Distasteful, but legal

Given his shameless refusal to step down, it’s not surprising that Illinois Gov. Rod R. Blagojevich insisted on exercising his authority to appoint a U.S. senator to succeed President-elect Barack Obama. The governor, who has been accused by federal prosecutors of planning to auction off the seat, further cheapened the selection of former state Atty. Gen. Roland Burris by allowing a member of Congress to play the race card at Tuesday’s news conference.

Distasteful as this power play may be, it’s probably legal, and Burris should not suffer for his sponsor’s misdeeds. Unless evidence were to emerge that his selection involved a quid pro quo, Senate Majority Leader Harry Reid (D-Nev.) should back down from his threat -- endorsed by Obama -- to refuse to seat Burris.

If Blagojevich had any class, he would have deferred the appointment or agreed to name someone chosen by the lieutenant governor. Instead, he chose Burris, pleading with reporters not to “allow the allegations against me to taint this good and honest man.” Then Rep. Bobby Rush (D-Ill.) warned that if Burris weren’t seated, the Senate would lack black representation. Rush exhorted Senate Democrats not to “hang and lynch the appointee as you try to castigate the appointer.”

Only Burris kept his dignity. Given challenges at home and abroad, he said, “it is incomprehensible that the people of the great state of Illinois will enter the 111th Congress short-handed.” But it’s not so incomprehensible that the people of Illinois would be willing to wait a few months for a senator not appointed by Blagojevich.

The issue isn’t Burris’ qualifications. An experienced public official, he is a plausible senator, and it’s notable that he wasn’t one of the candidates for the Obama vacancy who figured in conversations taped by federal investigators. Even so, this was an offer Burris should have refused, coming as it did from a governor who, referring to the open seat, said: “I’m just not giving it up for [expletive] nothing.”

Unfortunately, Burris did accept, and efforts to undo his appointment risk putting politics above the law. That caution applies both to the refusal of Illinois’ secretary of state to certify the appointment -- a question of state law, but one that seems to favor Blagojevich -- and to the “Not Welcome” sign hung out by .

The Constitution says that each house of Congress “shall be the judge of the elections, returns and qualifications of its own members” and may punish members for “disorderly behavior” or, on a two-thirds vote, expel a sitting member. Neither provision justifies excluding a senator because of the unrelated wrongdoing of the governor making the appointment.

Actually, it’s doubtful whether the Senate could refuse to seat -- as opposed to expelling once seated -- any duly elected (or by extension appointed) member who met age, residency and citizenship requirements. In 1969, the Supreme Court overturned a resolution by the House barring Rep. Adam Clayton Powell Jr. (D-N.Y.) from taking his seat. Powell had been accused of financial improprieties.

Whether or not he is impeached or convicted of a crime, Blagojevich has mortified his party, his state and the president-elect. Obama has an especially good reason for resentment. The governor’s machinations, caught on tape, forced the president-elect to order an internal investigation in which he himself was interviewed by prosecutors. That the inquiry cleared the Obama team of wrongdoing doesn’t end the distraction.

Exasperated as they are at being outfoxed by Blagojevich, his colleagues and critics must face the fact that he is still the governor of Illinois and empowered to appoint an interim U.S. senator. It’s not a pretty situation, but it’s the law.