The Room Where it Sort of Happens

Since I last mused about the issue of remote voting, the House floated, and then dropped, this proposal to allow both remote voting by proxy and remote committee proceedings during a “pandemic emergency.” Among other things, the resolution would have authorized a member to submit to the Clerk a signed letter specifying another member to act as her proxy. This would allow the proxyholder to cast the member’s vote and to record her presence for purposes of a quorum call, provided that the proxyholder obtain the member’s “exact instruction” prior to casting the vote or recording her presence.

The proxy voting procedure raises a number of questions and concerns. Would a large group or majority of members be able to give their proxies to a single leader  or other member? How “exact” do exact instructions need to be? Could the instructions give the proxyholder discretion as to how to vote? Could they direct the proxyholder to vote in accordance with the directions of the speaker or the minority leader? Could they direct the proxyholder how to vote on a bill that had not yet been finalized?

That the drafters of the resolution had some of these same questions is suggested by section 6, which states that “[t]o the greatest extent practicable, sections 1, 2, and 3 of this resolution shall be carried out in accordance with regulations submitted for printing in the Congressional Record by the chair of the Committee on Rules.” However, giving the committee (or the chair alone?) the power to make decisions regarding the very essence of the legislative process is not reassuring and, to coin a phrase, could be a cure worse than the disease. And the qualification “to the greatest extent practicable,” which implies that under some undefined circumstances the hypothetical regulations could be disregarded, adds to the impression of a half baked concept.

Presumably the House resolution was premised on the idea that proxy voting is less of a constitutional/institutional innovation than “pure” remote voting. However, although proxy voting has been traditionally used in committee proceedings, proxy voting has never been permitted in floor proceedings, nor in particular for votes on final passage of legislation or other measures. See William McKay & Charles W. Johnson, Parliament & Congress 212 (2010) (“Proxy voting has never been permitted in either House, and becomes an ethics issue when a Member’s votes is cast in his absence.”).

Even in committees, the idea of proxy voting is not uncontroversial, which is why it has been banned in the House (though not the Senate) since 1995. See id. Jefferson’s Manual describes the rule of Parliament that “[a] committee meet when and where they please, if the House has not ordered time and place for them; but they can only act when together , and not by separate consultation and consent– nothing being the report of the committee but what has been agreed to in committee actually assembled.” House Rules and Manual § 407 (citation omitted). Thus, there is a difference between collective deliberation and agreement on a matter and mere “separate consultation and consent” reflected by proxy voting.

To be clear, the constitutional quorum requirement does not apply to the work of committees (or for that matter to other legislative work that is short of final action by the full legislative body). Nor is there any constitutional obligation that committees conduct their business at the seat of government or in any particular location. As far as I can see, the question whether committees should operate remotely, e.g., by conducting meetings or hearings by videoconference, is  a matter of institutional policy, not constitutional law.

Nonetheless, the idea that legislative action requires more than “separate consultation and consent” is arguably embedded in the constitutional provisions that apply to the full legislative body. These include not only the quorum clause, but the mandate that Congress “assemble” for its annual meeting, and the restriction on either house unilaterally adjourning to “any other place” during the session. For reasons noted by Tim LaPira and James Wallner, constitutional text, historical practice, and the nature of the legislative process itself argue in favor of the physical, not merely virtual, assembly of both houses for the congressional session. And as Wallner observed in this podcast, the framers were aware of the possibility of legislative action by physically remote actors (such as the use of circular letters by committees of correspondence), but did not provide for Congress to act in such a manner. (By contrast, the constitutional amendment process involves what Professor Paulsen has called “concurrent legislation” by geographically dispersed legislative bodies).

This does not necessarily mean, however, that a majority of either house must be physically present in the same room at the same time in order to satisfy constitutional quorum requirements. While physical presence has always been the touchstone of determining a quorum in both houses, it seems to have been flexibly applied to ensure that members are present in the general vicinity of the chamber at roughly contemporaneous times. Thus, members traditionally can be counted toward a quorum even while outside the chamber or if they depart after voting or being counted. See, e.g., 5 Deschler’s Precedents ch. 20 § 3 (“In practice, the Speaker counts all Members he can see, including those leaving the chamber and those behind the railing.”); see also id. § 3.19 (in Senate, chair may use the last roll call as the basis for finding a quorum).

