“Would You Like Tax Hikes or Spending Cuts With Your Eggs?”

John Wonderlich of the Sunlight Foundation reports on a possible closed meeting of the Supercommittee tomorrow. Initially this was described as an “executive session” of the Supercommittee; later it was “clarified” that it will be a “private breakfast meeting.”

The Supercommittee rules clearly require, at a minimum, that a vote be taken in open session in order to close a meeting to the public. Thus, if the event tomorrow qualifies as a “meeting” within the meaning of the rules, it would not be permissible.

But is it a “meeting” in that sense? According to experienced congressional counsel, a “meeting” within the meaning of the rules requires that there be some sort of formal transaction of business, as opposed to an informal “working session.” If no vote is held nor other formal action taken, presumably it can be argued that any get-together of the Supercommittee falls within the latter category. Whether or not this conforms to the spirit of the rules depends, I would think, on what actually transpires at this private breakfast.

Supercommittee Rules Not So Clear

The Supercommittee rules are out, but they leave some unanswered questions. To begin with, the rules provide that “[t]he rules of the Senate and the House of Representatives, to the extent that they are applicable to committees, including rule XXXVI of the Standing Rules of the Senate and clause 2 of rule XI of the Rules of the House of Representatives for the 112th Congress, and do not conflict with the applicable provisions of the Budget Control Act, shall govern the proceedings of the Joint Select Committee.” That’s great, but what happens if there are differences between the House and Senate rules?

For example, clause 2 of House Rule XI requires each committee meeting and hearing be opened to the public unless the committee determines by record vote, with a majority being present, that one of certain specified grounds for closure are present, including that disclosure of evidence or matters to considered “would endanger national security, would compromise sensitive law enforcement information, [or] would tend to defame, degrade or incriminate any person.”

The grounds for closing a Senate committee meeting or hearing under paragraph 5(b) of Senate Rule XXVI are similar, but not identical. Any of the grounds identified in the House Rules would probably also justify closing a Senate meeting or hearing, but the Senate identifies additional grounds, such as the need to protect certain confidential financial or commercial information, that would not justify closure under the House Rules. (Admittedly, these particular differences are not likely to be important, but one wonders whether the same could be said of all the differences between House and Senate rules).

More importantly, Supercommittee Rule V(2) states that “[e]ach hearing and meeting of the Joint Select Committee shall be open to the public and the media unless the Joint Select Committee, in open session and a quorum being present, determines by majority vote that such hearing or meeting shall be held in closed session.” This provision does not specify any grounds for closing a meeting or hearing. There was apparently some discussion at the Supercommittee meeting today that there could be closed-door discussions of “important issues,” although it is not clear whether this referred to formally closed meetings or merely to informal discussions among members.

To the extent that Rule V(2) might be interpreted to allow closing of hearings or meetings to facilitate delicate negotiations, this is a problem. Neither the House nor Senate rules permit closing of hearings or meetings for reasons of deliberative privacy. I would conclude, as does John Wonderlich, that Rule V(2) should not be read to permit closure for reasons forbidden by both the House and Senate rules (particularly since the Supercommittee Rules do not provide any rule of interpretation in the event of a conflict between its additional provisions and those of the House and Senate rules that it incorporates). However, it seems entirely possible that some members of the Supercommittee believe that they can close hearings and meetings for any reason, the House and Senate rules notwithstanding.


“Precedents” and Presidential Addresses

As you may have heard, the President has requested an opportunity to address a joint session of Congress. His request initially was to make the address on September 7, but the Speaker responded that because of certain logistical concerns “it is my recommendation that your address be held on the following evening.”

In reference to this exchange, Luke Russert tweeted that the “House historian says public move by Boehner to tell Obama to change date is unprecedented.” To the extent that this implies that Presidents have traditionally determined the dates of their addresses to joint sessions of Congress without consultation or negotiation with the leadership, it is misleading both as to precedent and as to the advice of the House Historian.

