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Sunday, January 11, 2009

The Burris-Murkowski Double Standard

Harry Reid and Dick Durbin have been adamant that they will not seat Roland Burris unless Illinois Secretary of State Jesse White signs a certificate in the form recommended in Senate Rule 2. Durbin was particularly emphatic that no appointee, ever, has been seated in the Senate without this form of certificate:

As Majority Leader Reid has told you, this has been a rule in the United States Senate since 1884. And since 1917, when we started the popular election of the Senators, we have never, ever waived this rule for any election or appointment.

Everyone has to present a certificate, signed by the governor, cosigned by the Secretary of state, never been waived in the history of the United States Senate.

Reid and Durbin are wrong. Alaska Senator Lisa Murkowski (photo) was appointed by her father, Frank Murkowski, and the Certificate of Appointment for Murkowski does not bear the signature of a Secretary of State. Nor could there be, since Alaska (along with five other states) does not have a "Secretary of State."

I can find no record of Reid or Durbin objecting to the lack of a Rule 2 certification in the case of Murkowski, yet they are willing to risk a constitutional crisis in the case of Burris. So why the double standard?


  1. What total nonsense.

    Six states don't have a position entitled "Secretary of State" - in three of those cases (VA, MA and PA), they are Commonwealths so the position is known as "Secretary of the Commonwealth." The Lt. Governors of Alaska, Hawaii and Utah are accepted under federal law as the chief elections officer of those states. Since 1960, Senate Rule II has been interpreted to conform with federal with respect to the Lt. Governors in those three states.

    Since 1884, there has never been a case where the signature of the Governor and the signature of the person performing the function of the Secretary of State hasn't signed an election or appointment certificate.

    In the case of Lisa Murkowski, the document was signed by the Governor and the Lt. Governor, so it fully conformed to Senate Rule II.

  2. Thank you for proving my point. Harry Reid and Dick Durbin say the certificate must be exactly as set forth in Senate Rule II, which requires the signature of the "Secretary of State." You say that that form is subject to interpretation in the instance of states which do not have a Secretary of State (e.g., Alaska) or states where the title is "Secretary of the Commonwealth." (I'll take your word for it on the Lt. Gov. signature for Murkowski, which isn't reflected in the Congressional Record, maybe you have a copy of the original.) But Reid and Durbin have not acknowledged that the Form is merely a suggestion (which is what the Rule says), but have used it as some sort of absolute bar to Burris. Just read and listen to their statements. Even after the Illinois Supreme Court said that Burris was the lawful appointee without any necessary certification by the Secretary of State, Reid and Durbin still impose the precise Senate Form as an obstacle. Now that truly is total nonsense, which is the point.

  3. Respectfully I would say, I think you miss the point. And are arguing the wrong point of the law/rule.

    Rule II has 3 paragraphs - the first paragraph specifies when the presentation of credentials of a senator-elect or senator-designate can made on the Senate floor; the second paragraph lists the information required on any certificate of election or appointment; the third paragraph says that the Secretary of the Senate must send a recommended form to the states, and it describes the recommended form. The third paragraph also makes clear that the states do not have to follow this recommended form.

    But the states DO have to meet the requirement to provide ALL the information required in paragraph 2 of the Rule.

    And as Durbin and Reid point out, in all other cases for the past 125 years, the requirements of Rule II (as set forth in paragraph 2 of that Rule) have been met.

    Specifically paragraph 2 says "The Secretary shall keep a record of the certificates of election and certificates of appointment of Senators by entering in a wellbound book kept for that purpose: the date of the election or appointment, the name of the person elected or appointed, the date of the certificate, the name of the governor and the secretary of state signing and countersigning the same, and the State from which such Senator is elected or appointed."

    Six items are called for - name, date of appointment, date the certificate was signed, state, signature of the governor and counter-signature of secretary of state.

    In this case, a counter-signature - that of the Secretary of State -- was not provided. In the case of Sen. Murkowski, a counter-signature -- that of the state official in Alaska recognized under federal law as performing the functions of the secretary of state -- was provided. Simply put, one set of paperwork was deficient; all other examples for the past 125 met the threshold set forth under Rule II.

    Reid and Durbin were not basing their arguments that Burris' paperwork was deficient on semantics or the recommended form in paragrapgh 3. Rather, it seems to me, Reid and Durbin's based their argument on 1) the fact that two signatures were required in the language of Rule, 2) the Rule has been interpreted for at least 48 years that in those cases where there is no state official with the title of "secretary of state", the signature of the state official who performs the function of a secretary of state is deemed sufficient, and 3) the Rule has never been waiver to accept a certificate with just a single signature.

    Reid and Durbin seem to have both law and precedent on their side on this one.