In modern practice, House votes are generally conducted by electronic voting that is conducted over a minimum period of 15 minutes during which members drift in and out. The chair has the discretion to hold the vote open for far longer if need be to allow absent members to make it to the floor. See Hearing Before the House Select Comm. to Investigate the Voting Irregularities of Aug. 2, 2007 at 17 (Oct. 25, 2007) (testimony of former House parliamentarian Charles Johnson) (“Through the early nineties, votes were held open interminably because Members could signal through the cloakrooms that they were on their way and the Chair– a tradition grew that the Chair would honor Members who had asked that the vote be held open and the business of the House was to be impacted adversely.”). The process followed by the House in voting on April 23, 2020, in which there was staggered voting by different groups of members in order to maintain social distancing, further illustrates the absence of any requirement under House rules or practice that a quorum be physically present in the chamber at any one time.

Particularly in light of this historical practice, it seems difficult to contend that the Constitution requires a majority of members to vote in the same room at the same time, and therefore no reason they should be prohibited from voting from locations outside the legislative chamber itself. On the other hand, as I suggested in my prior post, this proposition does not mean that the constitutional requirements have no physical component at all. Absent some degree of proximity among its members, the legislative body arguably is not assembled in a constitutional sense, is not sitting at the same place as the other chamber, and lacks a sufficient number of members in attendance to constitute a quorum. Furthermore, if members are simply voting remotely without the opportunity for collective discussion, debate and negotiation, this is not a mere technical problem, but potentially undermines the deliberative nature of the institution.

A measure introduced in the Senate by Senators Portman and Durbin, S. Res. 548, would allow senators “to cast their votes from outside of the Senate Chamber” during “an extraordinary crisis of national extent.” Like the House resolution, this proposal is not a “pure” remote voting process in that the Senate would still conduct a proceeding in the Senate chamber (though presumably there could be as few as one senator physically present, as in a pro forma session). Unlike the House proposal, however, senators would cast their own remote votes, which avoids some of the practical and potential constitutional problems with proxy voting suggested earlier.

To the extent that a majority of senators are casting their votes from remote locations within the seat of government, it seems to me that S. Res. 548 would very likely pass constitutional muster. The Senate would be assembled for constitutional purposes, the senators would be present at the seat of government, and they would retain the same ability to conduct collaborative legislative activities as during ordinary congressional sessions. To the extent that the need for social distancing inhibits such activities, this would not be result of the remote voting procedure.

Even if there were not a majority of senators present at the seat of government, it is probably unlikely the process could be successfully challenged in court. As suggested by this CRS report, a court might decline to reach the merits of the case under the the enrolled bill rule or other justiciability principles and, even it did reach the merits, would likely in any event be inclined to defer to congressional judgment regarding the propriety of remote voting, particularly under the extraordinary circumstances presented.

Nonetheless, Congress should be concerned not only with the possibility of judicial review, but whether a remote voting procedure complies with the letter and spirit of the Constitution and its potential ramifications from an institutional perspective. With this perspective in mind, I would suggest a tweak to S. Res. 548. When a vote in which senators may participate remotely is scheduled, there should be an opportunity for any senator to ask for an ascertainment of a quorum in connection with the vote. If no such request is made within a set period of time, any objection to the absence of a quorum would be untimely, and the result of the vote would in effect be accepted by unanimous consent. If, on the other hand, a request for a quorum call is made, the determination should be whether a majority of the senators are present within the seat of government at the time they cast their votes. This would have the effect of encouraging senators to be present in Washington D.C. if at all possible, and avoid any institutional slippage toward remote participation as a normal practice. Finally, whether in conjunction with a remote voting procedure or otherwise, the House and Senate should also use technology to maximize the ability of members to communicate and deliberate together during this period.

This may not be a perfect solution, but it seems to me the best that can be achieved under these difficult circumstances.

