Senate Should Seat Franken, But Not Burris

by Paul Hogarth on January 6, 2009

Today is the first day of the 111th Congress, but the U.S. Senate will not seat two Democratic freshmen: Al Franken of Minnesota, and Roland Burris of Illinois. After two long months of counting and recounting the votes, Franken legitimately won his race – and must be sworn in. Despite Republican Norm Coleman pursuing further legal action, there is clear precedent for the Senate to (at least provisionally) seat Franken. The same can’t be said, however, about Roland Burris – who was appointed by Rod Blagojevich, after the Illinois Governor was arrested for selling the seat to the highest bidder. Although many observers claim there is nothing the U.S. Senate can do to shut out Burris (citing the Adam Clayton Powell precedent), the legalities are more complicated than that – and Democrats should be willing to risk dragging this on longer for the prospect of ultimately getting an untainted Senator. Roland Burris is an egomaniacal loser – a political has-been who so desperately seeks the limelight that he was willing to take up Blagojevich’s offer (while other politicians turned it down), which will only cause Senators grief down the road. While I agree that Illinois must have an African-American Senator, Democrats must stand firm – because “moving on” isn’t worth being stuck with Burris for the next two years.

Minnesota: Landrieu Precedent Clears Way for Franken

Minnesota’s grueling recount finally ended yesterday – when the State Canvassing Board determined that Al Franken beat Senator Norm Coleman by 225 votes. Coleman was ahead by 188 votes after the initial hand recount, but that figure excluded 6,000 “challenged” ballots where either campaign questioned the voter intent. Once these votes were counted, however, it became clear that Coleman had made more frivolous challenges – and that phase ended with Franken in the lead by about 50 votes. A subsequent Supreme Court ruling that improperly rejected absentee ballots had to be counted only expanded Franken’s lead.

Norm Coleman has vowed a lawsuit to “contest” the certified results – on the basis that some rejected absentees were not included. Which is deeply hypocritical on many levels. On November 5th, the day after the Election, Coleman called on Franken to concede and spare us a recount — because the vote count had Coleman up by a few hundred votes. He even said he would have done the same if in Franken’s position. Later, during the recount, Coleman went to Court to prevent the state from counting rejected absentees – the same ballots he now complains should be included. While Coleman deserves his day (or days) in court until his appeals are exhausted, the race is effectively over.

Now, Senate Republicans are threatening to filibuster if Franken gets seated. And while Senate Majority Leader Harry Reid agrees that Coleman lost the race and Franken was the winner, he’s already caved by telling reporters that Franken won’t be sworn in today.

But despite ongoing court battles that will last a while, there is clear precedent for seating Franken immediately – at least on a provisional basis. In 1996, Louisiana Democrat Mary Landrieu narrowly won a contested Senate race. Her Republican opponent, Woody Jenkins, alleged voter fraud and intimidation – which resulted in a Senate investigation that lasted almost a year. In the meantime, however, the Republican-controlled Senate seated Landrieu provisionally. After it was revealed that the Jenkins camp had coached witnesses to lie, the investigation was dropped – and the Senate concluded that a “re-vote” would be too costly for Louisiana. Mary Landrieu is still in the Senate today, having just been re-elected to a third term.

Here, there are no allegations of voter fraud – we just had a very lengthy recount process where Minnesota Secretary of State Mark Ritchie made every meticulous effort to make sure it was fair and inclusive. Franken should be seated immediately, despite Coleman’s ongoing effort to drag this process on even longer. Minnesotans shouldn’t be penalized for having such a close race – where the incumbent insists on being a sore loser.

Illinois: Don’t Let Burris Intimidate the Senate:

The Rod Blagojevich affair – where the Illinois Governor was arrested after being under FBI surveillance for attempting to sell Barack Obama’s Senate seat – is so bizarre that it gives Chicago politics a bad name. With a 10% approval rating (some polls are even less generous) and impeachment efforts underway, the Governor who has nothing left to lose committed the ultimate act of political chutzpah. He appointed Obama’s replacement to the Senate anyway, citing his authority as the not-yet-impeached Governor of Illinois.

Illinois Secretary of State Jesse White has refused to certify Roland Burris’ appointment. Democrats in the Senate have repeatedly said they would not seat anyone appointed by Blagojevich – citing their authority under Article I, Section 5 of the U.S. Constitution to be “the Judge of the Elections, Returns and Qualifications of its Members.” But while Burris arrives in Washington to claim the Senate seat, newspaper editorials insist that – however sordid and unfortunate the details – there’s nothing the Senate can do to block it.

I wouldn’t be so sure. Yes, after Congressman Adam Clayton Powell was excluded by his colleagues for corruption charges, the U.S. Supreme Court said Congress has no authority to define “qualifications” – beyond the minimum requirements laid out in the U.S. Constitution (age, citizenship, and residency.) But Powell v. McCormack (1969), which I re-read yesterday, only talks about “qualifications.” It never mentions Congress’ authority to judge an “election” or “return,” which the Senate has done before – in the 1974 New Hampshire race, and (as mentioned earlier) the 1996 Louisiana race.

