Author: Michael Stern

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More on Section 3 of the Ethics EO

Laura Rozen at Foreign Policy has an interesting article about the impact of the Ethics Executive Order on individuals who have lobbied for public interest groups.  It highlights the arbitrary and unfair impact of Section 3, which applies only to those registered under the Lobbying Disclosure Act.  As one source quoted in the article notes: 

The former Clinton administration official added that this just becomes a perverse disincentive not to register. “LDA is entirely unenforceable and I believe has [almost] never been enforced,” she said. “So, good people who believed in disclosure now have a disincentive.” 

            While the unfairness of Section 3 is not limited to “activist lobbying,” it does seem particularly silly that someone like Tom Malinowski, who was registered to lobby for Human Rights Watch, is effectively barred from a job in the administration, while Eric Holder, who represented Chiquita Brands in matters relating to its payments to and support of Columbian death squads, is not. 

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Senator Gregg’s Recusal

         Senator Judd Gregg (R-NH), nominated by President Obama to be Secretary of Commerce, has announced that he will not be voting on the stimulus bill or other legislation while his nomination is pending.  This decision has been criticized, as the linked article suggests: “Gregg’s decision to recuse himself from voting is bound to raise questions about why he is remaining in office if he won’t perform such an essential duty of a senator — voting on legislation. It also may raise questions about whether he is seeking to avoid putting himself in the embarrassing position of voting against Obama’s top economic priority.” 

            I would suggest that the criticism is misplaced.  It is true that Senate rules do not prohibit Gregg from voting.  Senate Rule 37(4) provides that “[n]o Member, officer, or employee shall knowingly use his official position to introduce or aid the progress or passage of legislation, a principal purpose of which is to further only his pecuniary interest, only the pecuniary interest of his immediate family, or only the pecuniary interest of a limited class of persons or enterprises, when he, or his immediate family, or enterprises controlled by them, are members of the affected class.”  This very limited restriction is not applicable to Gregg’s (or possibly any) situation. 

            On the other hand, Gregg clearly has a serious conflict of interest with respect to voting on the stimulus bill or any other legislation that is a high priority for the President, his prospective boss and employer.  As the Senate Ethics Manual notes, “because of the unique nature of their responsibilities to the Senate, including the influence which they exercise over the legislative process, and because all their actions are open to public scrutiny, Members and employees seeking future employment are under a substantial obligation to avoid not only an actual conflict of interest, but also the appearance of a conflict between their duties to the Senate and the interests of the prospective employers with whom they are negotiating.”  The Manual goes on to state flatly that “[i]t would be improper to permit the prospect of future employment to influence official actions.” 

            These strictures are aimed primarily, if not exclusively, at prospective private employment.  The conflict of interest is no less, however, where the prospective employment is in the executive branch.  At least this was the view of the Framers of the Constitution, who, while placing no limitation on ability of a Member of Congress to be employed in either the private sector or state government, provided that “no Person holding any Office under the United States shall be a Member of either House during his Continuance in Office.”  In Federalist No. 76, Hamilton described this provision (the Incompatible Offices Clause), along with the Emoluments Clause, as an “important guard[] against the danger of executive influence on the legislative body.” 

            The Incompatible Offices Clause does not, by its literal terms, prevent Gregg from serving in the Senate and voting on legislation while his nomination is pending.  Nevertheless, the danger of executive influence and the appearance and/or reality of a conflict of interest is just as great, or very nearly so.  No matter how much Gregg attempts to be independent and objective in judging the merits of the stimulus bill, for example, it would seem virtually impossible for him to put entirely to one side the fact that he is about to join the cabinet of the President for whom this bill is the most important domestic priority. 

           

             In a perfect world, perhaps, Gregg would decline to accept the nomination as Secretary of Commerce on the grounds that he is ineligible for that position under the Emoluments Clause (see “Is Hillary Clinton Unconstitutional?”).   Gregg, like his fellow members of Congress, apparently has little interest in following the letter of the Constitution in that regard, but his recusal is at least an attempt to comply with its spirit. 

