(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.