An Alternative to Speech or Debate

My last three posts (see here, here and here) suggest that a nondisclosure privilege would be an awkward fit with the text, purpose and history of the Speech or Debate Clause. A final consideration that militates against a nondisclosure privilege is the absolute nature of the Clause. If the Clause protects against disclosure of legislative information, it stands as an absolute bar to compelled disclosure of such information, no matter how relevant and admissible it might be. (Note that even the most “privileged” Speech or Debate materials may be admissible in evidence against a non-legislative party).

In rejecting the nondisclosure privilege asserted by former congressman Renzi, the Ninth Circuit stressed the absolute nature of the privilege. The court specifically pointed out that any nondisclosure privilege would prohibit review of legislative documents by the judicial branch just as much as by the executive. See Renzi, slip op. at 8552 (“If the Clause applies, it applies absolutely- there is no balancing of interests nor any lessening of the protection afforded depending on the branch that perpetrates the intrusion.”). Among other things, this would make it impossible for the courts to resolve privilege claims without first violating the nondisclosure privilege.

For all of these reasons I conclude that the Renzi court was correct in rejecting a nondisclosure privilege under the Speech or Debate Clause. I reach this conclusion reluctantly, however, because some legislative information should have protection from disclosure. Certain legislative documents, such as executive session materials and confidential ethics opinions, clearly warrant protection. There is a strong case that other legislative material, such as committee investigatory files, deliberative legislative documents, and confidential constituent correspondence, merit at least qualified protection.

There seems to be no reason why the scope of protection should follow the contours of the Speech or Debate Clause. The executive and judicial branches, neither of which is covered by Speech or Debate, enjoy protections from disclosure for certain types of confidential communications and other information.

The courts have ample power under the Federal Rules of Evidence to develop the contours of a legislative privilege outside of the Speech or Debate Clause, although they have not done so to date. The possibility is suggested by the Supreme Court’s decision in United States v. Gravel, 408 U.S. 606 (1972) which involved a grand jury investigation of the illegal leaking and publication of the Pentagon Papers. Referring to the possibility that Rodberg, a congressional aide, might be questioned about the activities of non-legislative actors who were unprotected by Speech or Debate, the Court stated: “As for inquiry of Rodberg about third-party crimes, we are quite sure that the District Court has ample power to keep the grand jury proceedings within proper bounds and to foreclose improvident harassment and fishing expeditions into the affairs of a Member of Congress that are no proper concern of the grand jury or the Executive Branch.” Id. at 629.

The inference is unmistakable that the district court should use its authority to prohibit inquiry into congressional activities that, although not protected from disclosure by Speech or Debate, were “no proper concern” of the other branches. A similar approach could carve out categories of congressional documents that are appropriately privileged from compelled production.

I don’t know whether the Court, should it grant cert in Renzi, would have the opportunity to consider if there is a legislative nondisclosure privilege outside of Speech or Debate. But at least it should not foreclose the possibility.

Parliamentary Privilege and Nondisclosure

Because the Speech or Debate Clause was modeled on article 9 of the English Bill of Rights, U.S. courts have long looked to English practice and precedent as a guide to its interpretation. This approach is reflected in the very first case to consider the Clause, Kilbourn v. Thompson, 103 U.S. 168 (1881), where the Court observed that “while the framers of the Constitution did not adopt the lex et consuetudo of the English Parliament as a whole, they did incorporate such parts of it, and with it such privileges of Parliament, as they thought proper to be applied to the two Houses of Congress.”

In the British courts there historically has been a prohibition against taking cognizance of matters occurring in Parliament, apart from duly enacted statutes. The concept underlying this rule appears to fall somewhere between a kind of comity (it would be disrespectful for judges to pronounce on matters being debated in Parliament) and a more absolute jurisdictional bar. The latter idea is sometimes referred to as “exclusive cognizance,” and, as explained by the U.K. Supreme Court in Chaytor, “was originally based on the premise that the High Court of Parliament had its own peculiar law which was not known to the courts.”

The British practice has been modified in modern times. For example, in 1980 Parliament adopted a resolution that permitted reference in court to certain parliamentary papers. Then in Pepper v. Hart, 1 AC 593 (1993), “the Law Lords set aside the very old rule that debates in Parliament ought not to be cited in court as an aid to the construction of the Acts which were shaped by the debates.” William McKay & Charles Johnson, Parliament & Congress 511 (2010). Even so, it remains impermissible to consider parliamentary debates for other purposes, such as determining whether Parliament’s reasons for adopting legislation were consistent with the European Convention on Human Rights. Id. 512.

