More on the Roland Burris Appointment: A Response to Amar and Chafetz

Over at Slate, Josh Chafetz and my mentor Akhil Reed Amar have penned what I think is the best argument one can make that the Senate can and should refuse to seat Roland Burris, Illinois Governor Rod Blagojevich’s pick to fill that state’s vacant Senate seat. The best, but still not enough in my opinion, following up on my earlier post.

The core of their argument is that the Senate can judge the elections and returns of its members, and so “[i]f the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process.” They continue that:

To be sure, there is no evidence Burris bribed the governor to get this seat. But imagine if Burris had won election only because other candidates were wrongly and corruptly kept off the ballot. Surely the Senate could properly deem this an invalid election. Similarly, it now seems apparent that there were candidates that Blagojevich refused to consider for improper reasons—because one refused to “pay to play” early on, or because another is at the center of the impending criminal case against the governor. With the appointments process so inherently and irremediably tainted, the Senate may properly decide that nothing good can come from a Blagojevich appointment.

Here’s why I think that’s wrong.

Their analogy would work if, say, Jesse Jackson, Jr. got appointed over the corruptly excluded Valerie Jarrett. But that’s not what is happening here. Go back to the election analogy. Let’s say that an election was corrupt. The Senate rightly refuses to seat the winner of the election. Now there is a vacancy. Thus, the governor gets to appoint someone to fill it, and if he does so without any shenanigans that time, it should be OK.

The alternative would be to say that once one bad thing happens, the Senate can force the vacancy to persist until there can be a new and clean election. As my colleague Mae Kuykendall points out, though, the new election wouldn’t remove the “irremediable taint” of the corrupt vacancy anymore than a new and clean appointment would. What removes the stain of corruption is a non-corrupt appointment pursuant to state law. As warm-feeling a policy as boycotting Blagojevich might be, I don’t read Art. I, § 5 and the 17th Amendment as giving the Senate that authority here. It seems to me that those provisions leave it to state law to determine how vacancies are filled.

The alternative is a situation in which the seat remains vacant until the IL legislature either removes Blagojevich or passes a law stripping him of the appointment power and mandating an election. But surely that puts the cart before the horse. The legislature has had the opportunity to do both of those things already, and has declined to do so.

Put another way, the law is that the governor fills this vacancy. That law was followed here. No one is claiming that Blagojevich broke the law in selecting Burris. In the absence of any such evidence—let alone in the absence of an attempt to even look for such evidence—the Senate cannot legitimately question the “returns” here.

At least Amar and Chafetz have made a plausible legal argument, as opposed to Senator Reid’s legally vacant pronouncements. I find it ironic that Reid, a Mormon, is hearkening back to the pre-Powell notion of excluding people from Congress through guilt by association. Back in the day, that illegal approach was used to keep Mormons out of Congress for being Mormons. Senator Reed Smoot was challenged on these grounds, and it took four years of hearings and debate before he was seated. Notwithstanding their hard-to-overstate distaste for the people who sent Smoot to the Senate, the senators eventually let him take his seat.

More relevant for current purposes is that they seated him provisionally in the meantime, and had a real debate about it, instead of reaching their conclusion before he had even arrived.

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15 Responses

  1. Brian says:

    Let’s say the Senate announced that it did indeed have evidence that the Burris appointment itself was corrupt, and held a couple hearings and issued a committee report to support that conclusion. Let’s say, further, that that report was flimsy in the extreme, offering weak probabalistic or conjectural evidence based upon assumptions about Blago’s putatively abnormal psychology.

    The interesting question (to me, at least) is whether the federal courts – ultimately the Supreme Court – would feel obliged the credit the conclusions of the crappy report, after a weak rational-basis type review. Or: Whether the Supreme Court would feel bound to actually access the evidence, as it does in other contexts (e.g., with regard to evidence of constitutional violations backing statutes pursuant to Section of 5 of the 14th Amendment.)

  2. Adam says:

    There are many observations to make about the Amar piece (and I am not so sure I’m really in a position to be criticizing one of the nation’s leading scholars of Constitutional Law), but I thought it might be worth noting that the Slate article’s characterization of the OED’s definition of “returns” is arguably skewed.

    Definition 9(a) of the word in the OED is “The official report made by a returning officer (originally the sheriff) as to the election of a member or members of Parliament; hence, the fact of being elected to sit in Parliament.” Amar and Chaftez ignore the clause following the semicolon, and while a dictionary is not legally binding, I do think that is key language. I read Powell to mean, in the context of this situation, to empower the Senate to investigate the validity of “returns” that are presented to it–if, say, two individuals showed up in Washington purporting to have been appointed to the vacant Senate seat. Then, the Senate would be the sole judge of those “returns,” in terms of determining which one is in fact the authentic one. This is not the case.

  3. ryan says:

    Can we imagine a law that anyone who tried to sell a Senate seat forfeited his right to appoint to that seat? Can we imagine that as part of that law, a person under suspicion of such an act could be restrained by judicial order from appointing while the case proceeded?

    If so, it’s hard to see why the Senate could not retroactively apply such a standard.

  4. A.W. says:

    Who’s to say that this appointment was clean.

    This goes back to the argument i made in the last thread on this. Congress can find whatever facts they want, and its not clear tha the courts will correct them. I made that point on the residency and age requirment, but there at least Blago’s appointee might be able to provide clear evidence contradicting them. in the case of corruption, well, first they will have an investigation. i think we already know that Burris gave money to Blaggy, and the senate could say “this is enough.” Who is the courts to say they are wrong?

    And the nice thing there, is that it limits it to the case of corruption.

