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Senate leaders plan for arrival of Blagojevich appointee

Both sides hope to avoid a scene, but neither is budging on whether Illinois' Roland Burris should be allowed on the floor and seated as Barack Obama's replacement.

January 01, 2009|Mike Dorning and James Oliphant

WASHINGTON — Should Roland Burris show up for duty in the Senate on Tuesday, armed police officers stand ready to bar him from the floor.

This cinematic showdown is among an elaborate set of contingencies that Democratic leaders are planning if, as expected, the former Illinois attorney general appointed by Gov. Rod R. Blagojevich shows up with newly elected senators to press his claim that he is the legitimate replacement for President-elect Barack Obama.

Democratic leaders hope to avert such a standoff. And Burris, in an interview Wednesday, said he hoped to claim the Senate seat without added drama.

"We're not going to create a scene in Washington," Burris said. "We hope it's negotiated out prior to my going to Washington."

Still, the Senate leaders' planning, detailed by a Democratic official briefed on their deliberations, even covers scenarios such as Blagojevich appearing in person to escort Burris.

Ironically, as a sitting governor, the scandal-plagued Blagojevich is allowed floor privileges. But Lucio Guerrero, Blagojevich's spokesman, said the governor had not decided whether to go to Washington with Burris.

With Democratic leaders vowing to bar anyone appointed by Blagojevich because of federal charges that he attempted to sell Obama's seat, leaders hope to stall Burris with paperwork. Senate rules require that an incoming senator's selection be certified by the secretary of state for his home state, and Illinois Secretary of State Jesse White has declined to sign a certification of Burris' appointment.

The first battle in what could become a lengthy and complex legal process is shaping up in the Illinois Supreme Court. Burris filed a petition Wednesday challenging White's refusal to sign the certification through what is known as a mandamus action, in which a judge can compel a state official to do his prescribed duty.

"The secretary of state cannot veto an action by simply not signing the document," Burris said. "He doesn't have that authority. He must do his job."

If Burris prevails by Tuesday and presents valid paperwork, it will be harder for senators to refuse to seat him. In this case, Senate guards might not bar him from entry, but leaders could refuse to swear him in.

Upon presentation of a valid certificate of election or appointment, past practice for senators whose credentials are disputed has been to grant office space and payroll for a staff, as well as floor privileges -- but not a Senate seat -- while the dispute is pending.

But Senate Democrats also have a follow-up plan: refusing to seat Burris until the Senate Rules Committee completes an investigation into whether the appointment process was tainted by corruption.

The plan is for the Senate investigation to extend longer than the Illinois Legislature's impeachment process underway against Blagojevich, leaving open the possibility that a new governor will make a rival Senate appointment that the Democratic leaders could seat.

Some legal experts say this strategy may offer Democrats their best course. They caution, however, that the current situation is largely without precedent, and that any number of factors -- judicial intervention, political pressure and shifting public opinion -- could alter the outcome.

There is also the possibility that while the rules committee conducts its investigation, Burris could file suit in U.S. District Court in Washington, asking a judge to order the Senate to seat him.

That's what former Rep. Adam Clayton Powell Jr. did in 1967, when the House attempted to bar the New York Democrat from taking his seat. Powell won two years later in the Supreme Court, which ruled that Congress did not have the power to fashion its own standards for admittance.

Still, Robert L. Walker, former chief counsel to the Senate Ethics Committee, said federal courts are not likely to act while the rules committee is investigating and the Senate has yet to make a final decision on seating Burris.

"The courts are going to give a lot of leeway to the Senate's ability to conduct an investigation," Walker said. "The federal courts are not going to step in at an early point."

Kenneth Gross, an election law expert in Washington, believes the Senate does not have the power to bar Burris.

But, he concedes, "I have to be skeptical of my own view when the U.S. Senate, the incoming president of the United States, a federal prosecutor, the governor's own executive branch and the state Legislature are all out to stop it. If neither side blinks, this could take a while."

That's precisely why the Senate could choose yet another route.

It appears clearer that the Senate would have the power to expel Burris after it seated him, according to Richard L. Hasen, a professor at Loyola Law School in Los Angeles. That would require a two-thirds vote rather than a simple majority. And it might set a precedent most senators would rather avoid -- making it easier down the road to dump a member for political reasons.

Even in that scenario, Burris could ask a court to review the grounds for his expulsion, setting off something of a constitutional crisis.

That's why the safest route may be for the Senate to wait to see whether Blagojevich is impeached and then replaced by Lt. Gov. Pat Quinn -- who could then make his own appointment to Obama's seat.

The Senate then would simply choose between two people with competing claims for the post, something it has done in the distant past.

"As a practical matter, it could probably be done in a way that would work," Walker agreed. "It certainly would be subject to challenge. But if they could provide a reasonable and articulate explanation for making that choice, it would probably survive a challenge."

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mdorning@tribune.com

joliphant@tribune.com

--

John Chase in Chicago and Ray Long in Springfield, Ill., contributed to this report.

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