One might think that the British principles of comity and exclusive cognizance would support a broad nondisclosure privilege. Compelling the production of parliamentary records could be viewed as a type of inappropriate judicial notice or scrutiny of parliamentary proceedings. Similarly, it might be viewed as a violation of principles of comity or mutual respect between the judicial and legislative branches.

Although I have not come across any case law on point, a couple of non-judicial precedents shed some light on the subject. The Joint Committee on Parliamentary Privilege, set up in the late 1990s to study the need for modernizing British law on parliamentary privilege, recounts this episode:

Sir Donald Limon, then Clerk of the House of Commons, drew attention to a court action brought against the House of Commons by a disappointed contractor for work on Portcullis House, the new parliamentary building opposite Big Ben. Select committee papers relevant to the contract had been included (with the permission of the House of Commons, secured by motion) in the documents exchanged between the parties. This met the obligation to disclose, but left unresolved the crucial question of how the disclosed material could, if relevant, be used in the course of the trial. Article 9 precluded such use. Unlike its non-statutory privileges, the House of Commons had no power to waive this statutory provision.

Joint Committee Report ¶ 254 (1999). The Joint Committee distinguishes here between the use of privileged documents, on the one hand, and their disclosure in litigation, on the other. The former is covered by article 9, while the latter is not. Note that the report leaves open the possibility that disclosure would be covered by another, non-absolute, privilege.

Another example is the protocol issued by the Speaker of the House of Commons to govern situations in which warrants were issued for searches within the precincts of Parliament (this followed a publicized case in which the police searched the office of a prominent MP). The protocol provides for advance notice of any parliamentary search and further provides that

The Speaker may attach conditions to such a search which require the police to describe to a senior parliamentary official the nature of any material being seized which may relate to a Member’s parliamentary work and may therefore be covered by parliamentary privilege [in which case] the police shall be required to sign an undertaking to maintain the confidentiality of that material removed, until such time as any issue of privilege has been resolved.

See British House of Commons Note on Parliamentary Privilege and Individual Members 10 (Feb. 10, 2010).

Again, this suggests that mere disclosure of legislative materials does not itself waive or violate the privilege. Accordingly, legislative materials seized in a search can be dealt with after the fact by negotiation between the House of Commons and the police (note that the individual MP whose records were seized is given no formal role in this process).

The British protocol contrasts with the approach of the D.C. Circuit in U.S. v. Rayburn House Office Building, 497 F.3d 654 (D.C. Cir. 2007), where the court held that the Speech or Debate Clause required that legislative materials be segregated and removed before law enforcement authorities seized evidence from a congressional office pursuant to a search warrant. Because the Rayburn court found that Speech or Debate encompasses a nondisclosure privilege, the individual Member, rather than the legislative body alone, may assert the privilege.

If British practice does not support the existence of a nondisclosure privilege, the U.S. Supreme Court is unlikely to recognize one. The Court has emphasized that the Speech or Debate Clause was not intended to sweep as broadly as the privileges enjoyed by the British Parliament. See U.S. v. Brewster, 408 U.S. 501 (1972) (“Although the Speech or Debate Clause’s historic roots are in English history, it must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government, rather than the English parliamentary system. We should bear in mind that the English system differs from ours in that their Parliament is the supreme authority, not a coordinate branch. Our speech or debate privilege was designed to preserve legislative independence, not supremacy.”).

U.S. courts have not recognized concepts such as “exclusive cognizance,” and have rejected the notion that the Congress inherited the “lex et consuetudo” parliamenti, a separate law and custom of Parliament unknown to the ordinary courts. If nondisclosure is not incorporated under article 9, it would not likely be encompassed by Speech or Debate. Moreover, U.S. courts have less reason to adopt a nondisclosure privilege because they have never observed a prohibition on judicial consideration of legislative proceedings. Federal courts routinely consider and scrutinize congressional proceedings (and have been known to question legislative motives).

Thus, British practice and precedent would seem to cut against recognition of a nondisclosure branch of Speech or Debate.


Speech or Debate and Nondisclosure

Now I will turn to the question of whether the Speech or Debate Clause should be read to encompass a “nondisclosure” privilege, which would protect Members of Congress from being required to produce information regarding their legislative activities. Following the hypothetical in my last post, suppose the Justice Department serves Senator Smith with a grand jury subpoena seeking production of all documents relating to the debt limit. Let’s say that responsive documents would include some that could not be used against Senator Smith, like a copy of the floor speech, because to do so would violate the non-use branch of Speech or Debate. Other responsive documents would include some that could be used against him because they do not fall within the “legislative sphere” (examples might include correspondence from constituents expressing their views on the debt limit). Still other documents could be used only if portions were redacted.

