The Senate’s Legal Basis for Muzzling Former Staffers

According to this story, Vicki Divoll, former counsel to the Senate Select Committee on Intelligence, has been barred by SSCI from discussing in the media (specifically Talking Points Memo) certain non-classified information relating to the committee’s oversight of intelligence programs. Divoll gave an interview to TPM regarding the congressional role in intelligence oversight and submitted it to SSCI for review prior to publication, apparently not expecting that there would be any significant concerns. To her surprise: “[F]or the first time in her career, the committee took the extraordinary step, on a bipartisan basis, of declaring the interview’s entire contents a violation of her non-disclosure agreement and effectively forbade her from putting any of it on the record.”

Divoll and TPM present this as an arbitrary decision by SSCI to block public discussion of intelligence oversight. TPM says that the interview did not involve “classified sources and methods of intelligence gathering” but “general information about how the committee functions– and how it should function.” It says that “[a]mong the insights Divoll shared with us was the important role that staff can and should play in oversight of the executive branch’s intelligence activities.” Moreover, Divoll’s statements “tracked closely with information gleaned from other sources, and the public record.”

No doubt the committee has a different perspective on the matter. Still, given that Divoll left the employ of the committee 10 years ago and has frequently discussed matters related to her tenure at SSCI in the media since then, apparently without objection by the committee, this is a somewhat curious development. It raises the questions of what legal authority the committee has to block a former staffer from discussing matters of public interest, how broad that authority might be, and what arguments Divoll might have to challenge that authority. We will turn to those issues now. Continue reading “The Senate’s Legal Basis for Muzzling Former Staffers”

Must Committee Websites Be Fair and Balanced?

An article this week by Fortune senior editor Stephen Gandel questions whether certain House committee websites, particularly that of the Financial Services Committee, comply with rules and regulations established by the Committee on House Administration. These provide that committee websites may not:

  1. Include personal, political, or campaign information.
  2. Be directly linked or refer to Web sites created or operated by campaign or any campaign related entity, including political parties and campaign committees.
  3. Include grassroots lobbying or solicit support for a Member’s position.
  4. Generate, circulate, solicit or encourage signing petitions.
  5. Include any advertisement for any private individual, firm, or corporation, or imply in any manner that the Government       endorses or favors any specific commercial product, commodity, or service.

Gandel’s primary concern is that much of the Financial Services website is “dedicated to just how bad the [Dodd-Frank act] is.” He suggests this violates the rules that “websites can’t contain political information or solicit support for a member’s position.”

I think Gandel misunderstands the meaning of the term “political” as used in these rules. The House Ethics Manual provides that “[o]fficial resources of the House must, as a general rule, be used for the performance of official business of the House, and hence those resources may not be used for campaign or political purposes.” The phrase “campaign or political” is a term of art referring to election or campaign-related business, as opposed to the official business of the House.

Continue reading “Must Committee Websites Be Fair and Balanced?”

Seeking Section Four Transparency

As the national debt rises rapidly toward the latest “ceiling”, Professor Epps once again proposes (“A Gun to the Debt-Ceiling Fight”) the President invoke (or threaten to invoke) Section Four of the Fourteenth Amendment to avoid all that unpleasantness from last time. Needless to say, I don’t think any more of the legal merits of this proposal than I did before. I am also not too sure that Epps is right in thinking that the President’s biggest problem is the perception he is too weak. I mean, the man has a “kill list,” for Pete’s sake.

But let me concentrate on the positive. I wholeheartedly agree with Epps that the executive branch should share with us any analysis of Section Four that may have been done in connection with debt crises of 2011, 1995-96 or 1986 (or at any other time).  Epps reports “I called the U.S. Department of Justice to ask whether the Office of Legal Counsel has issued, or is preparing, a formal opinion on the President’s possible power under Section Four; the DOJ’s spokesman did not return my call.”