The Constitutionality of Remote Voting

As you may have heard, there is a virus going around and as a consequence Congress, and everything else, is shut down. Some (such as @danielschuman) have advocated Congress establish a process for remote voting in the event that members are unable to return to Washington in the near future. One idea is to allow members to deliberate and vote by online video conference.

In a staff report on the subject, the House Rules Committee briefly considered the constitutionality of a remote voting procedure, observing that it would be a “novel question for a court and there is no guarantee of a favorable ruling affirming its constitutionality.” Majority Staff Report Examining Voting Options During the COVID-19 Pandemic (Mar. 23, 2020). To my knowledge there has been no in depth analysis of this question so I am posting a few thoughts.

The relevant constitutional provisions begin with the requirement for Congress annually to assemble and remain assembled until both houses agree to end the session. The Constitution provides that “Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January.” U.S. Const., amend. XX, § 2; see also id., art. I, § 4, cl. 2. The term “assemble” (according to Johnson’s Dictionary) means “to bring together in one place” or “to meet together.”

Further, Article I provides that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn . . . to any other Place than that in which the two Houses shall be sitting.” U.S. const., art. I, § 5, cl. 4. Thus each house must normally sit in the same “place” as the other while Congress is in “session.”

Although the Constitution does not expressly define the “place” at which both houses normally sit, longstanding interpretation and practice establishes it to be the seat of government. See 1 Deschler’s Precedents, ch. 1, § 4. Since November 17, 1800, Congress has assembled and sat in the District of Columbia, which it had designated as the permanent seat of government. Id.; see also U.S. const., art. I, § 8, cl. 17 (authorizing Congress to acquire a District to “become the Seat of the Government of the United States”). As long as each house continues to sit within the seat of government, it does not need the permission of the other body to meet in a different physical location. See 1 Deschler’s Precedents, ch. 1, § 4 (“a simple House resolution suffices to adjourn the House to meet in another structure at the seat of government”); see also id., ch. 1, § 4.1; House Rule I (12) (d) (“The Speaker may convene the House in a place at the seat of government other than the Hall of the House if, in the opinion of the Speaker, the public interest shall warrant it.”).

The Constitution does not have any express requirements for where or how members must vote, but it provides that “a Majority of each [house] shall constitute a Quorum to do Business” and “a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members.”  U.S. const., art. I, § 5, cl. 1. This empowers each house to require the attendance of absent members at a specific location for purposes of “doing business” (e.g., voting). See House Rule III (1) (“Every Member shall be present within the Hall of the House during its sittings, unless excused or necessarily prevented, and shall vote on each question put, unless having a direct personal or pecuniary interest in the event of such question.”).

As a general rule, the question of a quorum is an internal matter for each house and does not concern the other. However, at the commencement of a congressional session “Congress is not ‘assembled’ until a quorum is present in both Houses, and each House has been notified of the quorum in the other.” 1 Deschler’s Precedents, ch. 1, § 2. Furthermore, while each house can adjourn from day to day, for the duration of the congressional session neither may adjourn for more than three days without the consent of the other. U.S. const., art. I, § 5, cl. 4. This has given rise to the practice of each house conducting “pro forma sessions” (performed by a single member who conducts a brief ceremonial session in the House/Senate chamber) every three days when Congress is effectively in recess.

One final provision of note is the president’s authority on “extraordinary Occasions” to “convene both Houses or either of them.” U.S. const., art. II, § 3. The authority to “convene” (defined by Johnson as “to call together; to assemble”) empowers the president to require the assembly of either or both houses at the seat of government as at the commencement of an ordinary congressional session.

What do these various provisions mean for remote voting? My tentative thinking is that nothing in the Constitution prevents either house from determining that a quorum exists when, for example, a majority of members are gathered on the Capitol grounds, rather than in the House or Senate chamber. Similarly, if either house wanted to allow members to vote from their offices, rather than on the floor, it is hard to see what provision would be violated. So long as the house is assembled at the seat of government and there is a reasonable method for determining the existence of a quorum if its absence is suggested, such a procedure appears to violate no constitutional prohibition.

