Is the January 6 Committee Improperly Constituted?

Now that the Supreme Court has poured cold water on the executive privilege arguments being made by certain witnesses who have declined to cooperate with the January 6 select committee, a different objection by many of these witnesses takes on added importance. According to the lawyers for Mark Meadows, Jeffrey Clark, and others, the committee lacks the power to issue subpoenas or take other actions because it was constituted in violation of Section 2(a) of its authorizing resolution, H. Res. 503, which provides: “Appointment of Members—The Speaker shall appoint 13 Members to the Select Committee, 5 of whom shall be appointed after consultation with the minority leader.”

Acting pursuant to the resolution, Speaker Pelosi appointed eight members to fill the “majority slots” on the committee, seven of whom were Democrats and one (Liz Cheney) a Republican. She consulted with Majority Leader McCarthy regarding the remaining “minority slots,” but she rejected two of McCarthy’s five recommendations, declaring that Jim Banks and Jim Jordan had made statements regarding the proposed investigation that she claimed “make it impossible for them to exercise judgment.” Pelosi was willing to appoint the other recommended members, but they declined. Pelosi then appointed Adam Kinzinger (the only Republican other than Cheney who was willing to participate under these circumstances) to one of the minority slots, leaving the other four vacant.

It is contended that these actions violated Section 2(a) of the authorizing resolution in two respects. First, Pelosi appointed only nine members of the select committee, rather than the 13 specified by the resolution. Second, although she consulted with McCarthy, she did not appoint any of the five members he recommended.

Let’s start with the second point. A strong version of this claim would be that the authorizing resolution required Pelosi to appoint whatever members McCarthy recommended and left her with no discretion in the matter. This interpretation is hard to square with the language of the resolution, which requires merely “consultation” with the minority leader. If the House had wanted to constrain Pelosi’s discretion in this manner, it could have easily said so. Indeed, as the House points out in a recently filed brief, prior select committee resolutions have used stronger language (i.e., requiring that minority slots be filled “on the recommendation of the Minority Leader”), which could more plausibly be interpreted to require that the speaker appoint only members recommended by the minority. Here there is no indication that the House intended to make Pelosi’s power to appoint a mere ministerial act.

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Congressional Regulation of the Press Galleries

As described in this Hill article by Alexander Bolton, Vice President Biden’s office has filed a complaint with the Senate Press Gallery regarding the tactics used by a credentialed reporter who used the pretense of posing for a photograph with the Vice President to get close enough to ask him a question. In case you were wondering what authority the Press Gallery has, and where it comes from, here is a brief summary.

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The Supercommittee, Moral Entrenchment, and the Puzzle of Statutized Rules

The Budget Control Act of 2011 (“BCA”) establishes a number of expedited procedures to govern House and Senate consideration of the legislative proposal from the “Supercommittee.” In essence, it requires that both the House and Senate have an up-or-down vote on the bill as proposed, and it forbids amendment of the bill in either house.

These provisions, of course, amend the normal rules of procedure that apply in the House and Senate.  The BCA expressly recognizes this and provides that these procedures are enacted “as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such they shall be considered as part of the rules of each House, respectively, or of that House to which they specifically apply, and such rules shall supersede other rules only to the extent that they are inconsistent therewith.”

It is not unusual for Congress to enact in statute special rules to expedite the consideration of particular legislation (examples include “fast track” approval for trade agreements and the closing of military bases under the Base Realignment and Closure Act). Such “statutized rules” raise some thorny constitutional questions, however. See Aaron-Andrew P. Bruhl, Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J.L.& Po. 345 (2003).

For example, are the House and Senate legally bound to follow the rules prescribed in the BCA? The generally accepted answer to this is no. Because the Constitution grants each house the power to determine its own rules, a statute cannot remove this power, and thus each house must remain free to change its rules independently. Indeed, the BCA expressly states that its congressional procedural provisions are enacted “with full recognition of the constitutional right of either House to change such rules (so far as relating to such House) at any time, in the same manner, and to the same extent as in the case of any other rule of such House.”

If that is so, then either the House or Senate is legally free, notwithstanding the procedures specified in the BCA, to supersede those procedures with respect to consideration in its own body. As Professor Bruhl notes, this may not mean so much in the Senate, where it can be extremely difficult to change the rules. In the House, however, changing the rules is quite easy. It is typical in the House that legislation sent to the floor is accompanied by a special rule from the Rules Committee that sets the terms of the debate and consideration for that particular bill. This special rule can vary or waive any of the provisions of the Standing Rules of the House.

For example, this CRS report discusses the use of expedited rules in military base closings, and notes some instances where the House waived the requirements of those rules. The report states: “As House Parliamentarian Emeritus Charles W. Johnson observes, a chamber may ‘change or waive the rules governing its proceedings. This is so even with respect to rules enacted by statute.’ These changes can be accomplished, for example, by the adoption of a special rule from the House Committee on Rules, by suspension of the rules, or by unanimous consent agreement.”

I am informed by a congressional source that it is unlikely the Rules Committee would promulgate a special rule to accompany the Supercommittee’s proposed bill. The reason, however, is not lack of constitutional power to do so; rather it is the fear that the adoption of a special rule, if it contravened any of the procedures established in the BCA, could jeopardize the bill’s “privileged status” in the Senate. In other words, the BCA forms something like a contract between the House and Senate, and one party’s breach of the requirements would arguably free the other from complying with its terms.

