Virginia Supreme Court Takes on Speech or Debate

The Virginia Supreme Court recently issued a decision in Edwards v. Vesilind, No. 160643 (Va. Sept. 15, 2016), a case involving the application of the Virginia constitution’s speech or debate clause to a subpoena for documents directed to Virginia state senators and the Division of Legislative Services (DLS), a legislative agency that provides legal and other research services to the Virginia General Assembly. The subpoena, which arose from a lawsuit alleging that certain state house and senate districts violated the Virginia constitution, sought written communications and other documents related to the legislature’s formation of these districts, including documents that discussed (1) compactness, population and other criteria used to form the districts; (2) the role played by partisan or incumbent-protection considerations; and (3) the process of preclearance through the Virginia attorney general.

The Virginia senators and DLS objected to the subpoenas based on the Virginia speech or debate clause, which provides “Members of the General Assembly . . . for any speech or debate in either house shall not be questioned in any other place.” The trial court, however, narrowly construed this privilege as applying only to “purely internal legislative communications solely among legislators, and between legislators and legislative staff.” Moreover, it defined “legislative staff” as “legislative assistants and/or aides who are employed and paid by the individual legislators, a legislative committee, or the legislature as a whole.” It found DLS and its employees to fall outside these parameters and therefore held that agency entirely unprotected by legislative privilege. It further found that the senators could not withhold communications with DLS, political consultants or other third parties.

The trial court’s ruling was certified for direct appeal to the Virginia supreme court because of the importance of the questions presented, which were ones of first impression concerning the scope of the Virginia speech or debate clause. The supreme court’s ruling as to the scope of the privilege and who may invoke it is also of wider interest because it construed the Virginia clause as co-extensive with the federal Speech or Debate Clause. As the court noted, the language in the Virginia constitution is derived from the federal Clause, and “[b]oth provisions afford similar protections because they are based on the same historical and public policy considerations.” Slip op. at 8.

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Pagliano’s Contumacious Failure to Appear

Last night the House Committee on Oversight and Government Reform (COGR) voted to approve a contempt resolution for Bryan Pagliano, who failed to appear before the committee in response to a subpoena to testify. Pagliano, you may recall, is the IT specialist who was in charge of setting up Secretary of State Clinton’s private email server. Pagliano previously asserted his Fifth Amendment privilege against self-incrimination in both congressional and Justice Department/FBI investigations. He was given use immunity by DOJ/FBI to provide information regarding their investigation into whether the use of the email server by Clinton or others violated laws against the disclosure or mishandling of classified information.

Although the criminal investigation into Clinton’s handling of classified information terminated with FBI Director Comey’s public statement a couple of months ago, COGR says it is continuing to investigate this issue as well as other matters that the FBI investigation did not address. Specifically, the contempt report indicates that COGR’s ongoing investigation includes:

(1) seeking information about former Secretary Hillary Clinton’s use of a private, non-secure email server during her time at the Department of State, as well as the transmittal of classified national security information on that server; (2) examining the circumstances that resulted in the failure to preserve federal records arising during Secretary Clinton’s tenure, as required by the Federal Records Act, and to produce such records pursuant to Congressional requests or request made pursuant to the Freedom of Information and; (3) determining what, if any, changes to the Federal Records Act of 1950, Freedom of Information Act of 1966, Ethics in Government Act of 1978, or any other federal law(s) may be necessary to prevent these or similar circumstances from recurring.

No one, I think, would seriously dispute that these are proper matters for the committee to investigate, nor that Pagliano is a witness with information relevant to them.

Instead, the question is whether Pagliano, having informed COGR through his attorney that he will continue to assert his Fifth Amendment privilege with respect to any questions that the committee asks him about these issues, was required to appear at a hearing to assert the privilege in person. Citing legal ethics opinions, Pagliano’s attorneys at Akin Gump contend that Pagliano is not required to appear at an open hearing, although they said that he was willing to appear at a closed session. Backed by committee Democrats, they argue that requiring Pagliano to appear “in front of video cameras six weeks before the presidential election, betrays a naked political agenda and furthers no valid legislative aim.”

This is not a new issue. Congressional committees have been faced with such objections for decades, at least since a 1977 DC Bar opinion that an attorney serving as counsel to a congressional committee was prohibited by the disciplinary rules from requiring a witness to appear at televised hearings when the committee had been notified in advance that the witness would refuse to answer questions based on the Fifth Amendment right against self-incrimination.

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Coleman v. Miller and the Political Question Doctrine

Following on my last post, our analysis of the justiciability of claims related to the Article V convention will begin with Coleman v. Miller, 307 U.S. 433 (1939) and the political question doctrine. Coleman involved the purported ratification by the Kansas legislature of a child labor constitutional amendment proposed by Congress in 1924. After both houses of the Kansas legislature had rejected the proposed amendment in 1925, the Kansas house passed a resolution of ratification in 1937. The Kansas senate then equally divided (20-20) on the resolution, and the Lieutenant Governor, over the objections of those who opposed the amendment, broke the tie in favor of ratification.

Kansas legislators, including the 20 senators who voted against ratification, challenged this action in state court, and the case was ultimately appealed to the U.S. Supreme Court. The plaintiffs advanced three grounds for invalidating the purported ratification: (1) that the 13 years between proposal and ratification was too long; (2) that the prior rejection of the amendment by the Kansas legislature precluded subsequent ratification and (3) that the Lieutenant Governor was not part of the “legislature” under Article V and therefore could not vote on ratification.

In a famously splintered opinion, the Coleman Court declined to reach the merits of any of these issues. In an opinion by Chief Justice Hughes designated as the “Opinion of the Court” (but joined by only two other justices), the Court held the Kansas legislators had standing to bring the suit, but found that two of the plaintiffs’ claims raised political questions that could only be resolved by Congress.

