BOOGIE WITH BURRIS

With all the hoopla surrounding the selection of Roland Burris to be the junior Senator from Illinois, it's easy to miss the larger issue at stake. Certainly, there is plenty of buffoonery to please the bloviators throughout the blogosphere. Whether it's the farcical press conferences put on by B-Rod (Rod Blagojevich, Governor of Illinois) and punctuated with poetic musings or the downhome pladoyer of Mr. Burris before whichever panel he appears, there is much to latch onto. Yet, the way Senate vacancies are filled - be it in New York, Colorado, Delaware or Illinois - both violates the spirit of the Constitution and confers advantages where none should be rendered. Enjoy the melodrama as it unfolds: to seat or not to seat Roland Burris. Whether 'tis nobler to suffer the slings and arrows of outraged and babblling Bobby Rush or put paid to perfidy and break the ban on Burris.

To provide just the barest of sketches is sufficient to provoke plenty of guffaws. On tape, now impeached Governor Blagojevich has revealed how he and many politicians of his ilk view politics. It's a question of money, power and influence. So you want to be Senator. How much is it worth to you? You want to criticize me? Well, forget about any help you might need in selling the Chicago Cubs baseball team. I will help the poor and needy and most innocent among us (children), but only if you make it worth my while. Donations gladly accepted.

Whether Mr. Burris or any of his representatives participated in preliminary talks pursuant to the auctioning of Mr. Obama's Senate seat is unclear. Certainly, he has admitted before a house committee preparing impeachment of Governor Blagojevich that he had dropped a hint to an aide six months ago that he'd like a chance to become the appointed replacement. But, that was before it was even clear that Obama was likely to win election as President and need to resign his seat as the junior Senator from Illinois. No one has suggested that Mr. Burris participated in the more recent round of bargaining that led federal prosecutor Patrick Fitzgerald to blow the lid on a brewing scandal. There just ain't no taint!

However, some have likened Mr. Burris's appointment to the ill-gotten gains from an illegal search. As most fans of Law and Order are well aware, the harvested fruits from a poisoned tree will be excluded without fail. Since the process prior to Mr. Burris's selection was tainted, any appointee should be barred from taking the seat no matter what his or her merits might be.

Does Mr. Burris merit appointment to the U.S. Senate? He does, of course, meet the qualifications to serve as a senator. His appointment, despite the refusal of Illinois Secretary of State Jesse While to certify his selection, falls entirely within the purview of the governor's power to appoint a temporary replacement when a position has been vacated as Mr. Obama's Senate seat has been. No one has claimed that Mr. Burris was selected because he was the highest bidder. Indeed, Mr. Burris had plead poverty in this regard. Even if he had been asked to contribute to B-Rod, he would not have had the means to win this particular auction!

Mr. Burris probably hasn't paid to play, but he does bring a refreshing dose of eccentricity to the position. Many commentators have pointed out Mr. Burris's seeming narcissism. Who else but a narcissist names his offspring Rolando and Rolanda? And, he does have that mausoleum adorned with chiseled resume announcing Mr. Burris as a trailblazer from his earliest days as a student at Southern Illinois University through his tenure as the first elected African-American attorney general in Illinois. Whether he blazed trails as, say, a Martin Luther King or a Rosa Parks is open to debate. Clearly, Mr. Burris parlayed his race into a winning hand in this particular instant. However, his good fortune in this regard must not gloss over the difficulty most black candidates have when running for statewide office.

But, Mr. Burris also comes across as an affable fellow, an educated everyman if you will. Flying to DC from Midway and landing at BWI on Southwest Airlines was an indirect, inexpensive and pedestrian route to Washington. Weathering the rain without raising much fuss when denied participation in the swearing in ceremony for members of the 111th Congress also helped cast Mr. Burris as a regular guy. Indeed, all of his protestations about his inability to pay to play and his apparent willingness to be forthcoming about contacts with the Blagojevich staff endears him to the public. Besides, it cannot be denied that his presence in the Senate would constitute a small step towards providing a minority voice in what is now - without Senator Obama - an assemblage without a black voice. That he is able to do so without displaying the stridency of, say, a Jesse Jackson or former Black Panther Bobby Rush speaks volumes about Mr. Burris.

