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Is Harry Reid Bluffing?

5:35 PM, Dec 30, 2008 • By BRIAN FAUGHNAN
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Can Harry Reid really deny Roland Burris a Senate seat? As Pejman Yousefzadeh points out, the Supreme Court seems to have ruled definitively on whether or not the Senate can refuse to seat a designee simply because they oppose the governor who named him. Yousefzadeh reviews the Supreme Court's finding in the case of Powell v. McCormack, and concludes:

... we glean that so long as Roland Burris meets the qualifications for a United States Senator as set forth in the Constitution, he must be seated. Art. I, Sec. 3 of the Constitution states that "No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen." Roland Burris is more than "thirty Years" old, has been a citizen of the United States all of his life and is "an Inhabitant of that State for which he shall be chosen." He may be expelled or punished if he engages in misconduct while a member of the Senate, but I can't see how he is prevented from taking his seat.

So while Reid has threatened to deny Burris the seat, Supreme Court jurisprudence forbids him from doing so. Can he prevent Burris' credentials from coming before the Senate? It seems unlikely. Senate Rule II makes this a question of privilege--one which can be raised by any Senator at more or less any time:

The presentation of the credentials of Senators elect or of Senators designate and other questions of privilege shall always be in order, except during the reading and correction of the Journal, while a question of order or a motion to adjourn is pending, or while the Senate is voting or ascertaining the presence of a quorum; and all questions and motions arising or made upon the presentation of such credentials shall be proceeded with until disposed of.

As I understand the rule, it only takes one Senator to call for action on Burris to force a Senate debate, and ultimately a vote on whether to seat him. If he is denied his seat--or if he's somehow denied a vote at all--Burris will presumably go to court to force the matter. And while there is a report that the Illinois secretary of state will refuse to certify Blagojevich's action, the secretary of state's own office has reportedly acknowledged that no certification is needed to make the appointment.

It seems that the U.S. Senate, the people of Illinois, and the nation at large may be set for a tragicomedy reminiscent of Florida 2000. With Democrats holding somewhere close to 60 Senate seats, Barack Obama's effectiveness in his critical first 100 days may depend on Reid's ability to muster 60 votes to break filibusters. And now it appears that two Senate seats (Minnesota and Illinois) could remain open for months or weeks while courts settle things.

And to think: the Illinois mess could have been avoided if the Democratic leadership of the state legislature had gone through with its initial plan to strip Blagojevich of appointment powers, and provide for a special election to replace Barack Obama in the Senate. Instead, they decided to try to avoid giving a Republican a shot at the seat by gambling that Blagojevich wouldn't appoint someone before he was kicked out of office.

The best laid plans of mice and men...