Author: Michael Stern

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Andy Stern and the Unbearable Lightness of Being (a Lobbyist)

           Andrew Stern (no relation), president of the Service Employees International Union (SEIU), was a registered lobbyist for SEIU until February 20, 2007, when SEIU de-listed him and 15 others in a Lobbying Disclosure Report.  Prior to that time, SEIU had listed Stern as a lobbyist on several issues, including health care, immigration and labor matters.    

            Stern’s de-listing has been challenged by two limited government advocacy groups, who point to publicly available information that Stern continues to engage in extensive lobbying activities.  In a letter to the Clerk of the House, Secretary of the Senate, and Acting U.S. Attorney, they point to the fact that White House logs show that Stern visited covered executive branch officials on 11 occasions in the first quarter of 2009, and on 10 occasions in the second quarter.  In addition, they provide evidence suggesting that Stern regularly met with Members of Congress and other covered legislative branch officials during this period. 

            There can be little doubt that Stern had sufficient “lobbying contacts” (defined by the LDA as communications with covered officials regarding virtually any policy matter) to qualify him as a “lobbyist” under the law.  However, to qualify Stern must also have spent at least 20% of his time on “lobbying activities,” which are defined to include both lobbying contacts and efforts in support of such contacts, including preparation, research, planning and coordinating with the lobbying activities of others. 

            If Stern is assumed to work a 40 hour week, he would have 520 work hours in a quarter.  Thus, he would have to spend 104 hours on “lobbying activities.”  It seems unlikely that Stern, or almost anyone else, would spend that much time on lobbying contacts alone.  If Stern spent an average of two hours on each White House visit and spent a like amount in direct communications with the Hill, this would still be less than half the amount of time required to qualify as a lobbyist.   

            Thus, even if one could identify all of Stern’s lobbying contacts and determine exactly how much time he spent on them, it is unlikely that it would add up to 104 hours.  Therefore, one would have to come up with some way of determining how much time Stern spent on other activities in support of lobbying contacts.  No doubt Stern spends some amount of time on direct preparation for lobbying contacts.  But it is likely that he spends a good deal more time on activities, such as learning about and discussing the public policy issues at the core of SEIU’s lobbying, that cannot be unambiguously categorized as lobbying or non-lobbying. 

            In order to determine whether Stern qualifies as a lobbyist, one would first have to have some source of information to determine the number and duration of his lobbying contacts, then to identify and quantify the time spent on direct lobbying support, then to identify and allocate the time spent on ambiguous activities and finally to compare the resulting number to an estimate of Stern’s total work hours (which are probably much higher than 40 hours a week).  This might be doable for some people who are full-time lobbyists and/or bill by the hour, but it would be very difficult for Stern and many others. 

            In short, while there seems little doubt that Andy Stern spends a good deal of time lobbying the highest levels of government (indeed just today he was scheduled to meet with the President to discuss a proposed tax on high-cost insurance plans), the determination of whether he qualifies as a “lobbyist” within the meaning of the LDA will likely come down to his own guesstimate.  The simple fact is that the LDA was designed to provide a broad overview of the amount and type of lobbying performed by various interest groups; but the vagueness of its definitions, the lack of recordkeeping requirements and the minimal enforcement make it a very unreliable instrument for determining who is a “lobbyist.”

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The 9/11 Commission Recommendation Congress Forgot

As a former member of the 9/11 Commission noted today, Congress has failed to implement one key recommendation of that Commission—relating to how Congress organizes its own homeland security and intelligence committees.  The Hill states that “[f]ormer Sen. Bob Kerrey (D-Neb.) said that Congress’s failure to adopt [this recommendation] contributes to problems at the country’s intelligence agencies in the wake of the failed Christmas Day attack.” What follows is a piece I wrote, but never published, right after the 2006 elections.

           

9/11 COMMISSION’S MESSAGE TO CONGRESS: REFORM YOURSELF 

Nancy Pelosi, the incoming Speaker of the House of Representatives, has promised that a Democratic-led House will move immediately to enact all of the unfulfilled recommendations of the 9/11 Commission.  She has also promised to make dramatic changes in the way Congress does business. 

Her willingness and ability to keep these promises will be tested by what is unquestionably the most important unfulfilled recommendation of the 9/11 Commission: that Congress reform itself.  Specifically, the Commission recommended significant changes with regard to how Congress is organized for oversight of intelligence and homeland security. 

