The Notebook- House Ethics Committee Edition

Fans of the Maxine Waters ethics case (you know who you are) may recall that one of the controversies between Blake Chisam, the former Staff Director and Chief Counsel of the Ethics Committee, and the two senior counsel leading the Waters investigation (Morgan Kim and Stacy Sovereign), involved the binders that were handed out to committee members at a November 18, 2010 meeting. According to Chisam’s late 2010 memorandum to Chairman Lofgren, providing the reasons for terminating Kim and Sovereign:

            At that meeting, white binders were handed out to all the Members of the adjudicatory subcommittee, as well as the Chair’s and Ranking Member’s designated counsels. They were being passed out from a box. The Ranking Member’s counsel was helping to hand the binders out. Since the Waters staff [Kim and Sovereign] served as advocates, they could not be present at the ASC [Adjudicatory Subcommittee] discussion absent an invitation for participation by respondent. The binders were prepared by the Waters staff for the meeting. There were copies of the binder that were flagged, highlighted and contained handwritten notes and explanations when they came out of the box. The marked up copies were provided to Republican Members. Democratic Members did not receive annotated binders.

 So there you have it. Selective highlighting. Discriminatory annotation. Ex parte flagging. Such serious charges require a full investigation, preferably conducted by an outside lawyer whose hourly fee exceeds the average American’s mortgage payment.

Fortunately, we now have the report of Outside Counsel Billy Martin, who has cracked the case of the great notebook caper wide open. His report states (page 21):

During the course of the Outside Counsel’s review, Outside Counsel located  and reviewed what Outside Counsel believes are those very notebooks.

Eureka! (I hear you cry). Outside Counsel has located the very notebooks. The instruments of the crime. The murder weapon itself, so to speak. Surely the perpetrators of this dastardly deed will no longer go unpunished. Read on:

Outside Counsel determined that only one tab and minimal highlighting was placed on the notebooks in question. In addition, the designee to the Ranking Member testified that she had highlighted the binders to assist the Republican Members to more easily locate the documents that were going to be discussed at the meeting. As this was done by the designee to the Ranking Member, who was acting within the scope of her services and authority, and not by a staff member to assist one party, there is nothing noteworthy about the highlighted binders.

Nothing “noteworthy,” get it? Outside Counsel is Hercule Poirot and Jimmy Kimmel rolled into one. Sadly, however, our mystery seems to have gone from Murder on the Orient Express to Murder by Death.

Perhaps even sadder is the fact that absolutely nothing turned on the resolution of this controversy. Even if Kim and Sovereign had been responsible for marking up the binders, and even if the marking had been for a more nefarious purpose than helping the Republican Members more easily locate the relevant documents, it would not have changed the handling of the Waters case going forward. Martin would still have recommended the same action, namely the recusal of those committee members involved in the Waters matter in the prior Congress.

Gee, if only someone could have pointed that out in advance.

Unclear and Not All that Convincing

The long-running ethics investigation of Representative Maxine Waters neared an end today with a public hearing before the “Waters Committee” (a special version of the Ethics Committee set up specifically for the Waters matter). Chairman Goodlatte announced that the committee had received the report and recommendations of Outside Counsel Billy Martin, who advised that there was insufficient evidence to justify establishing an Investigative Subcommittee to proceed further with respect to the matter, but that Martin has made “perfectly clear” that “he believes that certain specific actions of Mikael Moore, the Chief of Staff to Representative Waters are in fact violations of the standards and rules of the House regarding conflict of interest.”

If Martin believes that Moore violated the standards and rules of the House, why didn’t he recommend an Investigative Subcommittee? Goodlatte explained: “To be clear, Outside Counsel does not believe the evidence on the record, without making any credibility determinations, would prove Mr. Moore’s knowledge of the conflict at that time by clear and convincing standards. This is principally because Mr. Moore has explicitly denied such knowledge. However, Mr. Martin has been clear about his concerns regarding Mr. Moore’s credibility throughout this process, and has recommended that the Committee make its own credibility determinations to decide if any action is appropriate.”