At least two law professors, writing for, agree. “At the founding,” they write, “Senators were elected by state legislatures. If the Senate believed that legislators in a given state had been bribed into voting for a particular candidate, the Senate could refuse to seat him … If 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 … The critical point here is that the Constitution itself sets up the Senate as the highest court of Senate elections.”

Does this mean Roland Burris would lose a lawsuit if the Senate refuses to seat him? Not necessarily, but it does show the law isn’t as clear as the media and Burris’ backers are claiming it to be. And as someone who grew up in Chicago, I can assure you one thing – letting Burris serve in the U.S. Senate without a fight would be a big political mistake.

I have cringed at recent news reports that say Roland Burris has a “solid reputation” and does not have a “hint of corruption.” He’s definitely not corrupt like Blagojevich, but the Governor set the standard so low that practically any Illinois politician who doesn’t receive cash bribes in a public toilet stall would qualify. Burris has never been under FBI investigation, but he’s never been a good-government “ethics crusader” like Paul Simon or Barack Obama – who both challenged colleagues in Illinois to pass stringent reform.

Many news sources have cited how much money Burris’ consulting firm has donated to Blagojevich – which does not necessarily mean a quid pro quo, but it does raise questions. Others have pointed out that as Illinois Attorney General, Burris sought the death penalty for an innocent man – although a deputy refused to pursue the case. And when the Chicago Council of Lawyers in 1995 studied Burris’ Attorney General office, they found most of the budget devoted to political hires, with little effort made to recruit or retain top-quality lawyers.

As a former Illinoisan, I just remember Roland Burris as a perennial loser. Granted, he was the first African-American to win statewide office in Illinois – in the 1970’s, when he was elected State Comptroller. But he hasn’t won an election since 1990. Afterwards, he thrice ran for Governor (1994, 1998 and 2002) – and lost the Democratic primary each time. He also ran for Mayor of Chicago in 1995, and lost badly. Political observers even credit him with playing the “spoiler” role in 2002 that helped Blagojevich win a three-way primary. Besides an incurable ego, what makes Burris think he can still get elected?

The 71-year-old Burris is still very much alive today – but he’s already erected a tombstone for himself in a Chicago cemetery. There’s still of plenty of space left to inscribe any of his future accomplishments (such as a future career in the U.S. Senate), which may be his motivation to go along with a Blagojevich appointment – being willing to sink that low.

It’s noteworthy that Blagojevich only offered the job to Burris after Congressman Danny K. Davis turned it down. Davis said he wanted to be a U.S. Senator, but felt that the taint surrounding Governor Blagojevich would make it impossible for him to earn the public trust. Burris, on the other hand, had nothing to lose – and as Dan Conley, a former aide to Mayor Richard Daley observed, is “desperate to return to the limelight.” Burris’ conduct since the appointment only further demonstrates his lapse of judgment. As he left for Washington, Burris said “[the Senate] can’t deny what the Lord has ordained.”

Some black politicians – most notably Congressman Bobby Rush – have publicly urged the Senate to appoint Burris, because Obama’s ascent to the White House leaves us with no African-American Senators. That’s insulting to the black community, who deserve a real public servant – not a hack appointed by a corrupt Governor for token representation. Illinois has many good black politicians, like Congressmen Jesse Jackson Jr. and Danny Davis, Secretary of State Jesse White and Dan Seals. Frankly, it would short-change the black community by making their sole U.S. Senator a Blagojevich appointee.

And if Rush is so concerned about there being no blacks in the U.S. Senate, why in 2004 did he endorse white candidate Blair Hull against Obama in the Senate race – when (like now) there were no African-Americans? The answer is that Obama ran against Rush for his South Side congressional seat in 2000 – because Obama argued a safe Democratic district deserved a more pro-active progressive, rather than an entrenched do-nothing incumbent. Rallying the black community around Burris conceals Rush’s hypocrisy.

Unfortunately, Senate Majority Leader Harry Reid has proven, time and again, his willingness to buckle under pressure. While Democrats in the Senate maintain that Burris will not be seated, Reid left open the option this weekend on “Meet the Press.” The Senate needs to take the political hits now from a few black politicians, and refuse to seat Roland Burris. They should also risk the legal fight that will inevitably happen after Burris files a complaint in court. But in the long run, giving up now will only embolden Burris – who won’t commit to being a “place-holder” should the appointment go through.

For once, Harry Reid needs to take a stand – and refuse to budge.

EDITOR’S NOTE: Paul Hogarth grew up in Chicago’s Hyde Park, where he lived until 1996 and interned for U.S. Senator Dick Durbin. The opinions about Illinois politics in this piece are strictly his own.

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