A Seventeenth Amendment Issue in Alaska

           Following Senator Stevens’s conviction yesterday, the Anchorage Daily News has spotlighted an interesting issue that would arise in the event Stevens were to resign.  Evidently the Alaska Legislature passed a law in 2004 which allowed the Governor to make a temporary appointment to fill a Senate vacancy pending a special election to fill the seat.  However, later in 2004 the voters approved a ballot initiative which purports to take away the temporary appointment power. 

            Under the Seventeenth Amendment, “the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”  The issue, then, is whether the power granted by the Seventeenth Amendment can be taken away from the state legislature by some other state authority, in this case the voters by ballot initiative. 

            I have not done exhaustive (or even tiring) research on the issue.  It appears, though, that Supreme Court cases on state legislative action regarding the time, place and manner of federal elections would be relevant here.  Although the Constitution provides that regulations on time, place and manner “shall be prescribed in each State by the Legislature thereof,” the Court has held that this does not pre-empt state constitutional provisions that limit a state legislature’s lawmaking authority, such as provisions that a billed passed by the legislature may be vetoed by the Governor, Smiley v. Holm, 285 U.S. 355 (1932), or may be negated by a referendum, Davis v. Hildebrant, 241 U.S. 565 (1916).    

            However, there is an important distinction between the Alaska situation and those considered in Smiley and Davis.  In those cases the question was whether to give effect to a legislative action that, under state law, had never become legally effective.  In Alaska, on the other hand, the question is whether to give effect to a ballot initiative, passed without any involvement of the legislature, and which supersedes a law previously passed by the legislature.  In other words, Alaska case raises the novel (as far as I know) question of whether the powers delegated by the Seventeenth Amendment to the state “legislature” can be exercised without any involvement of the actual legislature. 

Senator Stevens and the Senate Ethics Committee

Paul Blumenthal of the Sunlight Foundation poses the following questions: “The Alaska Daily News covers another aspect of the trial: what happens if Sen. Stevens is found guilty and then wins reelection? I have another question, what does the Senate Ethics Committee do if Sen. Stevens is acquitted?” 

Lets begin with the easiest question:  if Stevens is not re-elected, it is virtually certain that the Senate Ethics Committee will take no action, regardless of what happens with his trial.  Both the Senate and the House have long taken the position that they lose jurisdiction over a member once he leaves office.  There would be little time left for the Senate Ethics Committee to take any action against Stevens, even if it were inclined to do so.   

A more difficult question arises if Stevens is acquitted and re-elected.  In that case, the Senate Ethics Committee would be under pressure to take action, but Stevens’s lawyers and supporters would argue that the Committee should respect the verdict, not just of the jury but of the voters.  There is a strong tradition, in both the House and Senate, of declining to take disciplinary action against members based on conduct that was known to the voters at the time of their election.  Sometimes this principle has even been described as jurisdictional—for example, in the Fourth Congress a Senate Select Committee found that the Senate had no jurisdiction over accusations of fraud and perjury “alleged to have been committed before [the Senator’s] election to the Senate and were public knowledge.”  J. Chafetz, Democracy’s Privileged Few 221 (2007).  It is generally understood today, however, that this limitation is in the nature of a prudential restraint. 

This principle would certainly counsel the Senate Ethics Committee against recommending Stevens’s expulsion, but it is less clear that it should prevent the Committee from taking or recommending lesser action.  After all, the fact that the voters wanted Stevens to remain in the Senate would not necessarily mean that they want him to escape all punishment for his actions.  Moreover, even if the Committee chose not to revisit the jury’s findings with regard to false statements by Stevens, it could still consider whether Stevens violated Senate rules.  Indeed, even if the Committee accepted everything said by Stevens in his own defense as true, one could argue that it should find that his actions violated the letter and/or spirit of the gift rules. 

The most difficult issue is what happens if Stevens is convicted and re-elected.  While the principle of respecting the decision of the voters would weigh heavily against expulsion, there would also be a countervailing tradition that Members of Congress, when convicted, normally resign their offices.  If Stevens were not to follow that tradition, the Committee would have to face a serious question of whether to expel him. 