Can one characterize this document subpoena as a “questioning “ of Senator Smith or his legislative acts? Perhaps, but it is more difficult to do so than in the case where Senator Smith is literally being questioned on the witness stand. To use the analogy of the Fifth Amendment context, a document subpoena does not ordinarily require the recipient to make a testimonial response (i.e., to provide any information from his or her personal knowledge). Senator Smith could, for example, turn over to a third party the task of reviewing his documents to determine which are responsive to the subpoena.

Moreover, while a document subpoena could conceivably be characterized as a “questioning,” there are alternative methods that the Justice Department could use to obtain Senator Smith’s documents, such as a search warrant. As a literal matter, it would be very difficult to say that a search of Senator Smith’s office would be “questioning” him. From the standpoint of separation of powers, on the other hand, it seems incongruous to treat a search more favorably than a document subpoena.

What about from the standpoint of the purpose of the Speech or Debate Clause? If the purpose is to prevent a Member from being held legally accountable for any speech or debate, a document subpoena would seem to pass muster as it does not seek to hold the recipient accountable. It seems unlikely that a Member would be chilled in the performance of her legislative duties by the possibility of a document subpoena.

If the purpose of the Speech or Debate Clause were to prevent a Member from being distracted from her legislative and other responsibilities, one could argue that a document subpoena has some distracting effect. But it seems unlikely that avoiding distraction is a core purpose of the Clause. After all, the Constitution directly addresses the far more “distracting” case of a Member being arrested while Congress is in session- and places only a very minor limitation on such arrests. Thus, the Ninth Circuit was justified in finding that “legislative distraction is not the primary ill the Clause seeks to cure.” Renzi, slip op. at 8546. Moreover, the distraction caused by a document subpoena is relatively minor and recognizing a nondisclosure privilege would have only a marginal impact on this minor distraction. A nondisclosure privilege would merely allow Senator Smith to withhold certain documents, but he would still be required to produce non-legislative documents (and possibly to produce others in redacted form).

If the purpose of the Clause is to avoid having a Member’s legislative motives impugned or questioned, the question is a closer one. Arguably, a grand jury subpoena for Senator Smith’s documents related to the debt limit would have that effect, at least in the court of public opinion.

But there is a poor fit between the asserted purpose and the remedy of providing a nondisclosure privilege for legislative documents. For one thing, it is the fact of a grand jury investigation, not the subpoena itself, which is likely to be the source of any “questioning” of Senator Smith’s motives. Moreover, recognizing a nondisclosure privilege would not even prohibit a document subpoena, but would merely allow Senator Smith to withhold certain responsive documents. Finally, the nondisclosure privilege would apply even in cases where Senator Smith’s legislative motives are not at issue, such as where the investigation relates to third-party crime.

The most obvious rationale for a nondisclosure privilege would be to protect the confidentiality of certain legislative communications or other matters. There is, however, also a poor fit between the Speech or Debate Clause and any confidentiality interest that legislators may have. The protections of Speech or Debate apply to documents and information which are not confidential or which are matters of public record (e.g,, Senator Smith’s speech itself). Furthermore, there are some categories of documents, such as constituent requests for assistance, where there is a legitimate confidentiality interest but no claim for protection under the Speech or Debate Clause.

These considerations have impelled the Third Circuit to reject the nondisclosure privilege. See In re Grand Jury Proceedings, 563 F.2d 577, 584 (3d Cir. 1977) (“[T]he privilege is one of nonevidentiary use rather than nondisclosure.”). In a case involving a grand jury subpoena to obtain a Member’s telephone records, the court opined that Speech or Debate was different than privileges designed to protect “socially desirable confidential relationships,” such as attorney-client or physician-patient. In re Grand Jury Investigation (Eilberg), 587 F.2d 589, 596 (3d Cir. 1978). The Speech or Debate privilege “is not designed to encourage confidences by maintaining secrecy, for the legislative process in a democracy has only a limited toleration for secrecy.” Id. at 597.

To the extent that the Third Circuit suggests that there are no valid reasons for protecting legislative confidences, I disagree. In fact, the Third Circuit itself, in a brief and unpublished 1996 opinion, refused to order the House Ethics Committee to produce confidential documents in response to a subpoena in the criminal trial of former Congressman McDade. The court is correct, however, that the Speech or Debate Clause was not designed for protecting confidences and seems to be ill-suited for that purpose.

