The first session of the 111th Congress will convene in Washington on Tuesday. Several dozen freshman senators will be seated in tomorrow’s swearing-in ceremony, but seats in two states— Minnesota and Illinois —remain contested. (Three more senators—Hillary Clinton, Joseph Biden, and Ken Salazar—will soon leave their positions for the Obama administration.) What’s going to happen with the empty seats?
Either they could go unfilled or the Senate might choose to seat someone while reserving the right to boot him out later. At tomorrow’s session, the chair of the Senate—i.e., Vice President Cheney—will formally present the credentials for all those seeking to be seated as freshman senators. These take the form of a paper document, asserting either the candidate’s election or his appointment, signed by the state’s governor and countersigned by its secretary of state. Typically, the credentials are collectively accepted without being read aloud; at that point, the senators-elect are administered the oath of office in alphabetical order, in batches of four.
Earlier today, the Senate parliamentarian declared that Roland Burris of Illinois—who was appointed by scandal-tainted Gov. Rod Blagojevich—lacks the proper credentials, since the Illinois secretary of state has refused to countersign his certificate of appointment. Al Franken, the Democratic candidate from Minnesota, has just been certified the winner in a hotly contested, very close recount by the state’s Canvassing Board, but Minnesota law requires a waiting time of seven days before the governor and the secretary of state can sign his certificate. (That gives opponent Norm Coleman an opportunity to file a petition in the state court appealing the election results.) So Franken, too, lacks the proper paperwork.
For either candidate to be seated tomorrow—which now seems unlikely—another senator must propose a resolution calling for his credentials to be considered despite the fact that they’re irregular. That would happen after all the other senators-elect had taken their oaths and would pass only with the support of a majority of all “present and voting senators.” A resolution on Minnesota might call for the Senate rules committee to investigate the legality of the recount. In the interim, the senators may leave the seat unfilled, but they could also choose to seat Franken “without prejudice”—meaning that, if the committee eventually finds he wasn’t the proper victor, Franken can’t complain if he’s removed from office. The same goes for Burris, should the Senate resolve to consider his credentials in the absence of a properly signed certificate.
In the event that a Senate seat remains vacant, business proceeds as usual. According to Article 1, Section 5 of the Constitution, the Senate requires the presence of a quorum, or a majority of its sworn, living membership, in order to conduct its business. So if both the Minnesota and Illinois seats go unfilled tomorrow, it would take just 49 members to reach a quorum.
Several pieces of key American legislation have passed with a skeleton Senate. The 13th Amendment, for example, which formally abolished slavery, made its way through Congress during the tail end of the Civil War, when both the Senate and the House were refusing to seat members from rebel states. That meant there were 52 active senators, with 20 vacant Southern seats, when the amendment passed in January 1865. (The final vote was 38-6.) Before the 1913 passage of the 17th Amendment, which established voters’ rights to directly elect their senators, senators were elected by state legislatures. This sometimes led to hopeless deadlocks, during which times the seats in question remained unfilled. In the most extreme case, Delaware went without a senator for four years, beginning in 1899.
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Explainer thanks Akhil Reed Amar of Yale Law School, Josh Chafetz of Cornell Law School, Edward Foley and Steve Huefner of Ohio State University, Betty Koed of the Senate Historical Office, and Charles Tiefer of the University of Baltimore School of Law.