Of particular note is the Commission’s call for strengthening congressional oversight of the intelligence community.  The Commission found that the House and Senate intelligence committees lack adequate authority and capability to conduct effective oversight  Indeed, the Commission concluded starkly that “congressional oversight for intelligence—and counterterrorism—is now dysfunctional.” 

The institutional weakness of the intelligence committees stems in large part from the secrecy of the intelligence community they oversee.Information on highly classified programs is difficult to obtain and, when the information is shared with the committees, may be provided in such a compartmented fashion as to make it of little or no use.

For example, during the recent inquiry by the House Permanent Select Committee on Intelligence (HPSCI) into the activities of former Representative Duke Cunningham, we discovered a potentially relevant computer disk in Cunningham’s classified file at HPSCI.Because HPSCI did not have the technology to read the disk, it had to request assistance from an intelligence agency.After the agency obtained the disk, however, it refused to provide access to the files contained on the disk on the grounds that HPSCI was not cleared for the information in question.

The secretive nature of the intelligence community also deprives the intelligence committees of some of the most powerful oversight tools: the ability to hold public hearings and to issue public reports.Other congressional authorizing committees can use public hearings and reports to pressure agencies to modify policies and practices or simply to be more forthcoming with information, but the intelligence committees usually cannot.

Theoretically, the intelligence committees should have leverage over the intelligence agencies as a result of the legal requirement in section 504 of the National Security Act of 1947 that that intelligence expenditures be specifically authorized as well as appropriated, which would appear to require the approval of the intelligence committees as well as the appropriators.However, experience indicates that the appropriators have found ways to circumvent this requirement, ranging from putting expenditures in budget categories (such as military intelligence) which are not subject to the legal requirement to simply waiving the requirement outright.As a result, the appropriators are perceived to have far more sway over intelligence spending than the intelligence committees, a fact that undercuts the oversight capabilities of the latter.

To address these deficiencies, the 9/11 Commission recommended major changes in how the intelligence committees are structured, such as combining the appropriating and authorizing authorities in a single committee for each House.These new intelligence committees would be composed of relatively few members (with majority party representation never exceeding that of the minority by more than one) who would be “clearly accountable for their work” and would be served by a nonpartisan staff working for the entire committee.

The 9/11 Commission stressed the critical importance of the congressional reform portion of its recommendations, noting that “the other reforms we have suggested . . . will not work if congressional oversight does not change too.”Weak and divided congressional oversight makes it difficult for Congress to ensure proper and effective implementation of the Commission’s executive branch intelligence reforms, which were enacted into law by the Intelligence Reform and Terrorism Prevention Act of 2004.

Divided congressional oversight also enables agencies, contractors and others to play one committee off against another, exploiting committee rivalries for their own advantage and profit.In addition, it wastes the time and effort of agencies and high level officials who must report to and appear before many different committees.

As the 9/11 Commission recognized, however, getting Congress to reform itself is no easy task.It noted that “[f]ew things are more difficult to change in Washington than committee jurisdiction and prerogatives.To a member, these assignments are almost as important as the map of his or her congressional district.”

It is not surprising, therefore, that Congress has largely failed to implement the Commission’s congressional reform recommendations.As Thomas Mann and Norman Ornstein note in their recent book, The Broken Branch, congressional leaders responded “limply and inadequately” to these recommendations and the steps that were taken, particularly with regard to intelligence oversight, “[fell] far short of the constructive recommendations of the 9/11 Commission.”

Effective oversight of the executive branch requires more than a simple willingness to demand information and to issue a subpoena if necessary.Congressional oversight must be serious, systematic and ongoing.Oversight must be focused on improving intelligence and homeland security, rather than on getting contracts for friends or constituents, or on scoring political points.

It is much easier for Congress to reform the executive branch than to reform itself.By enacting the congressional reform recommendations of the 9/11 Commission, however, Congress can show that it is no longer business as usual on Capitol Hill.

 

 

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Congress’s Responsibilty for the Constitutionality of Healthcare Legislation

           When questions arise about the constitutionality of a proposed piece of legislation, such the healthcare legislation currently pending in Congress, Members of Congress frequently deflect them by saying that any constitutional issues will be dealt with by the courts at a later time.  Senator McCaskill, for example, responded to a question about the constitutionality of the individual mandate by offering assurances “that if anything in this bill is unconstitutional, the Supreme Court will weigh in.”   Senator Conrad similarly suggested that the issue was a technical legal one outside of his responsibility.  

