Blogs > Cliopatria > Burris and the Vare Precedent

Jan 5, 2009

Burris and the Vare Precedent




The fiasco that is the Roland Burris Senate appointment continued today. One day after proclaiming that the Lord had mandated his seating in the Senate, Burris gave what the Times termed a "defiant" press conference, asserting, “This is all politics and theater, but I am the junior senator according to every law book in the nation.”

Perhaps not “every law book.” Most commentary about the appointment has focused on the 1969 Powell v. McCormack decision, in which the Supreme Court overturned the House of Representatives’ attempt to deny Harlem congressman Adam Clayton Powell his seat. Yet there’s good reason to believe that the Powell precedent isn’t as clearcut as some astute legal commentators have claimed.

The most appropriate Senate precedent is not Powell but a 1920s case involving political corruption. The 1926 Pennsylvania Senate race featured three of the state’s towering political figures from the post-World War I era: Governor Gifford Pinchot, a progressive Republican; Congressman William Vare, head of the Philadelphia GOP machine; and William Wilson, who served as Secretary of Labor under Woodrow Wilson.

After incumbent Republican George Pepper announced his retirement, Vare and Pinchot faced each other in the GOP primary. Vare won comfortably, but Pinchot charged that the congressman had committed election fraud and had violated the state’s anti-corruption statutes by spending excessively on his campaign. The fall battle became a cause célèbre for progressives, who strongly backed Wilson. But pre-Depression Pennsylvania was solidly Republican, and Vare narrowly prevailed.

Democrats and progressive Republicans scored strong gains in the 1926 elections, enough to have a working majority in the upper chamber. Though no criminal charges were ever filed against Vare, the Senate declined to seat him. Instead, it referred the case to the Rules Committee, which conducted an investigation that spanned more than two years. The conclusion? Vare’s campaign was guilty of corruption, though not to such an extent that the Senate could say that Wilson would have won a fair election. So the Senate decided to seat neither Vare nor Wilson. The governor appointed Joseph Grundy to the seat until a special election could be held for the remainder of what would have been Vare’s term.

The Vare case, in short, suggested that the Senate could deny a seat to someone whose election (or, to extend the precedent to the case of Burris, appointment) a majority of the chamber deemed corrupt, even if not criminally corrupt.

It’s possible, of course, that in the post-Powell legal environment, the Senate’s decision not to seat Vare would have been deemed unconstitutional. But that question hasn’t really been tested, and it’s unlikely that Harry Reid will make the same mistakes that the House did in the 1960s with Powell—namely voting to expel without any investigation.

That Reid has already announced the Burris appointment will be referred to the Rules Committee means that we may be hearing more of the Vare precedent in coming weeks.



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Lawrence Brooks Hughes - 1/8/2009

I think my arguments about the legal reasons for Burris to take the seat are impeccable. Republicans are also gleeful, of course, because the spectre of Blago-Burris has taken some publicity off of Obama at a moment when he wanted total public attention.

As for your suggestion that I am "a right-wing ideological misfit," let me point out it is always liberals on this site who indulge in ad hominem attacks, or need to.


chris l pettit - 1/8/2009

a right wing ideological misfit to turn a legal discussion into a screed...

Go stick your head back in the sand Mr. Hughes...your comments about Chicago poitics and the rest of your conjecture are irrelevant to whether Burris should LEGALLY be seated or not...although they do fit perfectly in the world of political idiocy and manipulation...


Lawrence Brooks Hughes - 1/8/2009

Blogo is still governor, and still has not even had charges brought against him. Ergo, he has the power to appoint a U.S. Senator without getting the approbation of anyone. The Secretary of State's signature on the document involved is really just as witness to the fact. So Burris should win in the courts, even if 70% of the population are against him.

The Democrats are furious, and Republicans gleeful on a practical level, because nobody thinks Burris can get reelected in the special election. Republicans naturally feel since a Democrat must be appointed anyway, this is the best possible situation they can get. Besides providing a constant reminder of the sewer of Democratic politics in Illinois, from which of course Obama sprang, Burris is over 70, and has been defeated in statewide elections five times previously. It is assumed Democrats will have to run him again in the special election, because it would also prejudice their chances of keeping the seat if they dumped him.


Lawrence Brooks Hughes - 1/8/2009

The disputed Senate election in New Hampshire in 1974 makes a better comparison for the Harkin-Coleman impasse... In that one the Dems had a 60-40 vote edge in the Senate, yet heard arguments about seating both candidates, declined to take the Democrat, and kicked it back to New Hampshire to conduct another (special) election. Two recounts had one winning by 35 votes, and the other winning by 2 votes (some say 10). Interestingly the Senate did NOT automatically seat along party lines in the New Hampshire case, the way the House did in the McCloskey outrage of 1984.


chris l pettit - 1/7/2009

it seems as thought the fundamental disagreement/difference/Constitutional interpretation will be whether the "corruption" label is applied to the person or the circumstances in question. In everything I have seen cited as a rebuttal to Powell, there were serious questions about the corrupt nature (or not) of the person being seated. In some cases these were absurd (did that other bozo really cite a "red scare" case as persuasive authority?)...in some cases they were valid.

Extending this standard to the process through which an appointment came to be made would vitiate the standards articulated within the Constitution regarding the qualifications of Senate appointees. It would require a vast expansion of the current reading of the standard by whatever Court would consider it. Now, as I said before, as law only exists for the ideologue applying it to suit his interests, I am sure that we might be able to find judges who would apply the broader standard...but the current answer seems pretty clear.

I think what is being argued is a purely political/historical position (corruption in this context can relate to the events leading to the appointment) versus one of legal analysis (the much narrower issues surrounding the qualifications of the appointee). I return to the idea that experts in law are much better suited to analyze the standards than experts in political policy (who may be better suited to analyze the likely outcome, given that this is a political grenade).


R.R. Hamilton - 1/7/2009

IIRC (doing this strictly from memory), an Indiana Republican named McIntyre beat and incumbent Democrat congressman named McCloskey in 1984. McIntyre was even certified the winner. The Democrat leadership in the House refused to seat him and, after its own mysterious "recount", proclaimed McCloskey the winner and sat him.

Btw, for Mr. Pettit above, as a non-lawyer, Prof. Johnson has shown a remarkable acumen for handing legal issues over at his blog, "Durham-in-Wonderland" -- so much so that I have sometimes wondered if he is not getting help from his colleague Stuart Taylor or other attorneys. And even if he is, his writing shows a real grasp of and ability to intelligibly convey what must be for laymen difficult and unfamiliar concepts and analyses.


Ralph E. Luker - 1/6/2009

Ah, yet another (blessedly brief) comment from Chris "I've got a law degree and you don't" Pettit.


chris l pettit - 1/6/2009

that the precedent is to investigate whether Burris is/was corrupt? There is no evidence that he was involved in any of the Blago mess, and he has no other "corruption" issues. To try and extend Blago's corruption to Burris is a non-starter, and your Vare precedent doesn't apply, since the corruption allegations centered on Vare himself (and his campaign) in that case, and not anyone he appointed. In the legal business, that would be determined to be a distinguishing factor. A better analogy would be if the govenor in the Vare case had been corrupt and involved in Vare's issues, and the investigation was of the guy that he appointed to the seat.

Politically...I suppose anything can happen since law has little relevance unless it suits the ideologue invoking it. Legally? I think you are better off leaving law to those who understand it (such as the Volokh crew) and sticking to history.