True, the longstanding tradition is for members to deliberate and vote in a single room (with some exceptions, such as proxy voting), but it is hard to see why the quorum clause would be read to prohibit a majority from doing business while they are acting in concert (say while connected by videoconference) at the seat of government, rather than independently voting in the same room at different times. Thus, for example, if during the pandemic either house wanted to keep its members physically separated in one or more structures in the District of Columbia, they should be able to debate and vote electronically. Members would retain the ability to physically congregate if they chose, to access the chamber, and, with the agreement of a sufficient number, to commence an in-person session.

It gets dicier if members (or at least a majority of members) are not physically located in the District of Columbia. One problem is that the house has arguably adjourned to “another place,” though this concern could be resolved by obtaining the consent of the other body. A more difficult issue is that the house may not be  “assembled” or “convened” at all because it has not come together in any particular place. This may seem like a technicality in the context of virtual meetings, but I am not (entirely) sure that it is. Not having at least a majority of the body present at the seat of government, with the option of congregating personally, arguably changes the nature of legislative deliberations in a way that violates the spirit, as well as the letter, of Article I.

There is a possible workaround, however. If members vote to approve a particular measure by videoconference, this could be treated not as final passage , but as an interim step in the legislative process (sort of like the House Committee of the Whole). Final passage would occur at the pro forma session, when the measure would be deemed to be passed without objection. The downside of this procedure is that any member could show up and object, but that is also what ensures the process does not become a permanent virtual Congress.

I have not considered here the likelihood that courts would intervene if these procedures were challenged (presumably by someone injured as a consequence of legislation passed pursuant to the new process). Even assuming a constitutionally defective process, it is likely that the courts would show their customary deference to Congress in these sorts of procedural matters. I assume, however, that members of Congress wish to adhere as closely as possible to the letter and spirit of the Constitution regardless of judicial intervention.

 

 

Must Congress Allow Agency Counsel to Attend Depositions?

Last week I wrote a piece for Just Security regarding the State Department’s refusal to produce certain officials for depositions requested by several House  committees (relating, of course, to the Ukraine affair). Among other things, I addressed the question of whether Congress is required to allow government counsel to attend depositions of the current or former officials of their department or agency. OLC (surprise!) says the answer is yes. In my view, the correct answer is no.

Anyway, I thought it would be helpful to collect the materials in one place. Here is the link to the piece. And here are the relevant House rules and regulations.

Just Security Piece on Enforcement of Congressional Subpoenas

As I have mentioned before, I have proposed a reform to House rules that would facilitate enforcement of committee subpoenas to the executive branch. Just Security has now published this piece in which I explain the justification for the rule and how it would work using the example of the House Judiciary committee’s efforts to obtain the Mueller report and underlying documents.

Can BLAG Authorize a Subpoena Enforcement Action?

According to this CNN report, the House Ways & Means committee, which had previously requested President Trump’s tax returns pursuant to 26 U.S.C. § 6103(f), has now issued subpoenas to the Treasury Department and IRS for the same information. Although the committee believes that it can sue to enforce the statutory duty to provide information under § 6103(f), it was advised by House counsel that issuing subpoenas would bolster its case in court.

There are interesting questions about the scope of the committee’s authority under § 6103(f), which we have previously discussed, and whether the issuance of subpoenas will help or hurt the committee’s chances in court. However, what I want to highlight now is an issue that may be more consequential than these. According to CNN, the speaker is considering whether to authorize a civil action to enforce the subpoenas (and, presumably, the committee’s statutory right of access) through the Bipartisan Legal Advisory Group, rather than a vote of the House. Back in February, I raised the possibility that language added to House Rule II(8)(B) in the 114th congress could be used in this fashion.

The new language in question provides that “[u]nless otherwise provided by the House, the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters.” There are two potential problems with using this language to allow BLAG to authorize a lawsuit by the Ways & Means committee. The first is that the language does not explicitly authorize BLAG to initiate litigation on the House’s behalf. The purpose of the rule change was “to conform to current practice.” As explained in my February post, this referred to the practice of BLAG intervening in existing litigation to defend the constitutionality of statutes (in particular, the Defense of Marriage Act) the Justice Department refused to defend. There was not, and as far as I know has never been, a practice of BLAG initiating litigation.