  5. Kallisti says:

    I think you are missing a key point. Amar and Chafetz claims in the section you quoted that the Senate has the constitutional right to refuse to seat people who have been appointed incorrectly, not just refuse falsely elected or disqualified people. If that is so (and Adam above is incorrect) the question now becomes whether they have grounds to do that in this situation.

    The state of Illinois is investigating the actions of the governor, according to their constitutional powers. Patrick Fitzgerald is also investigating the governor, according to his powers. I believe that the Senate, as “the judge of the elections, returns and qualifications of its own members”, has the authority to refuse to seat Burris until it has determined that the appointment was done properly. The Senate can’t wait until the state legislature or the courts have decided the matter but should perform it’s own investigation as there are enough indications to start an investigation.


  6. Brian Kalt says:


    I’m not sure that we disagree all that much. Even if I concede that the Senate has the power to refuse to seat people because of corruption, the Senate at least needs to investigate and make good-faith findings before they reach their conclusion. The last sentence of my post is my (minimum) point.

  7. Adam says:

    Regarding Kallisti’s comments:

    To my knowledge, the Constitution doesn’t say that it is incorrect for the Governor of Illinois to sell an appointment to a Senate seat to the highest bidder. Illinois law doesn’t say so, either. Here is what it does say: “When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress . . . .” 10 Ill. Comp. Stat. 5/25-8 (2006). Let’s go over the checklist:

    1. Has a vacancy occurred in the office of United States Senator from Illinois? Yes

    2. Has the Governor made a temporary appointment to fill such vacancy? Yes

    Bingo! Valid appointment. The statute places no limitations at all on Blago’s discretion in whom to appoint. I have no doubt that if there were some dispute as to whether one of those two predicate circumstances were in fact the case, the Senate would be the body to investigate it. But there is not, and if they seek to exclude Burris because his appointment was done in a corrupt fashion, or by a corrupt person, it would be imposing two things: (a) a particular definition of corruption that may not be universally shared (after all, there is some debate about whether Blago even did anything that is not considered “fair game” in the world of politics, other than speak crudely), and (b) that definition of corruption when neither the Constitution nor Illinois Compiled Statutes do so. That would seem to be right in Powell’s wheelhouse, so to speak, in terms of forbidden Senatorial behavior.

  8. Jon Marcus says:

    The alternative is a situation in which the seat remains vacant until the IL legislature either removes Blagojevich or passes a law stripping him of the appointment power and mandating an election. But surely that puts the cart before the horse. The legislature has had the opportunity to do both of those things already, and has declined to do so.

    I’d disagree. This has all unfolded very quickly and recently, over the holiday season. The legislature has formed a committee to study impeachment, and I think they’re supposed to report back next week.

    Impeachment isn’t (and shouldn’t be) lightning quick. But the impeachment process is currently under way. Blago just tried to get his appointment in first.

  9. L. Ware says:

    What is missing from these discussions is the question of what were Blagojevich’s motives when he made the appointment? The Governor did not make this appointment as a favor to Burris; he set up a defense against the claims that he “sold” the Senate seat. After his wiretapped discussions were disclosed, Blagojevich realized that he had been caught and needed to do something. It is likely that he hastened to appoint Burris without any financial remuneration, making it a “clean” appointment. He also hoped that the Senate would be skittish about denying the seat to an upstanding African American. (Illinois Congressman Bobby Rush injected race into the mix when he said, “I would ask you not to hang or lynch the appointee as you try to castigate the appointer.”) Blagojevich’s defense in any criminal prosecution will be whatever discussions may have been made about money, he ultimately made an appointment for which no funds or other consideration was exchanged. Hence, no corrupt act was ever consummated. This would mean not only that Burris retains the Senate seat but it would be at least possible that a jury might acquit the governor in the criminal proceeding.

  10. Asher says:

    I don’t understand, L. Ware; was that an argument that Burris shouldn’t be seated just because Blago did it to provide himself a defense in court?

  11. L. Ware says:

    The Senate, through some fact-finding process, would have to determine that Burris’ appointment was the product of a corrupt bargain, irrespective of Blagojevich’s apparent efforts to sell the seat to others. If my speculation is accurate, Burris would have to be seated.

  12. Kallisti says:

    Brian Kalt,

    it would seem that we are pretty much in agreement. If you concede that the Senate has the power to refuse then the discussions in the media and blogs should rather be interpreted as speculation on what they will decide after, as you said, an investigation and a making a good-faith finding.

    Whether they will perform an honest investigation, make a political decision or just delay it until Blago is removed is another interesting question that will tell us a lot about if the unethical culture of the Bush administration has taken hold..


    The key aspect of your statement is your qualifier “To my knowledge”. My point is that it is up to the Senate to decide based on their knowledge and through their own procedures. They do not depend on the state legislature or the US Attorney (or your..) interpretations and conclusions.


  13. Don in Texas says:

    It seems to me that Senate Democrats are defying the sovereign acts of the people of Illinois in barring the seating of any appointee of Blogojevich.

    Blogojevich was legimately elected governor by the people of Illinois to perform the duties of that office. In this case, he has done so in accordance with the laws of the State of Illinois and Amendment 17 of the U. S. Constitution.

    In my view, Senate Democrats have absolutely no authority to bar Roland Burris from taking his seat in the U. S. Senate — and the Illinois Secretary of State has no legitimate basis for refusing to certify Burris’ appointment.

    The laws and the mandates of the people must be obeyed.

  14. RonF says:


    “I believe that the Senate, as “the judge of the elections, returns and qualifications of its own members”, has the authority to refuse to seat Burris until it has determined that the appointment was done properly.”

    But the Senate apparently has no intention to do any such thing. As far as I can tell they have simply said “We’re not seating anyone that Blago appoints.” and are not intending to do any investigation of whether or not the appointment was done in a corrupt fashion.