The most relevant precedent would seem to be the case of Senator Harrison Williams, who was convicted on bribery charges in 1980 after being videotaped agreeing to accept a bribe during the Abscam investigation.  The Senate allowed Williams to remain in the Senate for more than a year while he pursued post-trial remedies.  Some Senators thought expulsion was too harsh a remedy for Williams’s conduct.  Eventually, however, the Senate scheduled a vote on expulsion; Williams chose to resign before the vote.  As Dennis Thompson notes, “even in a case of almost pure individual corruption, it took unusually explicit evidence and confirmation provided by a criminal conviction to bring the Senate to the point of imposing its ultimate sanction.  In most cases the accused’s motives are less evident and his colleagues’ judgment less severe.”  D. Thompson, Ethics in Congress 105 (1995). 

Based on the Williams precedent, it seems likely that Stevens would not be expelled at least until he had exhausted his post-trial options.  If he was at the point of actually going to prison, however, the Senate would presumably expect him to resign.  If he failed to do so, at that point the Senate would most likely proceed to expel him.

Gifts and Liabilities in the Stevens Jury Instructions

           My last post discussed how the Stevens jury may be confused about the definition of a “reportable liability.”  Today I will discuss a significant ambiguity in the jury instructions themselves.


            The instructions reflect the fact that Stevens is charged with failing to report both gifts and liabilities.  But nowhere do the instructions state, at least explicitly, that these are alternative theories.  In other words, the indictment alleges that the various things of value Stevens received were either gifts or liabilities.  A single thing of value, however, cannot be both a gift and a liability. 

            The jury instructions obliquely address this question.  There are eight different instructions (Nos. 32, 43, 45, 51, 53, 55, 57 and 68) that deal with the need for the jury to reach a unanimous verdict.  These instructions fall into three different categories.  Instruction No. 32 deals with Count One, which alleges that Stevens concealed material facts on his financial disclosure forms (FDs) for each year from 2000 to 2006.  The instruction states that “[i]n order to find that the government has met its burden to show that Senator Stevens concealed a specific alleged gift or liability, you must unanimously agree as to the specific gift or liability that Senator Stevens concealed and the specific Financial Disclosure Form on which the alleged concealment occurred.”

Instructions Nos. 43, 45, 51, 53, 55 and 57 deal with Counts Two through Seven, each of which alleges that Stevens made a false statement on his FD for a particular year from 2001 to 2006 (Count Two deals with 2001, Count Three with 2002, etc). Each instruction states “[i]n order to find that the government has met its burden to show that Senator Stevens made or caused a false, fictitious or fraudulent statement or representation when he filled out his [year in question] Financial Disclosure Form on [date in question], you must unanimously agree as to the statement or representation that was false, fictitious or fraudulent.”

Finally, Instruction No. 68 covers all counts, and states: “In order for your verdict to be unanimous, you must all agree that the government proved each element of each offense beyond a reasonable doubt. Senator Stevens has been charged with seven counts of making or causing false statements on his Financial Disclosure Forms. For some of the counts, the government has alleged more than one statement or representation, or more than one gift or liability. However, in order to return a guilty verdict on any count, you must unanimously agree on the specific false statement or representation and the specific gift or liability that Senator Stevens allegedly failed to disclose on his Financial Disclosure Form.”

I think I understand the rationale behind these instructions, but one can easily imagine the jury being confused as to the different and apparently inconsistent verbiage used. Presumably, though, the jurors will get the message that they must agree on both the particular thing of value Stevens should have reported and the year in which he should have reported it. In other words, it will not do if the jurors agree that Stevens should have reported Item A, but some believe that it should have been reported only on his 2004 FD and some believe it should have been reported only on his 2005 FD. Similarly, it will not do if the jurors all agree that Stevens should have reported something on his 2004 FD, but some believe that he was only required to report Item A and some believe that he was only required to report Item B.

It gets a little murkier, though, with respect to whether the jurors must agree on whether a particular item was a gift or a liability. Suppose, for example, the jurors all agree that Stevens was required to report Item A on his 2004 FD, but some believe that it should have been reported as a gift and some believe it should have been reported as a liability?

Read closely, it seems to me, the instructions for Counts Two through Seven require that the jurors agree on whether the particular item is a gift or a liability. This is because, as the jury instructions state, Stevens made separate “statements or representations” on each FD with respect to gifts and liabilities. If some of the jurors believe that Item A is a gift and some believe it is a liability, they would be unable to agree on which statement or representation was false and thus could not reach a unanimous verdict.

But what happens if the jurors who believe Item A is a gift also believe that, if it is not a gift, it is a liability? Or if some jurors believe that Item A is definitely either a gift or a liability, but are not sure which? It would seem that unless the jurors unanimously agree, beyond a reasonable doubt, on whether Item A is a gift or liability, it is logically impossible for them to agree on whether Stevens made a particular false statement or representation for purposes of Counts Two through Seven.