Well, I can beat that. I filed a FOIA request last July seeking that the Treasury Department produce “[a]ll documents that contain, discuss, refer or relate to any legal opinion or analysis by the Treasury Department General Counsel, or any attorney thereof, of Section Four of the Fourteenth Amendment (also known as the Public Debt Clause), or any application or potential application of Section Four to the statutory debt limit.”  I received a prompt response to tell me that . . . well, that I wouldn’t be receiving a prompt response. According to the Treasury Department, “unusual circumstances exist regarding a search and review of the information requested which may result in voluminous records.” Since then, nada.

It’s a little surprising that my request, which I thought was pretty narrow, would (or might) result in “voluminous records.” Presumably this means that Treasury has done some sort of analysis of Section Four. I assume that Epps would like to see it. So would I.

And there is no reason why the Treasury Department shouldn’t share it. Its not like we are asking to see the kill list, after all.

Update: Here is the FOIA request.


Inappropriate Behavior?

House Rule XI (g)(5) provides

(5) To the maximum extent practicable, each committee shall— 
(A) provide audio and video coverage of each hearing or meeting for the transaction of business in a manner that allows the public to easily listen to and view the proceedings; and 
(B) maintain the recordings of such coverage in a manner that is easily accessible to the public.

Daniel Schuman of the Sunlight Foundation points out, however, that the Legislative Branch Subcommittee of the House Committee on Appropriations holds most of its hearings in a small hearing room in the Capitol (HT-2) that does not have a pre-positioned camera and apparently these proceedings have not typically been broadcast or recorded. Thus, for example, the public will not be able to view tomorrow’s hearing on the Library of Congress, the GAO, the Public Printer and the CBO.

As Schuman notes, it would be very “practicable” for the Appropriations Committee either to move the hearing to one of several available hearing rooms that have a camera or to request that the House Recording Studio provide one in HT-2. While admittedly tomorrow’s hearing is not exactly the half-time show at the Superbowl, the House Rules admit of no exception, even for “really boring” agencies.

Sunshine for the Super-Committee?

The legislation creating the “Joint Select Committee on Deficit Reduction” (AKA, the “Super-committee”) contains little detail on rules and procedures that the Super-committee is to follow.  Title IV of the Act establishes the Super-committee and provides for public notice of its hearings, but is otherwise silent on how much of its processes are to be open to the public.

However, as John Wonderlich of the Sunlight Foundation pointed out to me, House Rule X(10)(b) provides that “[e]ach select or joint committee, other than a conference committee, shall comply with clause 2(a) of rule XI unless specifically exempted by law.” The legislation establishing the Super-committee does not exempt it from the requirements of either Rule X or Rule XI.

Does this mean that the Super-committee is bound to follow the requirements of House Rule XI(2)(a)? It is not clear how the House’s rules could impose a requirement on a joint committee established by law. On the other hand, it could be argued that the language of House Rule X(10)(b) is part of the background rules for formation of a joint committee, and the failure of the legislation to specifically exempt the Super-committee from those rules evinces an intent that they be followed.

An alternative argument might be that the House Members of the Super-committee are bound to seek compliance with the requirements of House rules regarding joint committees. Title IV(c)(2) of the legislation provides that “Members on the joint committee who serve in the House or Representatives shall be governed by the ethics rules and requirements of the House.” Although procedural requirements of committees are not normally what one thinks of as “ethics rules,” the Code of Official Conduct (Rule XXIII) does require that a Member “adhere to the spirit and the letter of the Rules of the House and to the rules of duly constituted committees thereof.” One might argue that this indirectly obligates the House Members on the Super-committee to treat the House Rules regarding joint committees as a form of instruction. Cf House Practice, ch. 13, §11 (instructions to House managers of conference committee).

If the House Rules regarding joint committees are either directly or indirectly applicable to the Super-committee, then several significant requirements come into play. First, under Rule 2(a)(1)(A), the Super-committee would be required to adopt written rules in a public meeting (“unless the committee, in open session and with a quorum present, determines by record vote that all or part of the meeting on that day shall be closed to the public”).

