Can Senator-Elect Brown be Seated Immediately?

            It may be recalled that during the controversy over the appointment of then Senator-designate Burris, one of the points of contention was whether the Senate required a certificate of appointment signed by the Illinois Secretary of State in order to seat Burris.  Senators Reid and Durbin maintained that Senate rules required such a certificate before Burris could be seated.  The Illinois Supreme Court, however, was unimpressed by this contention, noting that “no explanation has been given as to how any rule of the Senate, whether it be formal or merely a matter of tradition, could supercede the authority to fill vacancies conferred on the states by the federal constitution.” 

            A somewhat analogous issue is now presented with regard to the Massachusetts special election.  The election has concluded and Senator Reid has stated that Scott Brown will be seated “as soon as the proper paperwork has been received.”  This suggests that Brown will not be seated until a certificate is issued, which apparently cannot occur for at least another 10 days under Massachusetts law. 

            It should be noted, however, that Senate precedent permits Senators-elect to be seated prior to the issuance of credentials under certain circumstances.  According to Riddick’s Senate Procedure, “in cases where no question was raised concerning the election of a Senator, the Senate by unanimous consent on various occasions has administered the oath of office to such Senators-elect, prior to the receipt of their credentials.”   In one of these cases the Senator-elect was seated “on the basis of an authenticated statement prepared by the Secretary of State of the said State showing that the Senator had received a majority of the votes cast for that office but since under State law the canvassing board could not meet until a subsequent date, a formal certificate of election could not be issued.” 

            This suggests that the Senate could, by unanimous consent, allow Senator-elect Brown to be seated immediately, given that there is no controversy over his election and his opponent has conceded.  It may be argued that this option is a matter of legislative grace and that Brown has no “right” to be seated immediately.  If, however, one assumes that the Senate intends to allow Paul Kirk to serve until his successor is sworn in (a decision which itself is questionable under Senate precedent), it would seem to be particularly problematic for the Senate to delay Brown’s seating without any apparent justification.