A joint session to hear the President is convened by a concurrent resolution. See Deschler’s Precedents, ch. 1, § 3.4; see also House History: Joint Meetings, Joint Sessions and Inaugurations. As a formal matter, therefore, permission of both Houses is required; Deschler indicates that in the House the Speaker and leadership informally exercise control over the date and time of joint sessions or meetings. There is no indication that the President has the authority to set the date and time unilaterally.

Thus, it stands to reason that when the President wants to address a joint session, the White House contacts the congressional leadership and a date and time is worked out in private discussions. This seems to be the protocol that the White House was attempting to follow when it contacted the Speaker’s office. The absence of any “precedent” on this issue does not mean that there has never been any negotiation or disagreement on a date and time; it merely means that no one went public with the issue before an agreement was reached. That is all the House Historian was trying to convey.


Update: Russert’s tweet was linked to by this Jim Downie blog post (which in turn was cited by Jonathan Capehart in the Washington Post). Downie and Capehart, however, did not link to the original tweet, but to someone else’s selective quotation of that tweet. If one goes to the original tweet, it reads as follows: “House historian says public move by Boehner to tell #Obama to change date is unprecedented. Negotiations usually happen behind closed doors.”

In fairness to Russert, the second sentence makes his statement less misleading. The statement that “negotiations usually happen behind closed doors” is an accurate paraphrase of what the House Historian said. Of course, it also makes the first sentence entirely meaningless, at least for the purposes of apportioning blame between the President and the Speaker.

Needless to say, whoever knowingly omitted that second sentence must have intended to mislead.


Update 2: This Hot Air post indicates that there is some “precedent” for a Speaker refusing a presidential request to address Congress, though in that case it was President Reagan’s request to address the House, rather than a joint session. Something that the House Historian might want to note, although not inconsistent with the observation that negotiations usually take place behind closed doors.



A Court Challenge to the “Slaughter Solution”

           This Politico article  provides a good overview of the possibility of a court challenge to healthcare reform legislation if it is enacted through the “Slaughter Solution.”  The article notes that “[n]o lawyer interviewed by POLITICO thought the constitutionality of the ‘deem and pass’ approach being considered by House Democrats was an open-and-shut case either way. But most agreed that it could raise constitutional issues sufficiently credible that the Supreme Court might get interested, as it has in the past.”

            This is important, from a practical perspective, because it provides fair warning to the congressional leadership of what may happen should the “Slaughter Solution” be employed.  The takeaway, even from lawyers on the left side of the political spectrum, is that the constitutional issues involved need to be taken seriously by the leadership, and that it is inadvisable to use this procedure if it can be avoided.  As Alan Morrison puts it, “’If I were advising somebody,’ on whether deem and pass would run into constitutional trouble, ‘I would say to them, ‘Don’t do it.’”

            Whether or not this persuades the House to use more traditional means of passing healthcare reform remains to be seen.  If it persists in using the “Slaughter Solution,” the leadership will have only itself to blame for any resulting court challenge.   

Does the “Slaughter Solution” Comply with the Constitution’s Lawmaking Requirements?

The latest procedural furor in the healthcare reform debate has been over something dubbed the “Slaughter Solution,” so-named after the Chair of the House Rules Committee.  To understand this procedure, one must recall that the Democratic leadership intends for the House to pass two separate bills.  The first is the bill that previously passed the Senate in December.  The second is the “reconciliation fix” bill, which is a new bill that will embody the changes to the Senate bill agreed upon by the leadership.

Once passed by the House, the Senate bill would go to the President and presumably become law.  The reconciliation fix, on the other hand, would still need to be passed by the Senate before it can become law.  (The hope is that the reconciliation fix can be passed by the Senate under reconciliation procedures, which will enable it to avoid a filibuster).  It is possible that only the Senate bill would ultimately become law (theoretically, although not practically, it is also possible that the President could veto the Senate bill, so that neither bill, or only the reconciliation fix, would ultimately become law).

The House could take up and pass the Senate and reconciliation fix bills separately.  For reasons that are somewhat unclear (but apparently relate to the unwillingness of House Members to take a specific vote in favor of the Senate bill), however, the House is reluctant to proceed in this manner.  The Slaughter Solution is designed to allow the House instead to pass both bills in a single vote.  To achieve this goal, the House would first vote to approve a rule that states that passage of the reconciliation fix will be “deemed” to also represent passage of the Senate bill.  The House would then vote to pass the reconciliation fix and, voila, two bills for the price of one.