            This approach, however, is misguided for several reasons.  First, Members of Congress have a responsibility, independent of the judiciary, to uphold the Constitution.   They take an oath to uphold the Constitution, and it is difficult to see how this oath is consistent with passing legislation without regard to its constitutionality.  

As Donald Morgan explains in Congress and the Constitution (1966), Congress traditionally has taken quite seriously its obligation to consider constitutional questions.  What Morgan calls the “judicial monopoly theory” (the idea that only the courts have the power and responsibility to address constitutional issues) was unknown to early Congresses and constitutional thinkers.  Even those who argued for judicial primacy in constitutional interpretation acknowledged Congress’s role.  Justice Story, for example, stated that “if a proposition be before Congress, every member of the legislative body is bound to examine and decide for himself whether the bill or resolution is within the constitutional reach of the legislative powers confided to Congress.” 

Second, Congress cannot rely on the courts to determine all constitutional issues.  Some such issues (e.g., impeachment, determining the rules of congressional proceedings) are recognized to be “political questions” exclusively committed to the decision of the political branches.  Even ordinary constitutional issues, moreover, can only be resolved by the courts if they arise in a justiciable case or controversy.  For example, it is not clear that anyone has standing to challenge certain aspects of the healthcare reform legislation, such as the preference given to Nebraska with regard to Medicare reimbursement.  And even when such challenges can be brought, it is likely to be many years before they are finally resolved. 

Finally, and perhaps most importantly purposes of the healthcare bill, it is a mistake to equate a measure’s ability to survive judicial review with its constitutionality.  I refer here not to the possibility that the courts may be wrong, but to the nature of the review that the courts undertake.  As Professor Volokh points out, when the issue is whether a law exceeds Congress’s enumerated powers, the courts don’t decide the issue de novo.  Instead, they defer to Congress’s own judgment on the issue, overturning that judgment only in circumstances where it would be unreasonable for Congress to reach the conclusion that the measure in question falls within a particular enumerated power. 

Thus, if Members of Congress leave the constitutionality of healthcare reform to the courts, the question of constitutionality becomes largely circular.  Members will defer to the judgment of the courts, and the courts will defer to the (supposed) judgment of Congress.  Every exercise of power becomes constitutional, without anyone ever taking responsibility for explaining why.    

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Spin City

           There was a minor flap last week when the White House claimed that this Congressional Research Service report (entitled “Lobbying the Executive Branch: Current Practices and Options for Change”) vindicated the administration’s lobbying policies.  The White House claim was reported rather uncritically by the media, including Kenneth Vogel of Politico.  In an article entitled “President Obama’s lobbying reforms praised by Congressional Research Service,” Vogel wrote that “congressional researchers concluded that the administration’s crackdown has ‘already changed the relationship between lobbyists and covered executive branch officials’ and suggested that Congress might consider enacting similar restrictions on itself.”  On the White House blog, meanwhile, Norm Eisen wrote “[w]e’re pleased that CRS recognized . . . the President’s historic restrictions on lobbying are having a significant impact in making sure that the government serves the public interest and not special interests.” 

            Anyone who has read a lot of CRS reports would understand that how unlikely it is that CRS would make an unqualified judgment about anything, much less express an amorphous and subjective opinion such as that implied by Politico and the White House.  In fact, if one reads the CRS report, it is apparent that CRS makes no judgments about the wisdom, efficacy or significance of the Obama administration’s lobbying policies.  It simply identifies the various policies that have been adopted, summarizes critiques of those policies, and notes several potential options for additional regulation.  The interpretation adopted by the White House and Politico is based solely on part of the first sentence of the following paragraph, which appears at the top of page 13 in the report: 

Creation of restrictions on federally registered lobbyists’ access to executive branch departments and agencies has already changed the relationship between lobbyists and covered executive branch officials. If desired, there are additional options which might further clarify lobbyists’ relationships with executive branch officials. These options each have advantages and disadvantages for the future relationships between lobbyists and governmental decision-makers.  CRS takes no position on any of the options identified in this report. 

            It seems clear that the phrase “changed the relationship” is part of an awkwardly worded transitional sentence and signifies nothing more than the undisputed fact that the administration has imposed certain new restrictions and requirements on lobbyists and lobbying communications with the executive branch.  Nowhere in the report is there any attempt by CRS to evaluate the real world impact of these changes or to draw any conclusions regarding their effectiveness.  In other words, CRS is observing that reforms have been made, not “praising” them.  

            One can perhaps understand Norm Eisen’s attempt to spin the CRS report in the most favorable light to the administration.  But what’s Kenneth Vogel’s excuse? 

