The Congressional Research Service Says the Senate Can Exclude Burris

Jane (here, here, and here) and bmaz (here, here, and here) have been diligently chronicling the continuing saga of seating Roland Burris. In the last week, we’ve seen Reid and Durbin scream Go! Stop! Go! at Burris.

But it turns out, since last Monday, they’ve had a Congressional Research Service study explaining whether or not they have to seat Burris, one they seem to have lost in all the excitement. It gives a basis I’ve not heard yet on which to exclude Burris (no link yet). 

Under the Powell decision and rationale, and under the express constitutional grant of authority, the Senate (and House) may, in addition to examining “qualifications” of Members-elect, examine the “elections” and “returns” of their own Members, that is, whether an individual presenting valid credentials has been “duly” chosen. A few years after the Powell decision, the Supreme Court in Roudebush v. Hartke, 405 U.S. 15 (1972), clearly affirmed the right of the Senate to make the final and conclusive determination concerning the election process and seating of its own Members.


Additionally, the Senate has from time-to-time examined the election or selection process (prior to the adoption of the Seventeenth Amendment in 1913, Senators were selected by state legislatures) to see if corruption or bribery has so tainted the process as to call into question its validity.

All that says, really, is to look beyond just Powell to Roudebush as well to see whether or not the Senate can exclude Burris if it wants (bmaz assures me he will look up Roudebush once he gets done with his actual lawyering today).  And that corruption or bribery is fair game.

That said, even with Burris’ admission that he talked to Lon Monk about the seat, the way in which Blago’s defense-or-maybe-not lawyer Sam Adam Jr. brokered the appointment, and other dubious ties between Burris and Blago, it’s not clear that Congress yet has a clear case that Burris’ appointment–as distinct from Blago’s earlier attempts to sell the seat–involved bribery or any corruption outside the norm in Chicago politics. 

Update: Lawrence Tribe weighs in on the "they can exclude Burris" side. Note, this appears to have been published before Obama said he was staying out of this. 

Blagojevich, Reid, and Rahm: Who Is Distorting Claims about Jesse Jackson Jr.?

The Sun-Times has updated its story on Reid’s calls to Rod Blagojevich with this statement from Harry Reid:

Gov. Blagojevich appears to be trying to distract attention from his daunting legal problems and damaged credibility by distorting information about private phone calls between himself and other public officials. It is regrettable and reprehensible.

Gov. Blagojevich’s efforts to try to tarnish others while the cloud of suspicion continues to grow over him are shameful, as are his efforts to further betray the public trust and sow seeds of division. As each day passes it becomes increasingly clear that Gov. Blagojevich is not fit to lead, and he should resign.

I will not allow his corruption charges or his antics to distract me from leading the Senate, to drive a wedge in our party or to obscure the facts. [my emphasis]

(Reid just accused Blago of lying about it on MTP, as well.)

I’m fascinated not only by Reid’s decision to respond to what he apparently believes is a Blago leak, but by his accusation that Blago is lying. That’s because there are now three different versions about whether or not Jesse Jackson Jr. was acceptable to Obama and Reid.

Recall that, several weeks ago, someone leaked to the Trib details of Rahm’s discussions with Blago about "acceptable" candidates for the Senate seat. That list rather notably did not include JJJ.

Emanuel delivered a list of candidates who would be "acceptable" to Obama, the source said. On the list were Obama adviser Valerie Jarrett, Illinois Veterans Affairs director Tammy Duckworth, state Comptroller Dan Hynes and U.S. Rep. Jan Schakowsky of Chicago, the source said. All are Democrats.

Sometime after the election, Emanuel called Harris back to add the name of Democratic Atty. Gen. Lisa Madigan to the approved list, the source said.

In fact, except for Jarrett, that list did not include any African-American candidates.

But that’s not who Rahm says was on the list.

