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Why it Doesn’t Matter Whether Celia Roady is a “Lobbyist”

Celia Roady, the Morgan Lewis tax partner who posed the now-infamous planted question regarding IRS targeting of conservative groups at an ABA conference, “focuses her practice on tax and governance issues affecting tax-exempt organizations, including charities, foundations, colleges and universities, museums, and other nonprofit organizations,” according to the Morgan Lewis website.

Roady has also been described by news reports as a “lobbyist,” but that is not quite right. She was registered in 2005 and 2006 to lobby for two clients, the Schwab Fund for Charitable Giving and the Vanguard Charitable Endowment Program. In both cases the subject of the lobbying was “tax treatment of donor-advised funds of charitable organizations” and in both cases the lobbying registration was terminated on January 19, 2007. Thereafter Roady was not registered to lobby for any client, and thus no longer a “lobbyist.” Or at least a “registered lobbyist.”

Roady’s lobbying reports reflect contacts only with the Senate Finance Committee and Joint Committee on Taxation. One might therefore assume that she had no discussions with executive branch agencies regarding the subject of her lobbying effort. The Lobbying Disclosure Act requires a report of “the Houses of Congress and the Federal agencies contacted by lobbyists employed by the registrant on behalf of the client.” As pointed out by the ABA Lobbying Manual (4th ed.), at p. 136, this language might be read to require disclosure if conversations take place with any federal agency, but it has been interpreted by the Clerk of the House and Secretary of the Senate to apply only if there has been a “lobbying contact” with the agency. This means, for example, that Roady would only have to list the IRS if she had discussions with someone who qualified as a “covered executive branch official” and those discussions did not fall within one of 19 exceptions to covered communications.

Roady clearly has a close relationship with various people at the IRS, including Lois Lerner, the director of the IRS’s exempt organization division, who called Roady before the ABA conference to request that she ask a question regarding the Inspector General’s investigation of improper targeting of conservative organizations. One would expect that Roady has communicated frequently with Lerner and other IRS officials regarding matters of importance to her own clients so one might wonder why those conversations never triggered a disclosure obligation under the LDA. Certainly Lerner is senior enough to qualify as a “covered executive branch official.” [Ok, maybe not so certainly- see comment from Dave Mason below]

One way that Roady might have been able to avoid triggering a disclosure obligation would be to communicate in ways that fell within one of the exceptions to the Lobbying Disclosure Act. For example, with respect to her lobbying on “tax treatment of donor-advised funds of charitable organizations,” Roady would have had to disclose if she had had a conversation with Lerner (or another high-ranking IRS official) on behalf of one of her clients. But suppose Roady’s involvement in this issue was not limited to her advocacy on behalf of private clients? At around the same time of her lobbying effort, she served on a working group of the “Panel on the Nonprofit Sector,” a project of Independent Sector, which describes itself as the “leadership network for nonprofits, foundations, and corporate giving programs committed to advancing the common good in America and around the world.” This project resulted in a report which, among other things, made a series of recommendations regarding donor-advised funds (see p. 39). So if Roady discussed these issues with Lerner or others at the IRS, who is to say if she was doing so on behalf of her paying clients or Independent Sector?

Speaking of Independent Sector, another way that Roady might communicate with high-ranking IRS officials without engaging in “lobbying contacts” is to appear with them on panels or at professional conferences (like the ABA conference itself). As public events, these probably fall outside the definition of “lobbying contacts.” Roady (like many other Washington tax lawyers) frequently participates in such events. For example, if you had been at the Ritz Carlton on April 24, 2013, you could have attended a program jointly sponsored by Independent Sector and Georgetown Law School, and featuring tax and legal experts such as Roady and . . . wait for it . . . Lois Lerner.

(This event was titled, ironically, “Nonprofit Governance: Advancing Your Mission Through Lobbying.” You see, the tax law generally restricts nonprofits from engaging in lobbying, but it is a tad vague on what exactly constitutes lobbying or how much is allowed. This “leaves public charities in quandary- they are permitted to engage in some lobbying but too much may jeopardize their tax exemption, and there is no bright-line test for determining how much lobbying is too much.” If this problem sounds to you  a lot like the issue of how much political activity can be engaged in by tax exempt groups, we think alike.)