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House Statement of Disbursements Available Online

 

           The House of Representatives Quarterly Statement of Disbursements is available online today (hat tip: Sunlight Foundation).  This report has been published in hard copy for many years, but this is the first time that it has been made available over the internet, pursuant to a June 3, 2009 directive from Speaker Pelosi. 

            As an example of how this report might be mined for interesting information, I searched the document for the term “town hall.”  This search revealed that 41 Members had submitted reimbursement requests described as being for “town hall” events during the July 1 to September 30 quarter.  Since earlier Statements are not available online (and I am not planning to go through these multivolume sets manually), I can’t say how that compares to prior years.  The party breakdown is noteworthy, though.  Of the 41 Members, 39 were Republicans and 2 were Democrats.   

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Who Would You Have to Kill to Get an Unqualified Admonition?

           The Senate Ethics Committee has issued a letter of “qualified admonition” to Senator Roland Burris regarding sworn and unsworn statements made by the Senator regarding the circumstances of his appointment to the Senate seat vacated by Barack Obama.  Burris, of course, was appointed by then-Governor Rod Blagojevich, who subsequently was impeached and indicted for misconduct that included attempting to sell that same Senate seat.  The Committee informs Senator Burris that “you should have known that you were providing incorrect, inconsistent, misleading, or incomplete information to the public, the Senate, and those conducting legitimate inquiries into your appointment to the Senate.” 

            The Committee points in particular to Burris’s January 5, 2009 affidavit, in which he averred that he was contacted on December 26, 2008 by Sam Adams, Jr., an attorney employed by Governor Blagojevich (and a fine beer), who asked if he would be interested in accepting the Governor’s appointment to the Senate seat.  In the final paragraph of the affidavit, Burris states: “Prior to the December 26, 2008 telephone call from Mr. Adams, Jr., there was not any contact between myself or any of my representatives with Governor Blagojevich or any of his representatives regarding my appointment to the United States Senate.”  (emphasis added) 

            Unfortunately for Burris, this statement is difficult to reconcile with a conversation that he had with Rob Blagojevich, the Governor’s brother, on November 13, 2008.  Even more unfortunately for him, that conversation was tape recorded by federal investigators, and the transcript was produced to the Senate Ethics Committee.  

            The conversation was initiated by Blagojevich, who called Burris to seek his help in raising money for his brother’s campaign.  Burris, however, quickly brought up the subject of the Senate seat, telling Blagojevich “I’m very much interested in, in trying to replace Obama.”  The remainder of the conversation continues in that vein, as Blagojevich and Burris strategize as to how Burris could raise funds for the Governor without creating a public trail which might make it more difficult for Burris to be appointed.  As Burris summarized toward the end of the conversation: “number one, I, I wanna help Rod.  Number two, I also wanna, you know hope I get a consideration to get that appointment.” 

            Burris’s affidavit, therefore, would seem to be clearly false.  Moreover, the November 13 conversation was highly relevant to the inquiries being conducted with regard to Burris’s Senate appointment by Governor Blagojevich, who, as the Committee notes, “had recently been arrested and charged with corruptly using his authority to make a Senate appointment in exchange for campaign contributions and other benefits.”  As the Committee rather mildly puts it, “you should have known that any conversations you had about your desire to seek the Senate seat and about any possible fundraising for the Governor were critical to these inquiries.” 

            You think?   

            Furthermore, Burris had plenty of further opportunities to disclose the November 13 conversation prior to the time that he was seated by the Senate.  The Committee notes that “despite repeated and specific questioning, you did not disclose [the November conversation]” to the Illinois House Impeachment Committee at a January 8, 2009 hearing.  Similarly, Burris failed to disclose this conversation during meetings with Senate leaders and the press during this time period   

            Finally, the Committee notes that Burris has given “multiple and at times contradictory explanations for failing to disclose all your contacts with the Governor’s associates, which individually and collectively gave the appearance that you were being less than candid.” 

            To put the matter plainly, Burris repeatedly failed to disclose his conversation with Rob Blagojevich, despite knowing that this conversation was critical to both the Illinois legislature and U.S. Senate on matters of the utmost importance to the public interest (the impeachment of a Governor and the seating of a U.S. Senator, respectively).  Moreover, his conflicting and unpersuasive explanations of this failure leave little alternative but to conclude that it was intentional. 

