Fordham Law


Rod Blagojevich Arrest: Legal And Political Fallout

Abner Greene in huffingtonpost.com, December 09, 2008

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Rod Blagojevich Arrest: Legal And Political Fallout

December 9, 2008 04:09 PM


National and local Illinois officials are calling for the state Senate to reconvene and pass legislation that would effectively take the power of appointing Barack Obama's replacement out of embattled Gov. Rod Blagojevich's hands.

The move was sparked after the governor was arrested, Tuesday morning, on charges of seeking to sell off the vacant Senate seat to the highest bidder.

"The charges against Governor Blagojevich are appalling and represent as serious a breach of the public trust as I have ever heard," said Senate Majority Leader Harry Reid. "It is clear that anyone Governor Blagojevich appoints to the Senate will fairly or unfairly be tainted by questions of impropriety. A different process to select a new Senator must be put in place -- and that process should not involve Governor Blagojevich."

"The events this morning are shocking," read a statement from State Senate President Emil Jones, who is rumored to have been one of the candidates for Obama's seat. "The faith of the citizens of Illinois has once again been shaken. I will call the Senate back in to session to pass legislation that would create a special election for the U.S. Senate seat to help restore the confidence of the people of Illinois during this difficult time."

Politically and legally, such a course of action could have wide ramifications. Certainly no one would suggest (save for, perhaps, Blagojevich himself) that having the governor appoint the next Illinois Senator is the correct course of action. That individual would immediately be tainted by the ethics scandal that surrounded his or her appointment. Constitutional scholars say, the State Senate is well within its rights to pass legislation that allows voters, not the governor, to fill the vacant seat. Whether the Senate itself can make such a replacement is another matter.

"I don't think there is any problem with them amending their law and creating a special election," said Abner Greene, a legal scholar at Fordham University. "It is perfectly fine for Illinois to amend their law and take the power away from the governor. They can clearly make it into a special election as some states have done."

But there are sticking points. For starters, any legislation would have to be signed by Blagojevich himself. He is, after all, still governor. But at this point it seems likely that enough officials would vote to override his veto.

Say, however, that Blagojevich knows this legislation is coming and frantically makes an appointment on his own. Then the matter could come to the United States Senate. Under Article One, Section Five of the Constitution, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members," meaning that the newly appointed Senator could be dismissed by his congressional colleagues.
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"I think it's clear that the Senate has a right, by majority vote, to refuse to seat someone appointed by Blagojevich," said Jeffrey Toobin, a legal analyst for CNN. "He/she could [then] always file a lawsuit, but I'm sure a court would defer to the Senate on seating its own members."

Indeed, as pointed out by the Associated Press, "Several would-be senators have been rejected that way, usually when their election was corrupted or deeply in question. The last appointed person to be refused a seat came from Alabama in 1913, when the Senate concluded the state legislature had not given the governor the power to fill a vacancy, said Senate associate historian Don Ritchie."

The House of Representatives, meanwhile, denied Rep. Adam Clayton Powell his seat in Congress following his reelection, because of corruption charges. The courts, however, ruled that he could maintain his seat because he met the "qualifications" for office (age, residence, and citizenship).

From a strictly political standpoint, however, hosting a state wide election for Obama's replacement could mean the loss of a Democratic seat. Certainly Illinois is a Democratic stronghold. But there are a number of moderate Republicans who could pull of the upset if it came to a vote.

Brian Gaines, a political science professor at the University of Illinois' Institute of Government and Public Affairs, listed the names Reps. Mark Kirk, Jim Oberweis, and former gubernatorial candidate Paul Vallas, as possible GOP candidates. Kirk, he noted, may not be included to give up his House seat. And Vallas would have to run as a Republican even though he has been a Democratic candidate in the past. The prospects for Democrats, he added, are far dimmer in 2010.

"[Democrats] could easily lose it in 2010," he said. "It is a midterm election. And the Democrats have complete control of the government and are only in a position where they can fall back. The state has huge fiscal problems. And in an ordinary cyclical way it would make sense. Having this fall for Blagojevich -- with the transcripts of how brazen he was and the vulgarity -- I can just imagine all the ads being run against the [Democratic candidate]."