Can Blagojevich Still Appoint a New Senator?

How the Illinois legislature might try to stop him.

Illinois Gov. Rod Blagojevich was arrested Tuesday morning after an investigation revealed that he had attempted to sell off the Illinois Senate seat vacated by Barack Obama. Blagojevich remains the governor despite his arrest—and that means he still gets to choose the next senator, right?

Not necessarily. Illinois state code doesn’t require its legislature to approve the governor’s pick to fill a vacant Senate seat, nor does it specify a deadline for the appointment. The law merely states that a new senator can’t be named until the outgoing one steps down. (Obama took that formal step on Nov. 16.) That means that if Blagojevich acts quickly enough, he could, in theory, make an unfettered appointment of any of the candidates he was caught discussing (PDF)—or anyone else who is constitutionally qualified for the office.

But there are several ways in which the governor could be thwarted. The Illinois General Assembly could pass a bill that overturns the existing law and calls for a special election to fill the Senate seat. (The state Senate has already been reconvened for that purpose.) Even if the bill cleared both state Assemblies, however, it would still need a signature from Blagojevich, who would have 60 days to make his decision. A decision to veto could be overturned by a three-fifthsmajority in both the upper and lower houses. (Blagojevich is a Democrat, and Democrats have a majority in the state assembly. But this vote probably wouldn’t split neatly along party lines.)

State Assembly leaders are already discussing another way to stop Blagojevich—impeachment. If the governor were formally convicted after the impeachment process, he’d lose the right to appoint the senator. That would take a simple majority in the state Assembly’s lower chamber (the House), followed by a trial in the upper chamber (the Senate), presided over by the chief justice of the Illinois Supreme Court and requiring a two-thirds majority vote.

Blagojevich would also lose the right to make the appointment if he were convicted in federal court, but this isn’t likely to happen anytime soon. His gubernatorial predecessor, for example, is currently serving a six-year sentence for corruption, but the trial and appeals dragged on for two years.

Even if Blagojevich makes his pick before any state-level action can be taken, the buck stops with the U.S. Constitution, which states: “Each House shall be the judge of the elections, returns and qualifications of its own members.”*  There have been five cases in which the Senate has refused to recognize an appointee (although all but one occurred before the 17th Amendment and the direct election of senators). In 1912, the Senate concluded that a 33-year-old businessman named William Lorimer had obtained his seat (three years earlier) through bribery and corruption. The would-be lawmaker hailed from the great state of Illinois.

Got a question about today’s news? Ask the Explainer.

Explainer thanks Betty Koed of the U.S Senate Historical Office and Ken Menzel of the Illinois Board of Elections.

Correction, Dec. 30, 2008: The original version stated that the final say would belong to the U.S. Senate. If the senators voted to refuse to seat a Blagojevich apointee, the case would be subject to judicial review under the precedent set by Powell v. McCormack. (For more detail, see this blog post from Eugene Volokh.) Return to the corrected paragraph.