It has the makings of a tragedy, or a farce. Governor Rod Blagojevich, who was arrested by FBI agents just three weeks ago, on December 9th, and who now faces federal Corruption charges, has decided to go against his previous decision not to insert himself into national politics. This week, in a surprise announcement disingenuously orchestrated to make it appear as if he were not wishing any further limelight, the Governor wished everyone Merry Christmas, and a Happy Holiday, and a Prosperous New Year—in two languages—and then lobbed a political grenade: the Governor appointed (not nominated, appointed) former State Attorney General Roland Burris to serve as the new junior Senator from the State of Illinois.
The cries of outrage, mostly from the Democratic side, came immediately, and somewhat surprisingly, even President-elect Obama inserted himself into the fray by suggesting that the Democrats should block this appointment, if only for the practical reason that any such senatorial appointee would be too “tainted” by the Governor’s own troubles to legislate effectively.
This seems upside down, every bit as upside down as the reasoning of the Governor himself. Roland Burris is an experienced politician and a grown man; presumably, he can make his own decision about whether he can be effective or not.
It is Blagojevich’s reasoning that is most opaque, and for this very reason, most intriguing.
While he Governor’s statement of intent is scarcely plausible, his invocation of the rule of law seems just right. He used the language of “requirement” several times in his brief address and the short press conference that followed. He said that he was required to make this appointment and later than “the law” requires him to do so. He reminded his audience that, while the Illinois state legislature had debated a provision to hold a special election in the event of a US Senator winning the White House, they have not yet done so. In the absence of such an electoral resolution, the power to appoint Senator Obama’s replacement does indeed fall to the Governor of the State of Illinois.
And while the Governor has been arrested and will likely be indicted, he has not yet had his day in court. He is innocent until proven guilty, and thus far, all he is accused of is foul language and brazen claims of corrupt intent. No money has traded hands that we know of, and thus the nature of the federal indictment against him is not at all clear.
The Governor has been tried and convicted already in the court of public opinion, and that is one reason why the state legislature is moving to consider the grounds for impeaching him. What those grounds would be is as unclear as the Governor’s ever-changing executive whims.
The invocation of the rule of law by Blagojevich, and of “our system” by Burris, however ironic and odd-sounding, does restore a modicum of order to a very disordered situation. The rule of law is offered here as the first and best line of democratic defense against political corruption and the abuse of executive power. It is also a crucial guard against prosecution through rumor-mongering in the so-called court of public opinion.
Everyone gets their day in court, even the erratic Governor of the State of Illinois. So, what are the legal and constitutional issues at stake?
The model for what is being done at the state level in Illinois comes straight from the US Constitution. Article 2, Section 2 lays out, with notable ambiguity, the way in which the President and the Senate should work together to make appointments to high-level federal positions (think of Federal and Supreme Court justices, and US ambassadors). In general, this has evolved into the current system where a President nominates a person and the Senate confirms that person (or else the President rescinds the nomination, or the Senate does not confirm the appointment).
The trick concerns what the President may do when the Senate is not in session, a significant question in the early years of the Republic when the Senate only met for about half the year. The relevant constitutional clause reads as follows:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Not surprisingly, most of the interpretive quarreling has concerned two of the capitalized words in that sentence: Vacancies and Recess. One question concerns whether the President may fill a vacancy that has spilled over into a Senate recess, or only those vacancies that happened during the recess itself. Generally speaking, attorneys general have all agreed on the broadest construction of presidential power to make such recess appointments; where there is a vacancy the President may appoint. The second question concerns how long the Senate must be in recess before the President can make such an appointment (Theodore Roosevelt once made recess appointments during a recess lasting less than one full day).
In asking the Executive and Legislative branches to work together, the US Constitution imagines a level of trust between the two branches, as well as an environment in which such practices would be rendered in good faith and not “politicized.” We all know how “political” many presidential nominations, especially to the US Supreme Court, can seem (think Harriett Miers), as well as how partisan the Senate confirmation process can be (think Robert Bork and Clarence Thomas). (In neither case am I weighing in on the merits of the appointment or the resistance.)
But we tend to weather such troubles in an ad hoc way; excessively “political” moves by either branch tend to be condemned in the court of popular opinion, and then the countering branch of government exerts its discretionary power.
But in a Recess, those rules do not apply. The President acts unilaterally, sometimes to appoint someone he or she feels might not survive a Senate review (as was the case with UN Ambassador John Bolton). In these cases, the Legislature’s power to counter the Executive is limited; as usual, the main arrow in its quiver is monetary. The Senate can refuse to pay such an appointee out of the federal coffers.
Now, the situation in Illinois (adopted in 1970) is a bit more complicated. In Article V, where the powers of the Executive are enumerated, we learn the following:
SECTION 9. GOVERNOR – APPOINTING POWER
(a) The Governor shall nominate and, by and with the advice and consent of the Senate, a majority of the members elected concurring by record vote, shall appoint all officers whose election or appointment is not otherwise provided for. Any nomination not acted upon by the Senate within 60 session days after the receipt thereof shall be deemed to have received the advice and consent of the Senate. The General Assembly shall have no power to elect or appoint officers of the Executive Branch.
(b) If, during a recess of the Senate, there is a vacancy in an office filled by appointment by the Governor by and with the advice and consent of the Senate, the Governor shall make a temporary appointment until the next meeting of the Senate, when he shall make a nomination to fill such office.
(c) No person rejected by the Senate for an office shall, except at the Senate’s request, be nominated again for that office at the same session or be appointed to that office during a recess of that Senate.
The legal questions in this case are intriguing precisely because we are witnessing this same delicate balancing act play out at the state level. The Executive branch is making a clearly political (and, in this case, highly narcissistic) appointment, during a legislative recess, but shortly before that recess comes to an end. The Governor claims to be acting in good faith for the people of Illinois, who deserve to be represented by two senators when the Congress reconvenes, as per the 20th Amendment to the US Constitution, on January 3, 2009. Since the Illinois legislature failed to pass a law creating special elections for such a vacancy, the power resides in the executive branch, until such time as the Governor is removed or replaced.
But in this case, Governor Blagojevich is making a very temporary appointment, which is his right, one which will then presumably be reviewed in short order by the Illinois state legislature.
That said, these complex state machinations have federal implications, and symbolic ones at that. The person so appointed in Illinois will serve as a Senator of the United States of America, as a replacement for Barack Obama, and he will be paid out of the federal budget. If the Illinois state Legislature or the US Senate wish to insert themselves into this debate, this is how they should do so. Clearly and simply and democratically, by a straight vote on whether to seat this Senator or not. The Democratic caucus should not insert itself into the fray, nor should the President-elect.
The governor is playing within the rules of the system we currently have in place. Respecting the delicate balances of power—between the executive and legislative branches, as well as between state and federal government—is far more important in such moments than our personal feelings about the motivations or the man.
Trying such cases in the court of public opinion is a dangerous precedent to set. Quick talk of impeachment without clear legal cause is as well. There is a constitutional structure in place here at both the state and federal level. It is designed to guard against overt political and personal maneuvering, and it is designed to protect the people from unchecked exercises of power.
So the Governor is curiously correct; the people of Illinois are entitled to representation by two Senators. They should not be penalized because one of their own has been elected President. Nor should they be punished because another one of their own has proven to be so short on practical wisdom and personal restraint.
All the rest is smear.
