Can a Court Resolve the Virginia Senate Deadlock?

Virginia Democrats may go to court over the issue of whether the Lieutenant Governor can break ties on organizational matters in the Senate. As indicated in a previous post, I am skeptical about the merits of this claim.

(Another useful resource on this subject is the website of the National Conference of State Legislatures, which contains a comprehensive list of state legislative chambers which have been tied over the years. Of particular interest here is NCSL’s note that “A lieutenant governor’s vote broke organizational deadlocks in Idaho (1990) and Pennsylvania (1992).  There was speculation that the lieutenant governor would determine party control in the Virginia Senate in 1995, but a power-sharing agreement between the political parties was negotiated instead.”)

For present purposes, however, lets assume that Virginia Democrats are correct on the merits. Can they get judicial relief? If this were a question of congressional organization, I would say the answer almost certainly would be no. Federal courts are extremely reluctant to intervene in the internal affairs of the legislature, and have employed a variety of doctrinal methods to avoid doing so. See, e.g., Vander Jagt v. O’Neill, 699 F.2d 1166 (DC Cir. 1983) (refusing to hear Republican challenge to allocation of committee seats in the U.S. House of Representatives).

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AIG Executives, Dodd Donations and the Connecticut Legislative Hearing

          What do Joseph Rooney, Chris Phole, Steven Pike, Greg Ruffa, Leonid Shekhtman, Christian Todd, Joseph Cassano, Steven Wagar, Doug Poling, and Jonathan Liebergall have in common?  Well, first, they are all AIG executives who received bonuses that are now the subject of more or less universal outrage.  Second, they have all been subpoenaed to testify about these bonuses next week before the Banks Committee of the Connecticut General Assembly.  Third, sometime between November 21 and December 16, 2006, each of them made the maximum contribution ($2,100) to Friends of Chris Dodd and, at the same time, an identical $2,100 contribution to Chris Dodd for President.   

            A few of these executives, namely Cassano, Wagar, Poling, and Liebergall, have occasionally made other political donations (including, in the cases of Cassano and Poling, past donations to Dodd),  But for Rooney, Phole, Pike, Ruffa, Shekhman and Todd, the 2006 donations to Friends of Chris Dodd and Chris Dodd for President are the only political donations disclosed by the FEC’s online database, which goes back to the 1990s.   

            It is not exactly surprising that AIG executives would want to make a contribution to their home-state Senator, particularly right after the 2006 election that elevated that Senator to the chairmanship of the Senate Banking Committee.  Still, this level of participation by people who are not generally inclined to make political contributions suggests a pretty concerted effort on AIG’s part.   

I wonder whether this has any connection to the involvement of Attorney General Blumenthal, who is said to be interested in Dodd’s Senate seat, in next week’s hearing.

Whats Blumenthal Got To Do With It?

         According to a press release yesterday entitled “Bank Committee Chairs, Attorney General Issue Subpoenas for A.I.G. Employees”:  “State Senator Bob Duff (D-Norwalk) and Representative Ryan Barry (D-Manchester), co-chairs of the General Assembly’s Banks Committee, with Attorney General Richard Blumenthal today issued subpoenas commanding several A.I.G. employees, including CEO Edward M. Liddy, to appear at a legislative hearing on Thursday, March 26.” 

            Wait a second.  Why would the Attorney General of Connecticut be involved in issuing subpoenas for a legislative hearing?   As an executive branch official, the Attorney General has no authority to call a legislative hearing, to decide who will testify, or to subpoena witnesses to attend.    

            The Connecticut Statute which governs subpoenas for legislative hearings (and which is cited in the press release) provides that “the president of the Senate, the speaker of the House of Representatives, or a chairman of the whole, or of any committee of either house, of the General Assembly, or either of the chairmen of the Legislative Program Review and Investigations Committee shall have the power to compel the attendance and testimony of witnesses by subpoena and capias issued by any of them . . . .”  The persons authorized to issue subpoenas are all legislative officials, and there is no suggestion that the Attorney General or any other executive official has any role. 

            Well, you might say, the press release may misleadingly suggest that Blumenthal is involved in issuing the subpoenas, but a really close reading would reveal the truth.  For example, the photograph accompanying the press release shows the two committee chairs, pens in hand, in the act of signing the subpoenas, while Blumenthal, sans pen, sits evidently drumming his fingers.  The caption says “Senator Duff and Representative Ryan Barry, with Attorney General Richard Blumenthal, sign subpoenas ordering several employees of the insurance company, AIG, to testify at a Banks Committee investigative hearing.”   

            So why is Blumenthal there at all?  The release quotes Blumenthal as saying that “these A.I.G. employees have a moral and legal obligation to appear at this legislative hearing.”  He further states: “I will enforce these subpoenas through prompt and aggressive court action.  We are preparing to do so.” 

            Leaving aside the Attorney General’s authority to decide who has a “moral” obligation to appear at legislative hearings, one might think that the Attorney General would have a role in enforcing the “legal” obligation to appear.  But does he?  Under federal law, the U.S. Attorney General has no authority to enforce congressional subpoenas.  Only if the failure to comply with a congressional subpoena results in a contempt finding by the full House of Congress does the executive branch become involved, and then the matter is referred to the U.S. Attorney, not the Attorney General. 

            Is Connecticut law different?  According to Conn. Code 2-48: “Whenever a witness summoned fails to testify and the fact is reported to either house, the president of the Senate or the speaker of the House, as the case may be, shall certify to the fact under the seal of the state to the state’s attorney for the judicial district of Hartford, who shall prosecute therefor.”   

            This language is quite similar to that contained in federal law, and suggests that a witness may be prosecuted only after the committee which issued the subpoena reports his or her contempt to the full house, and the house then votes to refer the matter for prosecution.  Moreover, even when such referral occurs, it goes not to the Attorney General, but to the state’s attorney for the judicial district of Hartford. 

            Now I am no expert on Connecticut law, and it is possible that the Attorney General is allowed to end run this statutory scheme by bringing a direct enforcement action when a witness refuses to testify.  I can only say that this would be impermissible, and quite likely unconstitutional, under federal law.  Given the extraordinary and publicity-driven nature of these Connecticut proceedings, however, there is ample reason to question whether the Attorney General is overstepping his bounds.