Between the time that Mr. Emanuel decided to accept the position of Chief of Staff in the White House and December 8, 2008, Mr. Emanuel had about four telephone conversations with John Harris, Chief of Staff to the Governor, on the subject of the Senate seat. In these conversations, Mr. Emanuel and Mr. Harris discussed the merits of potential candidates and the strategic benefit that each candidate would bring to the Senate seat. Read more

Reid to McConnell: Don’t Be a Scrooge! Pass Auto Stimulus

There has been a lot of reporting that an auto bailout is unlikely. While I think that’s probably true, I also wonder whether Chris Dodd’s claim that the votes aren’t there is based exclusively on discussions with Richard Shelby.

Dodd was listening, and in televised remarks later he appeared to dash any hopes of action until the new Obama administration is in place and Democrats have more Senate votes next years.

“Right now, I don’t think there are the votes…Dodd said. “You’ve heard Senator Shelby publicly speak out about his opposition to doing anything in the automotive area. So I want to be careful about bringing up a proposition that might fail in light of the fact the authority exists and under an Obama Administration there seems to be a greater willingness to deal with the issue.”

As I’ve pointed out, Shelby would love for the Big Three to fail so Japanese and Korean and German manufacturers can continue to make big gas guzzlers in his state, only without any competition from domestic manufacturers.

That said, Harry Reid has noticed something I did too: like Shelby, Mitch McConnell’s got some Japanese manufacturers in his state (though those factories produce more of the efficient cars in Kentucky–like the Camry–that every one thinks of Japanese manufacturers making). In addition, McConnell’s state is also home to some Ford and GM plants, including some key Ford truck plants. Those Ford plants, incidentally, are going to be idling through the entire Christmas season.

The United Auto Workers union says Ford’s Louisville Assembly Plant will be idled for five weeks beginning the first of next month.

Also, The Courier-Journal reports that UAW Local 862 says the Kentucky Truck Plant will apparently shut down in mid-December until early February.

I would imagine, with thousands of his constituents out of work, Mitch McConnell is going to be hesitant to take a strong stand against bailing out those constituents.

Which is probably what Harry Reid is thinking, as he plans to push for unemployment and an auto bailout in the lame duck session.

Unless I hear from you to the contrary, I plan to press forward with two provisions of that package – an extension of unemployment benefits, which passed the House by a bipartisan vote of 368-28 and legislation to protect the millions of workers at risk from the possible collapse of our domestic auto industry. Read more

Comments on Mukasey’s Call for an Election-Season Showdown

Just as a follow-up to this post, a couple of official comments.

From DC District Court Chief Judge Royce Lamberth, who has already set into motion an expedited process for the detainees:

I am pleased that Attorney General Mukasey said that our ‘court should be commended for the preliminary steps it has taken thus far to provide for the fair, efficient, and prompt adjudication of these cases.’ Guidance from Congress on these difficult subjects is, of course, always welcome. Because we are on a fast track, however, such guidance sooner, rather than later, would certainly be most helpful.

From Harry Reid:

As a result of its repeated efforts to circumvent the requirements of the Geneva Conventions and the Constitution, the Bush administration has yet to bring to justice the perpetrators of the terrorist attacks of September 11. If legislation is needed, it is important that Congress proceed in a deliberate and thoughtful way to write rules that will not be thrown out by the courts yet again. Congress must hold public hearings, consult with national security and legal experts, and take the time to get this right. It is hard to imagine that Congress can give this complex issue the attention it deserves in the closing weeks of this legislative session.

The courts are well equipped to handle this situation, and there is no danger that any detainee will be released in the meantime.

From Patrick Leahy:

The Supreme Court’s 5-4 decision in Boumediene v. Bush last month reaffirmed our core American values by concluding that detainees at Guantanamo have the right to bring habeas corpus claims in federal court. I applauded that decision because I have maintained from the beginning that the provisions of the Military Commission Act that purported to strip away those rights were unconstitutional and un-American.

