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What the 1960 Hawaii Presidential Election Meant for Bush v. Gore

On December 11, 2000, the day before the Supreme Court issued its Bush v. Gore ruling, Congresswoman Patsy Mink (D-HI) circulated this Dear Colleague entitled “1960 Hawaii Presidential Election Provides Roadmap for Resolving Florida Election Dispute.” As Congresswoman Mink explained, in 1960 Richard Nixon was originally declared the winner in Hawaii by 141 votes over John F. Kennedy, and the Nixon electors were certified by the governor. The results were contested in court, and on elector balloting day both the certified Nixon electors and the uncertified Kennedy electors cast ballots.

Subsequently, the court-ordered recount resulted in Kennedy being declared the winner by 115 votes. The court entered judgment in favor of Kennedy, and the Republican governor of Hawaii certified the election of the Kennedy electors pursuant to the court judgment. When the certificates from Hawaii were presented during the electoral vote counting, the President of the Senate (i.e., Vice President Nixon) suggested that the certificate of the Kennedy electors be accepted. No one objected and Hawaii’s three electoral votes were counted for Kennedy.

How, one might ask, did this episode provide a “roadmap” for the resolution of the Florida recount? Surely Mink (a University of Chicago trained lawyer, after all) understood that the Hawaii governor’s certification of a particular 1960 election contest conducted under Hawaiian law says nothing about whether the Florida governor should or would certify a 2000 contest conducted under Florida law and presenting completely different factual and legal issues. To take just one example, the Hawaii case had no bearing on whether Florida law required that any presidential election contest be completed by the “safe harbor” date of December 12. See Bush v. Gore, 531 U.S. 98, 110-11 (2000) (stating that any contest that lasted beyond December 12 would constitute “action in violation of the Florida election code”).

As a matter of congressional precedent, one might argue that the disposition of the Hawaii electoral vote supports the proposition that the President of the Senate may determine that the certified result of an election contest should be preferred over the certified result of the initial count, even when the contest was not decided until after the electors voted. One might make this argument, except for a small detail omitted from Mink’s Dear Colleague. When it came time to count Hawaii’s vote, Nixon stated: “In order not to delay the further count of the electoral vote here, the Chair, without the intent of establishing a precedent, suggests that the electors named in the certificate of the Governor of Hawaii dated January 4, 1961, be considered as the lawful electors from the State of Hawaii.” 3 Deschler’s Precedents of the House of Representatives ch. 10, § 3.5 (emphasis added).

Even if Nixon had not made this reservation, the precedential value of the Hawaii episode would have been minimal. Nixon did not purport to make a ruling or exercise any power as presiding officer; he merely made a proposal, against his own interest, as to how to treat three electoral votes that would not have changed the outcome of the election anyway. Moreover, no one objected to his proposal. It is therefore difficult to see how this would have had any precedential effect, either as to procedure or substance, in an actual dispute over counting Florida’s electoral votes.

The Hawaii episode, however, does help to illustrate the two paths by which Congress, absent intervention by SCOTUS, might have resolved the 2000 presidential election in a relatively smooth manner (i.e., without a “constitutional crisis”). The first path would have involved Vice President Gore accepting Bush’s victory and proposing, as President of the Senate, that the votes of Florida’s Bush electors be counted. This likely would have happened if the Florida recount/contest had confirmed Bush as the winner.

The second path would have involved the Florida courts deciding the contest in Gore’s favor and the Florida governor (who happened to also be Bush’s brother) following the example of the Hawaii governor and certifying the result of the election contest. As a legal matter, the conclusiveness of an election contest judgment plus certification is debatable, but politically the certification would presumably have signaled the willingness of the Bush camp to accept Gore’s victory.

In hindsight, we know that there was a reasonable possibility that events would have unfolded along the first path if the Supreme Court had not intervened to stop the Florida recount. Subsequent media analysis indicated that if the recount had taken place in the manner ordered by the Florida courts (without further changes or modifications), Bush would have won. Of course, there was no way to know this in advance and even today we cannot be sure what would have happened.