Count One may be different, though. That count does not charge Stevens with making a false statement or representation, but with concealing material facts. It may be that the jury could unanimously find that Stevens concealed a material fact, ie., his receipt of Item A, while they disagree as to whether Item A was a gift or a liability.

Maybe I am missing something (or maybe this is just the way the criminal justice system works), but it seems like asking an awful lot of the jury to puzzle this out on the instructions they have received.

Stevens Jury Confused on Liability Issue


           According to The Hill, one of the questions asked by the Stevens jury this week involved the issue of reportable liabilities.  The jury’s note to the judge asked him to “please clarify the liability cost as it is not readily clear in the Senate regulations.”  It is interesting that the jury would be focused on liabilities, since everything I have read about the trial has dealt only with the question of whether Stevens received reportable gifts, and has not mentioned either evidence or argument on whether Stevens had reportable liabilities. 

            The judge evidently interpreted the jury’s question as meaning “what dollar amount triggers a reportable liability?”  While this may be the most natural reading of the note, it is difficult to believe that the jury was confused on that point.  Both the “Senate regulations” and the jury instructions (Instruction No. 66) make it crystal clear that the trigger is $10,000.  If the jury doesn’t understand that, it is in real trouble. 

            Perhaps the jury is confused about how it should determine whether a liability is more than $10,000.  Or perhaps it is confused about how to determine whether something is a reportable liability in the first place.  The jury instructions do not provide any guidance on this, apparently leaving it up to the jury’s common sense.  The jury’s note, moreover, suggests that it has been given copies of the “Senate regulations” (presumably referring to materials such as the Senate Ethics Manual and the instruction booklet for financial disclosure) and that it is trying to interpret these regulations for itself. 

            This strikes me as problematic.  It would seem that interpreting the meaning of the term “liability” under the financial disclosure statute is a legal question for the court, not a factual question for the jury.  In particular, as I have noted before, it is not at all obvious that an unpaid and unbilled debt for goods or services constitutes a “liability” within the meaning of the Senate rules.  It should not be up to the jury, but to the court, to make the determination of whether the term “liability” extends so far.  Moreover, to the extent that the Senate rules are ambiguous on this point, even the court is prohibited, under separation of powers principles, from interpreting them.  The jury’s statement that the Senate regulations are not “readily clear” may itself provide ammunition to the defense for post-trial motions and/or appeal. 

            In the meantime, whatever the jury’s question, it will apparently have to muddle through without help.  According to The Hill, the judge ultimately decided not to provide it with an answer.



Stevens Jury Instructions

          For those interested in the Stevens case, the Anchorage Daily News has posted the jury instructions 

            One issue that the jury instructions deal with is the relevance of public disclosure to the case.  As discussed by Taxpayers for Common Sense, the defense argued that the duty of disclosure to the public is irrelevant because Stevens is charged with violating the False Statements Act, which applies only to false statements made to the government, not to the public.  The prosecution argued that the duty of public disclosure is relevant to the case because one of the purposes of the financial disclosure requirement is to inform the public.


            Jury Instruction No. 65 says: “You have heard reference during the trial to a public interest in disclosure.  Senator Stevens is charged with making false statements to the government, not to the public, and public disclosure is not an element of the charges in this case.” 

            My first reaction to this instruction was that appeared that the judge had accepted the defense’s position.  On reflection, I guess it is not so clear.  The defense wanted all references to public disclosure stricken.  This instruction says that public disclosure is not an element of the charges, which is clearly correct, but it doesn’t say that the duty of public disclosure couldn’t be considered for other purposes (like motive or intent).

Renzi’s Speech or Debate Defense


            Congressman Rick Renzi, currently facing federal trial on corruption charges, moved this week to dismiss the indictment based on the Speech or Debate Clause of the Constitution.  Renzi argues that the indictment is flawed because the grand jury relied on two types of information privileged under the Clause.  First, the grand jury relied on documents “referencing, describing, and directly involving the development of legislation” and “describing Members’ motivations for and performance of legislative acts.”  For example, the grand jury was presented with an email from one of Renzi’s aides to House Legislative Counsel stating: “[t]his is a very rough draft of a bill put together by an individual I am working with on a land exchange.  My boss wants to get this finalized and introduced next week.”  The grand jury was also presented with the actual draft legislation circulated between Renzi’s office and House Legislative Counsel. 