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It Depends on the Meaning of the Word “Specific”

Section 3 of the Ethics Executive Order would appear to establish a broad ban on former lobbyists participating in any “specific issue area” on which they lobbied during the two years before being appointed to the Obama Administration.  The Lobbying Disclosure Act, 2 U.S.C. §1604(b)(2)(A), requires that lobbying reports contain “a list of the specific issues upon which a lobbyist employed by the registrant engaged in lobbying activities.” Although the E.O. does not define the term “specific issue area,” it seems reasonable to assume that this term is intended to refer to the specific issues which must be disclosed under the LDA. 

As I pointed out with regard to Mark Patterson, in line to be the chief of staff to Treasury Secretary Geithner, the identification of specific issues on the LDA form thus becomes a huge problem for appointees covered by Section 3 of the E.O.  It appears, however, that the Obama Administration, or at least parts thereof, may be adopting a more convenient interpretation of the E.O.  In Patterson’s case, Treasury does not consider itself to be bound by the identification of specific issues on the LDA form filed by Goldman Sachs.  Instead, Patterson’s recusal will be based on a different (and apparently secret) list of specific issues that he and the Treasury General Counsel’s office develop. 

The theory underlying this approach is that because Goldman Sachs did not disclose its specific issues by individual lobbyist, it is possible that some issues were handled solely by lobbyists other than Patterson.  Moreover, one can always re-write the “specific issues” identified on the LDA form to make them more specific, thus reducing the scope of the appointee’s required recusal.  Treasury was apparently displeased that some of the “specific issues” listed on Goldman’s form (e.g., “credit default swaps clearing,” “investment banking issues,” and “general economic conditions”) were not all that specific. 

What are the problems with this approach?  First, it seems inconsistent with the E.O.’s purpose in basing its restrictions on the LDA.  Presumably, the reason for using the LDA is that it provides an objective and publicly available record of who is a lobbyist, who was lobbied and what subjects were lobbied on.  Allowing individual appointees and their agencies to deviate from the public record based on arbitrary and undisclosed criteria hardly seems designed to enhance public confidence in the process. 

Second, there are bound to be questions raised with regard to discrepancies between LDA forms and the recusal decisions of particular agencies.  How does the administration know that Goldman’s LDA form does not accurately identify the issues Patterson worked on?  Is it making its determinations solely on Patterson’s current recollection?  Has it looked at the records underlying the LDA filing? 

Moreover, if the administration believes an LDA form is inaccurate, it ought to follow the procedures set forth in the law for correcting the filings.  The Clerk of the House and Secretary of the Senate are required to “review, and, where necessary, verify and inquire to ensure the accuracy, completeness and timeliness of registrations and reports” under the LDA.  If the administration believes that Goldman’s LDA filing was inaccurate, it ought to notify the Clerk and Secretary, who can then request that Goldman review and, if necessary, amend its reports.  See 2 U.S.C. § 1605(2) & (7). 

If Goldman was overly general in describing the “specific issues” on which Patterson lobbied, it was likely because Goldman and Patterson wanted the public to know as little as possible about their lobbying activities.  Now that this general description is inconvenient, why should Patterson be allowed, in effect, to amend the LDA filing in secret?  Instead, Goldman should file an amended report that states what Patterson really did. 

Personally, I think Section 3 of the E.O. is stupid and should be rescinded.  But until that time, the administration should abide by its restrictions.

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Section 2 of the Ethics Executive Order

 

           Section 2 of the Ethics Executive Order requires all appointees of the Obama Administration, not merely those who were former lobbyists, to execute the following pledge: “I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.” 

            The term “particular matter involving specific parties” is a term of art used in federal law, 18 U.S.C. § 207, and regulations, 5 C.F.R. § 2641.201(h).  It is also used in Rule 1.11 of the D.C. Rules of Professional Conduct, which prohibits a former government lawyer from accepting employment in connection with a matter involving a specific party or parties if he or she participated in that matter while in public service. 

            At first glance, Section 2 of the E.O. appears to contain a significant internal contradiction.  The section explicitly refers to its applicability to “regulations.”  However, the definition of a “particular matter involving specific parties” excludes almost all regulations.  As explained by the Office of Government Ethics, “[l]egislation or rulemaking of general applicability and the formulation of general policies, standards or objectives, or other matters of general applicability are not particular matters involving specific parties.”  73 Fed. Reg. 36,168, at 36,193 (June 25, 2008). 

