Seating Franken and Burris: Memo to Congress

"Republicans are threatening to delay the seating of Franken, even when he's certified the winner of the Minnesota Senate seat. Senate Democrats all signed a letter of implied threat to the governor of Illinois regarding his selection of Roland Burris as the U.S. Senator from Illinois.
. . . Is this the new national unity we've been hearing about?"

Al Franken (D-MN) left and Roland Burris (D-IL) right
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Memo to the U.S. Senate:
Try Following the Rules

Michael Collins

We've seen what happens when people don't follow the letter and intent of important laws, particularly those where there is a general consensus and an absence of moral ambiguity. Consider our history from the implosion of Enron through stock market collapse. This extreme damage was enabled by the deliberate defiance, evasion, and perversion of rules and laws, all in the service of personal gain for a very few. Citizens lost $6 trillion in that episode of lawlessness.

President Bush and his administration consistently broke the laws of the United States by illegally tapping phones and emails, "selling" the Iraq invasion based on outright lies, and, in the case of six cabinet officials, participating in the "choreography" of torture sessions. All of them found the Constitution a nuisance and rendered it meaningless by their actions. The cost of these violations is incalculable.

A government gains legitimacy through the assent to shared rules and laws by the vast majority of citizens. No government can retain legitimacy, however, when the legislature fails to enforce and live by the very laws that they are sworn to protect.

Democrats and Republicans are now unified along party lines in their defiance of the laws. Is this the new national unity we've been hearing about?

Yet this is exactly what is happening in the cases of the legally appointed Senator from Illinois, Roland Burris, and the soon to be certified winner of the Minnesota senatorial election, Al Franken. Republicans are threatening to delay the seating of Franken, even when he's certified the winner of the Minnesota Senate seat. Senate Democrats all signed a letter of implied threat to the governor of Illinois regarding his selection of Roland Burris as the U.S. Senator from Illinois.

The final vote count for Franken shows him winning by a narrow margin. The same elections system that conducted the recount will recommend and likely receive certification of the election quickly by the authorized state authority.

Burris was appointed by Gov. Rod Blagojevich (D-IL) according to the laws of Illinois. There's no provision that says a governor can't make a selection if he's been indicted for any crime. The Illinois Supreme Court refused to remove the governor when the request was made by the State Attorney General. The Illinois legislature could have impeached him but it didn't. He is still the governor of Illinois.

Senate objections to Franken and Burris show that the United States Senate has thrown out the rule book and is ignoring established law when it comes to plans for the "presumptive" Senator from Minnesota, Al Franken, and the legally appointed Senator from Illinois, Roland Burris.

The Laws of the United States, Illinois, and Minnesota Were Followed

A candidate or appointee only has three requirements to be a legitimate Senator.

Article I, Section 3 of the Constitution states: "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." (Author's emphasis) Link

Both Al Franken and Roland Burris pass muster for these requirements.

The XVII Amendment to the U.S. Constitution outlines the popular election of Senators and the authority and procedures required to replace them in case they leave for some reason.


"Passed by Congress May 13, 1912. Ratified April 8, 1913.

"Note: Article I, section 3, of the Constitution was modified by the 17th amendment.

"The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

"When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

"This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution. (Author's emphasis) Link

This amendment provided for the popular election of Senators. This is so simple. Elected and appointed Senators should be immune from the actions of any judicial authority unless there are violations of state or federal law in the process of appointments.

But the Senate has one slim provision that can be invoked in the case of a real controversy or a contrived political event.

Article I. Section 5 states that: "Each House shall be the judge of the elections, returns and qualifications of its own members" (continues) Link

This provides the Senate with the option of rejecting a prospective member. In point of fact, there have been more than a few challenges to elections, mostly in the House. No Senator has ever been denied a seat as a result of Article I, Section 5.

Seat Al Franken as the United States Senator from Minnesota

Al Franken lost the initial vote count by less than one half of one percent of the total vote. That qualified him for an automatic recount. Minnesota election law clearly specifies a recount process and even states that the recount vote will be different than the initial reported election result: "Once the recount is over, the state elections board certifies the election. The election is over at the point the results are certified."

"The final results as modified, if necessary, by the recount are considered the final results of the election and are certified as final by the canvassing board."
Minnesota Election Recounts: Federal, State, and Judicial Offices

The Uptake.Org reported late Saturday night that final recounting is finished and Franken has a 225 vote lead. The Minnesota Secretary of State commented at a post recount conference Saturday night that any election contest challenging the recount would be futile. He praised the openness and fairness of the recount. At a post recount press conference, Coleman's representatives said they'd recommend a challenge in the form of a Minnesota election contest but indicated that the former Senator (his term expired Jan. 3 at noon) had not reached a decision.

The recount proceeded in an open and transparent way. Results were reported by the Secretary of State and in the states major newspapers daily. Controversies between the campaigns were handled by the appropriate courts and decisions were made in a very timely fashion.

Franken followed every single rule. He did what many candidates fail to do. He fought for the right of Minnesota voters to have their ballots counted and the right of all citizens of that state to have a Senator elected by a majority of the voters. Norm Coleman, the initial winner, chided Franken for taking the option of a mandatory recount. Franken didn't back down or complain. He simply followed the rules and will very likely be certified as winner and therefore U.S. Senator from Minnesota.

But Republicans are now talking about making up their own rules. They don't want Franken seated until the conclusion of an anticipated appeal of the election through an "election contest." Sen. John Cornyn (R-TX), head of the Republican Senate Campaign Committee, threatened "chaos" if the Democrats tried "to jam this issue through the Senate and seat a senator who has not been determined to be the winner of the election", Jan. 3, 2009.