Thus, the language and purposes of the Speech or Debate Clause provide scant justification for a nondisclosure privilege. Perhaps we can shed more light on the subject from examining the practice and precedents of our English cousins. I will turn to that in my next post.

The Three Established Branches of Speech or Debate

In a prior post, I addressed one of the two major Speech or Debate issues in the Renzi case. That issue involved the application of one of the three established branches of the Speech or Debate privilege.

The other issue in Renzi is whether the courts should recognize a fourth branch of the privilege, namely a nondisclosure privilege. Under a nondisclosure privilege, Members would have a privilege to refuse to disclose legislative information in a legal proceeding. If accepted, the privilege would allow Members to withhold certain legislative records in response to a subpoena for documents.

Before turning to that issue, though, I will discuss today the three established branches of the Speech or Debate privilege. To illustrate, let’s imagine a simple hypothetical, where Senator Smith gives a speech on the Senate floor regarding, say, the debt limit.

The Speech or Debate Clause provides that “for any Speech or Debate in either House [Senators and Representatives” shall not be questioned in any other Place.” See John Filamor’s Cake.  It derives from article 9 of the English Bill of Rights of 1689, which provides: “That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”

1. Liability. The first branch of the Speech or Debate privilege protects a Member from liability for certain activities within the legislative sphere. The legislative sphere extends beyond Thus, Senator Smith cannot be prosecuted or sued for his speech.

The non-liability branch of Speech or Debate is at the very core of the Clause’s protection. The fundamental purpose of the Clause was to prevent the types of abuses as had occurred in England during the 16th and 17th centuries, when the Stuart and Tudor monarchs used the criminal law as a retaliatory weapon against disfavored MPs. As explained in a recent decision of the U.K. Supreme Court, R v. Chaytor, UKSC 52 (2010), article 9 was designed to redress grievances arising from the reign of Charles I, “in particular the acceptance by the Court of King’s Bench that parliamentary privilege did not protect against [prosecution for] seditious comments in the Chamber.” The U.S. Supreme Court has noted that “[t]here is little doubt that the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominate thrust of the Speech or Debate Clause.” United States v. Johnson, 383 U.S. 169, 182 (1966).

The first issue in the Renzi case involved how to apply the liability privilege to the facts of that case.

2. Testimony. The “testimonial” branch of the Speech or Debate Clause prohibits requiring Members of Congress (or their aides) to testify in legal proceedings about matters within the legislative sphere.  Thus, Senator Smith cannot be required to testify in court about his speech, even in a case brought against a third party, in which there is no attempt to hold Smith liable.

The testimonial aspect of the privilege is somewhat removed from the core application, but it is supported by the literal language of the Clause—the Senator is being “questioned” about his speech. Moreover, such questioning might very well involve an attempt to impugn or impeach the legitimacy or motivation of the Senator’s legislative acts, thus falling within the purpose of the Clause.

3. Use. The third branch of the privilege is one prohibiting the evidentiary use of legislative acts. Under this branch a Member’s legislative act cannot be used as evidence against him in a legal proceeding, even though the proceeding itself does not violate the Speech or Debate Clause. Thus, for example, although Senator Smith could be prosecuted for taking a bribe in exchange for promising to make a speech regarding the debt limit, the fact that he actually gave the speech could not be introduced into evidence. The theory is that the bribery and promise to make the speech in exchange for the bribe are not legislative acts, but the actual speech itself is. Introducing the speech into evidence would hold Senator Smith accountable for that legislative act and would question or impeach his motive for delivering it.

Although in the hypothetical the introduction of the speech would seem to implicate the purposes of the Speech or Debate privilege, this is not invariably the case. Suppose in the course of the speech, Senator Smith describes his contempt for Senator Jones, who holds a different position on the debt limit. The next day Senator Jones is found dead, and Senator Smith is arrested for the murder. Can Senator Smith’s speech be offered as evidence of motive? Apparently not, although one might wonder if this result makes sense.

These three branches of the Speech or Debate privilege have been recognized by the Supreme Court. A fourth branch, nondisclosure, has only been addressed by lower courts. The D.C. Circuit has recognized the nondisclosure privilege, while the Third Circuit and now the Ninth Circuit in Renzi have not. I will turn to that issue in my next post.

The Supercommittee, Moral Entrenchment, and the Puzzle of Statutized Rules

The Budget Control Act of 2011 (“BCA”) establishes a number of expedited procedures to govern House and Senate consideration of the legislative proposal from the “Supercommittee.” In essence, it requires that both the House and Senate have an up-or-down vote on the bill as proposed, and it forbids amendment of the bill in either house.