            This apparent contradiction, however, can be resolved upon a close reading of Section 2 and its definitions.  It is true that a regulation would not normally constitute a “particular matter involving specific parties” within the meaning of Section 2.  However, the definitions in the Executive Order provide that a “particular matter involving specific parties” has the same meaning as under federal law, “except that it shall also include any meeting or other communication relating to the performance of one’s official duties with a former employer or a former client, unless the communication applies to a particular matter of general applicability and participation in the meeting or other event is open to all interested parties.”  Thus, even though a regulation would not be a “particular matter involving specific parties” in and of itself, it will become so to the extent that the official in question has communications about it with his former employer or client (except in the context of a meeting or event that is open to all interested parties). 

            To illustrate how this would work, suppose that Covington & Burling, the former employer of Attorney General Eric Holder, is representing two clients.  Client A is involved in litigation against the Department of Justice.  Section 2 of the E.O. prohibits Holder from participating in discussions or decisions regarding this litigation, regardless of whether Covington communicates with him about it. 

            On behalf of Client B, on the other hand, Covington is seeking to persuade the Department of Justice to adopt a regulation or policy of general applicability.  Holder is not prohibited from involvement in discussions or decisions about this matter; however, he is prohibited from having communications with Covington about it.

 

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Rove Seeks Legal Advice of Noted Constitutional Scholar

             The House Judiciary Committee has subpoenaed Karl Rove to appear and testify at a hearing on Monday, February 2.  Rove’s attorney has responded by forwarding the subpoena to the Obama White House and asking, in essence, whether President Obama agrees that Rove should continue to abide by former President Bush’s instruction not to appear.  Obama Press Secretary Robert Gibbs says that the matter has been turned over to the White House Counsel for consideration. 

            Some have asked why Rove should be entitled to an advisory opinion from the Obama Administration on whether he must comply with a congressional subpoena.  After all, the ordinary witness does not have that option, but must choose between complying with a congressional subpoena or facing a possible criminal prosecution for contempt. 

            Rove, however, is not in the position of an ordinary witness.  The former president has directed him not to appear before Congress based on an asserted absolute immunity.  This immunity has been claimed by the Office of Legal Counsel not only in the Bush 43 Administration, but in the Clinton and previous administrations.  Moreover, there is a case currently pending before the D.C. Circuit (Miers v. House Judiciary Committee)  in which the court may rule on the existence of the immunity.  Up to this point, the Justice Department has argued in favor of the immunity in Miers, and the Obama Administration will have to decide whether to change this position.  

            Given this state of affairs, the Obama Administration has several possible responses.  First, it could tell Rove that it does not recognize the existence of the immunity.  In that case, Rove could choose to ignore this advice and refuse to testify anyway, taking the risk that he might ultimately be prosecuted for contempt of Congress.  More likely, Rove will tell former President Bush that he intends to appear unless Bush brings a legal action to vindicate the claimed immunity.  Otherwise, Rove would appear on Monday and invoke executive privilege on a question-by-question basis.  

            Second, the Obama Administration could tell Rove that it has not yet decided on what position it intends to take in the Miers case and that the matter is under review by the Department of Justice.  In addition, or in the alternative, it might tell Rove that to the extent the immunity is controlled by the current president, Obama declines to assert it.  Such a response would give Rove somewhat more cover to refuse to appear before the House Judiciary Committee.  Rove could argue to the committee that the question of whether the immunity exists is an unresolved legal question and that the committee should either bring a declaratory judgment action against him (as it did for Miers and Bolten) or should await the outcome of the case pending in the D.C. Circuit. 

            Third, the Obama Administration could tell Rove that the immunity belongs to the current president, not the former president, and inform him that Obama waives it.  I think this response is less likely than the first two.  If one accepts for sake of argument that the immunity exists in the first place (IMHO, a very dubious proposition), it would not make much sense to allow the current president to waive the immunity for aides of former presidents.  The whole idea of the immunity is that a presidential aide acts as the “alter ego” of the president for whom he or she works.  Allowing a different president to control the assertion of the immunity would be like allowing the assertion of Speech or Debate privilege for a congressional aide to be controlled by the successor to the congressman whom the aide served. 

            Finally, the Obama Administration could tell Rove that he should abide by the instructions of the former president, at least for the time being.  In that case Rove is off the hook for the moment. 