There is a long, but interesting, thread at the Volokh Conspiracy regarding potential constitutional problems with the Slaughter Solution.  Professor (and former judge) Michael McConnell has also weighed in with his view that the Slaughter Solution is unconstitutional.

There are basically two objections to the Slaughter Solution.  The first is simply to the concept that the House would “deem” a bill to be passed without taking a vote on the bill itself.  It is argued that the Constitution implicitly requires that every bill be actually passed by the House (and Senate) with a vote that is, or could be, separately recorded (Article I, section 5, cl. 3 requires that the “yeas and nays” on “any question” be entered in the Journal if one fifth of either House so request).  Bills that are merely “deemed” passed, therefore, cannot become law.

Although this objection has some plausibility, it also seems artificial, in that there is arguably no substantive difference between voting to pass a bill and voting to pass a rule that “deems” the bill to be passed.  Thus, assuming that there is a constitutional violation, it would seem to be de minimis (and thus no different than other congressional mechanisms like passing bills by unanimous consent despite the absence of a quorum).  Moreover, as commenters have pointed out, the House has used “self executing rules”  for a number of years, and these rules also can “deem” a bill to have passed.  Finally, the Constitution’s recorded vote requirement does not, at least expressly, prohibit conducting a vote on a rule rather than a bill.

A more substantial objection, however, is that the Slaughter Solution requires the House to conduct a single vote on passage of two separate bills.  This is highly unusual, and perhaps completely unprecedented.  Contrary to some claims, the “Gephardt Rule” is not the same because that procedure involves only one bill (a statutory increase in the public debt limit) and one congressional concurrent resolution, which is not presented to the President and does not become law.

What is the constitutional problem with having one vote to pass multiple bills?  The answer can be found in the Supreme Court’s jurisprudence on the line item veto act, which allowed the President to “rescind” individual spending items in an appropriations act passed by Congress.  Members opposed to the line item veto argued that the line item veto unconstitutionally deprived them of their right to vote on the actual legislation that would become law by allowing the President to pick and choose which parts of the appropriations act would be given legal effect.  In Clinton v. New York, the Supreme Court held the line item veto to be unconstitutional, finding that it effectively allowed the President to create a new law different from the one actually passed by Congress.

The Slaughter Solution raises constitutional issues similar to the line item veto.  By requiring Members to vote on multiple bills at the same time, it deprives them of the opportunity to make discrete decisions on each bill.  Members are forced to make an up-or-down decision on a package of bills, but without knowing which of the bills will ultimately become law.  As Judge McConnell points out, it also deprives voters of the opportunity to hold Members accountable for their votes on each bill.  If the House votes for Bill A and Bill B together, and only Bill B becomes law, Members who voted in favor of the package can claim that they only wanted Bill B to become law on the condition that Bill A also became law.

The Slaughter Solution is most closely analogous to the “separate enrollment” version of the line item veto.  Under this proposal, a bill passed by Congress would be “deemed” to consist of multiple individual bills, which would be separately enrolled, and which could then be individually vetoed by the President.  The constitutionality of this version of the line item veto was debated in Congress in the 1990s, but Congress ultimately chose to pass the “enhanced rescission” version instead, which was eventually struck down by the Supreme Court.

It could be argued that the “separate enrollment” device could survive constitutional scrutiny because it better complies with the formal requirements of Article I than the enhanced rescission version.  On the other hand, Elizabeth Garrett notes that the “extended debate in the Senate may reflect the reality that separate enrollment was really no less constitutionally problematic than enhanced rescission, and, given, its deeming provision that allowed all the little bills to pass without separate votes on each, its constitutionality was perhaps more dubious.” In short, the Slaughter Solution raises serious constitutional issues in that it permits the passage of multiple bills with a single vote.