These provisions, of course, amend the normal rules of procedure that apply in the House and Senate.  The BCA expressly recognizes this and provides that these procedures are enacted “as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such they shall be considered as part of the rules of each House, respectively, or of that House to which they specifically apply, and such rules shall supersede other rules only to the extent that they are inconsistent therewith.”

It is not unusual for Congress to enact in statute special rules to expedite the consideration of particular legislation (examples include “fast track” approval for trade agreements and the closing of military bases under the Base Realignment and Closure Act). Such “statutized rules” raise some thorny constitutional questions, however. See Aaron-Andrew P. Bruhl, Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J.L.& Po. 345 (2003).

For example, are the House and Senate legally bound to follow the rules prescribed in the BCA? The generally accepted answer to this is no. Because the Constitution grants each house the power to determine its own rules, a statute cannot remove this power, and thus each house must remain free to change its rules independently. Indeed, the BCA expressly states that its congressional procedural provisions are enacted “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.”

If that is so, then either the House or Senate is legally free, notwithstanding the procedures specified in the BCA, to supersede those procedures with respect to consideration in its own body. As Professor Bruhl notes, this may not mean so much in the Senate, where it can be extremely difficult to change the rules. In the House, however, changing the rules is quite easy. It is typical in the House that legislation sent to the floor is accompanied by a special rule from the Rules Committee that sets the terms of the debate and consideration for that particular bill. This special rule can vary or waive any of the provisions of the Standing Rules of the House.

For example, this CRS report discusses the use of expedited rules in military base closings, and notes some instances where the House waived the requirements of those rules. The report states: “As House Parliamentarian Emeritus Charles W. Johnson observes, a chamber may ‘change or waive the rules governing its proceedings. This is so even with respect to rules enacted by statute.’ These changes can be accomplished, for example, by the adoption of a special rule from the House Committee on Rules, by suspension of the rules, or by unanimous consent agreement.”

I am informed by a congressional source that it is unlikely the Rules Committee would promulgate a special rule to accompany the Supercommittee’s proposed bill. The reason, however, is not lack of constitutional power to do so; rather it is the fear that the adoption of a special rule, if it contravened any of the procedures established in the BCA, could jeopardize the bill’s “privileged status” in the Senate. In other words, the BCA forms something like a contract between the House and Senate, and one party’s breach of the requirements would arguably free the other from complying with its terms.

Nevertheless, there would appear to be no legal barrier to the House changing the procedures set forth in the BCA if a simple majority so desires (the situation is more complicated in the Senate due to the ability of a minority to filibuster a motion to amend the rules). In what sense, then, can the BCA be said to have entrenched the rules governing consideration of the Super-committee’s legislation? As Bruhl observes, “statutized rules can be understood as devices for preventing Congress from engaging in certain types of procedural opportunism [yet because] Congress believes that the Constitution limits its ability to constrain itself in matters of procedure [, they are] a curiously noncommittal form of commitment.”

Another way of describing the effect of statutized rules is that they are “morally entrenched.” That is, they reflect a promise by the House and Senate to follow certain rules, and not to utilize such constitutional power as they have to alter or amend such rules. But if should they break their promise (which has happened from time to time with regard to other statutized rules), there is (probably) no legal violation and (certainly) no legal remedy.

To make things just a little more complicated, it should be noted that BCA differs from the typical statutized rule situation in a couple of ways. First, because of the short duration of the Supercommittee, the provisions of the BCA only affect the Congress that enacted it. This is important because there is precedent in the House for the proposition that a statutized rule can constitutionally bind the Congress that enacted it. Bruhl thinks, and I agree, that this precedent is probably wrong, but it could be used to argue that the 112th Congress is in fact without constitutional power to modify the rules set forth in the BCA (absent a statutory amendment). The savings provision quoted earlier might defeat such an argument anyway, but the provision arguably does nothing more than reflect a particular understanding of the constitutional powers of the House and Senate, which understanding might turn out to be incorrect.

Second, the BCA does more than merely prescribe a particular procedure for considering certain legislation. It imposes a consequence (automatic spending cuts in excess of one trillion dollars) for the failure to enact the legislation proposed by the Supercommittee. If Congress passes such legislation in accordance with the requirements of the BCA, then any constitutional questions regarding the procedure would not affect the validity of the final product. Moreover, even if Congress enacts a law that varies substantively from the requirements of the BCA, or in a manner that violates the BCA’s procedural prescriptions, it is likely that this law will be written in such a way as to ensure that BCA’s automatic spending cuts are overridden.