            Of course, the Obama Administration might not respond at all.  In that case, Rove and his attorney will probably construe the non-response as meaning that the current administration adheres to the previously expressed views of the Justice Department, and decline to appear on that basis.     

             My bet would be on some variant of the second response.  But we shall see.

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Potential Treasury Chief of Staff and the “Specific Issue” Prohibition

             ABC News reports that Mark Patterson, a former lobbyist for Goldman Sachs, is in line to become chief of staff to incoming Treasury Secretary Tim Geithner.  The article does not say whether the Obama Administration is considering a waiver of the Ethics E.O. for Patterson.   

            Would Patterson be able to take the chief of staff job without a waiver?  According to the last LDA filing listing Patterson as a lobbyist, Patterson lobbied the House, the Senate and the “Federal Reserve System.”  The specific lobbying issues on which Patterson worked included (1) the Foreclosure Prevention Act of 2008; (2) credit default swaps clearing; (3) over-the-counter derivatives; (4) investment banking issues and, my favorite, (5) “general economic conditions.” 

            Under Section 3(b) of the Ethics E.O., Patterson would be precluded from participating in any of these specific issues. Unless Geithner wants a chief of staff who can only discuss sports and the weather, I’m thinking Patterson needs a waiver.    

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Roll Call Report on Ethics Executive Order

           Roll Call offers this report on the reaction of Washington lobbyists to the new E.O. on ethics.  It makes several interesting points.  First, it notes that the E.O. is viewed as a virtual ban (absent a waiver) on hiring lobbyists by the new Administration.  Second, it notes that some lobbyists are looking for ways of getting around the ban by, for example, taking a job on Capitol Hill in order to “get clean” (i.e., after two years working for Congress the lobbyist would no longer be subject to the restrictions on hiring incoming lobbyists). 

            Finally, the reporter observes that there will now be a strong incentive to avoid registration as a lobbyist.  For example: 

One registered lobbyist noted with some frustration the sight of an acquaintance who is not a lobbyist but who seems very much like one. 

“I asked him, ‘Are you a lobbyist?’ and he said ‘no,’” this source recalled, “But he talks to Members of Congress all the time.  He told me, ‘I’m allowed to give my opinion on things.’”  

Since enforcement of the Lobbying Disclosure Act is virtually unheard of, the temptation not to register will inevitably become greater as a result of the E.O.

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Obama’s Executive Order on Ethics- A Journey Through Section 3

         Today we will commence a review of the Obama Executive Order on Ethics, a subject that I suspect will be much discussed over the coming months and years.  We will focus first on the provisions applicable to incoming lobbyists.  Although the E.O. is not limited to lobbyists, its application to them is particularly draconian.  For illustrative purposes, we will consider how the provisions would apply in the case of Eric Holder, the nominee for Attorney General.  

            The relevant provision is Section 3, which requires appointees to agree to the following: 

“3.  Revolving Door Ban    Lobbyists Entering Government.  If I was a registered lobbyist within the 2 years before the date of my appointment, in addition to abiding by the limitations of paragraph 2, I will not for a period of 2 years after the date of my appointment: 

(a)    participate in any particular matter on which I lobbied within the 2 years before the date of my appointment; 

(b)  participate in the specific issue area in which that particular matter falls; or 

(c)    seek or accept employment with any executive agency that I lobbied within the 2 years before the date of my appointment.”

Time Period. The first thing to note about this provision is that it is limited to persons who were “registered lobbyists” during the two years prior to their appointment. Thus, for example, Holder was registered as a lobbyist for Global Crossing in 2004. Because this was more than two years before his appointment, it has no impact on his obligations under Section 3.

The time period presumably reflects an assumption that an appointee is more likely to be partial to a client that he or she represented in the recent past. At best, this seems like a gross generalization, but let’s accept it for the sake of argument. This aspect of the appointee’s conflict of interest is already covered by Section 2 of the E.O., which limits the appointee’s involvement in matters relating to a former employer or former client from the previous two years. Section 2, however, applies to all appointees, not merely lobbyists (which makes sense, as there is no reason to believe that lobbyists are unusually attached to their clients- just ask the Indian tribes represented by Jack Abramoff).

Perhaps it is thought that there is an “appearance of impropriety” when ex-lobbyists are involved in matters in any way related to their prior lobbying activities. If so, it is not obvious why this appearance would dissipate after two years. Nevertheless that is the line drawn by the E.O.