The Role of Reconciliation Instructions

For those who are trying to follow the nearly incomprehensible debate over reconciliation, it is worthwhile keeping in mind the controlling reconciliation instructions, which are contained in Sections 201 and 202 of the Concurrent Budget Resolution for Fiscal Year 2010.  The exact language of these instructions turns out, it appears, to be critically important. For example, the reconciliation instructions instruct the Senate Health, Education, Labor and Pensions Committee to report changes in laws within its jurisdiction to reduce the deficit by $1 billion for FYs 2009-2014.  But the heathcare “fix” bill, which the House and Senate leadership wishes to pass through reconciliation in order to bypass a Senate filibuster, would not contain such savings.  According to this article in the Hill, the solution to this problem is to combine the healthcare fix with a completely unrelated bill regarding student loans, which is scored as achieving net savings for the government. The article states: “A Senate Democratic aide noted that the student lending measure would be necessary for the HELP Committee to craft a reconciliation bill that produced the required savings. Without piggybacking on the lending bill, it would become more difficult to use reconciliation to pass healthcare fixes under the HELP Committee’s jurisdiction.” As Dave Barry would say, I am not making this up. The 2010 reconciliation instructions are set forth below: SEC. 201. RECONCILIATION IN THE SENATE. (a) COMMITTEE ON FINANCE.—The Senate Committee on Finance shall report changes in laws within its jurisdiction to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (b) COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS.— The Senate Committee on Health, Education, Labor, and Pensions shall report changes in laws within its jurisdiction to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (c) SUBMISSIONS.—In the Senate, not later than October 15, 2009, the Senate committees named in subsections (a) and (b) shall submit their recommendations to the Senate Committee on the Budget. Upon receiving all such recommendations, the Senate Committee on the Budget shall report to the Senate a reconciliation bill carrying out all such recommendations without any substantive revision. SEC. 202. RECONCILIATION IN THE HOUSE. (a) HEALTH CARE REFORM.— (1) The House Committee on Energy and Commerce shall report changes in laws to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (2) The House Committee on Ways and Means shall report changes in laws to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (3) The House Committee on Education and Labor shall report changes in laws to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (b) INVESTING IN EDUCATION.—The House Committee on Education and Labor shall report changes in laws to reduce the deficit by $1,000,000,000 for the period of fiscal years 2009 through 2014. (c) SUBMISSIONS.—In the House, not later than October 15, 2009, the House committees named in subsections (a) and (b) shall submit their recommendations to the House Committee on the Budget. Upon receiving all such recommendations, the House Committee on the Budget shall report to the House a reconciliation bill carrying out all such changes without any substantive revision..

All About Reconciliation

           My friend Chris Rice has a blog called “Reconcilers,” which is about bringing God’s peace to a broken world (he could explain it better than I can).  Here in DC, though, where we are more in the world-breaking business, “reconciliation” is definitely not about bringing people closer to God or to each other.  As Ezra Klein observes, “it’s hard to imagine another town in which the most divisive thing you could do would be called ‘reconciliation.’”  

            In brief, reconciliation is a process that allows budgetary legislation to be considered in Congress on an expedited basis and, most importantly, to pass without being subject to a Senate filibuster.  There has been much speculation that this procedure could be used to enact health care reform if the final legislation lacks sufficient support to overcome a filibuster. 

MSNBC has a good “Cliff Notes-like” version of the reconciliation process as it would apply to a health care reform bill.  For a somewhat more detailed (and, I hope, technically accurate) summary, see here.  And for those who would like an in depth analysis of reconciliation and the Byrd Rule (which provides the grounds on which Senators can object to the improper use of the reconciliation process), this CRS report from March 20, 2008 is an excellent source.   

I have three takeaways from the materials I have read regarding reconciliation and health care reform.  First, while there is plenty of ambiguity in the Byrd Rule, it seems very likely that, fairly construed, the rule would prohibit the enactment of significant portions of any healthcare reform bill.  To begin with, the prohibition against increasing the deficit in any fiscal year beyond the budget window seems like a pretty big sticking point.  There are also serious questions as to how non-budgetary provisions like the individual mandate or the requirement that health insurers accept persons with pre-existing conditions can pass muster. 