This isn’t all that clear to me, but what I gathered from sitting through the hearing is this: during the course of the investigation, Moore answered certain questions in a way that Martin does not find credible. Martin, however, does not believe that he can prove that these answers are false by “clear and convincing evidence,” which is the evidentiary standard applicable to imposing discipline by the House. Accordingly, Martin suggests (but does not recommend) that the committee consider issuing a letter of reproval, which is a rebuke from the committee itself that need not meet this high evidentiary standard.

This strikes me as an unusual approach. My impression is that letters of reproval are used for conduct the committee considers inappropriate, but not serious enough to warrant action by the House. They may on some occasions be motivated by the committee’s belief that there was more serious misconduct it cannot prove, but this is rather different from charging the misconduct it cannot prove in the letter of reproval itself. (Imagine a letter of reproval that says “Representative X, the committee believes that you took massive bribes from a foreign power, but we can’t prove it by clear and convincing evidence, so we are issuing this letter instead.”)

On the other hand, it seems clear (if you will pardon the expression) that Moore has brought these problems to a large extent on himself. The purpose of the hearing, which was held at Moore’s request, was to give him an opportunity to convince the committee not to issue the letter of reproval. But instead of simply providing factual testimony supporting, clarifying or amending his prior statements that are in question, Moore essentially acted as his own lawyer, making legal arguments and attacking inconsistencies in the committee’s legal and factual positions. Not surprisingly, members of the committee (other than the genial and entertaining Representative Latourette) did not react well to this approach.

Moore had a lawyer with him, but he said almost nothing. One wonders why the lawyer didn’t handle the legal argument, or at least explain to Moore the difference between being a witness and an advocate. Perhaps having counsel representing Moore and Waters jointly was not such a good idea, as the committee has often noted before.

And Now For Something Completely Different

This is not a post about Monty Python (sorry), but a couple of thoughts on the word “amendment.” Over at The Originalism Blog, Professor Michael Ramsey discusses a debate regarding the meaning of the Origination Clause of the Constitution, which provides “All Bills for raising Revenue shall originate in the House of Representatives, but the Senate may propose or concur with Amendments as on other Bills.” A new constitutional challenge to the Affordable Care Act (aka Obamacare) contends that the statute was enacted in violation of this provision because although the bill had a House Bill number, it actually originated in the Senate. As explained in this Volokh Conspiracy post by Professor Randy Barnett, Senate Majority Leader Harry Reid simply took a House bill, struck out all of the text, and replaced it with a Senate-written bill. A new lawsuit now argues that this “strike and replace” procedure does not satisfy the requirements of the Origination Clause.

Professor Jack Balkin points out that using “strike and replace” or a “shell bill” as a means of formally satisfying the requirements of the Origination Clause has been done on a number of occasions in modern history, including the 1986 Tax Reform Act. He acknowledges that the “original expected application” of the Origination Clause probably did not include using the amendment process to substitute a completely different piece of legislation (after all, the Clause would seem to serve little purpose if this is allowed), but argues that it is literally consistent with the requirements of the Clause.

To which Professor Ramsey responds:

Professor Balkin further argues that strike-and-replace is “formally consistent with Article I, section 7, because the Senate has added an amendment to a tax bill that began in the House.”  I’m not sure that is right.  It depends on the meaning of the word “amendment.”  Is the deletion of one whole bill and the substitution of an entirely new bill properly defined (in ordinary use) as an “amendment”?  The dictionary I have closest to hand says that an “amendment” is “a correction or an alteration … [a] formal revision of, addition to, or change…”  In modern speech, I would think that the word “amendment” might contrast with “substitution” or “replacement.” (Of course, for original meaning what really matters is the 1787-88 definition, if it is different).

Continue reading “And Now For Something Completely Different”

Chief Justice Roberts and the Recess Appointments Clause

I really, truly intend to leave the subject of the Recess Appointments Clause, but, as I was compiling material for a final post to be entitled “The Recess Appointments Clause in One Place,” I came across this interesting and somewhat instructive episode from the Reagan Administration.