Registered Lobbyist. Section 3 applies only to “registered lobbyists.” A registered lobbyist is defined as a lobbyist registered under the Lobbying Disclosure Act, 2 U.S.C. § 1603(a), or a lobbyist identified in a report or registration filed by a lobbying organization under the LDA.

At the outset it should be noted that the LDA is a disclosure statute, designed to give the public a broad picture of who is lobbying and how much is being spent on lobbying. The definitions of what constitute lobbying under the law are technical, and do not necessarily correspond to what the public thinks of as a “lobbyist.” You can be required to register as a lobbyist even though only a small part of your job involves contacting government officials. Moreover, many registrants tend to over-disclose, identifying employees as lobbyists even though they may not meet the formal requirements.

Conversely, not everyone who the public would consider to be a lobbyist is a “registered lobbyist.” For example, two of the most notorious modern influence-peddlers, Mitch Wade and Brent Wilkes (who were convicted for bribing former Congressman Duke Cunningham), were not registered lobbyists, and probably were not required to be under the LDA.

One way to avoid a registration requirement under the LDA is to fall within one of the enumerated exceptions to the definition of “lobbying contact.” For instance, there is an exception for contacts made in the course of “a judicial proceeding or a criminal or civil law enforcement inquiry, investigation or proceeding.” Thus, when Holder represented Chiquita Brands International in a long-running investigation by the Justice Department, he did not register as a lobbyist, even though his representation evidently included significant negotiations and communications with the Department that led to a civil settlement and a subsequent criminal plea. Had Holder registered as a lobbyist for Chiquita, he would be disqualified from becoming Attorney General under Section 3(c).

Another exception to the LDA is for communications “made on behalf of the government of a foreign country or a foreign political party.” These communications are instead governed by the Foreign Agents Registration Act, 22 U.S.C. § 611. Registration under FARA, however, apparently does not trigger Section 3 of the E.O., which I can only assume is an oversight.

Finally, there may be instances where an appointee arguably should have registered as a lobbyist, but failed to do so. Holder, for example, was not registered as a lobbyist for the NFL, although others at his law firm were. However, Holder represented the NFL in an attempt to counter embarrassing publicity regarding the use of performance enhancement drugs:

Holder quickly gathered senior executives from the other three leagues and their player unions and led them into a series of meetings in 2007 with top officials of, among others, the Drug Enforcement Administration (DEA), the FBI, the U.S. Anti-Doping Agency (USADA), and the Office of National Drug Control Policy (ONDCP), the agency that presides over the nation’s “war on drugs.” The sessions began with a measure of fanfare.

Whether or not Holder was required to register as a lobbyist for the NFL would depend on several factors, including which government officials he communicated with and the ostensible purpose of the communications. On the face of it, however, Holder may have had an obligation to register as a lobbyist for the NFL but failed to do so. To ensure that the purposes of the E.O. are not evaded, both the Obama Administration and the Senate will now have to ask appointees about possible improper failures to register under the LDA.

Particular Matter. Section 3(a)’s prohibition against an ex-lobbyist appointee participating in any “particular matter” follows the definition set forth in 5 C.F.R. § 2635.402(b)(3), which defines the term as “matters that involve deliberation, decision or action that is focused upon the interests of specific persons, or a discrete and identifiable class of persons. Such a matter is covered . . . even if it does not involve formal parties and may include governmental action such as legislation or policy-making that is narrowly focused on the interest of such a discrete and identifiable class of persons.” The regulation goes on to explain that a regulation that covered a large and diverse group of people, such as the Social Security Administration’s regulations on appeal procedures for disability claimants, would not be a “particular matter,” while a regulation such as the ICC’s safety standards for trucks on interstate highways would be because it affects only a relatively discrete and identifiable class of persons.

The exact scope of Section 3(a)’s prohibition, however, is of limited relevance in most situations because it is subsumed by the significantly broader prohibition of Section 3(b).

Specific Issue Area. Section 3(b) prohibits the ex-lobbyist appointee from participating in the “specific issue area” in which any matter covered by Section 3(a) falls. The E.O. does not define the term “specific issue area.” The LDA, however, requires that a lobbying report contain “a list of the specific issues upon which a lobbyist employed by the registrant engaged in lobbying activities, including, to the maximum extent practicable, a list of bill numbers and references to specific executive branch actions.”