Nevertheless, there would appear to be no legal barrier to the House changing the procedures set forth in the BCA if a simple majority so desires (the situation is more complicated in the Senate due to the ability of a minority to filibuster a motion to amend the rules). In what sense, then, can the BCA be said to have entrenched the rules governing consideration of the Super-committee’s legislation? As Bruhl observes, “statutized rules can be understood as devices for preventing Congress from engaging in certain types of procedural opportunism [yet because] Congress believes that the Constitution limits its ability to constrain itself in matters of procedure [, they are] a curiously noncommittal form of commitment.”

Another way of describing the effect of statutized rules is that they are “morally entrenched.” That is, they reflect a promise by the House and Senate to follow certain rules, and not to utilize such constitutional power as they have to alter or amend such rules. But if should they break their promise (which has happened from time to time with regard to other statutized rules), there is (probably) no legal violation and (certainly) no legal remedy.

To make things just a little more complicated, it should be noted that BCA differs from the typical statutized rule situation in a couple of ways. First, because of the short duration of the Supercommittee, the provisions of the BCA only affect the Congress that enacted it. This is important because there is precedent in the House for the proposition that a statutized rule can constitutionally bind the Congress that enacted it. Bruhl thinks, and I agree, that this precedent is probably wrong, but it could be used to argue that the 112th Congress is in fact without constitutional power to modify the rules set forth in the BCA (absent a statutory amendment). The savings provision quoted earlier might defeat such an argument anyway, but the provision arguably does nothing more than reflect a particular understanding of the constitutional powers of the House and Senate, which understanding might turn out to be incorrect.

Second, the BCA does more than merely prescribe a particular procedure for considering certain legislation. It imposes a consequence (automatic spending cuts in excess of one trillion dollars) for the failure to enact the legislation proposed by the Supercommittee. If Congress passes such legislation in accordance with the requirements of the BCA, then any constitutional questions regarding the procedure would not affect the validity of the final product. Moreover, even if Congress enacts a law that varies substantively from the requirements of the BCA, or in a manner that violates the BCA’s procedural prescriptions, it is likely that this law will be written in such a way as to ensure that BCA’s automatic spending cuts are overridden.

But what happens if Congress cannot agree on any legislation and the automatic spending cuts go into effect? At that point could not there be a constitutional challenge to the procedures established in the BCA? It could be argued that the BCA unconstitutionally attempts to prescribe procedures for the House and Senate, violating the constitutional mandate that each house determine the rules of its own proceedings.

Bruhl argues, reasonably enough, that statutized rules do not violate the Constitution so long as each house remains free to change those rules without interference from the other house or the President. But one could ask whether each house is free to depart from the procedures specified by BCA, for example by amending the Supercommittee’s proposed bill, when the consequence of doing so would be the automatic spending cuts triggered by non-compliance with BCA. In essence, by providing a draconian “penalty” for changing the procedures established in the statute, the BCA imposes an unconstitutional condition on the exercise of the rulemaking power.

One final piece of this puzzle. Section 401(b)(3)(B) of the BCA provides that “[a]ny change to the Rules of the House of Representatives or the Standing Rules of the Senate included in the report or legislative language shall be merely advisory.” This means, apparently, that even if the Super-committee proposes legislative language that effects a permanent change in House or Senate rules, and the Congress passes a bill that purports to enact those changes, the changes are not in fact effective. The Super-committee could not, for example, force Congress to enact a rule that makes the Super-committee permanent, or requires Congress to use expedited procedures for future legislation.

This seems to be the legislative equivalent of the genie saying that you get three wishes, but “ixnay on the wishing for more wishes.” See Aladdin (1992). It seems to reflect some discomfort with the enormous power that the BCA invests in the Supercommittee. As a constitutional matter, it seems to put the BCA in the awkward position of both entrenching certain rules and prohibiting future legislation from entrenching additional rules.

Hopefully I will get some feedback on these thoughts, and refine them as we go along.


Restricted Intelligence Briefings and the Intelligence Authorization Act of 2009

          My attention has been called to Section 502 of the Intelligence Authorization Act of 2009 (H.R. 5959), which passed the House last year (but never became law).  This provision would have amended the National Security Act of 1947 to provide a procedure governing situations where the President decides to disclose certain highly sensitive intelligence information only to the Chair and Ranking Member of the congressional intelligence committees. 

            Under this provision, intelligence information (other than information on covert action, which, as noted in my last post, is already covered by statute) would have to be shared with all members of the intelligence committees “unless the President requests that access to the information or material be limited after determining that limiting such access is essential to meet extraordinary circumstances affecting vital interests of the United States.”  The request and the extraordinary circumstances justifying it would have to be detailed in writing to the Chair and Ranking Member.  

            Even when such a request was made, it would not be automatically binding on the committees.  Instead, it would be up to the Chair and Ranking Member of each committee to “jointly determine whether and how to limit access to the information or material.”  If they were unable to agree, however, the default position would be to limit access in accordance with the President’s request.  Finally, “any information or material to which access is limited shall subsequently be made available to each member of the congressional intelligence committees at the earliest possible time and shall include a detailed statement of the reasons for not providing prior access.”    

            Of course, the fact of an unenacted statutory amendment does not prove what the current state of the law is, but it tends to confirm my view that Congress has not given and would not give the executive branch ultimate control over what Members can do with intelligence information that has been shared with them.  Instead, the final decision must rest with each House of Congress, acting pursuant to its own rulemaking powers.  Indeed, even if the statutory provision were passed, it would still be within the constitutional power of each House to change its own procedure by resolution of the body.  

            My understanding is that Section 502 had bipartisan support.  Perhaps there will be another effort to enact this worthwhile clarification of the law.