On Friday afternoon, January 18, 1985, a young lawyer in the White House Counsel’s office by the name of John Roberts telephoned Herman Marcuse, a very not young lawyer in the Office of Legal Counsel. Marcuse’s memo to the file explains that Roberts:

presented a question about the President’s power to make recess appointments to the Board of Directors of the Export Import Bank. He advised me that the terms of two of the directors would expire on January 20, 1985, and inquired whether the President could make recess appointments to the Board in the morning of January 21, 1985 before the Senate would reconvene from its recess at noon. I asked Mr. Roberts when the recess began, and he stated that it began on January 3.

Marcuse advised Roberts “that the recess period of 18 days was extremely short” and said that in light of “the close and delicate nature of the question,” he would need to consult with his OLC colleagues. Roberts explained that the matter was “rather urgent.” (To those who didn’t go to Harvard Law School, you see, this might not be self evident from a Friday afternoon phone call regarding the constitutionality of an action the President wants to take on Monday morning).

Continue reading “Chief Justice Roberts and the Recess Appointments Clause”

Constitutional Settlement Through a Statute

A few years ago, when there was a great deal of consternation regarding filibusters of judicial nominees, Professor Aaron-Andrew Bruhl published a typically thoughtful article entitled “If the Judicial Confirmation Process is Broken, Can a Statute Fix It?” Bruhl considered a hypothetical statute that would regulate the confirmation process by, for example, requiring the Senate to conduct an up or down vote on a nominee within a particular period of time.

Bruhl concluded that while it would be constitutionally permissible to enact such a judicial confirmations statute, the statute would not be legally binding on the Senate. While the Senate might feel politically or morally obligated to follow the rules set forth in the law, it would “retain unilateral control over its confirmation procedures regardless of what any statute may say” because the principle of cameral autonomy, embodied in the Rules of Proceedings Clause among others, so demands.

Suppose, however, there were a statute which did not purport directly to regulate the Senate’s internal processes, but granted the President temporary appointment authority conditioned on certain occurrences within those processes? For example, the President might be authorized to make a temporary appointment if a nomination had been made, a certain period of time had elapsed and the Senate had  taken no action with regard to the nomination. The authority granted would not be dependent on the existence of a recess, and so the statute would not be vulnerable to some of the constitutional objections discussed in the context of a hypothetical Senate rule.

There could, however, be other objections. For one thing, Professor Rappaport argues that Congress lacks the power to authorize the temporary appointment of superior officers, although it can authorize the occupants of existing offices to assume the duties of other offices when the latter become vacant (as in the Vacancies Act). It also might be argued that the hypothetical statute, while not directly regulating the Senate’s internal procedures, places unconstitutional burdens upon it, and therefore would remain subject to revision under the Rules of Proceedings Clause.

I am not sure that these objections are well taken, but I am also not sure it matters. The Pay Act, for example, would seem to be unconstitutional under the executive branch’s theory of the Recess Appointments Clause (as it has suggested from time to time), yet it has followed the requirements of that statute (well, where it can’t figure out a way to weasel out of them) for a century and a half.

After all, the point of a constitutional settlement is to settle constitutional differences, which means making accommodation for constitutional positions that are arguably wrong. The alternative is to have the dispute settled by an authoritative tribunal or having it remain unsettled. For reasons discussed in prior posts, it seems to me that a constitutional settlement, either through a Senate rule or a statute, is the better alternative.

So I now come to the end of my very long discursion on the RAC.  Hopefully, these many posts have not completely bored my faithful readers, and perhaps they will even contribute in some way to the public good. At this point, however, I think I have exhausted this topic (any myself). I do intend to compile and post a list of sources on the RAC- I think that will be useful to future researchers.

I am also moderating a panel that will focus on current RAC litigation at the ABA Administrative Law Conference in DC at the end of October. More details to follow.


Must Committee Websites Be Fair and Balanced?

