I haven’t paid any more attention to the Blagojevich bruhaha than was totally unavoidable—which still turns out to be quite a bit in DC—but I was nevertheless a little surprised to see the blogosphere’s Google-trained legal scholars reach such rapid consensus on Majority Leader Harry Reid’s threat to refuse to seat Blago appointee Roland Burris. There seems to be a general sentiment to the effect that Powell v. McCormack clearly precludes such shenanigans, and requries Reid to seat the guy, then muster a two-thirds vote to expel him. And this seems a little odd, because Powell appears to be about a related but different question. That controversy, like this one, turns on Article I, Section 5, which provides in pertinent part:
Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.
Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.
But that case was about the “qualifications” component of that first clause. The Court, quite reasonably, ruled that Congress couldn’t invent new qualifications beyond the age and residency requirements spelled out in the Constitution as a sort of short-cut around the expulsion procedure spelled out in the following sentence. But nobody seems to be challenging Burris’ “qualifications” in the relevant sense; they’re judging the legitimacy of the process by which he was selected, given the cloud under which Blagojevich’s (ahem) “selection procedures” lie. Which sounds to me like a question about “elections.” (Technically, pursuant to the Seventeenth Amendment, the governor appoints a Senator via a “writ of election.”)
But then, what do I know? I’m just a Google-pundit here myself, after all. Fortunately, Google also tells me that NYU law prof Rick Hills had a similar thought, so I can assume that if this read is wrong, it’s at least not crazy. A bit oddly to my ear, though, Hills chases the idea of questioning whether Blagojevich is the “executive authority” of Illinois. He concludes it would be pretty implausible to claim that he isn’t, but I can think of another attack.
The question I’d want answered is exactly how broad the power to “judge the election” is. I suppose it could just mean the power to confirm that the state election board has certified a winner properly. But on a somewhat thicker read, it doesn’t seem like too big a stretch to suppose that if an election were widely seen as riddled with fraud—perhaps involving the complicity of a corrupt certifying authority—Congress could decline to recognize the result as valid. The case that gave us the “political questions” doctrine, after all, had to do with whether a state had guaranteed a “Republican form of government.” It’s a little more of a reach to apply that notion to an appointment where nobody seems to be claiming that there was corruption involved in the specifc choice of Burris. But I don’t know if it’s a crazy reach. The underlying idea still seems to be that Congress gets to decide when the election process should be recognized as valid. It’s not clear to me how far that discretion goes, but it also doesn’t look like Powell settles it.