This definition, it is important to note, leaves a great deal to the discretion of the registrant in defining the boundaries of a “specific issue.” For example, in the Global Crossing report filed by Holder’s law firm, Covington & Burling, the specific issues are identified as “CFIUS process and issues.” Would the E.O. therefore prohibit Holder (if the report had been filed within the two-year time window) from any involvement in CFIUS issues? Suppose the report had used an even broader term, like “foreign investment”? If the scope of the prohibition is to be determined by the report language, the effect of the E.O. will vary widely depending on the words chosen by the person (probably a legal assistant) who filled out the report.

Executive Agency that I lobbied. Section 3(c) prohibits any ex-lobbyist from seeking or accepting employment with any executive agency that he or she “lobbied” in the prior two years. Thus, for example, if Holder had lobbied the Justice Department within the last two years, he would not be able to become Attorney General (absent a waiver, such as that the Obama Administration provided to its nominee for Deputy Secretary of Defense).

The rationale for this rule is not self-evident. If an ex-lobbyist is already prohibited from involvement in any matters involving former clients and in any issues that were the subject of the prior lobbying, why is there also a prohibition against employment with an agency that was lobbied?

Suppose Holder had lobbied the Justice Department in 2008 with regard to the NFL’s policy on performance enhancing drugs. If he became Attorney General, he could presumably recuse himself from all matters involving the NFL or performance enhancing drugs. He would, however, still be supervising the very officials who he had previously lobbied. Perhaps it is thought that this would put those officials in an awkward position. Moreover, if government officials believe that ex-lobbyists could be appointed to powerful positions in their own agencies, they may be intimidated in dealing with politically well-connected lawyers like Holder.

If this is the reason for Section 3(c), however, the provision is not broad enough to achieve its aims. It only applies when the appointee “lobbied” the agency, which means to “have acted as a registered lobbyist.” It seems clear, though, that Holder has repeatedly communicated with the Justice Department and its components in the last two years on behalf of the NFL and other clients. Whether or not those communications technically constituted “lobbying,” they would still threaten the same harm the E.O. seeks to prevent. The logic of the E.O., therefore, seems inconsistent with Holder’s appointment as Attorney General.

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More Fun with Certificates of Election

         Al Franken has petitioned the Minnesota Supreme Court for an order directing the Governor and Secretary of State to prepare and countersign a certificate of election and deliver the same to the President of the United States Senate.  The Governor and the Secretary have refused; they contend that, under Minnesota law, issuance of a certificate must await resolution of an election contest filed by Franken’s opponent, incumbent Norm Coleman.

            Franken acknowledges that Minnesota law is ambiguous on this point, but he claims that the state law must be read to mandate the issuance of a certificate.   Any other reading, he argues, would render the Minnesota law unconstitutional.  Specifically, Franken argues that Minnesota’s failure to issue an election certificate prior to the commencement of the new Congress “has interfered with the Senate’s ability to provisionally seat Senator-elect Franken and tend to the nation’s business with a full complement of Senators.”

            Franken is somewhat vague as to how the absence of a certificate has “interfered” with the Senate’s ability to seat him.  He does not actually say that the Senate is prohibited from seating him without a certificate (probably because he wants to preserve his option to argue the opposite to the Senate at a later time).  If there is such a prohibition, it can only exist because of Senate rules.  It would be this self-imposed rule, not Minnesota law, which would be “interfering” with the Senate’s ability to seat Franken.

            As suggested by the Illinois Supreme Court’s recent decision in the Burris case, it is in fact doubtful that Senate rules make the absence of a certificate an absolute bar to considering whether to seat a Senator.  If Senate rules did establish an absolute bar, there might be a constitutional objection to such rules as interfering with the Senate’s power to judge elections.  It is difficult to see, however, how this would impose upon Minnesota a constitutional requirement to issue an election certificate at any particular point in its process.