The Judiciary Committee has held a wide range of hearings on issues of detainee rights and procedures. Attorney General Mukasey’s call today for Congress to create new rules for these habeas proceedings is the first I have heard from the Administration on this issue. Given the Judiciary Committee’s long interest in this subject, it is regrettable that the Attorney General neither consulted with nor informed the Committee about this request before his speech.

The Courts have a long history of considering habeas petitions and of handling national security matters, including classified information. Read more

But What about Congressional Oversight?

In addition to showing how the Iran hawks have evaded oversight over their Special Forces war plan against Iran, Sy Hersh seems intent on generating pressure on Democrats to withhold funding now being used to start a covert war with Iran.

Hersh notes that the Gang of Eight has been briefed on the CIA–but not the Special Forces, assassination of high value targets–part of the plan.

Although some legislators were troubled by aspects of the Finding, and “there was a significant amount of high-level discussion” about it, according to the source familiar with it, the funding for the escalation was approved. In other words, some members of the Democratic leadership—Congress has been under Democratic control since the 2006 elections—were willing, in secret, to go along with the Administration in expanding covert activities directed at Iran, while the Party’s presumptive candidate for President, Barack Obama, has said that he favors direct talks and diplomacy.

I love how Hersh feels the need to remind Democrats they are in the majority.

Then, after recalling all the opposition to Administration plans from within the military, Hersh returns to Democrats’ failure to prevent policies they oppose.

The Democratic leadership’s agreement to commit hundreds of millions of dollars for more secret operations in Iran was remarkable, given the general concerns of officials like Gates, Fallon, and many others. “The oversight process has not kept pace—it’s been coöpted” by the Administration, the person familiar with the contents of the Finding said. “The process is broken, and this is dangerous stuff we’re authorizing.”

Now, the problems with oversight seem to focus on two things. First, the Democrats once again got punked by Administration lies when, three years ago, David Obey backed off an attempt to withhold funding for such operations.

On March 15, 2005, David Obey, then the ranking Democrat on the Republican-led House Appropriations Committee, announced that he was putting aside an amendment that he had intended to offer that day, and that would have cut off all funding for national-intelligence programs unless the President agreed to keep Congress fully informed about clandestine military activities undertaken in the war on terror. Read more

Why Does Senator Ensign Hate Foreclosed Homeowners … and Veterans … and Seniors … and Telecoms?

I’ve got a call into John Ensign’s Communications Director for confirmation now, but it sounds like John Ensign is the one Senator referenced in Harry Reid’s statement last night and Dodd’s statement a few minutes ago on the Senate floor. That is, because John Ensign has refused to a unanimous consent agreement on the housing bill, he is holding up everything the Senate is doing right now.

That means Ensign is preventing the thousands of Nevadans facing foreclosure–Nevada’s foreclosure rate rivals even Michigan’s–from the relief that the housing bill in the Senate will give them.

But because Reid has said the Senate has to get housing done before it gets anything else done, it means Ensign is also standing between a bunch of veterans and the expanded GI bill included in the supplemental bill. And a bunch of people who’ve been looking for jobs hoping to get an extension on their unemployment benefits. And doctors hoping to be compensated fairly, in a new Medicare bill, for treating our nation’s seniors.

Of course, it’s not all bad. We FISA bloggers owe Ensign a debt of gratitude, it looks like. Because he’s blocking unanimous consent on housing, we may be able to push out FISA beyond the July 4 break. So thank you, John Ensign, for standing in the way of the shredding of the Constitution.

If you’re a Nevada resident, you might want to call Ensign at (202) 224-6244 and ask him why he’s preventing Nevada homeowners from getting some alternatives to losing their house.

But if you’re not a Nevada resident, you might want to call Ensign and thank him for standing up to the evil telecoms who illegally spied on American citizens.

Update: Corrected Medicare language per cboldt.

About Reid’s Potential Delay

Folks are seeing a glimmer of hope in the FISA battle based on Harry Reid’s suggestion that we might not get FISA done before the July 4 recess.