There is a second problem with respect to litigation to enforce subpoenas. House Rule XI(2)(m)(3)(C) provides “[c]ompliance with a subpoena issued by a committee or subcommittee . . . may be enforced only as authorized or directed by the House.” This provision seems to override Rule II(8)(B), which only applies “[u]nless otherwise provided by the House.” One would have to argue, somewhat circularly, that Rule II(8)(B) allows BLAG to authorize or direct subpoena enforcement on behalf of the House, in order to prevent Rule XI(2)(m)(3)(C) from overriding Rule II(8)(B). I am somewhat skeptical that the parliamentarians would agree with this argument, but . . . (this is where I would insert the shruggie emoji if we were on Twitter).

In any event, if BLAG claims the authority to authorize subpoena enforcement actions, this could improve the efficiency of the “subpoena cannon” considerably. On the other hand, it will almost certainly lead the minority to challenge both BLAG’s interpretation of the rules and its decisions to authorize particular actions on the House floor.

“Its Weird Being in an Organization that is Less Popular than Colonoscopies and Nickelback”

So said yesterday Representative Derek Kilmer (D-WA), the chair of the Select Committee on the Modernization of Congress, a new House committee  created at the beginning of the 116th Congress by a vote of 418-12. It is a bipartisan committee with 12 members equally divided between Democrats and Republicans. Kilmer’s vice-chair is Representative Tom Graves (R-GA).

The select committee’s mission is to fix Congress so that it can be at least as popular as Nickelback and as useful as colonoscopies. More precisely, the House charged it with studying and developing “recommendations on modernizing Congress,” including recommendations on seven specific topics:

      1. rules to promote a more modern and efficient Congress:
      2. procedures, including the schedule and calendar;
      3. policies to develop the next generation of leaders;
      4. staff recruitment, diversity, retention, and compensation and benefits;
      5. administrative efficiencies, including purchasing, travel, outside services, and shared administrative staff;
      6. technology and innovation; and
      7. the work of the House Commission on Congressional Mailing Standards.

In order to formally adopt a recommendation, two-thirds of the select committee’s members must agree to it.

The select committee has a limited lifespan. It is required to issue a final report by the end of the year and will end its existence (barring further action by the House) on February 1, 2020. It is authorized to make recommendations on a rolling basis and is supposed to issue interim status reports every 90 days.

There is no shortage of ideas for the select committee to consider. LegBranch.org has created this page with an excellent compilation of  proposals and resources that will be useful for the committee and others interested in congressional reform. I have a few ideas myself (see, for example, here and here). But first the committee has to get started. As of yet, it has not held or scheduled any hearings, nor has it apparently hired any staff.

Chairman Kilmer made his remarks at a Bipartisan Policy Center event yesterday (his discussion with Michele Stockwell of BPC starts at about the 12 and a half minute mark on the video). Not a great deal of news in the discussion. I was interested to know that he wants to look at best practices from the state legislatures. He is also not a big fan of the motion to recommit, though I doubt there will be any bipartisan agreement on reforming that procedure.

But in any event, nothing can happen until the select committee gets going. Until then, colonoscopies and Nickelback will keep extending their lead.

BLAG’s Authority to Represent the House in Court

 

See Update Here

On February 11, 2019, the new General Counsel of the House, Douglas N. Letter, filed an amicus brief in U.S. Dept of Commerce v. State of New York, the case that challenges the Trump administration’s decision to add a citizenship question to the 2020 census. A federal district court ruled that the addition of the question violated the Administrative Procedure Act, and the Solicitor General sought a writ of certiorari before judgment from the Supreme Court. Letter’s brief argues that the district court’s decision is correct and urges the Court, should it decide to hear the case, to do so promptly in order to avoid disruption or delay in the census. (The Court has now agreed to hear the case on an expedited basis, with argument scheduled for late April).

I have nothing to say, at least at the moment, about the merits of this dispute, but I do have an observation about the caption of the brief, which is styled “Brief of Amicus Curiae United States House of Representatives in Support of Respondents.” This caption took me by surprise because during my time in the House General Counsel’s Office amicus briefs reflecting House institutional positions were filed in the name of the Bipartisan Legal Advisory Group (BLAG), rather than in the name of the House itself (unless the House actually voted on the matter, which rarely if ever happened).