Second, regardless of what the “correct” application of the Byrd Rule might be, it seems quite likely that the Senate Parliamentarian will in fact sustain points of order with regard to significant aspects of a health care reform bill.   After all, it is not like the Parliamentarian is a judge whose views are unknown until the case is presented to him.   Senators have access to him and have clearly spoken to him about the likely issues.  Senator Conrad, for example, has stated that “[t]he Senate parliamentarian said to us that if you try to write substantive health reform in reconciliation, you’ll end up with Swiss cheese.”  As far as I know, no one has contradicted Conrad’s understanding of the Parliamentarian’s position. 

Finally, while there is much talk about how the Republicans used (or misused) reconciliation to enact various measures in the past, most particularly the Bush tax cuts, it does not appear that these actions established any precedents which are particularly helpful to those who would use reconciliation for health care reform.  Reconciliation was problematic for the tax cuts because they increased the deficits in the “out years,” but it was for precisely this reason that the Bush tax cuts will sunset at the beginning of 2011.  Unless the Democrats plan to enact health care reform that will expire in ten years or so, this precedent is of little use to them.



Voting Procedure in the House

       The Select Committee to Investigate the Voting Irregularities of August 2, 2007 (commonly referred to as the “Stolen Vote” committee) has released its final report dated September 25, 2008.    The report describes in some detail the process of voting in the House, which I summarize below:

