Political update for January, 2009:

Well, here I am sitting in Washington, D.C., taking notes for another attorney while his clients are being deposed by federal regulatory agencies that want to take their heads. Not the kind of stuff you fantasize about doing, but, it is paying some much bills. And it is fairly easy.

I now sit in my hotel room near a group of people that Mark Twain described in the 19th century as the only "distinctly native American criminal class" - congress. Maybe that's an overstatement, but, frequently, they do make us sick, don't they?

The refusal of the Senate to seat Roland Burris, the person appointed as a replacement for the seat previously occupied by Barack Obama by disgraced Illinois Governor, Rod Blagojevich, until yesterday was a much greater disgrace still. Blagojevich may be a criminal and he may deserve to get impeached. We'll see. But, he and Illinois are going through the legal process. To the contrary, as far as the Senate is concerned, we have a government not of laws, as Americans proudly boast, but one of powerful men and woman who decide, regardless of law, who shall be in power unencumbered by law.

Many commentators discuss Burris' appointment without so much as a nod to the applicable law, probably afraid of boring viewers and readers with legal gobbledy goop. But, the legal issues were important and not that difficult.

The seventeenth amendment to the constitution, ratified in 1913, directed that the people in each state were to elect Senators, rather than the legislature appointing them. It also provided that when vacancies occur, the governor is to issue writs of election for a replacement. However, it also allowed a loop hole, which most states follow. In Illinois, for example, the governor may appoint a replacement, as Blagojevich has done, who will sit until the next scheduled election in 2010.

It had been suggested by some that Illinois lawmakers legislate that a special election be held, as some other states do in this situation, and then override any Blagojevich veto. Assuming the legality of that, the Democrat controlled legislature in Illinois is apparently reluctant to want to take the chance of a Republican being chosen in a special election right now.

Thus, despite all the hue and cry about Blagojevich’s appointment, what was he supposed to do? He has neither been impeached nor indicted. Should he leave the Senate seat vacant for an indeterminate time based on the possibility he will be impeached and convicted someday? Arguably, that would be an impeachable dereliction of his duty.

The refusal to seat Mr. Burris was not based on anything Burris has done, but on two very un-American ideas: they relied on a prosecutor’s unsworn word, and, guilt by association. It is very difficult to argue that the Senate had the right not to seat him. In several sections, the Constitution requires only that a senator be at least 30 years old, a U.S. citizen for 9 years, and a few other easily met requirements. But then it also states:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.

Does that mean that the Senate can refuse to seat a Senator who meets the Constitution’s few requirements? The only time this has come up in the United States Supreme Court was in 1969, involving New York Representative Adam Clayton Powell, Jr. The court held that the House of Representatives did not have the power to exclude him as he met the express constitutional qualifications. The basic holding was reaffirmed in passing in the 1990s in a case prohibiting the states themselves from adding their own qualifications. Burris’s position here is actually much stronger than Powell’s was, as Powell had his own legal and moral problems. Burris does not.

No doubt those opposing seating Burris would have claimed in court that the Powell decision emphasized the right of the people to their chosen elected representative, and that Burris was merely an appointee. If so, what standard would the Senate apply? Refuse to seat members whenever they feel scandal might hurt their party? That isn’t a standard. It’s powerful people looking to their own interests and throwing about their power.

Meanwhile, in the house, Rep. Charles Rangel continues to sit despite his own partially admitted ethical lapses, which are arguably much worse than those of Adam Clayton Powell, Jr., who he succeeded. Rangel can sit despite his own wrongdoing and Burris couldn’t despite doing nothing wrong. Great system if you want a government of men and not laws.

As for the cockamamie idea that because the Illinois Secretary of State didn’t sign the Senate's form, the Senate couldn’t let him in - poppycock. Not only has the Illinois Supreme Court correctly said it was a ceremonial and unnecessary act, but, as explained above, the Senate can’t add qualifications. So, I could care what the 1884 Senate rule says. But, here it is anyway:

"2. The Secretary shall keep a record of the certificates of election and certificates of appointment of Senators by entering in a wellbound book kept for that purpose the date of the election or appointment, the name of the person elected or appointed, the date of the certificate, the name of the governor and the secretary of state signing and countersigning the same, and the State from which such Senator is elected or appointed."

I love the fact that it has to be in a "wellbound" book. Note, it nowhere says that the secretary of state must sign or the appointment would not be valid. This is a record keeping rule which would require the recording of the secretary of state's name if they signed. Now, you can stretch it to mean more, because that's what lawyers do. But, if they wanted to say the sec'y of state had to sign, they would have said that. Of course, as I pointed out above, the Supreme Court has made it clear that the Senate can't add qualifications. So, double whammy checkmate.

But, just to throw more wood on the fire, the Senate's own "recommended" (note, not required) form for these appointments shows that they are signed "By the governor" and there is a space underneath for the secretary of state. Why? Because since the beginnings of our country, secretaries of state held the seal that makes papers look all official. So, the Senate knew this was bologna. They didn't care.

So why was it raised at all then? Let me explain that with another quote by Mark Twain –“Suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself.” I'm just amusing myself with that because I love Twain and don't love power hungry political partisans, but, the the real reason they are doing it is - they are power hungry political partisans. But, I repeat myself.

The media continues to do a horrible job on these things. Although the actual rule was readily available in the Senate's website, not one media entity thought to show it or read it that I saw, even online. The Powell case was mentioned, but by too few. It was the key to the whole discussion.

delenda est Carthago! (secret message only for those who have the deisenberg.blogspot.com secret decoder ring, now only $1599.95. Act now and I will throw in a deisenberg.blogspot.com mug worth $250,000 in a parallel universe where I am the second ever Emperor of America, Scotland and Uganda. You cannot find these products in stores).