The Blagojevich/Burris Dispute and the Honor System of Government

I have thought about starting a blog to share my observations on current events on a number of occasions, generally when I had a strong reaction to something in the news(or something that should have been), but I always stumbled across a blogger or editorial writer expressing sentiments that were essentially the same as mine, and forgot about it. At this point, to my knowledge, no one has quite hit on what is, in my view, the fundamental issue in the current dispute over the seating of Senator-Select Roland Burris.

Watching the cable news networks, the views I see repeated generally follow one of two lines of reasoning. The first usually starts with a reference to Powell v. McCormack, 395 U.S. 486, where the United States Supreme Court established that both houses of Congress are "without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution." 395 U.S. at 522. It then procedes to point out that the Constitution empowers states to allow their governors to make temporary appointments in lieu of immediate special elections, as was done in Illinois, and that the governor has made such an appointment. Finally, it concludes that Burris, who is acknowleged to have met the Constitutional requirements to be a Senator, must be seated.

The second common perspective on this points out that the Constitution allows the senate to evaluate the qualifications of its members, and that Burris can be prevented from taking his Senate seat for a long period of time by having a prolonged review process, but not explicitly excluding him. It then concludes that he can be excluded using this technique, simply by prolonging the evaluation of his qualifications until a special election is held.

These views, as far as they go, are probably correct, however this dispute highlights a more fundamental issue in our system of government: It relies on the honor system. Under the Constitution, Burris is clearly entitled to the Illinois Senate seat, yet almost as clearly, he can be prevented from taking that seat by a procedure allowed by that same document. The Constitution was groundbreaking, and is brilliant, in many respects, but it does not anticipate intentional efforts to thwart its provisions by playing them against each other, instead relying on those sworn to uphold it to respect the intentions of its creators.

To illustrate this point, consider the following scenario:

Assume that the Democrats have won 67 seats in the U.S. Senate as well as a two-thirds majority in the House. The Majority leader, as his first order of business, announces that anyone who has expressed open support for President George W. Bush has demonstrated such excessively poor judgment, that they are not fit to serve in any government office. This is, I believe, true, and I'd love to see Harry Reid make such an announcement. Now, however, assume that he goes on to call for the expulsion of all Republicans from the Senate, and after a straight party-line vote, they are expelled. Now, there being only 67 Senators, assume that the Majority leader procedes to expel any insufficiently loyal Democrats, achievable with only 45 votes. Assume that the same procedure is followed in the House. At this point, the governors of the states represented by the expelled Senators would likely be arranging elections or making appointments, but our fictional majority leader would likely express doubt that the Senate would have time to evaluate the qualifications of any new Senators in the near future, there being Senate trials for at least four newly impeached U.S. Supreme Court Justices to conduct.

Obviously, this is not a plausible scenario, but it is arguably a constitutional one. The reason it is implausible is that the victories achieved through such maneuvers would be short-lived, as public outcry would drive those involved from office in the next election, and more importantly, everyone understands that this scenario is not what is contemplated by the constitution, even if it does technically allow for it. This is why Presidents and Supreme Court Justices are not routinely impeached, and Presidential nominations are generally not filibustered.

In my view, there has been something of a breakdown of this honor system in recent years, as party leaders put political considerations and public opinion ahead of adhering to the spirit of the constitution. The impeachment of President Bill Clinton can be seen as such a violation of the spirit of the Constitution, as it was essentially a partisan effort to find some technical crime on which to base impeachment proceedings. In my view, the failure to impeach the current President Bush is such a failure. There have been entire books written indexing the numerous impeachable offenses for which evidence of Bush's guilt exists, and yet the Democratic leadership opted to forego impeachment, presumably because it was better politically to have a criminal president from the opposing party to point to than to initiate a contentious impeachment proceeding where the Democrats would be cast as attempting to take away the president's ability to keep America safe from terrorists. The president's refusal to pursue indictments againt members of his administration who ignored subpoenas from Congress is another clear example.

The announcement by Harry Reid prior to Mr. Burris' appointment that any appointment by Governor Blagojevich would be unacceptable is clealry such a failure, as is the ongoing efforts to block him from serving. It is true that the Senate could probably prevent him from ever being seated by stating an intention to evaluate his credentials prior to doing so, and then putting off the evaluation. It could also make a determination that he is not qualified because he is not an Illinois resident, not a U.S. citizen, or not over thirty years of age. The Constitution vests the power to judge the qualifications of Senators in the Senate, and it could be argued that such a determination would not be reviewable by the Supreme Court. Either way, the Senate would be intentionally thwarting the clear provisions of the Constitution each senator swears to uphold, in an ironic effort to show that they are honest and honorable people who do not tolerate the kind of corruption Governor Blagojevich is accussed of.

I can only assume that Harry Reid and the Democratic leadership did not believe that Governor Blagojevich would make a senate appointment after having been arrested for trying to sell the vacant senate seat. The Governor's decision to do so is arguably another example of an action that thwarts the spirit of the Constitution while adhering to its technical language, as the founding fathers certainly did not contemplate the auctioning off of vacant senate seats by corrupt governors. Now, however, it is time for the Senate to admit that Blagojevich called their bluff, and seat Mr. Burris. To do otherwise would set a precedent for excluding legally appointed(or elected) Senators or Representatives, when the majority does not like the appointor or the selectee. In this case, the appointee is disliked because of pending corruption charges, in the next, it may be due to an unpopular view held by the selectee.