Even more significantly, the rules adopted by the Super-committee “may not be inconsistent with the Rules of the House” and must “incorporate all of the succeeding provisions of [Rule XI, clause 2] to the extent applicable.” Among the provisions of clause 2 that would appear applicable are subsection (e)(1), which requires that records of committee actions be maintained and made available to the public, and subsection (g), which requires that all meetings and hearings are presumptively open, and may be closed only when the committee determines by record vote that “disclosure of matters to be considered would endanger national security, would compromise sensitive law enforcement information, would tend to defame, degrade or incriminate any person, or otherwise would violate a law or rule of the House.”

Whether these provisions apply could have a major impact on how the Super-committee conducts its business.





Is a House Vote Required to Release the Clemens Tape?

Last week the Clemens defense team asked the judge to grant it access to the audiotape of the February 5, 2008 deposition in which congressional staff questioned Clemens regarding his use of steroids. COGR had previously provided the prosecution and defense with the transcript of this deposition, at which Clemens made many of the alleged false statements with which he is charged, but the tape has apparently never been released. According to this report, however, “a lawyer for the House appeared in court Wednesday and told U.S. District Judge Reggie Walton that the House clerk has the tape and it can only be released by a House resolution.”

I infer from the House’s position that the tape has been archived under House Rule VII, which provides in part that “[a]t the end of each Congress, the chairman of each committee shall transfer the records to the Clerk any noncurrent records of such committee.” Once the records have been transferred to the Clerk (who stores them at the Center for Legislative Archives in the National Archives), their public availability is governed by other provisions of Rule VII.

Any committee record that was not public prior to archiving will remain unavailable to the public for at least 30 years (unless an order of the committee during the Congress in which the record was created provides for a different period). However, more sensitive committee records, such as “[a]n investigative record that contains personal data relating to a specific living person (the disclosure of which would be an unwarranted invasion of personal privacy) . . . or a record relating to a hearing that was closed under clause 2(g)(2) of rule XI,” are kept closed for 50 years. Thus, under normal circumstances the Clemens tape would not be available to the public until 2038 at the earliest, and possibly not until 2058.

If Clemens issues a subpoena for the tape, however, as the article indicates he will, Rule VII would not provide the governing authority. House Rule VIII governs responses to subpoenas, and Clause 5(a) of Rule VII provides that “[t]his rule does not supersede rule VIII.” Thus, it would seem that the tape would have to be produced in response to a subpoena unless the provisions of Rule VIII dictate otherwise.

One relevant part of Rule VIII is the requirement that the recipient of a subpoena certify that compliance would be “consistent with the rights and privileges of the House.” Since the audiotape of the Clemens would be privileged under the Speech or Debate Clause (at least in the D.C. Circuit), it might be argued that producing it would be inconsistent with the rights and privileges of the House. But it would seem odd to say that this provision requires a vote of the House to release the audiotape. After all, COGR has acted as the holder of the privilege in the Clemens case and has chosen to assert or waive the privilege in various contexts. Why would permission of the House be required to waive the privilege as to the tape?

The only other relevant provision is Clause 6(b) of Rule VIII, which provides that “[u]nder no circumstances may minutes or transcripts of executive sessions, or evidence of witnesses in respect thereto, be disclosed or copied.” The term “executive session” most clearly refers to committee meetings or hearings that are closed by a vote of the committee pursuant to House Rule VI. House parlance often uses the term “executive session materials” to refer more broadly to non-public materials, particularly of an investigative nature, but I am not sure whether there is any specific House precedent as to whether those materials generally, or staff depositions in particular, would qualify as “executive session” within the meaning of Clause 6(b). Absent such precedent, I would expect that the Parliamentarians would be consulted on the proper interpretation of Clause 6(b).