But what happens if Congress cannot agree on any legislation and the automatic spending cuts go into effect? At that point could not there be a constitutional challenge to the procedures established in the BCA? It could be argued that the BCA unconstitutionally attempts to prescribe procedures for the House and Senate, violating the constitutional mandate that each house determine the rules of its own proceedings.

Bruhl argues, reasonably enough, that statutized rules do not violate the Constitution so long as each house remains free to change those rules without interference from the other house or the President. But one could ask whether each house is free to depart from the procedures specified by BCA, for example by amending the Supercommittee’s proposed bill, when the consequence of doing so would be the automatic spending cuts triggered by non-compliance with BCA. In essence, by providing a draconian “penalty” for changing the procedures established in the statute, the BCA imposes an unconstitutional condition on the exercise of the rulemaking power.

One final piece of this puzzle. Section 401(b)(3)(B) of the BCA provides that “[a]ny change to the Rules of the House of Representatives or the Standing Rules of the Senate included in the report or legislative language shall be merely advisory.” This means, apparently, that even if the Super-committee proposes legislative language that effects a permanent change in House or Senate rules, and the Congress passes a bill that purports to enact those changes, the changes are not in fact effective. The Super-committee could not, for example, force Congress to enact a rule that makes the Super-committee permanent, or requires Congress to use expedited procedures for future legislation.

This seems to be the legislative equivalent of the genie saying that you get three wishes, but “ixnay on the wishing for more wishes.” See Aladdin (1992). It seems to reflect some discomfort with the enormous power that the BCA invests in the Supercommittee. As a constitutional matter, it seems to put the BCA in the awkward position of both entrenching certain rules and prohibiting future legislation from entrenching additional rules.

Hopefully I will get some feedback on these thoughts, and refine them as we go along.


Sunshine for the Super-Committee?

The legislation creating the “Joint Select Committee on Deficit Reduction” (AKA, the “Super-committee”) contains little detail on rules and procedures that the Super-committee is to follow.  Title IV of the Act establishes the Super-committee and provides for public notice of its hearings, but is otherwise silent on how much of its processes are to be open to the public.

However, as John Wonderlich of the Sunlight Foundation pointed out to me, House Rule X(10)(b) provides that “[e]ach select or joint committee, other than a conference committee, shall comply with clause 2(a) of rule XI unless specifically exempted by law.” The legislation establishing the Super-committee does not exempt it from the requirements of either Rule X or Rule XI.

Does this mean that the Super-committee is bound to follow the requirements of House Rule XI(2)(a)? It is not clear how the House’s rules could impose a requirement on a joint committee established by law. On the other hand, it could be argued that the language of House Rule X(10)(b) is part of the background rules for formation of a joint committee, and the failure of the legislation to specifically exempt the Super-committee from those rules evinces an intent that they be followed.

An alternative argument might be that the House Members of the Super-committee are bound to seek compliance with the requirements of House rules regarding joint committees. Title IV(c)(2) of the legislation provides that “Members on the joint committee who serve in the House or Representatives shall be governed by the ethics rules and requirements of the House.” Although procedural requirements of committees are not normally what one thinks of as “ethics rules,” the Code of Official Conduct (Rule XXIII) does require that a Member “adhere to the spirit and the letter of the Rules of the House and to the rules of duly constituted committees thereof.” One might argue that this indirectly obligates the House Members on the Super-committee to treat the House Rules regarding joint committees as a form of instruction. Cf House Practice, ch. 13, §11 (instructions to House managers of conference committee).

If the House Rules regarding joint committees are either directly or indirectly applicable to the Super-committee, then several significant requirements come into play. First, under Rule 2(a)(1)(A), the Super-committee would be required to adopt written rules in a public meeting (“unless the committee, in open session and with a quorum present, determines by record vote that all or part of the meeting on that day shall be closed to the public”).

Even more significantly, the rules adopted by the Super-committee “may not be inconsistent with the Rules of the House” and must “incorporate all of the succeeding provisions of [Rule XI, clause 2] to the extent applicable.” Among the provisions of clause 2 that would appear applicable are subsection (e)(1), which requires that records of committee actions be maintained and made available to the public, and subsection (g), which requires that all meetings and hearings are presumptively open, and may be closed only when the committee determines by record vote that “disclosure of matters to be considered would endanger national security, would compromise sensitive law enforcement information, would tend to defame, degrade or incriminate any person, or otherwise would violate a law or rule of the House.”

Whether these provisions apply could have a major impact on how the Super-committee conducts its business.