            In deciding nonetheless to give Burris the lightest possible punishment (a “qualified” admonition), the Committee apparently gave great weight to the fact the Sangamon County State’s Attorney found “no actionable violations of law.”  This, however, would seem a slender reed to support the Committee’s action (or inaction).  The state prosecutor decided that there was insufficient evidence to charge Burris with perjury.  It appears that this decision was based largely on the fact that in testifying before the Illinois Impeachment Committee, Burris gave incomplete, but not false, answers to broad questions.  With regard to the January 5 affidavit, the state prosecutor apparently accepted Burris’s explanation that his statement was meant only to refer to discussions regarding his actual appointment, not merely to his interest in getting an appointment.  Although this explanation might be sufficient to avoid a perjury charge, it is also one that the Committee itself found wanting.   

            In the context of intentional withholding of critical information from the Senate about a matter of such importance, one would think that at least a serious slap on the wrist would be warranted.   

But apparently one would be mistaken.

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The Post’s Spin on Leaked Ethics Report

            When the Washington Post published an expose a few weeks ago regarding a House Ethics Committee report that was inadvertently released by a committee employee, I wondered why the Post did not put the actual report on its website so that readers could understand the full context of the information the Post was reporting.   According to this interview with one of the Post reporters, the explanation is as follows: 

“[T]he Post reporters and editors are handling this document and its contents with the utmost care. We recognize, and have made clear in our discussions with the ethics committee leaders and the implicated lawmakers, that these investigations are typically handled in a significant amount of secrecy, at least until action is taken or deadlines for action by the committee are triggered. We want to be sure we do our share of fairly and evenly reporting deeper into the allegations and contact the lawmakers in question before publishing information about allegations in the document we obtained.” 

            In other words, the Post claims it is withholding information from its readers in order to protect the confidentiality of the ethics process in the House.     

            This is just not credible.  If the Post were concerned about the confidentiality of the ethics process, it would not have reported broadly on the contents of the leaked report.  It is difficult to imagine that publishing the full report would have any greater impact on the confidentiality of the process than the reporting that the Post has done.  If there were particular passages of the report that were particularly sensitive, they could have been redacted before the document was made public. 

            It is far more likely that the Post’s refusal to make the document public is motivated by a desire to protect its “scoop,” not by the public interest.  This is unfortunate because publishing the actual document would be more useful to its readers, and might even prompt those readers to provide valuable feedback that could advance the public’s understanding of the issues.

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Conflict over Conflicts

           The newly formed Office of Congressional Ethics has run into a bit of trouble as a result of one of the first matters that it has referred to House Ethics Committee.  In a lengthy report, the Ethics Committee rejected and sharply criticized OCE’s findings with regard to an investigation of Representative Sam Graves.  OCE found “substantial reason to believe” that Representative Graves created the “appearance of a conflict of interest” when he and his staff invited a witness to testify at a 2009 Small Business Committee hearing on renewable fuels.  This appearance was allegedly created by the fact that the witness, Brooks Hurst, owned shares of two biofuel companies in which Graves’ wife was also an investor. 

            In evaluating whether Graves had an apparent conflict of interest, it is important to first consider whether Graves’ financial interest in the biofuel industry created an impermissible conflict of interest (actual or apparent) with respect to his legislative activity in the area of renewable fuels.  If so, Graves would be required either to divest himself of any financial interest in the two biofuel companies or to refrain from taking any legislative action that might affect (or be reasonably be perceived as affecting) his financial interest.  Arguably, participating in a Small Business Committee hearing on renewable fuels could constitute such an action. 

            One school of thought would hold that Graves’ financial interest does not create a conflict at all, but rather serves to align his interests with those of the constituents in his rural farming district, who tend to benefit from federal policies that promote biofuels.  Andrew Stark, in his book Conflict of Interest in American Public Life (2000), terms this the “Kerr argument,” so-called after Senator Robert Kerr, who said in 1962: “I represent the oil business in Oklahoma, because it is Oklahoma’s second-largest business and because I am in the oil business . . .  They don’t want to send a man here who has no community of interest with them, because he wouldn’t be worth a plugged nickel to them.” 

            One can criticize the Kerr argument, as Stark does, and it would be going too far to say that Kerr’s position represents the official policy of the U.S. Congress.   Nevertheless, it is a fact that neither the House nor the Senate has sought to prohibit Members from holding financial interests that may be affected by their legislative activities.  In its report on the Graves matter, the Ethics Committee quotes the House Ethics Manual on this point, observing that “’[n]o federal statute, regulation or rule of the House absolutely prohibits a Member or House employee from holding assets that might conflict with  or influence the performance of official duties.’” 

