How to Get Franken Seated Now: Nuclear Joe Biden

How to Get Franken Seated and hoist the GOP on its Own Petard.

To no one’s surprise, Senate Republicans have declared that they will filibuster any effort to seat Al Franken before Norm Coleman’s several lawsuits have traveled through every Minnesota and federal court in the land.

Now might be the time to cut them off at the knees, and one key player would be Senate President Joe Biden, whose power extends to making parliamentary rulings. Biden can and should rule that Republican efforts to block this seating are unconstitutional.

Here’s how it would work:

1) Powell v. McCormack says that the Senate can only judge the qualifications of members to serve in the Senate; it can’t decide that it doesn’t like someone, or thinks that they are corrupt to prevent their seating. If corruption is an issue, then they have to use the constitutional requirement of expelling them with a 2/3 vote.

2) However: in making the determination whether someone is “qualified” to serve, i.e. has been duly elected, the Senate must act with a standard of good faith and objective reasonableness–they can’t raise frivolous points, claim that there is an issue, and thus refuse to seat someone. Doing so would eviscerate Powell because it would allow any group of legislators to refuse to seat someone and claim that it is because of their grave doubts about the election’s legitimacy.

3) At this point, the Senate Republicans’ position fails the standard of objective reasonableness. Coleman’s lawsuits are frivolous: the only way that he can hope to win is through clearly biased cherry-picking of ballots.

4) Because the Republican position has failed the objective reasonableness standard, the Senate must actually vote to seat Franken. Refusing to vote would fail the Powell standard, as would voting against.

5) Thus, filibusters are not in order, and all that is required is a simple majority.

6) QED.

Such an argument is actually much more tenable than the GOP’s absurd constitutional argument that filibustering judicial nominations is unconstitutional–a position that they have now conveniently forgotten. It applies to particular situations, where Congress’ powers are textually delimited, and where the US Supreme Court has circumscribed this power.

That said, I suspect that during the next session, Senate President Biden might be called upon to make a lot of rulings of this type. The filibuster will die by a thousand cuts, and maybe that’s a good thing.


PS: This seating should be provisional, of course: although Coleman’s position is not objectively reasonable, other rulings by the courts could overturn the canvassing board’s decision, in which case of course Biden’s ruling would also be overturned.

Update: Shortly after writing this post, I wondered whether anyone would be so foolish to attack it by saying, “Biden isn’t Senate President NOW–he won’t be until January 20th. You’re dumb. Nyah. Nyah. Nyah.” Of course by the context it’s obvious that this is designed for post-Inauguration. No one could be that clueless. But never fear: Red State always comes through.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.