seems that under Illinois law he is required to sign the certification and that Burris can (and probably already is) bringing a lawsuit to force the secretary of state to exercise his lawful duty. If and when Burris returns to the Senate with the proper credentials, I see no legal grounds for the Senate to refuse to seat Burris. To do so would set a terrible precedent because the logic could easily be extended in future cases to elected senators. Dangerous ground. Thoughts?
Lewis Gould: I think your conclusion is probably correct about the legalities of the matter regarding the secretary of state in Illinois, but people familiar with that state's constitution would know better than I on the issue. Once Burris has a valid appointment, the Democrats in the Senate will face an interesting predicament.
_______________________
Richmond, Va. : The Senate itself, its weakness for grandstanding, never really following through on anything, its own corrupt members, etc., make the Burris seating (not)just ho-hum. What I want to known is how the people of Illinois feel about the Burris appointment, and secondarily, as awful as Blagojevich is, he really was very crafty in making this appointment, for all the reasons everyone is struggling about it.
Lewis Gould: My friends in Illinois seem intent on getting the governor out and the Senate issue seems peripheral to them (but not to us). However, this is the kind of quasi-judicial, legally complex issue that the Senate loves to explore at length. Illinois has been through something like this once before in Senator William Lorimer, elected in 1909, only to face charges that his election was corrupt. He was expelled in 1912. There is a terrific book on the case--Joel Tarr, A Study in Boss Politics: William Lorimer of Chicago (1971)
_______________________
washingtonpost.com: History News Network
_______________________
Franconia, Va.: What is to stop a mischievous secretary of state (in a state, that is) from refusing to certify any governor's appointment, thus blocking the governor's selection?
If the signature certifying the appointment is that important, it seems as though senatorial appointments going forward would be a joint decision of the governor in any state and his or her secretary of state, not the governor's decision alone.
Lewis Gould: One wonders if the secretary of state is supposed to be such an important decision-making figure. The Seventeenth Amendment speaks of the executive in the state, but I doubt that the secretary of state was what they had in mind.
_______________________
washingtonpost.com: Joel A. Tarr
_______________________
Springfield, Va.: This piece in the L.A. Times ( Opinion: The law is on Blagojevich's side (L.A. Times, Jan. 6)) argues that legal precedent is on Burris's side in this contest. Blago has not been impeached or convicted (yet), and Burris's name did not come up in the investigation -- so what is the point of Sen. Reid's argument?
Lewis Gould: The fact that the governor made the appointment seems to be at the heart of Senator Reid's unhappiness with the Burris selection. The legal precedents would seem to lean to tbe Burris side of the matter.
_______________________
Washington, D.C.: Sure the lack of a signature by the Illinois SoS was foreshadowing, but any law school student can explain the syllogism:
Governor has power to appoint. Blago is governor and has not been removed by impeachment or conviction. Appointment valid.
Reid is getting some seriously bad legal advice. Powell v. McCormick appears to be controlling. So what's next. Seated then expelled? Or do we get a filibuster from the R's over "Senator-Elect" (as Reid said today) Franken?
Why do we have to start our new majority and Administration with Dem fighting Dem. What a waste of political capital and the American people's patience? If we get rid of Harry Reid, who's next?
Lewis Gould: Democrats can infight about issues at a moment's provocation.
_______________________
Savannah, Ga.: I personally think the Senate is on shaky ground here. They said the proper paperwork had not been filed...the IL SoS had refused to sign it. One prior poster used the term "ratify," but I thought the actual term was "certify." Those mean two entirely different things.
Ratifying means they approve of the choice, certifying means that they are basically saying "yes, this is who he picked" and confirming it. Since the sole authority for appointment rests with the Governor the SoS can't overturn it.
Therefore the appointment is valid, at least from that standpoint. From what I have read of the applicable laws I would say it meets the legal test as well, but that is another post entirely. I have a feeling the senate is going to be doing some very serious backpedaling soon.
Lewis Gould: The Senate can backpedal with more speed and apparent dignity than many another deliberative body. It would seem that the Illinois secretary of state is taking on powers that few assumed he had.
_______________________
Oak Park, Mich.: Two questions; first, If this goes to the courts, will it be the job of the Attorney General of Illinois to represent the governor's appointee, and who would represent the U.S. Senate? Second, Is it possible that Mr. Burris could request sanctions under civil rights law (or any other law) against those who blocked him from taking the seat that is legally his?
Lewis Gould: It would depend on who gets sued and in what venue. I doubt that the courts would want to get into something that is the prerogative of the Senate unless there was a clear case of some violation of federal law. That would not seem to be the case here.
_______________________
re: Blago: You wrote: "What happens in a convicted senator prevails on appeal?" What happens if the case against Blago blows up and he's not impeached or convicted? Are the people of Illinois supposed to go with only one senator for months? Isn't the governor innocent until proven guilty, and therefore still empowered to make this appointment?
Lewis Gould: It would seem so since he has not yet been convicted of anything.
_______________________
Washington, D.C.: Are you saying that if it's determined that Burris was "appointed" properly and procedurally by the Illinois people, then he should be accepted in Washington as the senator from Illinois?