Even if staff depositions are considered to be “executive sessions” under Clause 6(b) of Rule VIII, however, it seems very doubtful that this provision would justify withholding of the tape under the present circumstances. After all, the “transcript” of this “executive session” has already been released. Any interest that the House might have had in keeping the deposition confidential has already been eliminated.

I could be wrong, but I am skeptical that the Parliamentarians would insist on a vote of the House under these circumstances.

House Statement of Disbursements Available Online


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

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

More on the British FOIA and the House of Commons

Those who follow matters of legislative privilege and transparency may find the U.K. FOIA case against the House of Commons to be of some interest.  One wonders how the observations of the British courts as to the lack of legislative transparency might be applied to the operations of the U.S. Congress. 

As mentioned in a previous post, the case began with FOIA requests by journalists, including Heather Brooke, seeking information regarding something called the Additional Expense Allowance.  As one court explained: 

The duties of Members of Parliament are chiefly carried out at Westminster and in their constituencies.  They often work long hours, and late into the evening.  As a result, MPs for constituencies outside inner London generally need to reside in two different places.  Since 1971 they have been entitled to claim expenses up to a set limit to defray the additional costs of hotel bills or a second home.  The allowance which they can claim for this purpose is called the Additional Expense Allowance or ACA. 

The FOIA requests were made to the House of Commons administration, rather than to individual MPs, because the House of Commons is a “public authority” subject to FOIA, while MPs are not. 

After the House refused to make the requested expense information available, the journalists went to the Information Commissioner, who issued a decision that was partially favorable to each side.  Both sides then appealed to the Information Tribunal, which issued a decision in February 2008.   

The House argued the case primarily on the grounds that the requests violated the privacy of the MPs whose expenses were at issue.  This, it seems, was a bad litigation strategy, because it required the Tribunal to balance the public interest in disclosure against the privacy interests that were implicated.   The Tribunal determined that there was a substantial public interest in disclosure, mainly due to the inadequacy of the ACA system itself.  It began by explaining: 

The framework of rules governing the administration of ACA is said to be based on the principle that Members are primarily responsible for identifying, claiming and certifying their own expenditure on allowances, and for the propriety of that expenditure.  Historically, this is because of their constitutional position as elected representatives.

 Although the Tribunal noted that “[i]t is not our function to say what system ought to be operated by the House,” it nevertheless could not “decide the issues which are before us without arriving at a view on the effectiveness of the existing controls.”   On that question, the Tribunal was decidedly unimpressed:

The laxity of and lack of clarity in the rules for ACA is redolent of a culture very different from that which exists in the commercial sphere or in most other public sector organizations today.While we can appreciate that the emphasis on self-certification is historically derived from Members’ constitutional position as elected representatives, even if self-certification were considered to be in principle an acceptable system in modern conditions, the inadequacy of that approach is manifest as soon as it is appreciated that the Members upon whom the responsibility of certification is placed do not have access to a clear, coherent and comprehensive statement of their entitlements such as might enable them to fulfill that responsibility.Moreover, the information which is published in the [parliamentary regulations] does not match the system as actually administered, and hence as actually experienced by MPs.In our judgment these features, coupled with the very limited nature of the checks, constitute a recipe for confusion, inconsistency and the risk of misuse.Seen in relation to the public interest that public money should be, and be seen to be, properly spent, the ACA system is deeply unsatisfactory, and the shortfall in both transparency and in accountability is acute.

In light of this finding as the “deeply unsatisfactory” nature of the ACA system, the Tribunal found that the public interest in disclosure clearly outweighed the MPs privacy interests (although it permitted some modest adjustments in the form of disclosure to protect certain personal information).