Even more ironically, Roady may have avoided “lobbying contacts” in part because of her appointment by the IRS to be a member of its Advisory Committee on Tax-Exempt and Government Entities. This appointment would not have been possible if Roady had still been a registered lobbyist because President Obama has barred lobbyists from serving on such committees. However, the LDA also exempts communications “made in the course of participation in an advisory committee” from the definition of “lobbying contacts.” Thus, having been appointed to the committee due to her cozy relationship with the IRS, Roady’s service on the committee provided her with a basis for communicating with senior IRS officials without triggering a registration obligation.

Of course, given the many vagaries of the LDA, someone who really does not want to register can often find a colorable basis for failing to do so. Lack of enforcement makes it unlikely that a non-registrant will even have to explain his or her failure to register. While these problems may militate in favor of tightening the requirements of the LDA, they also make it foolish and counterproductive to punish those who do register.

Thus, while the policy of banning lobbyists from serving on advisory committees may or may not prove to be unconstitutional (as currently being argued before the D.C. Circuit), the Roady case illustrates why it certainly will not fulfill Obama’s stated goal of changing the “culture of special interest access.” All it does is incentivize non-compliance with the LDA, and reward those who can find a way not to register.

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Renzi trial (chock full of Speech or Debate goodness) begins

The corruption trial of former congressman Rick Renzi began this week in federal court in Arizona. A number of Speech or Debate issues can be expected to arise during the trial. The Bipartisan Legal Advisory Group (affectionately known as BLAG) has already filed this amicus brief addressing the question of whether Renzi would waive the Speech or Debate privilege by introducing in his defense evidence of certain legislative activities, such as the fact that a particular bill (referred to as the Resolution Copper Company bill) was introduced in the House and that another bill (referred to as the Preserve Petrified Forest Land Investors bill) was never introduced.

BLAG asserts (correctly, as far as I know) that no case has ever found a waiver of the Speech or Debate privilege. It contends that no such waiver can take place unless the privilege-holder (in this case Renzi) makes an “explicit and unequivocal renunciation,” as the Supreme Court put it in U.S v. Helstoski, 442 U.S. 477, 491 (1979). Renzi’s introduction of evidence regarding legislative activities (which would violate the privilege if introduced by the government) does not amount to such a renunciation, according to BLAG. Thus the government would not be entitled to introduce privileged evidence itself, even if directly responsive to the evidence introduced by Renzi.

Needless to say, the government will argue that this is a tad unfair, but BLAG maintains that the court can address this problem by exercising its discretion under Federal Rule of Evidence 403. It suggests that the court may choose to exclude the evidence offered by Renzi or condition its admission on Renzi’s waiver of Speech or Debate with regard to certain responsive evidence (for example, evidence that would be within the scope of cross-examination).

Another potential issue in the Renzi case relates to a subpoena for documents that was received by the House Intelligence Committee (I don’t know which side served it). According to a notice under House Rule VIII filed by the committee on March 12, 2013, the committee intends to move to quash the subpoena as contrary to the rights and privileges of the House. The docket sheet does not reflect such a motion, though, so I assume that the issue has either been resolved or put off until a future time.




	


	





		

		
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The Government’s Trick Question in Noel Canning
	


	
	

		
The first question presented by the administration’s cert petition in the Noel Canning case turns out to be a trick question:


“Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.”


Why is the government using the word “enumerated”? By using that word, and using it only in connection with one of the two references to Senate sessions, it leaves the impression that there is a difference between a “session” and an “enumerated session” of the Senate. It would not seem to be in the government’s interest to leave that impression.


Nor would it seem to be in its interest to highlight the word “enumerated.” I can just hear Justice Scalia: “Where in the Constitution does it refer to ‘enumerated’ sessions?” “Would this case be different if Congress alphabetized its sessions?”