On the other hand, we can say with a high degree of assurance that events would not have followed the second path. Given the numerous factual and legal controversies surrounding the recount and the Florida judicial process, it is difficult to imagine the Bush camp would have accepted a Gore victory based solely on the authority of the Florida supreme court. It is likewise highly doubtful that Florida Governor Bush would have certified the outcome (alternatively, he might have done so with such reservations as to deprive the certification of its utility).

Furthermore, any attempt to have Florida’s electoral votes counted for Gore under these circumstances would have faced fierce resistance in Congress, specifically from the House of Representatives led by Speaker Hastert and Majority Leader Delay. As I will discuss in my next post, the House had a number of options for blocking (or attempting to block) Gore’s ascension to the presidency and there is reason to believe it would have employed some or all of them.

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Nobody for President

This is not an endorsement, but the title of an article written by a University of Virginia law professor in the immediate aftermath of the 2000 presidential election. See John Harrison, Nobody for President, 16 J. L. & Pol. 699 (2000). Professor Harrison rejects the claim that “Congress is the final judge of electoral votes,” contending that under the Constitution “Congress has no such authority, nor does anyone else.” Id. at 701. He acknowledges that Congress’s unique role in the counting of electoral votes may make it the de facto decisionmaker in some circumstances, but he argues that in those cases “Congress to a large extent would be acting, not as the legislature established by the Constitution, but as an extraordinary political body seeking to hammer out an extra-constitutional solution to a problem the Constitution cannot solve.” Id. at 707. This, he suggests, is basically what happened when Congress created a special Electoral Commission to resolve disputed electoral votes from the Hayes-Tilden election of 1876. Id.

I bring this up because I recently attended a program held by the American Constitution Society to commemorate the 15th anniversary of the Supreme Court’s decision in Bush v. Gore, 531 U.S. 98 (2000). (I guess the appropriate anniversary gift would be a crystal ball). The panel consisted of Judith Browne Dianis, Rick Hasen, Pam Karlan and Curt Levey, with Joan Biskupic moderating. You can watch the whole program here.

Contra Professor Harrison, a number of participants in the ACS program seemed to take it for granted that the Constitution assigns to Congress the role of resolving controversies such as that which arose over Florida’s electoral votes in 2000. Professors Hasen and Karlan, in particular, suggested that the Supreme Court should have deferred to Congress and declined to intervene in the Florida recount. Doing so, they said, would not have resulted in a “constitutional crisis,” but simply in the ultimate decision being made by a political body as the Framers intended.

Continue reading “Nobody for President”

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Update on SEC v. Ways & Means

Judge Gardephe has granted the House’s motion for a state pending appeal of his order enforcing the SEC’s administrative subpoenas to the House Ways & Means Committee and its former staffer. In addition to finding that the balance of hardships weighed in the House’s favor (which seems fair), the court found there to be a “serious question” going to the merits of the legal dispute between the parties.

As far as one can tell from the stay ruling, this “serious question” relates to how the court applied the Speech or Debate privilege to the information sought by the subpoenas. The only specific issue mentioned, however, is “whether the Speech or Debate Clause provides a non-disclosure privilege for ‘legislative act’ documents.” Since the court resolved that issue in the House’s favor, it seems odd it would count as a serious question justifying a stay of the court’s ruling.

In any event, it looks like the Second Circuit will get a crack at this interesting case.

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House Mulls Appeal of SEC Subpoena Decision

Judge Gardephe of the federal district court for the Southern District of New York has issued his long-awaited ruling in SEC v. Committee on Ways & Means, an enforcement action by the SEC to require the House committee and its former subcommittee staff director to comply with administrative subpoenas. The court rejected the House’s broadest arguments (by which it sought to avoid compliance with the subpoenas entirely), but it issued guidelines allowing the House to withhold certain information pursuant to the Speech or Debate Clause. The House was initially given ten days to comply with the subpoenas as limited by the court’s ruling (which would have meant complying during the week of Thanksgiving).

