A Question of Ethics

Can the Senate Ethics Committee Expel Roland Burris?

February 23, 2009

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 topic.

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 Senate.”

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.

© Copyright 2009, Roll Call Inc. Reprinted with permission. Widely regarded as the leading publication for Congressional news and information, Roll Call has been the newspaper of Capitol Hill since 1955. For more information, visit www.rollcall.com.


A Question of Ethics

When Must Members Recuse Themselves From a Vote?

February 9, 2009

Q: I am chief of staff for a recently elected Member of the House. Much of our staff has never worked on Capitol Hill, so we are taking crash courses on our new obligations. One question that has already arisen is this: When does a conflict of interest require our Member to recuse himself from a House vote? The issue that sparked the question concerned the Pell Grant program, which awards need-based grants to college students. The stimulus bill under consideration would increase these grants by as much as $500. The lawmaker I work for has a family member who receives these grants. We concluded that this relationship did not require our Member to recuse himself, and he voted in favor of the bill. I am pretty sure that was right. However, I was recently discussing the matter with a friend of mine who happens to be a judge. He disagreed. So, was it OK for our Member to vote on the bill?

A: Congratulations to you, your Member and your staff. I am glad to see that you are all taking your new obligations so seriously. I am also glad to say that your boss was under no obligation to recuse himself from voting on the stimulus bill. In fact, if anything, your Member was obligated to vote.

That being said, I think I can see why the judge you spoke with reached the view he did. The recusal standards for judges are much different than the standards for legislators. Federal judges must disqualify themselves from a case whenever they have a personal bias for or against a party. The applicable standard is whether a reasonable person would think the judge is biased.

Legislators, on the other hand, have a much more lenient standard. And there are at least two good reasons for that. First, unlike federal judges, legislators represent the people they serve. When a judge recuses himself from a case, he is simply replaced by another judge who, at least in theory, is just as qualified to interpret and apply the law. This is not the case with legislatures. When a legislator recuses himself from voting on a particular matter, there is no one to vote in his place. In representative democracies like ours, this means that the legislator’s constituency has no voice on the matter. Thus, if your Member ever has to recuse himself from a vote, the people he represents lose their vote, too.

A second reason for legislators’ more lenient standard is that legislation can be so far-reaching. Judges hear individual disputes between distinct parties. If judges have a personal bias with respect to those parties, it makes sense that they should recuse themselves. In contrast, legislators vote on bills that can affect all sorts of different parties and interests. As the House Ethics Manual states, the legislation that Members consider affects a “broad spectrum of business and economic endeavors.” Given that broad spectrum, legislators inevitably must consider bills that have some impact on their personal interests. To require legislators to recuse themselves from voting on such bills would result in a very large number of recusals.

Therefore, it makes sense to have a lenient recusal standard for Members. In fact, according to the House Ethics Manual, precedent dictates that there is no authority to deprive a Member of the right to vote. House Rule 3 states: “Every Member … shall vote on each question put, unless he has a direct personal or pecuniary interest in the event of such question.” This direct interest standard is much more permissive than the reasonable-person standard applicable to judges.

Thus, while a Member should not vote on bills in which he has a direct interest as an individual, he may vote on bills that affect him as a member of a class. The House Ethics Manual lists examples of votes that have been permissible even though they impact a Member as part of a class. These include votes on legislation affecting banks in which Members held stock, votes on legislation affecting veterans by lawmakers who were themselves veterans and votes on legislation affecting securities owned by Members.

In your case, the stimulus bill will benefit Pell Grant recipients, one of whom happens to be related to your boss. This is surely not a direct personal interest. In addition to benefiting someone in your Member’s family, the bill would also benefit thousands of other grant recipients. Therefore, it was OK for your Member to vote on the stimulus bill. Now, whether he was right to vote in the bill’s favor is another matter altogether. That’s something for Roll Call’s other columnists to debate. I just do ethics.

© Copyright 2009, Roll Call Inc. Reprinted with permission. Widely regarded as the leading publication for Congressional news and information, Roll Call has been the newspaper of Capitol Hill since 1955. For more information, visit www.rollcall.com.