ABA Proposal for Lobbying Reform

The American Bar Association has approved a resolution calling for changes to federal lobbying regulation. (see this story in Politico). Interestingly, Politico quotes the head of the American League of Lobbyists as generally supportive of the resolution, except for the proposal to restrict campaign fundraising by lobbyists.

The ABA resolution stems from the report of the ABA Task Force on Lobbying Regulation, on which I served. The report of the Task Force, which was co-chaired by Trevor Potter, Charles Fried, Rebecca Gordon and Joe Sandler, can be read here.

Here is the actual resolution (h/t Rick Hasen, who also served on the Task Force).


Law Professors Lecture Congress on Stuff They Know Nothing About

A group of law professors and labor policy experts have written this letter to Darrell Issa, Chairman of the House Oversight and Government Reform Committee (COGR), expressing their grave concerns over “threats to compel disclosure of privileged documents” from the National Labor Relations Board. COGR is investigating the NLRB’s decision to bring an action against Boeing for shifting work from a union plant in Washington State to a new non-union facility in South Carolina. Yesterday COGR issued a subpoena to the NLRB, seeking a broad range of documents relating to the agency’s investigation of Boeing in order to obtain “complete facts about the NLRB’s rationale and its decision making process in this matter.”

The letter asserts that the documents COGR is seeking will likely include some relating to settlement discussions, litigation strategy and “other key factors in deciding to file the Complaint.” It suggests that these documents are privileged, and that the privileged nature of the documents is illustrated by the Administrative Law Judge’s refusal to order that they be produced in the pending litigation.

The law professors claim that “[u]nder current law, Congress must look to how the courts would handle the assertion of attorney-client and work product privilege claims when determining whether to press for these documents.” In support of this proposition, they cite Mort Rosenberg’s “Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry” 32-37(1995). No other support is provided.

If you go to page 32 of the cited Rosenberg report (which evidently none of the professors did), you will see the following: “The precedents of the Senate and the House of Representatives, which are founded on Congress’ inherent constitutional prerogative to investigate, establish that the acceptance of a claim of attorney-client or work product privilege rests in the sound discretion of a congressional committee regardless of whether a court would uphold the claim in the context of litigation.” (emphasis added)

Hmm, that sounds like the exact opposite of what the professors said.

As anyone who knows Mort Rosenberg would realize, he does not support the proposition that the courts can dictate, even indirectly, how Congress conducts its oversight activities. As he explains on page 36 of the same report: “the suggestion that the investigatory authority of the legislative branch of government is subject to non-constitutional, common-law rules developed by the judicial branch to govern its proceedings is arguably contrary to the concept of separation of powers. It would, in effect, permit the judiciary to determine congressional procedures and is therefore difficult to reconcile with the constitutional authority granted each House of Congress to determine its own rules.”

Moreover, while it is true that Congress will normally follow judicial precedents with respect to determining the contours of the attorney-client privilege with respect to private parties, it is not at all clear that government agencies like NLRB even have the right to assert attorney-client privilege as against Congress. Cf. In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998), cert. denied 525 U.S. 996 (1998) (government attorney may not invoke attorney-client privilege in a grand jury proceeding). There is no reason why the advice given by executive branch lawyers should be entitled to special protection in a congressional investigation.

When a government agency wishes to withhold information from Congress regarding a pending litigation or investigation, the matter is typically evaluated under the deliberative process privilege. The issues raised by the professors with regard to the NLRB proceeding, such as the potential for interference with an ongoing proceeding and the disclosure of litigation strategy, etc., must be weighed against considerations that militate in favor of immediate congressional action, such as the need to consider a legislative fix to resolve the economic hardship caused by Boeing’s inability to commence operations in South Carolina. Ultimately the weighing of these competing considerations is in the discretion of the committee.

Again to quote Rosenberg, “[d]espite objections by an agency, either house of Congress, or its committees or subcommittees, may obtain and publish information it considers essential for the proper performance of its constitutional functions. There is no court precedent that requires committees to demonstrate a substantial reason to believe that wrongdoing occurred before seeking disclosures with respect to the conduct of specific criminal and civil cases, whether open or closed. Indeed, the case law is quite to the contrary.”

If these labor law professors want to opine on congressional procedure, perhaps they should learn a little about it first.


The Strange Case of Scott Bloch

Scott Bloch, the former head of the Office of Special Counsel, the office charged with protecting government whistleblowers against retaliation, wasn’t very popular with the employees in his former office, and they went to Congress to complain. Among other things, they accused him of retaliating against those who voiced concerns about his policies. You get the irony.

