To Seat Or Not To Seat

I have heard a number of pundits cheerfully express – with great confidence – that If Rod Blagojevich were to appoint someone to the Senate that that body would “refuse to seat him (or her). Turns out it isn’t that simple. Supreme Court cases on the matter of seating members seems to favor Blagojevich. It is not anywhere near as cut and dried as the pundits want it to be.

Washington – Senate Democrats threatened this week to refuse to seat any new Illinois senator chosen by embattled Gov. Rod Blagojevich, but it is not clear the senators have the legal authority to reject a fully qualified appointee.

In 1969, the Supreme Court ruled the House of Representatives could not refuse to seat Rep. Adam Clayton Powell, a New York Democrat who was accused of putting his wife on the payroll and misusing travel funds to vacation in the Caribbean. Despite those charges, he was reelected by his constituents in Harlem. “The Constitution does not vest in the Congress a discretionary power to deny membership by majority vote,” wrote Chief Justice Earl Warren. Congress may “judge only the qualifications set forth in the Constitution,” he said.

The qualifications are minimal. A senator must be at least 30 years old, a U.S. citizen and “an inhabitant” of the state. The ruling in the Adam Clayton Powell case served as a precedent in 1995 when the Supreme Court struck down term limits for members of Congress. The justices said the states may not add extra qualifications.

Are there any restrictions on who Blagojevich could appoint? I don’t Think there are. This is the section of Illinois law that covers the filling of a vacancy in the US Senate:

(10 ILCS 5/25?8) (from Ch. 46, par. 25?8)
Sec. 25?8. When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.
(Source: Laws 1943, vol. 2, p. 1.)

Many states have restrictions on the governor blocking him from appointing himself. It surprises me not at all that Illinois has no such restriction. They also have no limits on campaign contributions.

So the nightmare scenario for Democrats: Blagojevich simply appoints himself. They can’t keep him out of the Senate and he has a really, really big soapbox to stand on and raise hell. Blagojevich has just about zero – no, less than that – left in political capital right now. It is this or naming names to get a lighter sentence. (Bonus question: which of those two options strikes more fear into Democratic politicians?)

No, I am not advocating any such thing. He’s a crook and deserves the full weight of the justice system stomping down on him. I point this out more to take issue with those confident pundits out there.