As it happens, I think there is a difference between a “session” and an “enumerated session” of the Senate. That means that there is a third option beyond those presented in the government’s question. There can be no recess appointments within a “session” of the Senate, but there can be recess appointments that are not between “enumerated sessions” of the Senate. So the correct answer to the government’s question is “no.”

	


	





		

		
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Miranda, Congress and the Boston Marathon Bombing Suspect
	


	
	

		
A few years ago the Obama Administration considered asking Congress for legislation to expand the “public safety” exception to Miranda v. Arizona, 384 U.S. 436 (1966), so as to allow law enforcement officials to hold and interrogate suspected terrorists without providing the so-called “Miranda warnings.” I argued that existing Supreme Court precedent did not preclude the courts from giving deference to such a statute, particularly if were supported by reasoned fact-finding and/or included alternative methods of ensuring the voluntariness of statements made by suspected terrorists.


The administration, however, did not pursue such legislation. Instead, it apparently adopted internal guidance to clarify how existing legal rules regarding custodial interrogations should be applied in the case of terrorism suspects. The New York Times published a short FBI memorandum it obtained on the issue (I assume that there are more extensive legal memoranda which have not been made public).


The positions set forth in that memorandum may now get a real life test due to yesterday’s arrest of one of the suspected Boston Marathon bombers, Dzhokhar Tsaraev, age 19. According to this article by Josh Gerstein: “’No Miranda warning to be given’ now, a Justice official told POLITICO Friday night. ‘The government will be invoking the public safety exception.’”


The FBI memorandum states “agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights.” This would seem to most obviously cover questions about the location of any explosive devices or materials of which Tsaraev may be aware. More controversially, agents may ask him about other potential plots, other individuals who were involved in planning or executing the Boston Marathon bombings and contacts that he or his brother have had with foreign terrorist organizations.


Furthermore, the FBI memorandum says that “[t]here may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.” This disadvantage of invoking this further exception (lets call it the “intelligence exception”) is that the fruits of the interrogation would likely be inadmissible in court.


To further complicate matters, the bombing suspect is relatively young and badly wounded. Thus, apart from issues of unwarned custodial interrogation, Tsaraev’s lawyer (when he gets one) will probably argue that any statements by his client were involuntary due to some combination of his age, his medical condition, any medications he is receiving, explicit or implicit threats with regard to pain medication, etc.


As a practical matter, therefore, the FBI is probably all in with regard to questioning Tsaraev. In other words, once the decision is made not to Mirandize him, the agents have to proceed as if nothing that he says will likely be admissible. This may not be much of a problem given the amount of evidence that it had accumulated prior to taking the suspect into custody. Accordingly, law enforcement may feel free to be unusually aggressive in its questioning, which could raise some of issues regarding “coercive interrogations” that arose during the Bush Administration.


It would be hopelessly naïve to suggest that Congress could have obviated all of these problems by enacting legislation to define the scope of permissible interrogations for terrorism suspects. Nevertheless, it is worth noting that Congress, rather than simply complaining about executive branch actions after the fact, could actually take a stab at writing the rules that would govern these interrogations. I guess that would be hopefully naïve.


 


 

	


	





		

		
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Noel Canning: Does It All Depend On What The Meaning Of “The” Is?
	


	
	

		
In Noel Canning v. NLRB (Jan. 25, 2013), the D.C. Circuit held that President Obama’s January 4, 2012 recess appointments to the National Labor Relations Board were constitutionally invalid because the Senate was in an intrasession adjournment at the time. The court held that only a period of intersession adjournment constitutes “the Recess” of the Senate within the meaning of the Recess Appointments Clause.


The court has been the subject of some justifiable criticism (see Professors Garrett Epps here and Eric Posner here) for its emphasis on the fact that the RAC refers to “the Recess,” rather than “a Recess.” In the court’s estimation, this fact leads to the “inescapable conclusion” the Framers intended “something specific” by “the Recess.” The court concludes that the Framers must have used “the Recess” to mean something narrower and more specific than any break in the proceedings. It contrasts the Constitution’s use of “the Recess,” which appears only in the RAC and the Senate Vacancies Clause, with its use of the terms “adjourn” and “adjournment” to signify any break in proceedings.


