(Daniel Pollitt, who is professor of law emeritus at the University of North Carolina and my uncle, sent me his reflections on The Blogojevich-Burris flap. I figured I should put them up before New York Governor Paterson selects his own personal Senator.)

The F.B.I. was bugging Illinois Governor Blagojevich and recorded him commenting that the opportunity to name the Senate replacement for Barack Obama was “golden” (apparently there is no one offering a pot of gold for the appointment).

On this, Democratic Senate leaders announced that anyone appointed by Blagojevich would be “tainted” and would be denied a seat in the Senate. The Illinois Secretary of State piled on, saying he would not sign or affix the State Seal to any Blagojevich appointments.

This brings to the forefront the almost-forgotten 17th Amendment which calls for Senate election by the people, rather than by the legislature. It also provides two alternatives when “vacancies happen” in the Senate. One, the Governor calls a special state-wide election, (expensive), or two, the legislature empowers the Governor to make temporary appointments until the people vote in the next general election (inexpensive).

Illinois went for the inexpensive one.

The governor exercised his authority under the Constitution and Illinois law to appoint Roland W. Burris to fill the Obama vacancy.

Burris was the first African-American to win statewide public office in Illinois: Comptroller, and then Attorney General. In the 1970 Attorney General race, he took a controversial stand on behalf of free choice and the rights of gays and lesbians. He enjoyed years of public life without one iota of taint and few vocal enemies.

Burris went to Washington on “swearing in” day, was escorted to the office of the Senate Secretary by the Sergeant of Arms and told he could not be seated because he lacked the credentials required from the Illinois Secretary of State. Burris earlier had filed suit against the Secretary of State, now pending in the Illinois Supreme Court, requiring that the credentials be delivered.

Burris left the Capitol and met the press in the rain and mud of a nearby park. He captured the headlines. His was the opening story on network news. Democratic leader Harry Reid back-pedaled fast. President-elect Obama wanted an “amicable solution” and Reid met Burris the next day.

Illinois Senator Richard Durbin, the number-two Democrat, was present. Reid said the Senate would consider the appointment if Burris would do two things: get the Illinois Secretary of State to sign his credentials, and convince the Illinois legislative panel, considering impeachment of Blagojevich, that there was no quid pro quo in his appointment. So there it stands, with promising outcomes for all.

All this brings to mind some earlier legislative exclusions, fortunately, few in number.

1. The New York Socialists. There was a “Red Scare” following World War I. People were concerned about the Bolshevik revolution in Russia and its consequences at home. In 1920 five Socialists were elected to the New York legislature. The legislature refused to admit them because they were Socialists, and ordered new elections. The five won again, with increased majorities. The legislature, for a second time, refused to seat three of the five and the other two resigned their seats in a show of solidarity.

Charles Evans Hughes, the Republican standard-bearer in the 1916 presidential election, leaped to their defense, as did Senator (later President) Warren G. Harding, who told the press it would dangerously abridge American liberty “to deny a place in any state assembly or in Congress to any man eligible to the office and honestly elected thereto.”

2. Victor Burger was denied his seat in Congress because he opposed our participation in World War I. He was a Socialist and publisher of several German-language newspapers in Wisconsin. He was convicted in 1918 under the Espionage Act because of his editorials opposing the war with Germany. In the same year he was elected to Congress from Milwaukee. Congress refused to seat him. He was elected again in the special election to fill his own vacant seat, but was turned away once again. The Supreme Court reversed his Espionage conviction in 1921. The “Red Scare” was abating and Burger was elected to three more terms in Congress.

3. Julian Bond also was victimized because of his opposition to war, the one in Vietnam. Bond was a ranking member of SNIC (Student Nonviolent Coordinating Committee), a militant student organization opposed to Jim Crow laws and the Vietnam War. In the early 1960s, SNIC issued a statement that it sympathized with and supported men “who are unwilling to respond to a military draft.” Bond was asked about someone who burned draft cards. He said he admired the courage of someone “who could act on his convictions knowing that he faces pretty stiff consequences.”

Bond was elected to the Georgia Legislature, but was denied his seat on the theory that, because of these statements, he could not conscientiously take the required oath “to support the Constitution,” as required by Article 6 of the Constitution.

Bond was elected a second time in a special election to fill his vacancy, and was elected a third time when the next regular election rolled around, always to be excluded.

Bond sued and the Supreme Court ruled for him. The Georgia legislature may require an oath to support and defend the Constitution, indeed it must. But a majority of the legislators may not question the sincerity with which a minority colleague takes the oath, since this, as here, would restrict the free speech right to differ on significant controversial issues.