            Second, Renzi argues that the grand jury heard testimony from his former aides regarding matters protected by the Speech or Debate Clause.  For example, Joanne Keene, Renzi’s former Legislative Director, testified regarding the development of the “Resolution Copper land exchange” legislation, which Renzi introduced in May 2005.  Among other things, she described a communication with Renzi in which he expressed a reluctance to move forward with the legislation at that particular time.  Keene and another former aide also testified about internal congressional discussions regarding strategies for advancing land exchange legislation, such as whether Renzi or other Members would sponsor or co-sponsor particular bills, which Member should take the lead in moving a particular bill, and whether a bill should be scheduled for hearings first in the House or Senate. 

            One can anticipate that the government’s response to Renzi’s Speech or Debate argument will be similar to the position it has taken in the Ted Stevens case, where it has argued for a narrow construction of the Speech or Debate Clause.  The key legal issue would seem to be the applicability of the Clause to conduct and communications relating to future legislative acts.  In United States v. Helstoski, 442 U.S. 477, 490 (1979), the Supreme Court enunciated the following limitation on the protection of the Clause: “[I]t is clear from the language of the Clause that protection extends only to an act that has already been performed.  A promise to deliver a speech, to vote, or to solicit other votes at some future date is not ‘speech or debate.’  Likewise, a promise to introduce a bill is not a legislative act.” 

            Read broadly, as the government is likely to do, this language may suggest that all activities and discussions preliminary to actual introduction of legislation are unprotected because they merely relate to future legislative acts.  However, Helstoski was referring specifically to a Member’s promise to perform a legislative act in exchange for a bribe.  Because the “compact” between the bribe-giver and the bribe-receiver is not part of the legislative process protected by Speech or Debate, the Helstoki Court reasoned that Speech or Debate could not protect the bribe-taker’s promise to perform a legislative act, which promise is, after all, merely half of the unprotected “compact.”

            In the Stevens case, the government argued that Helstoski leaves unprotected any discussions between a Member and constituents regarding potential legislation.  This assumes, however, that such discussions are not in themselves part of the legislative process.  As Josh Chafetz has asked, since other Supreme Court precedent suggests that preparatory research for a hearing or vote is protected by Speech or Debate, “why [should] not preparatory meetings or correspondence with constituents also be protected?”  J. Chafetz, Democracy’s Privileged Few 108 (2007). 

            The Speech or Debate Clause protects activities that are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.”  Gravel v. United States,  408 U.S. 606, 624 (1972).  Surely this legislative sphere must encompass activities and discussions prior to the actual introduction of legislation.  Indeed, in the Stevens case, even the government itself acknowledged  that Speech or Debate covers activities “integral to the Member’s participation in the drafting, consideration, debate, and passage or defeat of legislation.”  (emphasis added). 

            Legislation does not appear out of thin air and deposit itself in the legislator’s hand, ready to be dropped in the hopper (the box on the House floor where legislation is introduced).  The need for the legislation may be the subject of hearings and informal fact-gathering by the Member and his or her staff.  The legislative language must be drafted, normally with the assistance of House Legislative Counsel.  Co-sponsors may be sought, and they, along with other interested parties, consulted about the proposed legislation.   

            At a minimum, internal congressional activities preparatory to the introduction of legislation, such as communications with House Legislative Counsel (which also may be attorney-client privileged, see 2 U.S.C. § 281a), would seem to be covered by the Speech or Debate privilege.  The same should be true of actual legislative drafting, discussions regarding the timing and manner of introducing legislation, and bargaining regarding sponsorship of or support for particular measures.  Since the Renzi grand jury was evidently exposed to a significant amount of such information (as well as to some information regarding the actual introduction of legislation), I think there is a substantial possibility that the Renzi case could be dismissed, in whole or in part, on Speech or Debate grounds.



DC Circuit Grants Stay in Miers Case


            The D.C. Circuit has at last ruled on the stay motion in the Miers case.  In a brief per curium opinion, the court grants the motion to stay and denies the motion for an expedited briefing schedule. 

The court first holds that there is appellate jurisdiction, noting that the declaratory judgment that Miers must testify is the “functional equivalent” of an injunction, and thus appealable, because the court presumes that executive officials (or, in Miers’s case, former executive officials) will act in accordance with the court’s declaration.   