               If refusing to issue a certificate to Franken interferes with the Senate’s ability to seat him, it would have to be true that issuing such a certificate would interfere with the Senate’s ability to seat Coleman.  Yet the Senate clearly has the constitutional authority to judge the election and choose to seat either candidate, either now or at a later time.  In Roudebush  v. Hartke, 405 U.S. 15 (1972),  the winner of the initial count in a Senate race (Hartke) received a certificate of election from the State of Indiana and was provisionally seated by the Senate.   He then sought a federal court injunction to stop Indiana from proceeding with a recount, which was permitted under Indiana law notwithstanding the fact that a certificate of election had already issued.  The Supreme Court rejected the argument that the state recount would unconstitutionally interfere with or frustrate the Senate’s election-judging power: 

It is true that a State’s verification of the accuracy of election results pursuant to its Art. I, § 4, powers is not totally separable from the Senate’s power to judge elections and returns. But a recount can be said to “usurp” the Senate’s function only if it frustrates the Senate’s ability to make an independent final judgment. A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the   apparent winner in either count, and, if it chooses, to conduct its own recount. 

Id. at 25.  In other words, the Senate could have seated Roudebush (the other candidate), notwithstanding the fact that Hartke was initially declared the winner and issued the certificate of election, and it was free to accept or reject the results of the recount, regardless of whether they confirmed or overturned the results of the initial count. 

             In short, Minnesota’s refusal to issue an election certificate raises no serious constitutional question.   

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Is the Secretary’s Signature Necessary on the Credentials of a Senator Designate?

          Over at Concurring Opinions Brian Kalt is kicking himself for taking Senators Reid and Durbin at their word when they claimed that Senate rules require a Secretary of State to sign the credentials of a Senator Designate (a Senator who has been appointed).  As the Illinois Supreme Court pointed out in its opinion yesterday, it is at least questionable whether Senate rules or federal law impose any such requirement. 

            I have to go Professor Kalt one better and acknowledge that I reviewed the relevant provisions without spotting what now seems like an obvious flaw in the Reid/Durbin theory.  Senate Rule II begins as follows:  “The presentation of the credentials of Senators elect or of Senators designate and other questions of privilege shall always be in order . . . .”  The language of the rule thus distinguishes between “Senators elect” (i.e., those who have won an election) and “Senators designate” (i.e., those who have been appointed to the Senate).   

            Rule II then goes on to set forth recommended certification forms, including a form for certifying the appointment of a Senator.  The appointment certification form, like that for certifying an election, contains a signature line for the Secretary of State.  However, the rule does not require that any of these forms be used by the states.  As the rule states, “[t]he Secretary of the Senate shall send copies of the following recommended forms to the governor and secretary of state of each State wherein an election is about to take place or an appointment is to be made so that they may use such forms if they see fit.” (emphasis added). 

            While it was clear that the rule itself did not expressly require the Secretary’s signature, I misread Riddick’s Senate Procedure, the authoritative compilation of Senate rules and precedents, which recites the contents of the required election and appointment forms and then states that “the credentials of a Senator-elect must, under the law, be signed by the executive of the State and attested by the Secretary of State.”  The fact that the Secretary must attest to the credentials of a “Senator-elect” does not mean that he must attest to the credentials of a “Senator designate.”  Nor is there any reason to believe that Riddick would use the term “Senator-elect” to refer to both elected and appointed Senators because elsewhere Riddick refers to “the presentation and consideration of the credentials of Senators elect and Senators appointed to fill vacancies.”  Finally, Riddick’s reference to “under the law” presumably refers to 2 U.S.C. §§ 1a & 1b, which collectively provide that the Governor and Secretary of State of any state “from which any Senator has been chosen to certify his election, under the seal of the State, to the President of the Senate of the United States.”  It is arguable that the term “election” in the statute has a broader meaning that would encompass appointment, but it is certainly not clear.

           

            Having said this, I still think that Senate rules, as interpreted by the Senate itself, may require the Secretary’s signature on a certificate of appointment.  After all, Burris’s certificate of appointment was rejected by the Secretary of the Senate, presumably on advice of the Senate Parliamentarian among others, for lack of such signature.  The Senate has the authority to interpret its own rules and the courts should defer to the Senate’s interpretation of ambiguous rules.  At the end of the day, however, the Illinois Supreme Court’s decision turned not on whether the Senate had a rule requiring the Secretary’s signature, but whether such a rule could block the seating of an appointed Senator where “there is no question at all that the Governor did, in fact, make the appointment.”. The court held, correctly, that the answer to that question is no.