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U.S. Senate may not have power to stop a Blagojevich nominee

By David Savage | Washington bureau

4:41 PM CST, December 11, 2008

Gov. Rod Blagojevich greets Rev. Ira Acree (right), outside his Ravenswood Manor home in Chicago Friday morning. Blagojevich prayed with several ministers in his home before heading to his office this morning, telling them he is innocent and will be vindicated "when you hear each chapter completely written," according to one of the pastors. (Tribune photo by Michael Tercha / December 12, 2008)

WASHINGTON - Senate Democrats threatened this week to refuse to seat any new Illinois senator chosen by embattled Gov. Rod Blagojevich, but it is not clear the senators have the legal authority to reject a fully qualified appointee.

In 1969, the Supreme Court ruled the House of Representatives could not refuse to seat Rep. Adam Clayton Powell, a New York Democrat who was accused of putting his wife on the payroll and misusing travel funds to vacation in the Caribbean. Despite those charges, he was reelected by his constituents in Harlem.

"The Constitution does not vest in the Congress a discretionary power to deny membership by majority vote," wrote Chief Justice Earl Warren. Congress may "judge only the qualifications set forth in the Constitution," he said.

The qualifications are minimal. A senator must be at least 30 years old, a U.S. citizen and "an inhabitant" of the state.

The ruling in the Adam Clayton Powell case served as a precedent in 1995 when the Supreme Court struck down term limits for members of Congress. The justices said the states may not add extra qualifications for serving in Congress, including restricting the years of service.

In Warren's opinion, he said the Senate's power over its members "is identical" to that of the House. The court referred to an elected representative but its opinion did not address whether an appointed Senator would have the same standing. But legal experts say the Senate does have the right to look into whether a senator's election or appointment was valid and lawful.

"It's true the Senate cannot add qualifications, but it has to recognize an election or a selection as valid," said Trevor Potter, a Washington lawyer and former chairman of the Federal Election Commission. "If it has questions about that, such as after a contested election and a recount, the senators can a delay a decision on seating and defer the issue to a committee."

In 1974, the Senate refused to seat Louis Wyman, a Republican from New Hampshire who won in a second recount by two votes. The Democrat, John Durkin, objected. He had won the first recount by 10 votes. The Senate voted to send the matter to the Rules Committee. It too was deadlocked, and the two candidates agreed to run in a special election. Durkin prevailed.

In Wednesday's letter to Blagojevich, the Senate Democrats warned the governor against choosing a new senator, but they did not flatly refuse to seat such an appointee. "Please understand that should you decide to ignore (our) requestwe would be forced to exercise our Constitutional authority under Article I, Section 5, to determine whether such a person should be seated," the letter said.

This provision is the one the Supreme Court described in 1969 as having a "narrow" scope. It says, "Each House shall be the judge of the elections, returns and qualifications of its own members."

If Blagojevich were to select someone to fill the Illinois Senate seat vacated by President-elect Barack Obama, the senators could send the matter to the Rules Committee to judge the candidate's qualifications.

And the appointee, if rejected by the Senate, could go to court and challenge the decision as unconstitutional.

david.savage@latimes.com