Personally, I think the decision was about as favorable to the House as reasonably could be expected (with one exception, which I will get to in a minute). It should have been no surprise that the court rejected the House’s sovereign immunity argument (see here and here). Judge Gardephe surveyed prior case law on inter-branch subpoenas and flagged House Rule VIII, which expressly mandates compliance with administrative subpoenas. See op. at 12-18. He concluded: “Given that no court has ever held that sovereign immunity applies to an inter-branch subpoena, and given that House rules appear to acknowledge that no blanket sovereign immunity applies to an administrative subpoena issued by a Federal agency to the House, a House member, or House staff, this Court concludes that sovereign immunity has no application here.” Id. at 18. Moreover, even if sovereign immunity applied, the court found that Congress waived it for these purposes by passing the STOCK Act. Id. at 21.

On Speech or Debate, the court agreed with the House on two key issues. First, it agreed that the Clause provides a non-disclosure privilege for documents reflecting legislative acts, disagreeing with the Third and Ninth Circuit position that Speech or Debate is merely a non-use privilege with regard to documentary evidence. Op. at 63. The court noted: “Whether an Executive Branch subpoena seeks testimony from a Member concerning a ‘legislative act’ or documents that fall ‘within the sphere of legitimate legislative activity’ is, in this Court’s view, immaterial under the Speech or Debate Clause. . . . The issuance of such subpoenas, and a judicial practice of enforcing them, also presents a significant risk of intimidation, and upsets the checks and balances the Framers envisioned, and put in place.” Id. at 58.

Second, the court agreed that the Speech or Debate Clause protects both formal and informal legislative information gathering. Op. at 58. Although the court did not define precisely the outer boundaries of informal information gathering, it seemed to take a broad view of this activity, explicitly noting that it would “extend to a legislator’s gathering of information from federal agencies and from lobbyists.” Id. at 49. Thus, for example, communications from the Greenberg law firm to Brian Sutter, the committee staffer, could be protected if they were part of the committee’s “informal information gathering concerning a matter that might be the subject of legislation.” Id. at 64.

These victories may not benefit the House much in the short term because the court’s opinion allows the SEC to obtain the information it primarily seeks, i.e., whether Sutter tipped off a Greenburg lobbyist as to a pending decision on Medicare reimbursement rates. (This result is not surprising either.) But over the longer term the court’s language and reasoning provide a useful precedent for House lawyers seeking to protect the institution from intrusive subpoenas.

There is, however, one exception. The court ordered the House to provide a privilege log for any documents that it withheld on the basis of the Speech or Debate privilege. House and Senate lawyers have always resisted providing such logs, arguing that requiring them itself intrudes on the privilege. As far as I know, neither the House nor Senate has provided such a log in the past. Requiring them as a routine matter, at least, would place a burden on Congress’s exercise of the privilege that its counsel would rather avoid.

In any event, the House has requested an extension of time to comply with the court’s order, stating that it needs to consider whether or not to appeal. Citing both the sovereign immunity and privilege log issues in particular, the House explains that the court’s ruling presents “multiple issues of tremendous institutional importance to the U.S. House of Representatives, and our structure of government in general.”

In response to the House’s request, Judge Gardephe has extended the deadline to December 7. Stay tuned.

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Organizations Call for a House Task Force on Privately-Financed Foreign Travel

A group of watchdog organizations, including the Campaign Legal Center and Common Cause, sent this letter to Speaker Ryan (congratulations/condolences to the new speaker, BTW) last week asking for a moratorium on privately-financed foreign travel and the creation of a task force to review House rules and procedures related to such travel. Revelations relating to the Baku trip, the letter says, “highlight the failure of current travel rules to protect the integrity of the House.”

Questions the Task Force should address, the letter says, include (1)”are current procedures used by the House Committee on Ethics adequate to discover if shell entities are providing resources to a sponsoring organization?”; and (2) “what in House rules and procedures prevents foreign governments and businesses, which may be working against U.S. interests, from funneling money to an organization by paying for congressional trips?”

 

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Was House Ethics Tricked into Letting Gulenists Treat?