It turns out that I had somehow overlooked a small but potentially important change to House rules which took place in 2015 at the outset of the 114th Congress. House Rule II(8), which provides the authority for the House Office of General Counsel, was amended to include the following subparagraph (b):

There is established a Bipartisan Legal Advisory Group composed of the Speaker and the majority and minority leaderships. Unless otherwise provided by the House, the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters.

Continue reading “BLAG’s Authority to Represent the House in Court”

Who is a “Constituent”?: Lessons from the Menendez Case

A significant portion of a congressional office’s resources are devoted to performing “casework,” which the Congressional Research Service defines as “the response or services that Members of Congress provide to constituents who request assistance.” While this seems like a noncontroversial definition, it raises two more difficult questions: (1) who are the “constituents” for whom a Member of Congress may perform casework; and (2) when, if ever, is it appropriate for Members to perform casework for non-constituents. The House and Senate answer these questions somewhat differently. See CRS Report for Congress, Casework in a Congressional Office: Background, Rules, Laws, and Resources 3-4 n.13 (Jan. 3, 2017).

The House Ethics Manual notes that “[a]s a general matter . . .  a Member should not devote official resources to casework for individuals who live outside the district.” This admonition is based partly on the statute authorizing funding of the Members’ Representational Allowance, which provides that the MRA “’is to support the conduct of the official and representational duties of a Member of the House of Representatives with respect to the district from which the Member is elected.’” House Ethics Manual at 310 (quoting 2 U.S.C. §57b, now codified at 2 U.S.C. §5341(a)) (emphasis added by House Manual). The House Manual thus provides both a definition of “constituent” (one residing in the Member’s district) and an admonition against performing casework for non-constituents. See also Dennis F. Thompson, Ethics in Congress 91-92 (1995) (noting that the House Manual’s “sensible discussion” of casework is not explicitly endorsed in House or committee rules).

To be sure, the House guidance does not categorically prohibit providing assistance to non-constituents. The House Manual notes that there are circumstances in which it might be appropriate to do so, such as where “working for non-constituents on matters that are similar to those facing constituents may enable the Member better to serve his or her district.” House Ethics Manual at 310. Members may also vary on how they interpret this guidance. For example, the website of Representative Sean Duffy states flatly that “Members of Congress are prevented from assisting constituents residing outside their Congressional District.” Others may take a more nuanced view. Members are advised, however, that there is at least a strong presumption against performing casework for non-constituents.

In contrast, the Senate’s guidance on this issue is less clear. Senate Rule 43(2) provides that senators and staff may provide certain assistance with matters pending before government agencies “at the request of a petitioner.” The Senate Ethics Manual notes that “petitioners . . . may or may not be constituents,” but it does not elaborate on this observation or explain if or when it is appropriate for senators to provide assistance to non-constituents. See Senate Ethics Manual at 178. The Senate Manual discusses Rule 43 in the course of a chapter on “Constituent Service,” and its discussion largely assumes that senators will be providing assistance to constituents. Id. at 177-86. Nonetheless, CRS suggests the Senate guidance provides greater leeway to assist “nonconstituents who might seek congressional intervention in administrative proceedings [such as] foreign-born individuals seeking to emigrate to the United States, or a family or other interested party who live outside a Member’s constituency on behalf of a resident constituent.”

During the course of Senator Robert Menendez’s bribery trial, the prosecution argued that Menendez’s assistance to Dr. Melgen, a personal friend who resided in Florida, was improper or irregular because Melgen was not a constituent of the New Jersey senator. The court directed the parties to brief the meaning of “constituent” for purposes of instructing the jury.

Prosecutors filed a brief response stating that “Senator Menendez’s constituents are the New Jerseyans that he was elected to represent in the United States Senate.” Menendez’s lawyers, however, argued that there was not a single definition of “constituent.” They acknowledged “Dr. Melgen was a citizen of Florida, not New Jersey, and [therefore] was not Senator Melendez’s electoral constituent.” (emphasis in original). They contended, however, that Menendez’s “constituents” were not limited to electoral constituents.