  1. Votes in the House are conducted by the “tally clerks” at the direction of the Chair. Under House Rule XX, clause 2(a), the preferred method for conducting a record vote is by electronic device. In most cases, the rule requires that the minimum time for such a vote be 15 minutes.
  2. The process of voting is controlled by the Chair (the Member who has been designated by the Speaker to preside over the House proceedings at that particular time and who is referred to as “Mr. or Madam Speaker” during that time). The Chair acts in a “non-partisan capacity” and receives guidance and advice from the Parliamentarian as to how to comport with the rules, precedents and best practices of the House. The Parliamentarian, as an agent of the Chair, may also provide advice to the tally clerks on the proper conduct of the vote.
  3. The Electronic Voting System (EVS) is operated by the “seated tally clerk,” who sits at the primary EVS terminal on the Speaker’s Dais. The seated tally clerk is assisted by a standing tally clerk, while a third tally clerk monitors the vote from a terminal in the Office of Legislative Operations.
  4. The seated tally clerk will initiate the EVS when the Chair states “The yeas and nays are ordered. Members will record their vote by electronic device.”
  5. The EVS includes a clock that tracks the minimum amount of time for the vote, 46 voting stations located on the House floor, and display boards. Two display boards, located above the east and west doors of the House chamber, display the time remaining in the vote and the running tally. A third display board, located behind the Chair, displays the vote of each Member.
  6. Members may cast or change their votes by using their personal voting card at one of the voting stations and pushing one of three buttons- a green button for “yea,” a red button for “nay,” or an amber button for “present.”
  7. Members may also cast their votes manually in the area in front of the rostrum known as the “well.” Well votes are received by the standing tally clerk, who verifies the information on the “well card” and hands it to the seated tally clerk for entry into the EVS.
  8. A Member may change his or her vote any number of times during a record vote. However, after the first 10 minutes of a 15-minute vote, a Member can change his or her vote only by manual voting in the well, unless the Member voted “present,” in which case the vote can still be changed electronically as long as the voting stations remain open.
  9. The seated tally clerk keeps a handwritten list of Members who change their votes after the first 10 minutes.
  10. Members are responsible during electronic votes for verifying that their votes are recorded accurately.
  11. The process of closing the vote begins when the Chair asks whether any Members wish to vote or change their vote. The Chair will ask this question sometime after the first 10 minutes of a 15-minute vote, and this signals the seated tally clerk to turn off the 46 voting stations (thus requiring that all remaining votes be cast or changed at the well). However, if the seated tally clerk perceives that there are a number of Members still seeking to vote, the tally clerk may leave the voting stations open for some period.
  12. When the Chair asks whether any Members wish to vote or change their vote, the seated tally clerk gives the handwritten list of Members who changed their vote to the reading clerk, who proceeds to announce that information to the House. Any changes to votes thereafter are announced immediately by the reading clerk.
  13. Once the minimum time for a vote is expired, the Chair determines when to close the vote. This decision is to be made on the “totality of the circumstances,” based on the Chair’s balancing of the obligation to conduct the vote efficiently (which means closing the vote at the earliest opportunity after the minimum time has expired) and the obligation to protect a Member’s right to vote (which counsels keeping the vote open when the Chair sees that there are Members who have yet to vote).
  14. Generally, the practice of the Chair has been to delay closing the vote until there are no more Members in the chamber who are seeking to vote. It is commonplace, at the end of a vote, for latecomers to straggle into the chamber while the Chair is attempting to close the vote. It can take the Chair several minutes, and several attempted announcements, to close the vote, long after the minimum time for voting has expired.
  15. With one exception, the Chair has complete discretion as to when to close the vote. That exception is the rule, adopted for the first time in the current Congress, that prohibits a vote from being held open for the sole purpose of reversing the outcome of a vote.
  16. When the Chair is ready to terminate the vote, the gavel is brought down. Operating pursuant to the Chair’s direction, the seated tally clerk determines when all votes have been entered into the EVS and reflected on the display boards. At that time, the seated tally clerk indicates to the standing tally clerk that the tally displayed is reliable and selects the option on the EVS to “terminate the vote.”
  17. At the same time the standing tally clerk prepares the “tally slip” (a small slip of white paper containing the vote tally) and hands it to the Parliamentarian, who in turn hands it to the Chair.
  18. At this point the Chair will usually take the tally slip and read the vote tally aloud. As the Chair does so, the seated tally clerk will typically select the option on the EVS called “setting the vote to final” (doing so causes the word “FINAL” to appear on the display boards). However, this in itself does not end the vote, and if additional Members enter the chamber, the Chair may still allow them to vote, requiring the EVS to be reopened and another tally slip to be prepared.
  19. It is only when the Chair makes an “unequivocal announcement of result” that the vote is final under House rules. Thus, when the Chair states “the amendment is adopted” or “the bill is passed,” the vote is concluded and cannot be reopened. Even this has some wiggle room, as House Parliamentarian John Sullivan explained: “I can recall on occasion when a Chair uttered what in a transcript would look like an unequivocal statement of result, but it is just because the last syllable was coming out of his mouth he wanted to pull up because a Member was running down the aisle. . . . We rationalize that the Chair hadn’t put the period on the end of the sentence in that circumstance.”
  20. As the “unequivocal announcement of result” is announced, the seated tally clerk selects the “releasing the displays” option on the EVS. The EVS then asks for “verification of the release.” While the earlier steps in releasing the EVS are reversible, the verification of the release clears the display board and shuts down the vote as a technical matter.
  21. After the vote is closed, the tally clerks on the rostrum proof the well cards with the tally clerk located in the Office of Legislative Operations. After this is done, the vote totals are released to the Clerk’s public website.
  22. Data for each vote taken by electronic device is collected in several files: transaction logs, checkpoint file, vote journal log, and hardware and software error logs. These files are only available internally and not to the public. The transaction logs record all voting transactions by each Member during a particular vote, including every vote cast, the time each vote is cast, any changes, and the manner in which the vote is cast (ie, from a voting station or a well card).

More on Coconut Road

           Via TPM Muckraker, Senator Tom Coburn has demanded a joint House-Senate investigation of the circumstances that led to the infamous Coconut Road earmark language, which was inserted into the 2005 Transportation Bill (allegedly on instructions of staff for then-House Transportation Committee Chairman Don Young) after final passage of the bill.  Taxpayers for Common Sense had requested that the House Ethics Committee investigate the matter, but that request has predictably gone nowhere.

            As I noted in a previous post, because this matter presents, at least at the outset, primarily a question of possible violations of parliamentary rules, practice or precedent, the House Ethics Committee is unlikely to take it up.  It would be more appropriately investigated by a special panel or task force like that which was established to review the “stolen vote” on the 2008 Agriculture Appropriations Bill.  In fact, I suggested that the House could broaden the mandate of the “stolen vote” vote panel to encompass this matter.      