However, one may judge Governor Blagojevich, he certainly is a sly fox. He outmaneovred his opponents and selected perhaps the one candidate whom the Senate cannot reject out of hand. Had Mr. Burris been Caucasian, or had he even been a she, Harry Reid would have had fewer qualms about barring him from taking his appointed seat. In this respect, being a black male was an advantage. Blagojevich knew that and thus he was quite content in reneging on his own promise not to make an appointment after his "pay to play" scheme had been outed by Patrick Fitzgerald. Still, the clever can get too clever even for themselves. Governor Blagojevich may have dared his opponents to tape away, but it is the very existence of those tapes that led the Illinois House to almost unanimously vote to impeach the governor for various acts of corruption. He will be convicted and that will be the end of B-Rod.

Burris, though, will remain. For certainly, the U.S. Senate will seat Mr. Burris. Eccentricities aside, Mr. Burris will go to Washington as the legal designee to the vacant Senate seat formerly held by President Obama. Whether he remains for two years in that post or serves only until a special election can be held is an open issue. Though it seems probable that he will remain in office until 2010, there is doubt whether he can use the power of incumbency to translate his appointment into a full six year term.

And, therein hangs the tale. As Thomas Geoghegan, labor lawyer and author of "See You in Court: How the Right Made America a Lawsuit Nation", opined in the New York Times, that the 17th Amendment to the Constitution mandates that governors "shall issue writs of elections to fill such vacancies" when Senate seats open up unexpectedly due to death, resignation, or incapacity. In practice, governors fill such vacancies by appointment and wait until the next round of Senate elections allow the vacancy to be eliminated through election. As Geoghegan argued, such practices set the 17th Amendment on its head by allowing a legal proviso which logically allowed temporary appointments by the governor until an election can fill the vacancy for the remainder of the term.

Legislatures have been unwilling to demand special elections in order to fill such vacancies. Indeed, the Illinois legislature refused to consider holding a special election for fear that the Republicans might win a seat away from a Democrat. Whatever Mr. Burris's merits may be, he clearly is a Democrat and can be counted on to support the agenda of President Obama. Even when the legislature is controlled by a party opposed to the governor and could use its authority to prevent a governor from choosing a candidate of his or her own liking (and party), legislatures have been loathe to exercise their constitutional authority. As a result, governors everywhere have acquired a power unintended by the 17th Amendment and it has allowed corrupt practices to pervert the democratic process. B-Rod was only the most blatant of abusers.

At present, there are in play four Senate seats, each held by a Democrat. Two are open because the holders of these seats were elected to the executive branch and cannot serve in both branches of government. President-elect Obama resigned his seat in December, while Senator Biden has yet to resign his. Secretaries designate Salazar and Clinton must resign their seats in order to become members of the Obama cabinet. Senator Salazar has already resigned and his seat filled by the former superintendent of Denver public schools. Governor Patterson has toyed with the notion of replacing Senator Clinton with Caroline Kennedy, though her selection has stirred much controversy, given that she has never held elective office and - like Senator Clinton - represents perhaps the continuation of a political dynasty. Senator Biden's replacement most likely will be a close associate of the senator and someone who will only serve until 2010.

What does it matter whether these vacancies are filled temporarily or for the full two-years until the next election cycle? Maybe not much, but one should never underestimate the power of incumbency. Even Mr. Burris who has had difficulty winning state-wide elections may have an advantage in 2010 simply because he is the incumbent. Most voters are reluctant to turn out incumbents. The only way for incumbents to lose their seats is through death, personal choice, or the infrequent, but powerful political tsunamis that sweep aside incumbents whether deserving or not.

2008 was just such an election, at least as regards to Republican candidates. Not even Christopher Shays, a well-respected and moderate Republican from New England, could not hold onto his seat in the House of Representatives. And other incumbents, be they Senator Coleman from Minnesota or Senator Stevens from Alaska, could not withstand the rising tide against incumbent Republicans.

To be appointed for the full two years is, then, to gain an advantage, one that might be parlayed into electoral victory when the regular electoral cycle is adhered to. Governors gain immense power in the selection process and can thus use their power to sell the seat to the highest bidder (Blagojevich), reward political cronies, perpetuate political dynasties or exercise caution and choose a relative newcomer (Michael Bennett from Colorado).

That this thwarts the democratic process is obvious. It does not create a level playing field or give the appearance of a such an open process. As such, it is yet another impediment to democracy, an impediment that could be eliminated if governors and legislatures adhered to the dictates of the 17th Amendment. So, enjoy the cirque du Burris while you can, but keep your eye on the prize, not just in Illinois, but everywhere where vacancies in the U.S. Senate arise.