Q: I have a question regarding sanctions Sen. Roland Burris
(D-Ill.) could face if it turns out he testified falsely about events leading up
to his appointment to the Senate. I know the Ethics Committee is now
investigating, and I’ve heard that such an investigation could result in Burris
being expelled. I fear that would just drag out the whole mess even further, as
it would require yet another appointment to replace Burris. Can the Ethics
Committee expel Burris for false testimony?
A: Before looking at the sanctions, let’s examine the allegations
themselves, which concern two sets of statements that Burris made last month to
an Illinois House committee that was considering whether to impeach then-Gov.
Rod Blagojevich (D).
The first set came during Burris’ actual testimony before the impeachment
committee. State Rep. Jim Durkin (R) asked whether Burris had spoken with anyone
associated with Blagojevich about his desire for the Senate seat. Durkin threw
out a list of names as examples. After consulting with his attorney, Burris
replied that he had. Durkin followed up: “Did you speak to anybody who was on
the governor’s staff prior to the governor’s arrest or ... anybody who is
closely related to the governor?” Burris replied that he had spoken to Lon Monk,
a lobbyist who had once been Blagojevich’s chief of staff.
However, Burris did not name three other people whom he has now acknowledged
he also spoke to about the Senate seat. Durkin had mentioned all three in his
list of names. One was Rob Blagojevich, the governor’s brother and primary
fundraiser. Burris now says he had three conversations with Blagojevich’s
brother during which they discussed not only fundraising for the governor but
also Burris’ interest in the Senate seat.
Burris has stressed, however, that there was never any suggestion of
pay-to-play between himself and Blagojevich’s brother. As for his incomplete
testimony, Burris has explained that the fluid nature of the questions and
answers prevented him from fully responding to some of the questions. And,
indeed, the transcript does reflect that after Burris discussed his conversation
with Monk in response to Durkin’s question, Durkin switched to a different
Even so, a second alleged false statement could give Burris more trouble. It
came in an affidavit that Burris submitted to the committee before his
testimony. The affidavit stated that, before December 2008, “there was not any
contact between myself or any of my representatives with Governor Blagojevich or
any of his representatives regarding my appointment to the United States
Barring a narrow reading of the terms “representatives” and “my appointment
to the United States Senate,” Burris’ recent statements seem to contradict his
affidavit and have landed him in hot water. Even members of his own party have
called for his resignation. And now, as you point out, the Senate Ethics
Committee is investigating.
So, can the Ethics Committee expel him for this? In a word, no. In fact, the
committee can’t expel him for anything. But what it can do is recommend that the
Senate itself expel him. The Senate’s power to expel is granted by the
Constitution, which provides that each chamber may “punish its Members for
disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.”
Some view this authority as being virtually boundless. For example, the
Congressional Research Service has stated that the “express grant of authority
for the Senate to expel a Senator is, on its face, unlimited — save for the
requirement of a two-thirds majority.” If this is right, in theory two-thirds of
the Senate could expel a peer if they didn’t like his face.
In practice, however, the Senate has rarely used its authority to expel. As
much as Senators may have disliked each others’ faces over the years, no Senator
has been expelled since the Civil War. The CRS has reviewed the historical uses
of the Senate expulsion power and concluded that it has been “reserved for cases
of the most serious misconduct: disloyalty to the government or abuses of one’s
official position.” In the Ethics Committee’s four decades of existence, it has
recommended expulsion only twice, and in neither case were the allegations at
all similar to those Burris faces.
History suggests, therefore, that even if the allegations against Burris were
true, he would still have a few arguments on his side. First, expelling him for
providing false testimony would be unprecedented. Second, Burris’ alleged
misconduct occurred before he was a Senator, and precedent shows that there has
been reluctance to expel a Member for such conduct.
Yet, these arguments might only get Burris so far. No two situations are
exactly alike, so in some sense pretty much any expulsion would be
unprecedented. Moreover, should a vote to expel Burris reach the Senate floor,
political factors may weigh more heavily than precedent.
Ultimately, the underlying justification for the Senate’s power to expel is
to protect the integrity of the legislative institution. Former Justice Joseph
Story wrote in his historic treatise on the Constitution that the Senate could
use its expulsion power to address any action “inconsistent with the trust and
duty” of a Member. In a statement last week, Senate Majority Whip Dick Durbin
(D-Ill.) implied that these issues are at stake here.
Durbin said that when he met with Burris in January, he told Burris that one
of the prerequisites for him to be seated in the Senate was that he would have
to appear before the Illinois committee considering Blagojevich’s impeachment,
and “testify openly, honestly and completely about the nature of his
relationship with the former governor, his associates and the circumstances
surrounding this appointment.”
Durbin said that it now appears that Burris did not make the full disclosure
that was requested. While Durbin has said he would allow the process to run its
course, it sounds like there could be at least one vote for expulsion.
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