According to Menendez’s legal team, “no law, custom, or congressional precedent supports the prosecution’s suggestion that a legislator cannot advocate on behalf of someone outside the legislator’s electoral constituency.” Moreover, “as advances in technology, travel, and communication (particularly the Internet) have created greater interconnectedness throughout the citizenry, political constituencies based on ideology, cultural ties, and other criteria—as well as these constituencies’ financial support—have outstripped the geographic boundaries of any given State or District.” Thus, it is increasingly common, they suggest, for legislators to represent “political constituencies” and not merely electoral ones.

In particular, “[r]acial and ethnic constituencies have . . . long played a key role in nationalized, non-electoral constituencies.” Thus, because Senator Menendez is “one of the only Senators of Latino heritage,” he regularly “advocates for Latinos across the country on a range of issues from immigration reform to discrimination.” He also “has felt a special obligation to help Hispanic-Americans—no matter where they live.” (This obligation apparently extended to helping Dr. Melgen, a Hispanic-American, with respect to his personal and business interests, such as intervening on his behalf when a federal agency found the doctor had overbilled Medicare by $8.9 million.)

Finally, Menendez’s lawyers contended that “Senate Rules do not support the view that a Senator’s duties are confined to electoral constituencies.” Pointing to Rule 43’s broad reference to “petitioners,” they note that nothing in the rule “defines ‘constituent’ or restricts a Senator’s duties to geographic constituents.”

For purposes of the criminal trial, the defense’s ultimate point was that the meaning of “constituent” only mattered to the extent it was relevant to the senator’s state of mind, and therefore it was a question of fact for the jury to decide whether Menendez believed he was assisting a constituent (as opposed to providing favors in exchange for the personal gifts and campaign contributions he had received from Melgen). Thus, it really did not matter whether Menendez’s understanding of Senate rules on constituent service was accurate so long as it was what he believed.

However, Menendez’s conduct was subsequently considered by the Senate Ethics Committee, which issued this letter of admonition to the senator on April 26, 2018. Somewhat surprisingly, though, the committee did not criticize Menendez’s understanding of constituent service. Instead, it stated:

[T]he Committee understands that you are committed to assisting constituents. Indeed, the Committee has long recognized that “[r]esponding to inquiries of petitioners and assisting them before executive or independent government officials and agencies” is an “appropriate exercise of the representational function of each Member of Congress, as well as an important function of congressional oversight.” Your assistance to Dr. Melgen, however, went well beyond Senate norms. You took action, over the course of several years, on behalf of one specific individual who repeatedly gave you many valuable gifts and who was also among your closest friends, which included direct contact with officials at the highest levels of government.

Letter of Admonition at 3 (citation omitted). This passage does not make any reference to the fact that Melgen did not reside in New Jersey. Arguably, therefore, it implicitly suggests that the committee accepted Senator Menendez’s theory of “political constituencies,” including the idea that a senator may appropriately choose to provide assistance to out-of-state individuals based on race or ethnicity (even with respect to issues unrelated to either).  If this is an accurate interpretation of the Senate Ethics Committee’s position, it suggests that the gulf between House and Senate “norms” on this question has grown even wider.

 

Can a House Committee Subpoena Clinton’s Server?

On the Megyn Kelly show last night, Judge Napolitano stated that Secretary Clinton’s server could not be subpoenaed by a House committee, but only by the House itself, because the committee lacks the power to subpoena “tangible things.” This echoes views expressed by Trey Gowdy, chairman of the Benghazi select committee, who claimed that his committee could not subpoena the server and suggested that whether even the House could subpoena it is an “open constitutional question.”

The Napolitano/Gowdy position strikes me as overly cautious. Admittedly, the question of whether a congressional subpoena can reach “tangible things” very rarely arises, and I am not aware of any precedent or even internal congressional guidance on the point. The quite comprehensive Congressional Oversight Manual, for example, does not seem to mention the issue. However, as described below, it is not necessary to resolve this general question to conclude confidently in favor of a House committee’s authority in the circumstances presented.

Continue reading “Can a House Committee Subpoena Clinton’s Server?”