 Continue reading “Noel Canning: Does It All Depend On What The Meaning Of “The” Is?”

	


	





		

		
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Recess Appointment News
	


	
	

		
The Justice Department will not seek en banc rehearing of the D.C. Circuit’s decision in Noel Canning, but will seek certiorari instead (the deadline for filing is April 25). Assuming the Court grants the petition (which, pretty much everyone seems to agree, seems likely), arguments will be heard in the fall. It is worth noting that the NLRB recess appointments at issue will expire, even under the administration’s legal theory, no later than January 2014.


A forthcoming student note, by Amelia Frenkel of NYU Law School, argues that the Recess Appointments Clause does not apply to newly-created offices because such unfilled offices are not “vacancies” or are not vacancies that “happen” within the meaning of the RAC. It follows from this argument that President Obama’s recess appointment of Richard Cordray to become the first director of the CFPB was invalid.

	


	





		

		
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Six Answers for Six Puzzles
	


	
	

		
Over at The Originalism Blog, Professor Michael Ramsey has given his answers to Professor Seth Barrett Tillman’s “Six Puzzles” on the Constitution’s various uses of the terms “officers” and “offices.” FWIW, I tend to agree with all of Ramsey’s answers with one possible exception.


That relates to the first puzzle, which involves the Succession Clause’s provision that “Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President . . . .” The question is whether the term “Officer” encompasses legislative officers (if the answer is no, then it was unconstitutional for Congress to place the Speaker of the House and the President Pro Tem of the Senate in the line of succession).


Ramsey and Tillman believe that because the Succession Clause uses the broad term “Officer,” rather than a possibly narrower formulation such as “Officer of the United States” or “Officer under the United States,” as the Constitution does elsewhere, legislative officers must be covered. Given the Constitution’s varied usages of the terms “officer” and “office,” I find the term ambiguous. Structural and other evidence casts doubt on whether legislative officers were meant to be included. For example, in Article VI the Oath Clause applies to “Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States.” I find it difficult to believe that the Framers deliberately decided to exclude non-member legislative officers from being bound by oath, yet decided to include them in the Succession Clause. It seems more likely that the term “Officers” standing alone was understood to include either executive officers only, or both executive and judicial officers, but that legislative officers were not understood to be “Officers” in the same sense, or were simply considered so unimportant as to be not worth mentioning.

	


	





		

		
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The Nuclear Option, the Law of the Senate and the Conscientious Senator
	


	
	

		
This is my final post (at least for this Congress, hopefully) on the filibuster and the entrenchment of Senate rules. For the first 9 entries in this series, see below:


Legal Scholar Letter to the Senate on Procedures for Changing the Rules


Professor Bruhl and Senate Continuity


Professor Chemerinsky and Senate Precedent on Changing the Rules


Senate Rules from the Internal Point of View


Entrenchment and the Academic “Consensus”


Entrenchment Reconsidered (Part I)


Entrenchment Reconsidered (Part II)


Professor Chafetz and the “Constitutionally Conscientious Senator”


Did the Senate Flub Its Cinderella Moment?


In this post, I will consider the so-called “nuclear option,” its legality or legitimacy under the law of the Senate, and how a “constitutionally conscientious Senator” should vote with respect to its exercise.


The “nuclear option” (also sometimes called the “constitutional option”) may be defined as the use of a parliamentary ruling to declare the Senate rules unconstitutional insofar as they require a supermajority to end debate on a proposed change to the rules. If such a ruling were upheld by a simple majority, it would no longer be possible for a minority of senators to block rules changes (depending on the scope of the ruling, either at the beginning of a Congress or at any time). This would effectively end the (allegedly) unconstitutional entrenchment of the Senate rules claimed by the signatories to the December 12 legal scholar letter.