Before I look closely at what Reid said, let me lay out a few points:

  • Unless something remarkable happens, FISA will eventually pass the Senate with about a 72-25 margin. The bad SSCI bill passed in February with a 68-29 margin, and Steny’s capitulation was tailor-made to pick up the votes of people like DiFi and Amy Klobuchar–not to mention Obama. So there’s absolutely no reason to think a filibuster would be successful or to think that the bill won’t pass.
  • The Senate is close to passing a Housing bill that–though imperfect–would do some concrete things to help Americans stay in their homes and help communities devastated by foreclosures. If Bush signs it. If Bush doesn’t, then the Republicans will have their refusal to do something about the foreclosure crisis to contend with this fall, along with everything else they’re dealing with.
  • The Senate is close to passing the equally imperfect funding supplemental which includes Webb’s GI bill and an extension to unemployment benefits.

As you look at Reid’s comments, remember that Reid is dealing with all three of these playing pieces, not just the one we’re most focused on, FISA. And to the average American, the other two pieces are way more important than the FISA piece. As well-versed as I’ve become in FISA, frankly, I can’t imagine telling my neighbors facing foreclosure that defeating immunity is more important than them keeping their house.

I’m just making an outtamyarse guess, but I’m guessing that Reid’s delay comment last night may be tailored to get action on the housing bill, by holding the two things the Administration wants–FISA and the supplemental–hostage until a hold-out Republican and Bush agree to the housing compromise.

Reid starts by clearly pressuring one Senator on the housing bill–basically saying that if this one Senator doesn’t flip, then the Senate will stay through the weekend and get some housing bill passed.

I know of only one holdup on our being able to complete the housing legislation. If we can’t get that Senator to sign off on this, then we only have one alternative and that is we’ll file cloture tomorrow on another arm of this housing legislation. We will have cloture on that two legislative days later and then we still have one more to do. Now, that would mean we would have to be here over the weekend. Read more

Mixed Telecom Signals

As Ryan Singel points out, Silvestre Reyes went from writing a scathing editorial with Senators Leahy and Jello Jay and Congressman Conyers on Monday, denouncing Bush’s scare tactics, to announcing imminent agreement by the end of the week.

Regarding a compromise deal, Reyes said: "We think we’re very close, probably within the next week we’ll be able to hopefully bring it to a vote."

Seemingly a pretty big turn-around over the course of the week, no?

But there’s more that’s funky with Reyes’ timing. The AP reports his statement was taped Friday, not Sunday.

Rep. Silvestre Reyes, in a television interview broadcast Sunday, did not specifically say whether the House proposal would mirror the Senate’s version.


Reyes, whose interview was taped Friday, appeared on CNN’s "Late Edition," as did Blunt.

Friday happens to be the same day that Harry Reid moved to pass a 30-day extension to the PAA.

As we move forward, there is no reason not to extend the Protect America Act to ensure that there are no gaps in our intelligence gathering capabilities. Even Admiral McConnell, the Director of national Intelligence, has testified that such an extension would be valuable. But the President threatens to veto an extension, and our Republican colleagues continue, inexplicably, to oppose it.

“I urge them to withdraw their opposition. I will now ask unanimous consent to take up and pass S. 2664, a bill to extend the Protect America Act for 30 days, and to make the extension effective as of February 15, to ensure that there are no adverse legal consequences from the President’s decision to let that law expire.”

Now I suppose the 30-day extension, made retroactive to February 15, would amount to just a 15 day extension. And I see the value of forcing Republicans to repeatedly refuse to ensure the wiretaps continue.

But which is it? Imminent deal, or two more weeks?

And while we’re talking about weird temporal anomalies, can someone help me with the timing of this passage?

Reyes, D-Texas, said he was open to that possibility after receiving documents from the Bush administration and speaking to the companies about the industry’s role in the government spy program.

"We are talking to the representatives from the communications companies because if we’re going to give them blanket immunity, we want to know and we want to understand what it is that we’re giving immunity for," he said. "I have an open mind about that."