  4. By its own language, paragraph 2 of Rule II sets forth the Secretary's record keeping function, it does not purport to impose requirements (and again, it uses the magic words "secretary of state"). And again, the only argument raised by Reid and Durbin is that the recommended Form was not used. Under your "interpretation" theory, why isn't the signed opinion of the Illinois Supreme Court sufficient proof of the appointment? It seems to me that the real problem is that Reid doesn't want Burris seated for political reasons, Durbin is going along for the ride, and they are using the signature/form issue as a smokescreen.

    You obviously have a copy of the Murkowski appointment certificate, so please e-mail it to me and I'll post it for all to see.

    And I don't know how you could know what Reid's and Durbin's thinking is, since they haven't expressed any of the arguments that you attribute to them. Do you work with or for them? (It wouldn't make your arguments any less valid if you did, just curious.)

  5. I used work for the Parlimentarian of the Senate. I was there when Sen. Murkowski was seated and am quite familiar with both the form and substance of her appointment certificate (though I do not have a copy. I do think I can obtain one through the Secretary of the Senate and will attempt to do so.)

    Murkowski's certificate was not challenged because it comported fully with Rule II in that it provided all the required information and was signed by the governor and co-signed by the Lt. Governor, who is the state official in Alaska recognized under federal law as performing the functions of the secretary of state.

    I believe you have made a fundamental error in reading paragraph 2 -- it sets forth more than a record-keeping function. It enumerates a series of six things that must be recorded. And since the State is the only entity that can provide those six items, it also has been properly interpreted for more than 100 years as enumerating the requirements for any acceptable election/appointment certificate. The language of paragraph 2 is the key "The Secretary shall keep a record . . . by entering . . .[enumeration of data to be entered]." Logically speaking, how can data be entered if it is not provided? And in this case, only one legal entity can provide that data -- the State making the appointment or certifying the election.

    That was the problem in this case. And why it is entirely different than the Murkowski case. In this case a required item was not provided -- the counter-signature of the Illinois Secretary of State. In Murkowski's case, the signature of the official recognized under the law to fulfill the role of Secretary of State (namely the Lt. Governor) was provided.

    And as to Durbin's thinking, in a message that has been replayed endlessly here in Illinois (one station in Chicago had parts of it on for 3 straight days) states his thinking. I have it TiVo'ed and just transcribed it, which may be a commentary on the state of my life that this is the stuff I choose to TiVo!

    Durbin: "We have a Rule in the Senate that has been in place since 1884. That Rule says six things are required to be on a certificate of appointment for it to be acceptable in the Senate. Those six items are: the name of the senator, the date the appointment was made, the state of the senator, the date the certificate was received in the Senate*, the signature of the governor and the signature of secretary of state. Now all these certificates are slightly different, but they all have the same six elements I just mentioned. The certificate sent to the Senate in this case is missing the signature of our secretary of state, Jesse White. So it is incomplete under our rules and it cannot be accepted." (* Durbin is technically wrong here - the requirement is for the date the certificate was signed, not the date it was received, but it is clear from his remarks that he was talking about paragraph 2 of the Rule, not paragraph 3.)

    As to your point about the Illinois Supreme Court ruling, the Court did not address the interpretation of Rule II. Interpreting state law was what they were asked to do and they found state law does not require the Secretary of State to sign. But they did suggest a remedy that the Illinois Secretary of State has followed, namely that Mr. White provide certification bearing his signature and seal that the appointment certificate presented by the Governor was in fact what it appeared to be.

    Mr. White transmitted to the Senate his new certification at the request of the Governor last Friday. Senate officials are now trying to determine if the two documents -- one which contains 5 elements including the governor's signature, and the other bearing the Secretary of State's signature -- constitute a complete appointment certificate under the Rule.

  6. I guess we differ on several things.

    First, the motivation of Reid and Durbin; they announced they wouldn't accept a Blagojevich appointee before the certificate issue came up, then again after the appointment even before Jesse White said he wouldn't sign. So clearly the certificate is the excuse, not the reason, they are refusing to seat Burris.

    Second, the constitutional issue is whether the Senate could impose extra-constitutional requirements on an appointee; I don't think the Senate can, and this example proves the point because the Secretary of State becomes the gatekeeper even though state law (which we must follow as to the lawfulness of the appointment) does not give the White that power.

    Third, you are turning a matter of practice and directions as to recordkeeping into requirements even though the Rule could have said so directly if that is what the Senate intended.

    One thing that IS clear is that the Rule does NOT require the signature of the "Secretary of State" as Reid and Durbin have stated (apparently you have more nuanced versions of their statement, I would be curious as to the date, and whether the statements came recently as they have softened their position under criticism).

    Thanks for the dialogue.

  7. "Jane's" last post seem prophetic. Did she know something we didn't know? Was she one of the people in on the decision-making? Am I paranoid, or correct, or both? Care to comment?