Burris gets his seat, and what have we learned?

Cross-posted from Congress Matters.

So Burris will be seated. Surprise, surprise. The Cheeto-munchers see it straight once again.

But there's one more thing to see here.

Harry Reid and Dick Durbin issued a joint statement on the matter that included this:

"The Secretary of the Senate has determined that the new credentials presented today on behalf of Mr. Burris now satisfy Senate Rules and validate his appointment to the vacant Illinois Senate seat.  In addition, as we requested, Mr. Burris has provided sworn testimony before the Illinois House Committee on Impeachment regarding the circumstances of his appointment.

"We have spoken to Mr. Burris to let him know that he is now the Senator-designate from Illinois and as such, will be accorded all the rights and privileges of a Senator-elect.  

Meanwhile, the Secretary of the Senate, Nancy Erickson, added this:

Erickson issued a statement saying Burris’s papers "appear to contain all the essential elements" of the Senate rule.

So, do you see it?

Remember the statement of the Purcell case from Riddick's Senate Procedure? (PDF)

Irregularities in Certificate Waived

In 1910, an irregularity in the form of a certificate of appointment of a Senator to fill a vacancy caused by a resignation was waived by the Senate where the material facts were set forth therein, and the oath was administered to the appointee.¹⁰

¹⁰ Feb. 1, 1910, 61-2, Record, pp. 1319-20.

Notice a difference? The Secretary's engaging in some very subtle semantic games here. The Purcell precedent says the irregularity (admittedly different from the irregularity of Burris' certificate) was waived where the material facts were set forth therein. Erickson's formulation? "Essential elements."

That's probably no accident, since Burris' certificate most assuredly set forth all the "material facts" of his appointment, but Reid and Durbin were hanging their respective hats on a particular "essential element" -- that is, the signature of Illinois Secretary of State Jesse White. Reid, Durbin and Erickson all insisted that the lack of the signature was by itself disqualifying. But the Illinois Supreme Court disagreed, saying not only that the signature was unnecessary, but that it could be so cheaply had on an alternative document that the formalistic objection was even more pointless than previously known. And suddenly, the Senate trio found themselves twisting in the wind.

But what a clever way out they've found for themselves!

They now declare Burris' credentials in order, even as the courts declared them in order with or without White's signature. And they are now in order, White's signature certainly putting them no less in order, so they're technically right. Of course, Reid, Durbin and Erickson would surely tell you that they meant that the signature, regardless of what the court said about Illinois law, puts Burris' credentials in order under the Senate rules, which was their concern. But that's not what the precedents say. The precedents say credentials are in order when the material facts are laid out therein, and the signature is no kind of fact.

In addition, I'd take exception with Reid and Durbin's assertion that Burris "is now the Senator-designate from Illinois." I have no few doubts about the Senate's ability, under the right conditions, to refuse to seat a Senator-elect or a Senator-designate, but if the Illinois Supreme Court's decision means anything, it's that Burris was the Senator-designate from Illinois whether Reid and Durbin say so or not. They can as a body decide that someone is not a Senator, but they can't decide that a single, bona fide claimant is not a Senator-designate. And that being the case, they most certainly violated Burris' right to access to the Senate floor on January 6th, when they sent the Sergeant at Arms to bar him from entering the chamber.

But Reid, Durbin and Erickson are counting on the aura of the positive outcome (from Burris' perspective) to blur the lines enough that no one asks any questions. Having gained admittance to the Senate, Burris probably has little interest in clarifying that he was already the Senator-designate, with or without Reid and Durbin's say-so, and probably even less interest in straightening out the "material facts" versus "essential elements" issue.

Unfortunately for the rest of us, the one and only possible positive byproduct of this whole sorry episode was that the American public would get a good, clean look at the real rules and mechanisms by which we determine how someone gets to be a United States Senator. But now that's lost to us, too, covered over in Steak Sauce. What a waste.

UPDATE: According to Roll Call ($), the Congressional Black Caucus apparently has a meeting scheduled with Harry Reid to discuss the situation. Given the CBC's historical interest in laying bare the real rules governing ascension to political power in this country -- as evidenced by their continuing strong support for the seniority system, among other things -- Members ought to seek that clarification from Reid and the Secretary of the Senate. Were Burris' credentials valid before Jesse White did what the Illinois Supreme Court said he didn't have to do in the first place? And if not, exactly what "material fact" of Burris' appointment was missing from those credentials? The Secretary of the Senate owes it to everyone involved to either revise her statement, announce some new precedent that's distinguishable from Purcell's case, or seek to clarify the statement of that case in the Riddick's recounting.