What's he going to give the Senate not to expel him, his appreciation?

Adam, a friend of the blog, e-mailed the following to me last Wednesday and suggested that I post it if I like it. I do like it (though I'm not certain I agree with the claim that the Senate has to seat Burris), but I wasn't updating the blog last week. Rather, I had written four posts last Monday and then scheduled some of them to be posted later in the week. Which means this won't be as timely as it was when I got it, but that's life. The rest of this post consists of the e-mail to me, very lightly edited, and with links supplied for referenced materials. No edits to the substance of the argument were made:

It is fairly clear that the Senate is going to have to seat Roland W. Burris as a Senator. This issue was already visited with a fair degree of finality in the case of Powell v. McCormack, 395 U.S. 486 (1969). In Powell, the Court ruled that the legislature's Art. I, Sec. 5, Cl.1 powers to judge the qualifications of its members extends no further than to determine that the Senator is a naturalized citizen of a state and is over the age of 30. The Senate is constitutionally prohibited from setting membership requirements above and beyond those basic criteria.

However, the question then arises of whether the Senate seat Burris, and then immediately move to expel him to avoid the appearance of impropriety in the appointment of an Illinois Senator. The expulsion would be based on clause two of Art. I, Sec. 5 which reads, “Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.”

The answer to this question is manifestly unclear and involves a careful reading of the aforereferenced section with an eye towards comma placement. One interpretation views the sentence as a list of powers the legislature has to regulate and control its members. If one takes the sentence at face value, it enumerates three powers for the legislature in control of its members. Essentially, the Senate can (1) determine the rules of its proceedings, (2) punish its members for disorderly behavior and (3) expel a member with agreement of a supermajority. This view would extend Congressional discretion to expel a member for any reason as long as 2/3 of house members agreed.

There are public policy arguments for the above interpretation. For example, lets say that prominent KKK member David Duke was in fact elected to be a Senator in 1990. His fellow lawmakers could likely see good reason that incendiary racist rants be kept off the floor of the Senator and could move to expel him if his rhetoric became too dangerous and disruptive despite the fact he did nothing technically illegal. On the other hand, of course, it would be allowing the Senate to expel members at will thus essentially abrogating the will of the people.

The other interpretation of the statute is the “serial comma” interpretation. Take just this portion of Article I, Sec. 5, Cl. 2 “disorderly behavior, and, with the. . . .” The “, and,” is troubling. The comma before “and” could allow the sentence to be read such that the expulsion portion of the sentence modifies the punishment for disorderly behavior portion. This would mean that for disorderly behavior, the Senator could expel a member. This would allow the Senate to expel only for cause. This interpretation obviously has the advantage of limiting Senate's discretion to expel duly elected members.

Wikipedia's article on serial commas has a good illustration of the exact problem. Take this phrase: “Betty, a maid and a rabbit.” Is this a list of three items, or is Betty both a maid and a rabbit? The introduction of the comma before the “and” in Article 1, Sec. 5 makes it look like a list rather than the expulsion being a modification of the punishment clause.

I invite anyone with more insight on this to comment.