WASHINGTON — The lights were on and the coffee was brewing Monday inside Norm Coleman’s Capitol Hill office. But the doors were locked.
Amid legal questions about the Senate recount standoff with Democrat Al Franken, some of Coleman’s Capitol Hill staff didn’t even know if they would get paid when they showed up for work.
Given the current balance of power in the Senate, all that seems certain now is that neither Coleman nor Franken will be around for today’s swearing-in of the 111th Congress.
“As a practical matter, one side or the other can prevent someone from being administered the oath,” said Minnesota congressional analyst Steven Smith, a professor of political science at Washington University in St. Louis.
Texas Sen. John Cornyn, new chairman of the National Republican Senatorial Committee (NRSC), called any immediate move to install Franken “a recipe for chaos.”
The legal tangle — which officially started when the Minnesota Republican’s term ended Saturday — remains mired in procedural and constitutional questions that some say could be headed for the nation’s highest court.
With the state Canvassing Board declaring Franken the top vote-getter by 225 votes on Monday, Senate Republicans and Democrats are girded for gridlock over any immediate attempt to seat him, or to let Gov. Tim Pawlenty appoint Coleman temporarily while the legal challenges play out.
“The race in Minnesota is not over,” said Senate Republican Leader Mitch McConnell of Kentucky, moments after Senate Democrats pronounced Franken the winner.
Some Democrats, notably Amy Klobuchar — currently Minnesota’s only U.S. Senator — earlier proposed seating the top vote getter in the Canvassing Board’s recount, “pending litigation.” With Franken on top, Jim Manley, a spokesman for Senate Majority Leader Harry Reid, said that an attempt to seat Franken this week is “likely,” but that it won’t happen Tuesday.
Republicans have signaled their intent to block such a move, and they currently have enough votes to mount a successful filibuster.
Franken’s biggest legal and political obstacle is that despite the certification of results, he still has no formal election certificate, and isn’t likely to have one while Coleman contests the Canvassing Board’s decision. Smith and a number of other academic experts say there is no modern precedent for seating a U.S. senator without an election certificate, despite hard-fought post-election battles in New Hampshire and Louisiana.
Under Minnesota law, a certificate must be signed by the governor and the secretary of state, and there’s a seven-day waiting period before that can happen. So the earliest Franken could have a signed certificate would be next Monday. But Coleman’s camp has all but guaranteed a lawsuit, and Minnesota law says a certificate can’t be signed until the lawsuit is over.
Some Democrats have argued that common sense and fairness would dictate no delay in seating Franken. But their argument has been weakened by their objection to seating Roland Burris scandal-plagued Gov. Rod Blagojevich’s appointee in Illinois — until he gets an election certificate.
Governor’s power disputed
Facing the prospect of protracted litigation, some observers aren’t holding their breath for any quick resolution of the Minnesota impasse.
“I think this seat will not get filled pending the litigation, and that could be six months,” said Hamline University law and politics professor David Schultz.
Republicans, for their part, have discussed the possibility of having Pawlenty make a temporary appointment — presumably Coleman or some other Republican. The 17th Amendment of the U.S. Constitution appears to give him that power.
But Democrats, who control the Senate, say they would block such a move.
Manley has suggested that the Senate would have to declare a vacancy before the governor can fill it. That is based on an election dispute in New Hampshire in 1975, when the Senate, stymied by filibusters, declared a vacancy and called for a special election.
Schultz and other academics say there’s no Senate rule that bars a gubernatorial appointment without a declaration of vacancy. But while some argue Pawlenty would have the right, few believe it is something he would do. “It’s something he wants to avoid, politically, at this point,” Schultz said.
Pawlenty spokesman Brian McClung said the governor’s office could make an appointment only in the case of a permanent vacancy. “Our office has done the legal research and it appears the governor does not have the ability to appoint an interim U.S. Senator in this case,” he said.
No clear answers
Some experts believe that the most immediate prospect for an early resolution would be if the Minnesota courts can move quickly through Coleman’s challenges. Then, even if there were pending federal appeals, Democrats could argue that Minnesota has been heard and that the governor should sign a certificate and end the vacancy.
“In the end, most of these things are settled politically, not legally,” said Thomas Mann, a congressional scholar at the Brookings Institution in Washington.
Klobuchar appears to have a political deal in mind with the suggestion of seating someone before all of Coleman’s appeals are exhausted. Her spokesman, Linden Zakula, said her idea “allows two senators to serve the people of Minnesota, but still allows legal challenges to proceed. If procedural or legal obstacles prevent this, then we’ll simply have to resolve those issues.”
Ultimately, one of those issues could turn on the courts’ power to intervene at all, based on Congress’ constitutional power to “be the judge of the elections … of its own members.” Some theorists say it’s a clear-cut right. But others note that in 1969, the U.S. Supreme Court forced the U.S. House to take back controversial Harlem Congressman Adam Clayton Powell.
“If you’re looking for clear answers,” Smith said, “you won’t find them.”