            Senator Coburn’s proposal that a special House-Senate panel be created also makes a certain amount of sense.   After all, because the House Enrolling Clerk evidently inserted language into the enrolled bill that the Senate had not agreed to, the Senate’s interests are directly implicated in a way that they would not be by more typical malfeasance or impropriety internal to the House.    

            Nonetheless, establishing a joint committee for this purpose would raise constitutional issues since Article I makes each House solely responsible for determining its own rules and disciplining its own members.  Perhaps more importantly, it seems unlikely that either the House or Senate leadership will wish to establish a precedent for involvement of one body in the internal governance of the other.   

            At the end of the day, the best Senator Coburn can hope to do is to get a commitment from the House that it will investigate the matter and (perhaps) provide the Senate with a report of its conclusions.  This would be a substantial accomplishment, however, and we here at Point of Order wish him the best.

Should the House and Senate Intelligence Committees Have Heard General Hayden in Public Session?


Over at Balkinization, Marty Lederman is upset that the House and Senate intelligence committees conducted closed-door sessions to hear General Hayden’s account of how tapes of CIA interrogations were destroyed.   He asks: 

Even if some of what was on those tapes is classified, and even if occasionally some bits and pieces of the testimony (e.g., the names of the agents; some information gleaned from a detainee) could only be discussed in a classified setting, why wouldn’t the committees insist upon a presumption of public hearings about the who/what/when/where/why of the tape destruction?” 

            I made several comments in response to Professor Lederman (these can be read in their entirety at Balkinization) along the following lines: (1) the House and Senate rules relating to public hearings are simply inapplicable to the Hayden sessions because these were briefings, not hearings; (2) the rules do not require any formal vote to close a briefing and, in fact, the House intelligence committee rules provide that all briefings are to be closed; (3) nothing in the House or Senate rules require committees to gather information by way of hearings rather than briefings or other methods; (4) even if these had been hearings, it is almost certain that the committees would have (properly) decided to close them because it would likely be impossible to have a robust discussion of this subject without getting into classified information; and (5) the responsible way for the committees to proceed is to first get General Hayden’s information in a closed session, as they have done, and then make the decision as to whether there is segregable non-classified information that can be heard in an open hearing or, alternatively, to vote to release any information (classified or non-classified) that they believe is in the public interest to disclose. 

            While acknowledging that the rules I cited allowed at least the House intelligence committee to proceed in the manner that it did, Lederman argues that the committees should have conducted hearings, rather than briefings, in this matter.  He also suggests that if the committees had held hearings, they could not have been closed because the predicate for closing the hearings “likely is not present.” 

            This is simply wrong.  The committees have both the authority and the obligation to close hearings whenever classified information will be discussed.   The House intelligence committee rules, for example, provide that hearings shall be closed if the committee determines that disclosure of matters to be discussed may “endanger national security” or violate “any law” or House rule.  The Senate rules similarly provide for closing hearings to avoid disclosure of matters “necessary to be kept secret in the interests of national defense” or which would violate “provisions of law or Government regulations.”  Discussion of classified matters certainly falls under these provisions (as I think Lederman would concede). 

            Moreover, as I pointed out, the intelligence committees face significant legal and practical constraints with regard to classification matters.  The executive branch makes classification decisions and the committees largely have to rely on the intelligence agencies to tell them what is and is not classified.  So unless General Hayden and the administration agreed that the matters in question could be discussed in open session (which they surely do not), the committees would have little choice but to proceed in closed session. 

            Finally, I noted that there could be an argument that a full committee briefing in the Senate would be considered a “meeting” for purposes of the rules (and thus require a record vote in order to close).  Although I was reasonably sure that it would not be, I checked with a very well informed source in the Senate, who confirmed my instinct that a committee briefing is not a “meeting” for purposes of the Senate rules.  Thus, the Senate intelligence committee was not required to vote to close the Hayden briefing.