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Stevens and Separation of Powers

         Senator Stevens has filed another interesting motion, one that seeks to have his indictment dismissed on separation of powers grounds.  His theory is that the requirement that Senators file financial disclosure statements is one imposed by Senate rule, not by law.  He recognizes, of course, that there is a statute, the Ethics in Government Act, imposing precisely this requirement, but contends that “the Act as applied to a house of Congress must be read as advisory only.”  This is because “Article I, Section 5 specifically reserves to the Senate, not the full Congress, the authority to make rules governing its members, such as the requirement to file a Financial Disclosure Form.”

Stevens appears to be arguing that the Constitution prohibits Congress from enacting laws regulating the conduct of Members of Congress because such regulation is the exclusive province of each House under the Rulemaking and Disciplinary Clauses. If this is his argument, it is an astonishingly broad and radical one. It would suggest, for example, that laws prohibiting Members from accepting bribes or gifts are constitutionally invalid.

Among other problems, this theory contravenes the Supreme Court’s holding more than a century ago in Burton v. United States, 202 U.S. 344 (1906). In Burton (a case not cited by Stevens), the Court upheld the conviction of a U.S. Senator for violating a statute that prohibited any Member of Congress from receiving or agreeing to receive compensation for services before a department of the government in connection with matters in which the U.S. had a direct or indirect interest. In so doing, the Court rejected the argument that enforcing the statute would impermissibly interfere with the Senate’s constitutional authority over its members, under the Disciplinary Clause in particular: “A statute like the one before us . . . can be executed without in any degree impinging upon the rightful authority of the Senate over its members or interfering with the legitimate duties of a Senator.” Id. at 367.

Stevens cites a law review article, Aaron-Andrew P. Bruhl, Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J.L.& Pol. 345 (2003), which makes a rather persuasive case that the Constitution forbids the enactment of legally binding statutes (i.e., statutes which cannot be changed except by a subsequent statute enacted through bicameral passage and presentment) to govern the procedures of either House. But the focus of this article is on legislative procedures, such as fast track, not on regulations regarding the conduct of individual members. It is one thing to argue that each House must remain free to determine how it will consider and pass legislation, and quite another to suggest that Congress is disabled from requiring, by law, that members conduct themselves ethically while in office.

Interestingly, though, Stevens did not have to argue that Congress is constitutionally prohibited from enacting laws governing its members. He could have simply argued that in the case of the Ethics in Government Act, Congress chose not to do so. This is because Pub. L. 101-194, which re-enacted the financial disclosure and other requirements of the Act as applied to Congress, explicitly states that it is enacted with respect to the Members, officers and employees of the legislative branch “as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively.” Moreover, the law provided that this exercise of the rulemaking power was with full recognition of the constitutional right of either House to change such rules (so far as relating to such House) at any time, in the same manner, and to the same extent as in the case of any other rule of such House.”

These provisions create a constitutional puzzle. If, in fact, either House can change the provisions of the Ethics in Government Act with respect to its members by a unilateral exercise of its rulemaking power, then those provisions would appear to be what Bruhl calls “statutized rules.” It is certainly questionable whether the executive and judicial branches would have any proper role in enforcing or applying these rules with regard to Members of Congress. Conversely, it could be argued the Ethics in Government Act is in fact a proper law, and thus Congress has no authority to change it without complying with the requirements for amending a statute, notwithstanding its attempt to reserve that authority.

The D.C. Circuit’s decision in United States v. Rose, 28 F.3d 181 (D.C. Cir. 1994), lends some support to the latter position. In that case the court rejected the argument that the Justice Department had violated separation of powers principles by bringing suit against a congressman under the Ethics in Government Act after the House Ethics Committee had determined that the financial disclosure violations at issue had been inadvertent. The court explained:

We do not think the DOJ’s action against Congressman Rose offends the separation of powers doctrine. The DOJ brought this action under section 706 of the Ethics Act, which authorizes it to investigate and prosecute “knowing and willful violations of the Act. It is true that the disclosure requirements of the Ethics Act applicable to Members of Congress have been incorporated into the House Rules . . . , which are enforced by the House pursuant to its constitutional power to discipline its Members. But by codifying these requirements in a statute, Congress has empowered the executive and judicial branches to enforce them; in bringing this action, then, the DOJ was fulfilling its constitutional responsibilities, not encroaching on Congress’s.

This language appears to reject any implication that the financial disclosure requirements of the Act are merely exercises of the rule-making power as applied to Members, officers and employees of the legislative branch. However, the court’s opinion does not directly address the reservation of authority language contained in Section 1201 of Pub. L. 101-194.

Stevens, incidentally, tries to get around the holding in Rose by arguing that it was somehow superseded by the Supreme Court’s holding in Clinton v. New York, 524 U.S. 417 (1997) (the line item veto case). I find this reasoning rather hard to follow. The line item veto case has nothing to do with Congress’s authority to enact statutory restrictions on its members. The Court does say, as Stevens notes, that one branch may not abdicate its constitutional powers to another, but this begs the question of whether statutes like the Ethics in Government Act represent an abdication of the congressional rulemaking and disciplinary powers or a proper exercise of the legislative power (as suggested by Burton, Rose, and other cases).

In any event, there is an additional problem with Stevens’s argument. He is not being prosecuted for violating the Ethics in Government Act. He is being prosecuted for violating the False Statements Act. Unlike the Ethics in Government Act, the False Statements Act does not purport to be an exercise of the congressional rulemaking power. Indeed, it would seem to be a “law of general applicability” (i.e., one that does not purport to impose any obligations upon Members of Congress different from those imposed on other citizens), for which, even Stevens acknowledges, Members of Congress can be prosecuted.

Moreover, it is well-established, at least in the D.C. Circuit, that the government may rely on unambiguous congressional rules as part of its proof of a statutory violation. Thus, for example, in a prosecution of a Representative for fraud and embezzlement of public funds, the government may introduce the House Rules to show that the defendant’s use of the funds in question was for an unauthorized purpose. United States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995). Nor can there be any serious question that this remains the law of the circuit. As recently as last year, the D.C. Circuit relied on a rule of the House Ethics Committee in determining that a Representative could be held liable for violating the statute prohibiting disclosure of unlawfully intercepted communications. Boehner v. McDermott, 484 F.3d 573 (D.C. Cir. 2007) (en banc).

Stevens thus has virtually no chance of prevailing on his motion to dismiss at this juncture. But he is not totally out of luck. Under the Rostenkowksi case, if the Senate rules regarding financial disclosure are shown to be ambiguous with regard to the conduct charged, the separation of powers doctrine would require the court to dismiss the charge(s) in question rather than interpret the ambiguous rule. This would most likely come up with regard to the Senate rules regarding disclosure of liabilities. The instructions of the Senate Ethics Committee regarding the reporting of liabilities are very brief and do not clearly state whether ordinary debts incurred in the course of commerce need be reported. Stevens could argue that these instructions are ambiguous as applied to his situation and thus cannot be used as a basis for prosecuting him.

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