            The rest of the opinion is very peculiar because it makes no reference to the four factors that the court is required to consider in ruling on a stay.  There is in fact no explicit discussion of any kind regarding the merits of the stay application.  Instead the court first notes that this is a “case of potentially great significance for the balance of power between the Legislative and Executive Branches.”  It then explains that “the Committee recognizes that, even if expedited, this controversy will not be fully and finally resolved by the Judicial Branch—including resolution by a panel and possible rehearing by this court en banc and by the Supreme Court—before the 110th Congress ends on January 3, 2009.”  Accordingly, it concludes that there is no reason to expedite the case. 

            Somewhere, though, the court seems to have missed the step of explaining why the stay should be granted.  The question of expediting the case only becomes relevant if one assumes that the case is stayed.  One gets the impression that there may have been some additional discussion that was deleted at the last moment. 

Judge Tatel’s concurring opinion does discuss the stay issue. He suggests that an appellant who will suffer irreparable injury need only make a “modest” showing of probable success on the merits. He then indicates that issues before the court satisfy this standard, “[e]xcept for the executive’s assertion of absolute immunity from congressional process.”

Of course, that is a very big exception, seeing as how absolute immunity is the main issue in the case. (Presumably, the other issues Judge Tatel refers to are the threshold jurisdictional issues raised by the Executive). Moreover, while Judge Tatel apparently accepts that the Executive would suffer “irreparable injury” if a stay were not granted, he does not explain why that would be the case. The Executive’s argument with regard to irreparable injury was simply that Judge Bates’s order “negates” Miers’s asserted absolute immunity by requiring Miers to appear and testify before the Committee. But how could Judge Tatel find that to be irreparable injury if the absolute immunity is meritless?

The real point of Judge Tatel’s concurrence, though, was to state that he was “perplexed” by the majority’s willingness to grant a stay without definitively rejecting the possibility that “the expiration of the 110th Congress would moot the case before it is heard on the merits.” “Never before have we granted a stay that would have the effect of irrevocably depriving a party of its victory in the district court.” Nonetheless, because Judge Tatel believes that the case would not be moot (and therefore that a stay will not greatly harm the Committee), he concurred in the court’s judgment.

The one thing that seems clear from both the majority and concurring opinions is that the panel hopes that a new President and new Congress will find a way to resolve this dispute without the need for further judicial intervention. I think that the court would have been better served if it had simply expressed this view directly, rather than reaching the result through dubious (or entirely absent) legal reasoning.

GAO Audit of Lobbying Disclosure

GAO has released its audit of lobbying disclosure filings (Lobbying Disclosure: Observations on Lobbyists’ Compliance with New Disclosure Requirements).  The audit was required by the Honest Leadership and Open Government Act of 2007 (HLOGA).  GAO randomly selected 100 lobbying disclosure reports and then asked the lobbyists to provide support for eight “key elements” of the reports, to wit:  

            1.  The amount of money received for lobbying activities

            2.   The amount of money spent on lobbying activities

            3.  The specific issues on which they lobbies

            4.  The Houses of Congress and agencies which they lobbied

      5.  The names of individuals who acted as lobbyists for the client

      6.  The names of foreign entities with interest in the client

      7.  The names of lobbyists no longer acting for the client

8.  The names of any member organizations of a coalition or association that actively participated in lobbying activities on behalf of the client     

            The audit uncovered no earthshaking revelations.  This should not be surprising, given the limited scope of GAO’s work.  As GAO explained, “our work to examine lobbyists’ compliance was limited to reviewing support provided by the lobbyists, which included both documentation and oral explanations.”  Moreover, “our work did not include identifying lobbyists that failed to register and report in accordance with HLOGA requirements, or whether for those lobbyists that did register and report, all lobbying activity was disclosed.” 

            One cannot escape the impression that the Lobbying Disclosure Act works largely on the honor system.  Given that the information presented to GAO was limited to documentation and verbal explanations that the lobbyists chose to present,  and that GAO did not do any investigation to determine whether lobbyists were disclosing all lobbying activity, it is somewhat difficult to see how GAO could have uncovered anything that the lobbyists did not want it to see.   

            Even so, GAO did determine that in one case the documentation provided was inconsistent with the amount of lobbying expenses reported.  As a result of discussions with GAO these lobbyists realized that they had been reporting their lobbying expenses incorrectly and filed an amended report.  GAO did not identify the lobbyists in question, but the Clerk’s database shows that one of the audited lobbyists, Intuit, filed an amended disclosure in August that increased the amount of reported lobbying expenses for the first quarter of 2008 by approximately $250,000.