The House of Commons then appealed to the High Court of Justice, which affirmed the Information Tribunal.The judgment of the High Court, issued in May 2008, may be found here.In view of the Tribunal’s findings as to the unsatisfactory nature of the ACA system (which were not reviewable on appeal), the High Court agreed with its assessment of the public interest:

We are not here dealing with idle gossip, or public curiosity about what in truth are trivialities.The expenditure of public money through the payment of MPs’ salaries and allowances is a matter of direct and reasonable interest to taxpayers.They are obliged to pay their taxes at whatever level on whatever basis the legislature may decide, at least in part to fund the legislative process.Their interest is reinforced by the absence of a coherent system for the exercise of control over and the lack of a clear understanding of the arrangements which govern the payment of ACA.Although the relevant rules are made by the House itself, questions whether the payments have in fact been made within the rules, and even when made within them, whether the rules are appropriate in contemporary society, have a wide resonance throughout the body politic.In the end they bear on public confidence in the operation of our democratic system at its very pinnacle, the House of Commons itself.The nature of the legitimate public interest engaged by these applications is obvious.

The High Court also addressed how it had jurisdiction over Parliament, something that seems questionable in light of the history of legislative privilege in Britain. As the Court noted, “[i]t is a fundamental principle of our constitutional structures that Parliament should not normally be subject to judicial scrutiny or supervision” and “[l]egal proceedings like these are therefore rare.”

Nevertheless, the Court explained, “[t]he current litigation does not directly or indirectly impeach or question proceedings in Parliament and article 9 of the Bill of Rights 1689 [which protects legislative freedom of debate] is not engaged.”Moreover, the FOIA law itself expressly included the House of Commons as a public authority to which the law applied.In addition, the FOIA law made specific provision for parliamentary information to be exempted if disclosure might infringe upon legislative privilege, and in this regard the certificate of the Speaker of the House of Commons would be conclusive.As the Court noted, the Speaker had not signed any such certificate in connection with the ACA expenses.

Following the High Court decision, one imagines that the Speaker (who has since resigned) regretted his failure to sign such a certificate.There was, as I understand it, some consideration of asserting parliamentary privilege even after the High Court ruling.These issues, however, presumably became moot when the entire ACA database was leaked to the press.

Will UK Scandal Impact Congressional Transparency?

          Although it has not received a great deal of attention here, a major scandal has rocked the British Parliament in recent weeks.  The scandal has its roots in a request several years ago by a free-lance journalist named Heather Brooke, who used the newly enacted British Freedom of Information Act to ask for records of taxpayer-funded expenses of Members of Parliament.   To enforce her rights, Ms. Brooke was forced to go to court, where she ultimately prevailed.  Before the House of Commons actually complied with the court ruling, however, someone provided a British newspaper with a breakdown of MP expenses, which revealed what the NY Times called “a rich tale of politicians exploiting a lax system of expenses to claim a mind-boggling array of benefits.”  (My favorite is an MP named “Hogg” who was reimbursed for the cost of clearing the moat at his country home). 

            It is worth noting that although the United States has had FOIA for decades longer than Britain, our version does not apply to the legislative branch at all.  This has led some journalists to “wonder if Brooke’s work in England could come back to haunt the U.S. Congress.”  Last week Paul Blumenthal of the Sunlight Foundation drew the connection between the lack of transparency in Britain and that in the U.S. Congress.  He pointed out that the Sunlight Foundation had been asking for months that the House put online the Clerk’s Quarterly Statement of Disbursements, which is currently available to the public only in hardcover volumes which can be viewed at the Legislative Resource Center or purchased from GPO.

And what do you know, Speaker Pelosi decided yesterday to send a letter to the Chief Administrative Officer of the House directing him “to publish the quarterly Statement of Disbursements for the House of Representatives in an online format at the earliest date.”  As John Wonderlich of Sunlight notes. “Speaker Pelosi’s move should be interpreted as a recognition that public information — even potentially embarrassing information about how Members spend public funds — should be truly accessible to the general public, which means online.”  One might also interpret the move as reflecting a need to show a commitment to transparency in light of what has occurred in Britain.

The fact remains, however, that American citizens who wish to obtain access to non-public information from the House or Senate cannot use FOIA for that purpose.   No doubt there are many MPs today who wish that the same were true in Britain.