4. Adam Clayton Powell, pastor of the prominent socially active Abyssinian Baptist Church in Harlem, was elected to Congress in 1944, one of the two Black members. He was reelected time and time again with increasing majorities.

Well-liked and regarded by his constituents, the same was not true with many of his House colleagues. He was a troublemaker. Early on he tried to eat in the Members (all white) dining room. He repeatedly introduced embarrassing “anti-lynching” bills. He was flamboyant, arrogant, and wore no man’s collar.

His downfall began in 1960 when he denounced a woman named Esther James as the Harlem “bag woman” for white gamblers. She sued for libel in the New York courts, and won a large verdict. Powell refused to pay and was held in contempt of court. (As the Exclusion resolution read: he asserted “unwarranted privilege and immunity from the processes of the Courts of New York”.)

By 1966 the Congressional seniority system moved him to the chair of the important Committee on Labor and Education. He sometimes abused his power.

Powell took pleasure junkets at public expense. He scheduled Committee hearings in Miami for Friday afternoon and Monday morning at Congressional expense and would then fly for the weekend with a female committee staffer to Bimini. As the Exclusion Resolution put it: “he wrongfully diverted House funds for the use of others and himself.”

Powell also gave his estranged wife (who lived in Puerto Rico) a no-show job on the Committee. This was wrong. Staffers must work either in Washington or the Congressman’s district. These were the essences of the charges made when the House voted to exclude him in 1967.

Powell took the case to court. The Constitution provides that “Each House shall be the Judge of the Elections, Returns and Qualifications” of its own members.

Powell argued that the term Qualification is limited to the Qualifications set forth in the Constitution: age, citizenship, and residence. The House argued “oh no.” Qualifications must include “misconduct” of the type at issue here. The Supreme Court ruled for Powell.

After a lengthy discussion of the early English experience, the debates at the Constitutional Convention, and Congressional practice going back to 1797, the Supreme Court held that despite all else, the House had no authority to exclude Powell. Why? Because he met the Constitutional qualifications of age, nationality, and residence.

Powell went back to Congress.

Words of Our Founding Fathers

The holding that Congress can exclude only if the candidate lacks the required age, citizenship, and residency requirements resonates the words of our Founding Fathers during the debate on the Constitution.

The debate emphasizes that the three qualifications of age, citizenship and residence were intended to be the exclusive qualifications for office, and that neither the Congress nor the states could add or subtract there from.

Listen to their voices.

John Dickinson of Delaware opposed any statement concerning “qualifications” because it was impossible to make a complete list, and a partial one would prevent the legislature from supplying the omission. He proposed that future legislatures be free to establish qualifications “as time and experience should prove necessary.”

James Madison argued to the contrary that the “qualifications of electors and elected were fundamental and ought to be fixed in the Constitution.” “Legislative bodies,” Madison continued, should not have the power to usurp “the indisputable right of the people to return whom they thought proper.”

Charles Pinckney of South Carolina proposed one additional “qualification,” that the legislators must have “a specified amount of unencumbered property.” This was defeated when Benjamin Franklin said that some of the greatest rogues he knew were the richest.

The framers agreed that some members might betray the trust committed to them and the most effectual means for “preventing their degeneracy” was not by adding qualifications “as time and experience might prove necessary,” but through the “restraint of frequent elections.”

Congress has heeded their voices over the years.

Only in times of crisis or panic has the Congress excluded an elected member for reasons other than age, citizenship, and residence.

During the Civil War, Congress resolved that “fidelity to the Constitution” is a qualification for membership in the House.

Members of Congress from the Confederate states resigned but John Brown and John Young from Kentucky were excluded in 1867.

In 1882, the Edmunds Act provided that no “polygamist shall be eligible for election or hold any office under the United States.” In 1900, Brigham H. Roberts was elected to the House. “Over 7,000,000 American men and women” protested against the “polygamist from Utah” and the House refused to set him.

The hysteria subsided and in 1903 Reed Smoot, also a polygamist from Utah, was elected to the Senate and seated because there was no question about his age, citizenship and residency qualification prescribed by the Constitution

Since then, Victor Berger and Adam Clayton Powell are the only ones denied their seats in Congress for reasons other than age, citizenship and residence. Over the years, Congress has heeded the words of our founding fathers. Would that our Democratic Senate leaders had done the same, when Governor Blagojevich first appointed Roland Burris to the Senate.

Shame-faced, they ultimately did the right thing; all’s well that ends well, and the Burris episode might deter such future transgression.

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