With respect to the whether the Kansas legislature’s previous rejection of the child labor amendment precluded its subsequent ratification, the Court stated that this “should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the amendment.” 307 U.S. at 450. The Court found no basis for the proposition that it “should restrain the state officers from certifying the ratification to the Secretary of State because of an earlier rejection, and thus prevent the question from coming before the political departments.” Id.

Although the Supreme Court had previously held that ratification of amendments must take place within a reasonable time, the Coleman Court rejected the notion that “in the absence of a limitation by the Congress, the Court can and should decide what is a reasonable period within which ratification may be had.” 307 U.S. at 452. Determining what constitutes a reasonable time for ratification in any particular case would require “an appraisal of a great variety of relevant conditions, political, social, and economic,” which according to Chief Justice Hughes would involve questions that are “essentially political, and not justiciable.” Id. at 453-54.

With regard to the issue of the Lieutenant Governor’s participation in the ratification process, the Coleman Court declared: “Whether this contention presents a justiciable controversy, or a question which is political in its nature and hence not justiciable, is a question upon which the Court is equally divided, and therefore the Court expresses no opinion upon that point.” Id. at 447. (If you wonder how a 9-member Court came to be “equally divided,” the answer, though not relevant to our analysis, may be found here)

In his concurrence (joined by Justices Frankfurter, Roberts and Douglas), Justice Black suggested that the Court had not gone far enough in denying judicial power to resolve Article V controversies. While agreeing with the Court that Congress has the “exclusive power” to resolve “political questions” such the validity of ratification after prior rejection and the length of time within which an amendment could be ratified, Black criticized the Court for leaving an opening for any judicial resolution of Article V questions. See Coleman, 307 U.S. at 458 (“To the extent that the Court’s opinion in the present case even impliedly assumes a power to make judicial determination of the exclusive constitutional authority of Congress over submission and ratification of amendments, we are unable to agree.”). Instead, Black stressed that all Article V questions should be considered political and not justiciable:

Such a division between the political and judicial branches of the government is made by Article V, which grants power over the amending of the Constitution to Congress alone. Undivided control of that process has been given by the Article exclusively and completely to Congress.  The process itself is “political” in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control, or interference at any point.

Coleman, 307 U.S. at 458-59 (Black, J., concurring).

Two additional opinions were written in Coleman. Justice Frankfurter wrote for himself and Justices Black, Roberts and Douglas in a separate opinion rejecting the Court’s conclusion that the Kansas legislators had standing to sue. See Coleman, 307 U.S. at 460 (Frankfurter, J., concurring). Frankfurter argued that the injury asserted by the plaintiffs, namely that the Kansas legislature had followed unconstitutional procedures in ratifying the child labor amendment, was not the type traditionally redressed by the judiciary and would open the federal courts to “sit[ting] in judgment on the manifold disputes engendered by procedures for voting in legislative assemblies.” Id. at 469-70.

Finally, Justice Butler authored a dissent, for himself and Justice McReynolds, arguing that the Court should have reached the merits and struck down Kansas’s ratification as untimely. Coleman, 307 U.S. at 470 (Butler, J., dissenting). It should be noted, however, that Butler did not actually express an opinion on whether the timeliness of ratification was a political question. Instead, he pointed to the fact that the Court had previously treated it as a justiciable question, and he argued that the Court should not have reversed itself on this point without argument or briefing.

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The Justiciability of Controversies Related to the Article V Convention

As you may know, there is increasing chatter about the possibility of Congress calling an Article V “convention for proposing amendments” (sometimes referred to, inaccurately, as a “constitutional convention”).

Recently the New York Times featured a front page article by Michael Wines entitled “Inside the Conservative Push for States to Amend the Constitution.” The focus of the article is on the effort to call a convention to propose a federal balanced budget amendment, which I know something about through my association with with the Balanced Budget Amendment Task Force (BBATF), one of the three groups featured in the piece.

If I might digress for a moment, I note that Wines’s suggestion that the balanced budget amendment effort is “often funded by corporations and deeply conservative supporters like the billionaire Koch brothers and Donors Trust” is, unfortunately, not true, certainly with respect to the BBATF. To the contrary, the BBATF operates with little outside funding of any kind and depends on the work of citizen activists who volunteer their time and often pay their own travel expenses. (No need to mention that last part to my wife, though). But if you happen to be a wealthy donor, feel free to click through to the BBATF website and look for the donate button. . .

Anyway, as Wines notes, “Article 5 of the Constitution . . . allows the states to sidestep Congress and draft their own constitutional amendments whenever two-thirds of their legislatures demand it.” Thus far, “28 states have adopted resolutions calling for a convention on a balanced-budget amendment, including 10 in the past three years, and two, Oklahoma and West Virginia, this spring.” Thus, only six additional states are needed to trigger an Article V balanced budget amendment convention.

Wines is also correct that there are substantive legal issues which will undoubtedly be raised if and when the states reach the magic number of 34. For example, Wines says that “[e]ven if the two-thirds threshold were reached, a convention would probably face a court battle over whether the legislatures’ calls for a convention were sufficiently similar.”

What he refers to is the fact that the 28 existing applications for a balanced budget amendment convention do not use identical language, and it can be argued (and undoubtedly will be argued) that some of them are substantively different from the others in terms of the scope of the convention they seek. If Congress calls a convention based upon these applications, someone is likely to go to court to stop the convention from being held. Thus, Wines is right that there probably will be a “court battle” of some kind.

This doesn’t mean, however, that a court would actually consider such a case on its merits. Before doing so, it will have to answer a novel question: when (if ever) are claims related to the Article V convention justiciable?

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