A USA Today investigation by Paul Singer and Paulina Firozi finds some spooky things going on with congressional travel sponsored by Gulenist groups over the past decade:

A dozen different Gülen groups have sponsored congressional travel since 2008 and have filed forms with the House certifying that they were paying for the trips. The House Ethics Committee approved all the trips in advance based on the forms the Gülen groups submitted.

But a USA TODAY investigation found many of those disclosures were apparently false. Some of the Gülenist groups claimed to be certified nonprofits, but they do not appear in state or IRS databases of approved charities. Groups that did register with the IRS filed tax forms indicating that they did not pay for congressional travel. And five of the groups admitted to congressional investigators earlier this year that a Gülenist group in Turkey was secretly covering the costs of travel inside Turkey for lawmakers and staff.

Very scary. The Ethics Committee seems to be having a hard time detecting these ghost sponsors. Maybe it needs some help.

 

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Court Rejects Justice Department Plan to Avoid the Merits of House’s Obamacare Lawsuit

Yesterday Judge Collyer rejected the Justice Department’s motion to certify for interlocutory appeal her ruling that the House has standing to pursue its claim that the Obama administration has illegally spent billions of dollars in “cost-sharing” payments to insurance companies under the Affordable Care Act. The Justice Department had candidly admitted that it wanted an immediate appeal in part to avoid the “potential political ramifications” of an adverse judgment on the merits, which it seems to fully expect. See DOJ Reply Brief at 7.

The court, however, apparently did not think that saving the administration from the political embarrassment of a loss on the merits was a valid reason for certification. Instead, it emphasized that allowing an immediate appeal was unnecessary because the merits of the case can be resolved quickly. The “facts are not in dispute,” the court notes, and “[d]ispositive motions can be briefed and decided in a matter of months—likely before an interlocutory appeal could even be decided.”

The judge set an aggressive briefing schedule that will be complete by January 18. As much as the administration would like to avoid the question of where it got the legal authority to spend billions of taxpayer dollars, it better start thinking of its defense.

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“Thorough Review” of Baku? I Say Not True.

On July 31, 2015, the House Ethics Committee issued its report on the trip to Baku, Azerbaijan by some 42 House members and staffers. The primary purpose of the trip, which took place at the end of May 2013, was to attend a conference in Baku entitled “U.S.-Azerbaijan: Vision for the Future.” The conference was organized by two American non-profit organizations, the Turquoise Counsel of Americans and Eurasians (TCAE) and the Assembly of the Friends of Azerbaijan (AFAZ), both of which were headed by a man named Kemal Oksuz.

All the congressional travelers sought and received the Committee’s prior approval for the trip, as has been required by House travel regulations since 2007. The Committee’s report contends that this approval was not a mere rubber stamp, stating that “[s]ince the House rule changes regarding  privately-sponsored travel in 2007, the Committee has conducted a thorough review of each proposed privately-sponsored trip.” 7-31-15 Rep. at 11 (emphasis added). These reviews are conducted by the Committee’s “nonpartisan, professional staff,” which “recommends changes where necessary to bring a proposed trip into compliance with relevant laws, rules, or regulations and, on occasion, informs House Members and employees that a proposed trip is not permissible.” Id.

Five different nonprofit organizations, including TCAE, “separately invited” particular members and staff to travel to Baku for the conference. 7-31-15 Rep. at 1. The other four were (1) the Council of Turkic American Associations (CTAA); (2) the Turkic American Federation of the Midwest (TAFM); (3) the Turkic American Alliance (TAA); and (4) the Turkic American Federation of the Southeast (TAFS). Each of these organizations completed a Primary Trip Sponsor Form stating that it was the sole sponsor with respect to its travelers and that it had “not accepted from any other source funds intended directly or indirectly to finance any aspect of the trip.” Id. at 12.

The Committee states that its “staff reviewed these forms and asked Members and sponsors for additional information where necessary.” 7-31-15 Rep. at 12. No detail is provided on what additional information was asked for or received. However, it is implied that little information was needed with regard to funding because “[n]othing in those submissions gave the Committee reason to doubt the truth or accuracy of the purported sponsors’ representations regarding the sources of the Trips’ funding.” Id. at 2.