            Instead, Members of Congress are required, by statute and rule, to disclose their financial holdings so that the public can judge whether their actions may have been influenced by these interests.  As the Ethics Committee notes, Graves fully and accurately complied with this requirement.  It is also worth observing that the ownership interest in question amounted to only 0.18% and 0.125% of the two companies respectively, and were valued at a total of between $16,000 and $65,000.  (Hurst’s holdings in the same companies represented about a 0.5% and 0.33% interest respectively). 

The only other relevant provision is House Rule 3, clause 1, which provides “[e]very Member . . . shall vote on each question put, unless having a direct or pecuniary interest in the event of such question.”  However, this provision could not prohibit Graves’ participation in the Small Business Committee hearing because (1) it applies only to actual votes on legislation, not to committee hearings; (2) as interpreted by House precedent, this provision would not apply to the kind of legislation that was discussed in the Small Business Committee hearing because such legislation would have only affected Graves’ financial interests as a member of a class; and (3) the House rule does not actually prohibit anything, but merely leaves it up to the Member to determine whether he or she has a “direct or pecuniary interest” that makes it appropriate to refrain from voting. 

OCE, therefore, did not find that Graves’ financial interest created a conflict with regard to participating in the hearing.  Instead, it found substantial reason to believe that Graves’ financial interest created (the appearance of) a conflict with regard to his role in inviting Hurst to be a hearing witness, given that Hurst had a financial interest in the same two biofuel companies. 

OCE’s position, however, suffers from certain difficulties.  First, OCE does not explain how Hurst’s testimony or participation in the hearing could possibly have advanced Graves’ financial interests, other than the fact that Hurst recommended in the course of his testimony that Congress take certain legislative actions, such as extending the federal Biodiesel Blender’s Credit, which would benefit the biofuel industry.  But these actions, which Hurst advanced as a representative of the Missouri Soybean Association, would benefit the industry as a whole, not just the two biofuel companies in question.  If there would be no impermissible conflict of interest in Graves himself sponsoring, supporting or voting for such legislation, it is difficult to see how Hurst’s testimony could possibly create one. 

Second, it is not obvious why the fact that Graves and Hurst happened to share a financial interest in the same companies has any bearing on the conflict issue.  Why would the issue be any different if Hurst had happened to own shares in a different biofuel company that would benefit from the same legislation?  Or if Hurst had no personal investment at all, but had taken the same position as a representative of the industry?  If there is nothing improper in Graves inviting a witness who supported the same legislative positions as Hurst (and OCE does not suggest otherwise), it is hard to see why it would be improper to invite Hurst. 

Finally, the OCE’s position is further undermined by the fact that there was no realistic possibility that Hurst’s testimony would actually benefit Graves or anyone else.  As the Ethics Committee noted, the Small Business Committee’s hearing was purely informational, and the committee itself had no jurisdiction over the legislation discussed.  Thus, the potential benefit to Graves would seem to be not only indirect, but extremely remote as well. 

           

All in all, I have to agree with the Ethics Committee’s view that inviting Hurst to testify did not create any impermissible conflict, or appearance of a conflict, under the applicable House rules.

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New York 23rd Looking to Extend its Fifteen Minutes of Fame

           According to The Hill newspaper, the special election race in New York’s 23rd congressional district is not quite over, as there remains a (remote) possibility that Conservative Party candidate Doug Hoffman could wind up with more votes than Democrat Bill Owens, who was seated in the House last week.   

            A state election official “said the state sent a letter to the House Clerk last week explaining that no winner had been determined in the 23rd district, and therefore the state had not certified the election. But the letter noted that Owens still led by about 3,000 votes, and that the special election was not contested — two factors that legally allowed Speaker Nancy Pelosi (D-Calif.) to swear in Owens on Friday.” 

            According to 1 Deschler’s Precedents § 3.5, “Where certificates of election have not been received, the House may by unanimous consent authorize the Speaker to administer the oath to Members-elect whose elections are not contested.”  Thus, while the Republicans presumably could have objected to Owens being sworn in, their failure to do so meant that he could be seated prior to the receipt of a certificate of election. 

            What happens if the final count should show Hoffman ahead of Owens?  The state election official says that “all ballots will be counted, and if the result changes, Owens will have to be removed.”  But I am not sure that the matter is so simple.  If Hoffman were to be certified as the winner, the House would still have to take action to remove Owens and seat Hoffman.  Absent unanimous consent to such action, the matter would presumably be referred to the Committee on House Administration to conduct an election contest, which could drag on for months.