Lewis Gould: I'm saying it is hard to see on what grounds he would be denied.
_______________________
Washington, D.C.: Didn't Burris and his attorneys know they needed/didn't have state officials' (what state officials?) approvals before he would be sworn-in? What purpose does going to the Capitol unauthorized serve? 1 Blagojevich will get his name in news? 2 Burris gets name in news? 3 They both look stupid? 4 Illinois looks stupid?
Lewis Gould: As in most political controversies, perception is all-important. Being turned away today clearly served some purpose for the Burris side. Whether it had any positive effect will be clearer in the next news cycle.
_______________________
Silver Spring, Md.: I really don't understand why the refusal to admit and seat Burris is considered such a political spectacle when everyone knew ahead of time that it would happen. Senate leaders said they would not seat him. Burris said he would come anyway -- why is anyone surprised it happened? I also don't see where the Senate has the right to refuse him. The Illinois governor is still governor until he resigns or is impeached and therefore has the right to appoint someone to replace Obama, whether anyone likes it or not. The only thing that should keep Burris from being seated is if any evidence comes to light that he offered anything in exchange for the appointment.
Lewis Gould: The Senate is sometimes about pre-staged spectacles where the outcome is determined in advance but everyone gets to posture for the camera.
_______________________
Germatown, Md.: If I'm reading the case law correctly (Powell v. Maddox), if Burris had shown up with a properly signed and counter-signed certificate of appointment, he probably should have been seated. At that point, he could be expelled by a 2/3's vote. The language in the 17th Amendment is "the executive authority" not simply "the executive." Since the Illinois sec of state refused to sign the certificate, the argument could be made that the "executive authority" had not yet made an appointment by the rules in Illinois law.
It will be interesting to see whether or not the Illinois Supreme Court decides to order the signature to be made and whether or not the Senate will then accept Burris.
Lewis Gould: Somehow I doubt that the Senate would have immediately voted to expel. There would have been hearings or some semblance of due process. On your point about the executive authority, it would come down to what the precise powers of the secretary of state of Illinois are.
_______________________
Fairfax, Va.: Unrelated to this but ... What do you think about Al Franken declaring himself the winner in Minnesota? Will that hold? If not, what is the next step, another recount? Please comment.
Lewis Gould: Ah, contested senate elections. That's a whole different ballgame. Franken has been certified as getting more votes than Coleman by the Minnesota agency charged with making such rulings. The next step is a court battle if Coleman tries to contest the ruling. What I have read indicates that it will be an uphill battle for Coleman in the courts. My surmise will be that Franken will be the next senator from Minnesota but not for awhile.
_______________________
Lewis Gould: For those political junkies seeking more reading on the Senate, let me mention three good biographies that I like. Nancy C. Unger, Fighting Bob La Follette: The Righteous Reformer (2000)
Byron Hulsey, Everett Dirksen and His Presidents (2000)
James T. Patterson, Mr. Republican: A Biography of Robert A. Taft
_______________________
So Tired of the man from NV...: "Senator Harry Reid could have used your advice which seems wise in the circumstances."
As a lifelong Democrat, let me just say, Reid makes a much better opposition leader than he does leading the majority. What's the chance we'll see the back of him in the next few years?
Lewis Gould: The Majority Leader is a tough job under any circumstances (which might be called the Bill Knowland rule). Unless a credible alternative candidate emerges in the next year or so, Reid is likely to remain in office. The assumption that majority leaders have to behave like Lyndon Johnson to be effective goes against most Senate history. Reid's sole constituency are the Democratic senators and if he takes care of them, his place is secure.
_______________________
Arizona: I do not understand all the hairsplitting about Mr. Burris' appointment. Once the appointment process became tainted by the federal investigation into corruption by the Illinois governor directly related to this appointment, then the entire appointment process -- past and future -- involving this governor is equally tainted. Mr Burris knew this. Other of his colleagues had turned down the appointment for just that reason. Would Mr. Burris have even been considered for this position under less suspect circumstances?
Lewis Gould: None of this discussion validates Governor Blagojevich's political actions or his judgment about staying in office. But indictments are not convictions and as long as he exercises the powers that the Illinois constitution gives him, there is a real question about whether a "taint" invalidates an appointment of a senator in a legal sense. The questions you raise are legitimate ones, but if we disqualify people for the Senate because we have questions about their judgement the chamber will be truly empty most of the time.
_______________________
Chicago, Ill.: For what it's worth, I'm an Chicago lawyer and I don't know anybody who thinks Burris is behaving honorably here. And that includes black and white Illinoisans. He looks like an idiot.
The process is so obviously corrupted that arguing about whether his appointment is technically legal or not is beside the point. Burris shouldn't have accepted Blagojevich's appointment and his efforts to make himself Illinois junior senator are really tarnishing his own legacy. He's really punching well above his weight class. Thanks.
Lewis Gould: That seems a good place to bring the discussion to an end. Thanks to everyone for the questions and for the lively dialogue. Lewis L. Gould
_______________________
Editor's Note: washingtonpost.com moderators retain editorial control over Discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions. washingtonpost.com is not responsible for any content posted by third parties.
View all comments that have been posted about this article.