At the time the Committee issued its report, it declined to release the longer and more detailed review by the Office of Congressional Ethics (OCE). See 7-31-15 Rep. at 13-16. On October 7, however, the OCE Board decided to release the results of its review, including its report and findings, along with more than 1,000 pages of exhibits. I had requested the release of this material (though I doubt this had any influence on the Board’s decision) in part to see what kind of “thorough review” the Committee did before approving the Baku trip.

Continue reading ““Thorough Review” of Baku? I Say Not True.”

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Not So Fast, Speaker Winfrey

Is it a “fact” that non-members of the House are constitutionally eligible to serve as Speaker? The keepers of congressional knowledge and precedent (i.e., the Parliamentarians, the House historian, and other recognized experts on this sort of thing) would tell you, with perhaps an unwarranted degree of confidence, that the answer to this question is “yes.”

The basis of this answer seems to be the following: (1) the Constitution says only that the “House of Representatives shall chuse their Speaker and other Officers,” but does not specify any qualifications for these positions; (2) it is well accepted that the House’s “other Officers” (e.g., Clerk, Sergeant at Arms and Chaplain) need not be, and indeed never are, members; (3) although the House has always elected a member as Speaker, an occasional vote for a non-member candidate has been cast without being ruled out of order; and (4) various congressional publications say in passing that a non-member could serve as Speaker. The last point, of course, is a somewhat circular reason as it merely reflects the written assertion by some of the congressional experts already noted.

Personally, I have not questioned this received wisdom, but I haven’t thought much about it either. Now, however, with the House speakership up for grabs, some people are discussing, with more or less seriousness, whether the House could look outside its membership for a candidate. Suggestions have included Newt Gingrich, Arthur Brooks and Oprah.

Some lawyers and scholars argue that allowing a non-member to be eligible for the speakership would violate separation of powers principles by, for example, raising the possibility that the President or Vice-President could simultaneously serve as Speaker.  Professor Schaub also argues that a non-member Speaker would conflict with the constitutional text, particularly the fact that “the Constitution vests its specified legislative powers in Congress, composed of a Senate and a House, each in turn composed of members, elected by the people.” Therefore, she argues, “[l]egislative powers cannot be lodged in the hands of a non-legislative person.”

These arguments are not without force, but it seems to me that they largely go to why the House should not, rather than cannot, elect a non-member as Speaker. Schaub may be right that “it simply never occurred to [the Framers] that someone would take it into his head to contend that the Speaker of the House could be an individual who was not a fellow legislator.” But Professor Tillman is right that the mere fact that the Framers and everyone else expected the Speaker to be a member is not enough to prove that there is a constitutional prohibition on electing a non-member to that position.

This is particularly true when you consider that the Constitution expressly leaves the choice of Speaker up to the House. The Framers may have very well assumed that the House would never consider a non-member as Speaker except in extraordinary circumstances; it doesn’t follow that they saw the necessity to preclude the House from choosing a non-member under any circumstances.

A strong argument against the constitutional eligibility of non-members would depend on showing that the meaning of the word “Speaker” as used in the Constitution was limited to members of a legislative body. As Professor Rappaport notes, it would be a necessary, but not sufficient, component of this argument to show that the speakers of the British House of Commons and state/colonial legislatures were invariably members of the body.

What about the semantic content of the word “speaker” at the time of the framing? Johnson’s Dictionary gives one meaning of “speaker” as “the prolocutor of the commons,” which is very helpful unless, like me, you have no idea what “prolocutor” means. Fortunately, it defines “prolocutor” as “the foreman; the speaker of a convocation.” And it defines “foreman” as “the first or chief person.” So one might argue that the “speaker” of a legislative body is the first or chief person of that body, and therefore necessarily a member (as the foreman of a jury is necessarily a member). Not a terrible argument, but hardly a slam dunk either.

In short, the question of whether a non-member can be Speaker remains an open constitutional question (the House never having had occasion to address it in a serious way) and the correct answer is less than obvious, at least to me.