Wait a minute! The canvassing board is the duly empanelled body that "determines" the "winner" of the election. Franken will most likely be certified Monday, Jan. 5. Coleman's term expired at noon Saturday, Jan. 3, 2009. Does this mean that any certified winner of a Senate race can be denied his seat by a legal challenge of the final decision?

It's absurd. Sen. John Cornyn, (R-TX) can object all he wants. The rules are clear. Franken should be seated if certified the winner, as anticipated. There is no valid precedent in any of the election contests in the past to deny him that seat (See Appendix B).

"Should a contest be brought against a senator-elect prior to his being sworn in, the chamber's custom has been to seat the individual contingent upon his credentials being in order. (10) Thus, the precedent has been that a senator-elect has a "prima facie" right to the seat, while the contest brought against him is being investigated. Moreover, the individual is considered seated "without prejudice" to himself or to the office. This pseudo-legal arrangement allows the Senate to remove the individual by a simple majority vote, should a subsequent investigation find him not to be entitled to the seat. Otherwise, the Senate's only course of action would be "expulsion," which would require a two-thirds majority (12)." Partisanship and Contested Election Cases in the Senate, 1789-2002, Jeffery A. Jenkins, Northwestern University. Studies in American Political Development, 19 (Spring 2005), 53-74, Cambridge University Press. (Author's emphasis)

This is outlined in a report by the Senate outlining the election contests to date.

If Coleman pursues a post certification election contest, the Minnesota canvassing board certification becomes "provisional" by state law indicating that a contest is under way. It may take three months to resolve the election contest. The citizens of Minnesota will be denied representation should the Senate refuse to seat the declared winner after certification.

Seat Roland Burris Now

Roland Burris, the former Illinois Attorney General and Comptroller, was selected by indicted Governor Rod Blagojevich to fill the term of President elect Barrack Obama. The day after the governor's arrest, Illinois senior Senator, Richard Durbin (D-IL), appealed to Blagojevich to call for a special election rather than make an appointment to fill President-elect Obama's vacated Senate seat.

"Please understand that should you decide to ignore the request of the Senate Democratic Caucus and make an appointment we would be forced to exercise our Constitutional authority under Article I, Section 5, to determine whether such a person should be seated.

"We do not prejudge the outcome of the criminal charges against you or question your constitutional right to contest those charges. But for the good of the Senate and our nation, we implore you to refrain from making an appointment to the Senate."

Signed by the entire Senate Democratic leadership and all members of the Democratic Caucus. Sen. Richard Durbin, (D-IL), Dec. 10, 2008

In the first paragraph above, Sen. Durbin says that the Democratic Caucus "would be forced to exercise its "Constitutional authority" to review the appointment. This is a reference to Article I, Section 5 above. The "Senate Democratic Caucus" has no authority under the United States Constitution. It isn't even mentioned. The Senate does have the authority to "be the Judge of the Elections, Returns and Qualifications of its own Members." But no Senator or group of Senators is "forced" to do this.

Doesn't this sound like an implied threat? 'We want a special election not an appointment by you, Rod. Go right ahead and we'll invoke that section of Article I, Section 5 on Qualifications.'

How would they proceed? Will they reject this fully qualified man as a United States Senator because the governor filling the vacancy, unlike all other citizens, is judged guilty as charged without the right to a trial by a jury of his peers. Gov. Blagojevich has been charged, not convicted. Is it is still possible to say this: the governor is innocent until proven guilty.

How does it look when the Senate throws away the presumption of innocence by threatening to obstruct a legal appointment based on the presumed guilt of the governor making the appointment?

Why didn't just one Senator stand up and point out that the appointment of Roland Burris was made by a sitting governor according to the laws of the State of Illinois, as the Constitution provides?

Will just one Senator on the Republican side take Sen. Cornyn to task for his obstructionist threat regarding Al Franken?

Why are they so special that they don't have to follow the rules?

We're witnessing the beginning of the 111th Congress engaged in the wholesale disrespect of the law in favor of partisan bias. There is no regard for the law, no regard for process, and no indication of even the slightest degree of insight on the part of those flaunting the laws. There isn't even one objection to the violation of process, rules, and law from any Senator.

The majority of citizens are subject to the laws as they stand. If you steal an iPod, that's a felony in most states. You'll do some time if you can't afford an attorney. If the felony stands, you'll lose your right to vote in many states. In all instances, a felony places huge barriers to gainful employment, including a career in any of the professions.

Yet when it comes time to obey the Constitution that they're obliged to honor and protect, what do the Senators do? They allow their personal bias and political interests to trump the Constitution without any noticeable objection from the legislative body.

This type of disregard for the law by lawmakers is not only unacceptable; it impedes citizens from implementing their own "bailouts" and "recovery" programs by denying them access and positive influence on the government in this critical period of our history.

Memo to Congress: Try following your own rules, precedents, and, most importantly, the Constitution of the United States. The laws and rules that Congress should follow are fairly straight forward and the underlying principals are clear -- respond to the will of the people and respect their right to representation.


NB: The obedience to what I characterized as "important laws, particularly those where there is a general consensus and no moral ambiguity" in no way diminishes the utility of civil disobedience for morally repugnant laws like those resisted by Martin Luther King, and others.

This article may be reproduced in part or in whole with attribution of authorship and a link to this article.

See this link for Appendix A (Minnesota election law) and Appendix B (Senate precedents and history on election challenges to U.S. Senators)