Illinois Secretary of State Jesse White, 12-30-08:
White vowed not to authorize Burris' appointment by Blagojevich, but tried to take the focus off Burris. The secretary of state's role is to forward the appointment to the Senate.
"Although I have respect for former Attorney General Roland Burris," White said in a statement, "because of the current cloud of controversy surrounding the governor, I cannot accept the document."
Illinois Secretary of State Jesse White, this morning:
The Illinois Secretary of State, Jesse White, downplayed his own role in preventing Roland Burris from joining the Senate, and put the responsibility for not seating Roland Burris on the shoulders of Senate Majority Leader Harry Reid.
He also said he hopes Burris is seated.
"They could have seated him without my signature," White -- previously seen as a key opponent of the pick -- told WGN Radio, saying his signature was purely "ceremonial." Burris was not seated because the Illinois State Seal -- which White controls -- was not on his credentials.
White's words put the ball firmly into Reid's court, and leave Burris on offense in the public fight.
"What the senate did to Roland Burris yesterday...they played a little bit of a game with him," he said.
The host asked him if he thought Reid had made him a "fall guy."
"You're absolutely correct," he said. "It's ugly."
"I think the world of Roland Burris," he said. "We're the best of friends."
"Roland Burris is going to be seated," he predicted, saying he hopes Burris becomes the next senator from Illinois.
As you know, it was the absence of White's signature that led the Secretary of the Senate to block Burris' appointment yesterday before it could reach the Senate floor. This controversy rests on Senate Standing Rule II, which states in the relevant parts:
- 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.
- The Secretary of the Senate shall send copies of the following recommended forms to the governor and secretary of state of each State wherein an election is about to take place or an appointment is to be made so that they may use such forms if they see fit. ...
There's two problems with this objection. One, under Illinois law, it's Burris' White's duty to sign this certificate ("It shall be the duty of the Secretary of State ... to countersign and affix the seal of state to all commissions required by law to be issued by the Governor.")
More fundamentally, as Burris' mandamus petition (PDF) makes clear, the 17th Amendment empowers the Governor of a state to make interim Senate appointments, if the state legislature so empowers the office. It does not give a Secretary of State a de facto veto power over the Governor's choice. And for the very same reason that White cannot stand in the Governor's way, nor too can Rule II of the Senate Standing Rules -- I simply don't see how the Constitution allows the Senate to add requirements as to who gets to appoint an interim Senator under the 17th Amendment.
Still, that leaves Article I, Section 5, and I stand with those who argue that the Senate's power to judge "Returns" includes the power to investigate and adjudicate whether any fraud, corruption, bribery or illegal scheme was involved in this appointment. This matter can be referred to the Rules Committee, soon to be under the chair of Sen. Chuck Schumer (D-NY), to investigate this matter just as it did for William Vare in 1927-28, for the 1974 NH Senate race, for Mary Landrieu in 1997. (Landrieu was allowed to serve in the interim nine months while the Senate investigated, and as a 1996 report of the Senate Legal Counsel suggests, usually the person is seated while the investigation is ongoing.)
Yes, I know, no one has yet uncovered any facts suggesting fraud in this appointment, and Burris has provided an affidavit to the Illinois House of Representatives (PDF) suggesting minimal contact with Governor prior to his selection. Given that the Governor has been recorded as seeking a scheme to gain personal advantage through this very Senate appointment, however, it's worth using the Committee's time and subpoena power to look into this. As I've suggested before, if Rules and then the Senate as a whole can't wrap this up until after Governor Blagojevich is impeached, convicted and removed from office, so be it. But the bottom line is that if Roland Burris is to be denied this Senate seat, it has to be the Senate itself so deciding -- not Jesse White, and not the Secretary of the Senate.