The Senate should use its plenary power to decide election returns to refuse to seat Mike Johanns, who defeated netroots favorite Scott Kleeb in last year's election.
It's true that Johanns beat Kleeb by 17.6%, a popular vote margin of 447,360 to 310,855. But that doesn't matter.
I didn't used to feel that way, but then I read Akhil Amar and Josh Chafetz's piece in Slate about the powers of the Senate to determine its the qualifications of its own membership. Evidently, the Powell decision, which rejected the right of the House to exclude a member based on the likelihood of corrupt practices, merely limits each House of Congress from generating new qualifications beyond those listed in the Constitution. But when it comes to deciding who meets existing qualifications, including election returns, the Senate has a free hand.
As Amar and Chafetz state:
Powell also said that each house could "judge" the qualifications laid out in the Constitution (such as age) but could not make up new qualifications. Thus, if the Senate were to plausibly decide in good faith that a candidate failed to meet the Constitution's age requirement, Powell nowhere suggests that this senatorial determination should be set aside by ordinary federal courts. For similar reasons, federal courts should not interfere when the Senate plausibly and in good faith decides an election or return to be improper or corrupt. The critical point here is that the Constitution itself sets up the Senate as the highest court of Senate elections. When the Senate speaks as this court, its adjudications are legal judgments that no other court may properly reopen. If the Senate convicts a federal judge in an impeachment court, no other federal court may properly interfere. So, too, for Senate elections and returns.
Oh, I see that the rationale for exclusion must be "plausible and in good faith." Well, I can generate a plausible basis for this determination. Why is the election return in Nebraska improper or corrupt? Because Nebraska does not allow lower-income voters the same freedom to cast their votes freely, due to economic circumstances and fears of reprisal for supporting Democrats, that are available to upper-income voters. They have more trouble registering, more trouble getting to the polls, etc. I assert that it is plausible that this could have affected the result in Nebraska.
Frankly, it's very plausible that it also could have made a difference in Texas, with more minority voters, but I figured that the Senate might be less willing to exclude a continuing member. But, what the hell: exclude John Cornyn also. And Roger Wicker and -- oh, great, Mitch McConnell too! In fact, let's go after James Inhofe and Lindey Graham Saxby Chambliss too. (None of them got as much as a 20% margin, which we might think rebuts a presumption that Republican voter exclusion could have made a difference. Or, we might not think that, and go after all of them.)
Why only pick on Republicans? Because their party has a greater recent tradition of excluding people from the polls. That's plausible.
But is it "good faith"? Well, isn't that the Senate's place to judge? Otherwise, we get those icky federal courts involved. Although, in fact, now that I think of it, when Amar and Chafetz include those qualifiers "plausible and good faith" in their conditions -- ones that I don't see in my copy of Article I, Section 5 -- aren't they just asking for court intervention despite their argument? Either they mean that the Senate judges its own actions, or they open the door for someone like Roland Burris to go to federal court and say "hey, they're not actually trying to judge whether my appointment was tarnished, they are just trying to game things so that the appointment can instead be made by the current Governor's successor, and that's clearly not acting in good faith."
What evidence could Burris present, aside from various statements by Senate Democrats? Why, he could present text from an editorial by leading constitutional scholar Akhil Amar and sidekick Josh Chafetz:
To make sure its ruling sticks, the Senate should follow its own procedures with due deliberation. Burris' case can be referred to a committee for careful review. He need not be seated while this committee does its work, and it will be very hard for Burris to persuade any federal judge to interfere in the meantime, especially if Senate Democrats and Republicans unite. With any luck, Blagojevich will be out of office soon enough and a new appointments process (or a special election) can begin that would supersede the attempted Burris appointment.
If the issue is whether Burris was involved in anything corrupt, as good an answer as one will ever find is easily had. The rest of the time is just delaying for its own sake. So, like a tobacco or insurance company trying to win a tort suit filed by a lung cancer victim, the Senate could show the "good faith" of just stretching things out until the problem goes away. Do we really want federal courts second-guessing the Senate on such matters? The answer ought to be the same for Johanns as for Burris.
Actually, the more I think of it, the more I realize that neither the Senate or the House has to recognize any election won by Republicans this past year. Look at what the professors have to say:
Nor does it matter, from the Senate's point of view, that Blagojevich hasn't yet been convicted. In this context, the Senate itself is a judge, in the words of the Constitution, and can decide facts for itself. It need not follow the rules of criminal courts. That means it need not find Blagojevich guilty beyond reasonable doubt, as a court would if his liberty were in jeopardy. It is enough for the Senate to reject Blagojevich's appointee if a majority of senators are firmly convinced that Blagojevich is corrupt and that any nomination he might make is inherently tainted by such corruption.
So I submit that racism in the United States, which drives much Republican ideology, renders the electoral system corrupt and any election inherently tainted by such corruption. Send all of the Republicans back home, after refusing to seat them pending extended "good faith" investigation. Or, at least give us a good 90 days in session without them.
Meanwhile, with a unanimously Democratic House and well over 60% of the Senate, we can pass some truly great legislation while all of these controversies solely get worked out.
We ought to show some balance, though. We should not only go after Burris, but the appointment of Ted Kaufman, Joe Biden's Chief of Staff as an apparent "placeholder" for Biden's son Beau (who will be able to run in 2010 once he returns from Iraq) raises suspicion of a quid pro quo, doesn't it? Some Democrats were certainly upset at Gov. Ruth Ann Minner's decision, which took place before her successor could appoint a replacement who might be less inclined to stand aside for Beau Biden. Shouldn't the Democrats want to inquire as to all conversations between Gov. Minner and Barack Obama, Joe Biden, Beau Biden, or any of their official or unofficial representatives about the appointment? Shouldn't we find out what political or other benefits were promised to Gov. Minner, or were unsuccessfully offered to her successor, Gov. Jack Markell, in exchange for his choosing a placeholder, before deciding that this appointment process wasn't corrupt? Shouldn't Mr. Kaufman not be seated until what might be a very intricate investigation is completed? (With so few Republican Senators allowed to be seated, the absence of the Delaware as well as the Illinois Democrat when EFCA and health care come up for a vote won't be so much of a problem. And good faith demands consistency, doesn't it?)
Above all, we should not worry about using delay to keep those we dislike from being seated in Congress. This precedent can't possibly cause problems for us down the road, because the Republicans will never again control either House of Congress, and even if they did, they would never abuse precedents that recognize that each house needs only a fig leaf large enough to convince itself of the propriety of its actions before taking the extraordinary step of excluding members.
Whether to seat Burris is the Senate's call: It easily has the brute power—and the constitutional right—to stop Blagojevich.
And that is all that matters, right?