An article this week by Fortune senior editor Stephen Gandel questions whether certain House committee websites, particularly that of the Financial Services Committee, comply with rules and regulations established by the Committee on House Administration. These provide that committee websites may not:

  1. Include personal, political, or campaign information.
  2. Be directly linked or refer to Web sites created or operated by campaign or any campaign related entity, including political parties and campaign committees.
  3. Include grassroots lobbying or solicit support for a Member’s position.
  4. Generate, circulate, solicit or encourage signing petitions.
  5. Include any advertisement for any private individual, firm, or corporation, or imply in any manner that the Government       endorses or favors any specific commercial product, commodity, or service.

Gandel’s primary concern is that much of the Financial Services website is “dedicated to just how bad the [Dodd-Frank act] is.” He suggests this violates the rules that “websites can’t contain political information or solicit support for a member’s position.”

I think Gandel misunderstands the meaning of the term “political” as used in these rules. The House Ethics Manual provides that “[o]fficial resources of the House must, as a general rule, be used for the performance of official business of the House, and hence those resources may not be used for campaign or political purposes.” The phrase “campaign or political” is a term of art referring to election or campaign-related business, as opposed to the official business of the House.

Continue reading “Must Committee Websites Be Fair and Balanced?”

Mort Rosenberg on Recess Appointments

Mort Rosenberg, formerly of CRS and now a Fellow at the Constitution Project, has released a paper entitled: “Understanding the Centrality of the Appointments Clause as a Structural Safeguard of Our Scheme of Separated Powers: The Senate’s Exclusive and Plenary Confirmation Power Trumps Presidential Intrasession Recess Appointments.”

The Executive Summary states:

“The Constitution establishes a procedure for the nomination and appointment of officers of the United States that includes important roles for both the President and the Senate.  The debates of our founding fathers, as well as Supreme Court opinions, explain that these provisions were intended to create important checks and balances on the branches of Government involved.  The Justice Department’s Office of Legal Counsel  opinion, which purports to identify the legal basis of the recess appointments of four individuals to important Government positions this past January, asserts that the President has the unilateral ability to determine the existence of a “recess” for purposes of triggering the President’s recess appointment authority.  This conclusion would appear to undermine the balance of powers that is inherent in the Appointments Clause.  It would also appear to conflict with the constitutional right of the Senate to determine its own rules and procedures.  The use of a pro forma procedure during an intrasession recess of the Senate also raises the unresolved issue of whether any recess appointment can ever be made while the Senate is in such an intrasession adjournment, or instead does this authority only relate to intercessional periods.  While there is no definitive judicial precedent as yet, a review of the constitutional debates, prior court rulings, and the history of recess appointments indicates that the validity of the intrasession recess appointments at issue is questionable, and that compelling arguments may be made that they are invalid.”


Common Cause’s Opposition to the Motion to Dismiss

Common Cause has filed its opposition to the Senate’s motion to dismiss its lawsuit seeking to have the filibuster declared unconstitutional. Its brief clearly demonstrates that there is no persuasive answer, and in some cases no answer at all, to the problems identified in my earlier post on this subject. A few observations should suffice.

The nature of the alleged injury. Common Cause claims that the plaintiffs were injured by the use of the filibuster to block specific bills, namely the DISCLOSE and DREAM Acts. Yet it says that it is irrelevant whether these bills would have become law in the absence of the filibuster. Brief at 3 (“the plaintiffs need not show that both bills would have been enacted but for the filibuster to have standing.”). Merely showing that a bill benefiting them might have passed but for the filibuster demonstrates a procedural injury, it argues, and there is no need to show an actual substantive injury.

By so lowering the bar, Common Cause would create a class of standing considerably broader than taxpayer standing (which the courts have rejected). Surely every person in the United States, if not the world, can claim that they would have benefitted from a law that might have passed but for the filibuster.

At the same time, Common Cause continues to rely on the claim that the two laws in question would have been enacted but for the filibuster. Brief at 42 (DREAM Act “would have been enacted into law, but for the use of Rule XXII”); 43 (“The DREAM and DISCLOSE Acts would have been enacted but for the defendants’ use of Rule XXII.”). It thus seeks to have it both ways—to claim a substantive injury for purposes of distinguishing the plaintiffs from the world at large, while relieving itself of the burden of proving such an injury.

Continue reading “Common Cause’s Opposition to the Motion to Dismiss”