Read more

FISA and the Warrantless Wiretap Briefings

As we await certain doom because the NSA has to rely on FISA to authorize any new warrantless wiretaps (though it can continue all the programs currently in place), I wanted to correct what appears to be a common mistake about the earlier warrantless wiretap program. I’ve seen a lot of people claim that all of Congress knew of the program, that the Gang of Eight got regular briefings about it, that Congress wants the telecoms to get immunity because leaders in Congress want immunity.

The reality–at least according to the published record of those briefed on Bush’s warrantless wiretap program–is much more narrow. And as this fight moves into the House, it’d pay to have a clear understanding of who got briefed and how they claimed to have responded.

The Gang of Eight was not briefed regularly on the program

Kit Bond likes to claim that the Gang of Eight–the majority and minority leaders of both houses of Congress and the majority and minority leaders of both intelligence committees–were briefed on the program. That’s a lie. In general, the Administration briefed the intelligence committee heads, but not the Majority and Minority leaders. The first time the entire Gang of Eight was briefed on the program was when, on March 10, 2004, the Administration tried to get them to authorize continuing the program even though Jim Comey said it was illegal. At the time, the following were members of the Gang of Eight:

  • Denny Hastert
  • Bill Frist
  • Tom Daschle
  • Nancy Pelosi
  • Porter Goss
  • Jane Harman
  • Pat Roberts
  • Jello Jay Rockefeller

After Harry Reid became Minority Leader of the Senate in 2005, he received a briefing on February 3, 2005–by himself, as did Crazy Pete Hoekstra when he became HPSCI Chair in September 2004. There was not any other briefing where the entire Gang of Eight got the same briefing. Though after Risen and Lichtblau exposed the program, Jello Jay received a briefing with the Republican half of the Gang of Eight, and then Reid, Pelosi, and Harman received a briefing (which Roberts also attended).

As Arlen “Scottish Haggis” Specter has pointed out, the Administration was in violation of the National Security Act when, with the exception of March 10, 2004, it limited its briefings to just the intelligence committee heads.

Read more

Ode to Donna Edwards’ Wheaties

I don’t actually know that this sudden outbreak of spine and seemingly coordinated messaging among Democrats is the result of seeing Donna Edwards kick a Democratic incumbent’s behind, but she’s a great person and might as well get the credit. Here’s Silvestre Reyes:

Because I care so deeply about protecting our country, I take strong offense to your suggestion in recent days that the country will be vulnerable to terrorist attack unless Congress immediately enacts legislation giving you broader powers to conduct warrantless surveillance of Americans’ communications and provides legal immunity for telecommunications companies that participated in the Administration’s warrantless surveillance program.


If our nation is left vulnerable in the coming months, it will not be because we don’t have enough domestic spying powers. It will be because your Administration has not done enough to defeat terrorist organizations– including al Qaeda– that have gained strength since 9/11. We do not have nearly enough linguists to translate the reams of information we currently collect. We do not have enough intelligence officers who can penetrate the hardest targets, such as al Qaeda. We have surged so many intelligence resources into Iraq that we have taken our eye off the ball in Afghanistan and Pakistan. As a result, you have allowed al Qaeda to reconstitute itself on your watch.

You have also suggested that Congress must grant retroactive immunity to telecommunications companies. As someone who has been briefed on our most sensitive intelligence programs, I can see no argument why the future security of our country depends on whether past actions of telecommunications companies are immunized.

The issue of telecom liability should be carefully considered based on a full review of the documents that your Administration withheld from Congress for eight months. However, it is an insult to the intelligence of the American people to say that we will be vulnerable unless we grant immunity for actions that happened years ago.


I urge you, Mr. President, to put partisanship aside and allow Republicans in Congress to arrive at a compromise that will protect America and protect our Constitution.

I, for one, do not intend to back down – not to the terrorists and not to anyone, including a President, who wants Americans to cower in fear.

We are a strong nation. We cannot allow ourselves to be scared into suspending the Constitution. If we do that, we might as well call the terrorists and tell them that they have won. [my emphasis]

Read more