Ousting Stevens: Senator Down the Tubes?

author

While it is looking less likely that convicted-but-not-sentenced Alaska Senator Ted Stevens will win his re-election race, if the tube-surfing Internet guru does prevail, the new Congress will be faced with the dilemma of an actual (as opposed to potential) felon in their midst.

Public statements make it clear that both Republicans and Democrats want Sen. Stevens to climb on his dump truck and go back to Alaska. All of the stories I've read take for it for granted that the next step will be for the Senate to exercise its power to expel a member after Stevens is sworn in. However, there is another option of which there has been little talk: the use of the Senate's constitutional right to judge the qualifications of its members to deny Stevens right to be sworn in the first place. This option requires only a majority vote (as opposed to a two-thirds majority) and has the added benefit of preventing a convicted felon from ever being part of the new Congress.

There is not a clear precedent for this--but swearing in a convicted-felon as senator is also unprecedented. From looking at the records of Senate election and qualifications cases (which are at least initiallly adjudged by the Senate itself without judicial intervention, U.S. Const. I,.5, though the Supreme Court does have the final say), I see two issues that could be raised by this dramatic step. The first issue would be the historical reluctance by both bodies of Congress to even entertain refusing the oath to any candidate carrying election papers certified by the designated state officers. Second, cases from the Civil War era indicate a general, though not clearly stated, belief that that an inquiry into a candidate's fitness for office improperly adds qualifications not enumerated in the constitution. In both cases, I think there is an argument that the existing Senate precedents are not an absolute bar to refusing Stevens the oath.

The initial issue would be over whether the Senate would vote to refuse Stevens to take his oath of office upon presentation of a certification of election by the Alaska authorities. I think that issue was disposed in the 1975 case of Durkin v. Wyman in New Hampshire, described in Anne M. Butler, Wendy Wolff, and Sheila P. Burke, United States Senate Election, Expulsion, and Censure Cases, 1793-1990 421-425 (Washington, D.C.: G.P.O., 1995). The case involved a ten-vote margin, a withdrawn certification of election, and a confused history touching all levels of the New Hampshire courts who ultimately certified the Republican Wyman’s election. The despite the admission by both parties that there was no allegation of fraud and that the papers were properly attested, the Democratically controlled Senate rejected the claim that it was bound by the state certification and tasked the Rules Committee with recounting disputed votes. (With the Senate hopelessly deadlocked in late summer, the two parties agreed support a declaration that the seat was vacant so that a special election could be held; Durkin won that ballot easily).

The knottier issue involves the question if whether rejecting a properly elected candidate because he has been convicted of a felony impermissibly adds a qualification for office not enumerated by the Constitution. The most on point case is the 1862 case of Benjamin Stark of Oregon, accused of treasonous intercourse with the Confederacy, the full papers of which are reprinted in Taft’s Election Cases, reprinted in full in Google Books. When Stark appeared to present his credentials and swear the oath, Sen. William P. Fessenden of Maine moved successfully that Stark be denied the oath and the matter be referred to the Judiciary Committee. The Committee returned with a one-paragraph majority report recommending that Stark be allowed to take the oath. Though the majority did not state its reasons for its decision, the minority report by Sen. Lyman Trumbull indicated that the decision turned (partially) on the theory that any past treasonous acts by Stark would be cured by his swearing to uphold the U.S. constitution. (A later effort to oust Stark failed and revealed the flimsy evidence for treason in the case).

However, the most interesting thing about the Trumbull minority report is a rhetorical passage where he ridicules the idea that barring the oath to a traitor is a superaddition to the constitution by comparing it with the (then) comically absurd idea of swearing in a felon. “Suppose,” Trumbull asks, “a Senator, after his appointment, and before qualifying, to commit the crime of murder, would any one question the right of the State authorities where the crime was committed to arrest, confine, and, if found guilty, execute the murderer, and thereby forever prevent his taking his seat? Or, if the punishment for the offense was imprisonment, would any one question the right to hold the Senator in prison, and thereby prevent his appearing in the Senate?” (p. 222). Noting the unlikeliness of such a result, he concludes that “it is clear that a Senator-elect, possessing all the constitutional qualifications of age, citizenship, and inhabitancy, may be prevented from taking the oath of office” in such a case, noting that Congress had “repeatedly acted upon the presumption that it was entirely competent for it to prescribe, as a punishment for crime, an inability forever afterwards to hold any office of honor, profit, or trust under the United States.” It appears that the majority didn’t dispute Trumbull’s claim that a convicted felon should be denied the right to take the oath; they just didn’t think there was sufficient proof of treason, or that the oath of loyalty would satisfy that concern.

The precedents, while not completely clear, suggest that the Senate could refuse to allow Stevens to join the 111st Congress. That is, if the Alaska voters haven’t already done so.