Anyway, by and by this attracted the attention of congressional investigators, who requested a transcribed interview with Bloch. During the interview, they asked Bloch about an incident where he had used an outside service, Geeks on Call, to perform something called a “seven level wipe” on certain computers at the Office of Special Counsel, including his own. The suspicion was that he wanted to remove evidence that would substantiate some of the allegations against him.

According to a later information filed against him, Bloch, “having been requested by the House Oversight Committee to provide information upon a matter of pertinent inquiry before the Committee, unlawfully and willfully did make default by refusing and failing to state fully and completely the nature and extent of his instructions that Geeks on Call perform ‘seven level wipes’ on [the computers in question].”

Bloch entered into a plea agreement, in which he agreed to plead guilty to a single misdemeanor count of contempt of Congress, 2 U.S.C. § 192. Under the plea agreement, the prosecution would not oppose “a sentence at the low end of the applicable Guidelines range,” which the agreement calculates as “0 to 6 months.” In other words, the prosecutors promised that they would not object to Bloch’s position that he should serve no jail time (although the actual sentence would be up to the court).

After Bloch pled guilty, however, the U.S. Probation Office prepared a presentence report that noted the minimum sentence for contempt of Congress is one month in jail. This did not require any lengthy legal research; the statute provides on its face that the offense is punishable by “imprisonment in a common jail for not less than one month nor more than twelve months.”

Nevertheless, both Bloch’s lawyers and the prosecution objected. They pointed out that the last two prosecutions for contempt of Congress had resulted in sentences of probation. In the most recent case, United States v. Miguel Tejada, 09-mj-077, the defendant, who pled guilty just a year before Bloch, was given probation and the Probation Office did not raise any objection.

The magistrate judge did not buy it. Not only did she conclude that the statute was clear on its face in requiring a one month minimum sentence, but she refused to allow Bloch to withdraw his guilty plea. She was clearly irked by the joint position of the prosecution and defense that Bloch should be allowed to negotiate a new plea deal in which he would plead guilty to a different offense (presumably one that would permit no jail time). Responding to this suggestion, she stated “[c]onfidence in the fair and orderly administration of justice is undermined by the suggestion that the court should participate in a process by which a sentence is first determined by Defendant and the government, and then an offense expected to guarantee such sentence is alleged.”

Maybe so, but it seems to have escaped notice that Bloch could not have committed the offense to which he pled guilty. The contempt of Congress statute provides that “[e]very person who having been summoned as a witness . . . to give testimony . . .  upon any matter under inquiry before . . .  any committee of either House of Congress, willfully makes default, or who having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor. . . .”

Bloch was not “summoned as a witness.” He was asked to provide a voluntary interview. He did not appear before a committee. He met with congressional staff. He did not “willfully make default” (ie, fail to appear). If he had refused to answer one or more questions posed by the staff, it does not seem that he would have violated the statute (and it is not apparent from the information whether he actually did refuse to answer questions). What Bloch apparently did was to fail to provide accurate or complete answers to questions regarding the computer incident. This may have violated the False Statements Act, but it is hard to see how it constituted contempt of Congress.

This is not the first time that the contempt of Congress statute has been used to convert the felony of lying to or obstructing Congress into a misdemeanor charge. Nor has it been a secret. In 1988, when Robert McFarlane pled guilty to contempt of Congress, the New York Times pointed out that what McFarlane did was not actually contempt of Congress, but lying to Congress. Nevertheless, it noted that prosecutors used the “euphemism” of equating lying to Congress with a refusal to answer questions as a means of reducing the charge from felony to misdemeanor. This technique was also used in the plea bargains of Richard Kleindienst and Richard Helms.

Furthermore, even if Bloch had committed the offense to which he pled guilty, the court would not have had jurisdiction to convict him. The D.C. Circuit has held that a conviction for contempt of Congress is invalid unless the contempt has first been properly certified by the House or Senate (or, during adjournment, by the Speaker or President of the Senate) to the U.S. Attorney under 2 U.S.C. § 194.  Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966). (Indeed, the reason that there is a minimum sentence for contempt is undoubtedly to ensure that the U.S. Attorney is sufficiently vigorous in acting on such a congressional certification). No such certification was made here.

In short, it appears that Bloch pled guilty to a crime that he didn’t commit in order to get a sentence to which he was not entitled from a court that was not empowered to pronounce one. Chief Judge Lamberth has now reversed the magistrate judge, finding that Bloch should have been allowed to withdraw his guilty plea. Judge Lamberth seems to have accepted the view that contempt requires a minimum one month sentence, however. Thus, it will be harder for this provision to be used as the basis for plea bargains in the future.