Seat Burris, I've Been There

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UPDATE: Burris will be seated in the Senate, the Associated Press reported Wednesday.

Recalling the case of Adam Clayton Powell, Jr., former congressman Andrew Jacobs, Jr. says the Constitution could not be clearer: the Senate has no right to reject Roland Burris.

Will Roland Burris become the next Senator from Illinois, replacing president-elect Barack Obama? The former state Attorney General arrives in Washington today to meet with Congressional leaders amid widespread speculation that they will refuse to recognize his appointment by embattled Gov. Rod Blagojevich. But the Constitution is just as clear on his claim to the seat as it was in the case of Adam Clayton Powell, Jr., 40 years ago.

I became exceptionally well versed in this claim because I was drafted onto the congressional committee weighing the fate of the distinguished member from Harlem.

Before the advent of Martin Luther King, Jr, Adam Clayton Powell was arguably the most prominent embodiment of the civil rights movement in the U. S. He was handsome and brilliant, with a deep, thunderous voice that shook the rafters of the House and a wit that cuttingly dispatched the considerably large racist block of Congresspeople who were foolish enough to engage him in debate.

Members who voted down the measure told me privately afterward that they knew we were right, but that a vote to seat would mean their own un-seating in the next election.

But he was also, as often described, "big in big things and little in little things." He got caught swiping airline tickets to take his girlfriend for Caribbean trysts, and when he was reelected in 1966 the members refused to seat him. Then the House empanelled a select committee to make recommendations on Powell’s status before the general swearing-in for the 90th Congress in January 1967.

No member wanted to sit on that committee. "Only someone passionately interested in political suicide would accept that assignment," I was told by a colleague I met in the airport as I was boarding a plane back to my district. But as soon as I arrived in Indianapolis, I received a call from Speaker John McCormack asking me to serve. Recalling the airport advice, I hesitated but said, "Sounds like jury duty, Sir. I'll do it."

A few days after the news media reported my appointment, I got a letter from publisher Bobbs-Merrill soliciting a manuscript about what went on behind those closed doors, adding that no such record had ever been made before.

So during the weeks-long closed sessions, I imitated Truman Capote’s methods, feverishly scratching out direct quotations in my own, invented short-hand, then racing back to the office each evening to type up the fresh material from my yellow legal pad. When the book—The Powell Affair : Freedom Minus One—was published, my fellow committee members were amazed by the accuracy of their quotations. At the time, they just had impression that I was working too hard on the case. They didn't know that I had two assignments.

The Constitution clearly sets out the qualifications one must have to serve in the Senate: at least 30 years of age, nine years a citizen of the U.S. and an "inhabitant" of the relevant state. The committee ruled—as the Supreme Court would later affirm in Powell v. McCormick—that Congress had no authority to expand those qualifications, and it recommended seating Powell. The House leaders on both sides also spoke for the seating. Adam, himself, was a tad histrionic when his magnificent voice declared his fellow members were a bunch of hypocrites.

In the end, the committee recommendation was rejected by eighteen votes. Those members who chose to obey their oaths of office and support the Constitution with a « yes » vote were generally Northern Republicans and Democrats. Those in opposition tended to be Southern Members of both parties – along with a number of members afraid to do the right thing. More than the eighteen members who voted down the measure told me privately afterward that they knew we were right, but that a vote to seat would mean their own un-seating in the next election.

It's clear that, after he claimed his seat, Powell could have been expelled for misconduct. Since the question of his seating involved simple facts, the founders required only a simple majority to decide it. However, in order to expel on account of the more complicated question of misconduct, the founders framed the Constitution so as to require a two-thirds majority.

After New York's choice was rejected, Powell won the special election that followed and was again refused the seat. In the 1968 general election, Powell won again and this time he was seated. In 1970 he was defeated by Rep. Charles B. Rangel, who represents the district to this day.

There were two particularly notable quotations during this long controversy. California Rep. Chuck Wiggins—a Republican in a Democratic Majority House—said, "I have good reason to reject the notion that my seat is subject to the whim of the majority of seated members."

But the most ringing declaration came from the chairman of select committee, New York Democrat Emanuel Celler, who quoted The Merchant of Venice:

Bassanio: ...And I beseech you, wrest once the law to authority:
To do a great right, do a little wrong...
Portia: It must not be. 'Twill be recorded for a precedent
And many an error by this same example will rush into the state.

In the Powell case, it was the chosen person himself who had offended, not those who selected him. (Indeed, with so many voters involved, it's quite possible that some were what President Bush calls "evil-doers.") Just as we reject guilt by association, there is no legal offense called unpopularity by association. To date, Gov. Blagojevich, as unsavory has he may appear, has not been convicted nor even indicted, and Article One, Section Three of the Constitution provides, that if vacancies in the Senate happen by resignation, or otherwise, the governor of the state may make temporary appointments until the next general election.

Burriss’s right to be seated looks to me to be beyond dispute. During the past eight years, the Constitution has been ripped to shreds. It’s high time to play some catch-up ball and start mending it.

Andrew Jacobs, Jr., served in Congress for 30 years as a Democratic representative from Indiana. He now practices law in Indianapolis and has written several books on politics.