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FiveThirtyEight

Politics

I’m going to be repeating myself here, but as the reporting on this story has been poor (save for the Huffington Post and a couple of other outlets), it appears to be necessary.

The notion that the Democrats can refuse to seat Roland Burris out of hand is, at best, constitutionally dodgy. This is because of the Supreme Court’s 1967 Powell v McCormack decision, in which it ruled that the Congress’s power to judge the qualifications of its members is expressly limited to the conditions mentioned in the Constitution (e.g. age, residency, and U.S. Citizenship). If the Congress wants to deny membership for any other reason, it has another power, which is expulsion. Although the power of expulsion is much broader than the power of exclusion, it comes with a higher price tag: two-thirds of the Senate must vote to expel one of its members rather than a simple majority.

Given this, Reid and the Democrats have essentially three strategies they could pursue if and when Burris’s name comes before the Senate Chamber:

1) Attempt to exclude Burris by majority vote, almost certainly inviting a court challenge.
2) Attempt to expel Burris after seating him.
3) Bluff at either of the above, but with the ultimate expectation that Burris will be seated.

1) Attempt to exclude Burris by majority vote, almost certainly inviting a court challenge.

Reid’s language about refusing to seat Burris seems to be an invocation of Article 1, Section 5 of the Constitution, which holds that “Each House shall be the judge of the elections, returns and qualifications of its own members.” In the case of Burris, however, there was no election in play (rather, he was appointed), so there are no questions about elections or returns – and McCormack holds that the Congress’s ability to judge the qualifications of its members is limited to circumstances that don’t pertain in the case of Burris.

Still, the Senate could hold a vote and decline to seat Burris, and take their chances in court. Then, Burris (or Blagojevich?) would sue, probably also seeking an injunction that required the Senate to seat Burris until a ruling by th court.

Reid would seem to be a longshot to win such a lawsuit, since McCormack speaks fairly explicitly to the issue at hand, but it’s possible that he could find some sort of clever argument or that the Court would refuse to take the case — it’s a different court than it was in 1967. Or Burris, embarrassed by the whole thing, could stand down, although that seems unlikely since Burris has lost more elections than Lyndon LaRouche and doesn’t seem the type to be easily deterred.

More likely, though, this would succeed only in delaying the inevitable for several weeks.

2) Attempt to
expel Burris after seating him.

Here, the Senate would be on much firmer Constitutional ground. But the power of expulsion has been used very judiciously — no Senator has been expelled since the Civil War, although several (such as Bob Packwood) have resigned in the face of possible expulsion. And Burris himself has not been accused of any misconduct; the Senate has never before attempted to expel a member under such circumstances. Achieving a two-thirds majority, therefore, might not be easy. There is also a decent chance that an expulsion could trigger a court challenge, although the courts have interpreted the Senate’s powers of expulsion to be very broad.

3) Bluff at either of the above, but with the ultimate expectation that Burris will be seated.

The difference here is that Reid would make a show of trying to exclude Burris for the cameras, but would not really try and whip votes. Perhaps the Senate Democrats could thereafter vote to exclude Burris from their caucus, something they have complete discretion over, but which wouldn’t have much impact with the Democrats firmly in control of the floor.

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Of these choices, it seems like the first is probably the Democrats’ best bet. This way, Reid and the Senate Democrats won’t appear to have broken their promise to exclude Burris; instead they’ll claim that their hands have been tied by the courts. But, they’ll still get their 58th (or 59th) Democratic senator.

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