Over at Concurring Opinions Brian Kalt is kicking himself for taking Senators Reid and Durbin at their word when they claimed that Senate rules require a Secretary of State to sign the credentials of a Senator Designate (a Senator who has been appointed). As the Illinois Supreme Court pointed out in its opinion yesterday, it is at least questionable whether Senate rules or federal law impose any such requirement.
I have to go Professor Kalt one better and acknowledge that I reviewed the relevant provisions without spotting what now seems like an obvious flaw in the Reid/Durbin theory. Senate Rule II begins as follows: “The presentation of the credentials of Senators elect or of Senators designate and other questions of privilege shall always be in order . . . .” The language of the rule thus distinguishes between “Senators elect” (i.e., those who have won an election) and “Senators designate” (i.e., those who have been appointed to the Senate).
Rule II then goes on to set forth recommended certification forms, including a form for certifying the appointment of a Senator. The appointment certification form, like that for certifying an election, contains a signature line for the Secretary of State. However, the rule does not require that any of these forms be used by the states. As the rule states, “[t]he Secretary of the Senate shall send copies of the following recommended forms to the governor and secretary of state of each State wherein an election is about to take place or an appointment is to be made so that they may use such forms if they see fit.” (emphasis added).
While it was clear that the rule itself did not expressly require the Secretary’s signature, I misread Riddick’s Senate Procedure, the authoritative compilation of Senate rules and precedents, which recites the contents of the required election and appointment forms and then states that “the credentials of a Senator-elect must, under the law, be signed by the executive of the State and attested by the Secretary of State.” The fact that the Secretary must attest to the credentials of a “Senator-elect” does not mean that he must attest to the credentials of a “Senator designate.” Nor is there any reason to believe that Riddick would use the term “Senator-elect” to refer to both elected and appointed Senators because elsewhere Riddick refers to “the presentation and consideration of the credentials of Senators elect and Senators appointed to fill vacancies.” Finally, Riddick’s reference to “under the law” presumably refers to 2 U.S.C. §§ 1a & 1b, which collectively provide that the Governor and Secretary of State of any state “from which any Senator has been chosen to certify his election, under the seal of the State, to the President of the Senate of the United States.” It is arguable that the term “election” in the statute has a broader meaning that would encompass appointment, but it is certainly not clear.
Having said this, I still think that Senate rules, as interpreted by the Senate itself, may require the Secretary’s signature on a certificate of appointment. After all, Burris’s certificate of appointment was rejected by the Secretary of the Senate, presumably on advice of the Senate Parliamentarian among others, for lack of such signature. The Senate has the authority to interpret its own rules and the courts should defer to the Senate’s interpretation of ambiguous rules. At the end of the day, however, the Illinois Supreme Court’s decision turned not on whether the Senate had a rule requiring the Secretary’s signature, but whether such a rule could block the seating of an appointed Senator where “there is no question at all that the Governor did, in fact, make the appointment.”. The court held, correctly, that the answer to that question is no.