As explained below, I believe that the “nuclear option” is most reasonably understood as illegal under the existing law of the Senate, in the sense that its use would require overruling a substantial body of Senate precedent. Furthermore, it is believed by most senators, including some that would be willing to invoke the nuclear option if need be, that its use would entail, at the very least, substantial institutional costs in terms of the stability and perceived legitimacy of the Senate’s legal system. At the most, the nuclear option would effectively destroy the Senate’s existing legal system and require the creation of a new system of rules and precedents more or less resembling the House’s majoritarian procedures.


The Senate has previously declined to exercise the nuclear option on a number of occasions, including in 2005 when the Republican majority considered using it to abolish the filibuster with respect to judicial nominations and, most recently, on January 24, 2013, when the Democratic majority considered using it to enact major reforms to the filibuster generally. The evidence from these episodes indicates that many senators, including the “swing senators” (majority senators who refused or were reluctant to support the use of the nuclear option), were concerned about both the legitimacy of the nuclear option under the law of the Senate and the practical effects that it would have on the Senate as an institution.


Rather than trying to convince senators that they misunderstand the Senate’s own traditions and precedents, or that they overstate the likely institutional consequences of the nuclear option, it seems to me that the scholars and academics who have opined on these issues would provide a more useful service to the Senate by proposing constitutional solutions that can reasonably be achieved under the Senate’s existing rules. At the conclusion of this post, I suggest one possible solution.


 Continue reading “The Nuclear Option, the Law of the Senate and the Conscientious Senator”

	


	





		

		
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House Democrats Support BLAG’s Standing in DOMA Case
	


	
	

		
Probably the most important part of the Bipartisan Legal Advisory Group’s jurisdictional brief in U.S. v. Windsor (the Supreme Court case on the constitutionality of the Defense of Marriage Act) is the first footnote (page ii), which states:


The Bipartisan Legal Advisory Group articulates the institutional position of the House in all litigation matters in which it appears. The Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. While the Democratic Leader and Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases, they support the Group’s Article III standing.


(emphasis added).


The fact that the House Democratic Leadership supports BLAG’s standing to defend the constitutionality of DOMA tells the Supreme Court, in no uncertain terms, how vital the House considers its right to defend the constitutionality of statutes where the executive branch refuses to do so.  If the Court is looking for an “easy out” from this case, this makes it harder. Although it is arguable that the House Democrats are only supporting BLAG’s “Article III standing,” as opposed to prudential standing requirements that the Court might decide to apply, it is even more noteworthy that they are supporting BLAG’s standing, not just the House’s. The House Democratic Leadership evidently agrees that BLAG was properly authorized to represent the House in this litigation, which is a key jurisdictional question.


Full disclosure: I am representing 10 Senators in this case on an amicus brief in support of DOMA’s constitutionality.

	


	





		

		
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Tillman’s Puzzles for Amar (or Who You Callin “Atextual”?)
	


	
	

		
In this article, Professor Seth Barrett Tillman has six puzzles for Professor Akhil Amar:


Puzzle 1. Does “Officer,” as used in the Succession Clause, Encompass Legislative Officers?


Puzzle 2. Does Impeachment Extend to Former “Officers”?


Puzzle 3. Who are the “Officers of the United States”?


Puzzle 4. Is the President an “Officer of the United States”?


Puzzle 5. Is the Presidency an “Office . . . under the United States”?


Puzzle 6. Is “Officer of the United States” Coextensive with “Office under the United States”?


Tillman explains the background as follows:


The Constitution of 1787 uses a variety of language in regard to “office” and “officer.”

It makes use of several variants on “office under the United States,” and it also uses “officer of the United States,” “office under the Authority of the United States,” and, sometimes, just “officer” without any modifying terminology. Why did the Framers make these stylistic choices (if a choice it was)?


(And what was the Constitution referring to in Article VI’s obscure “public trust under the United States” language?)


From time to time commentators have suggested answers. One such view was put forward in 1995 by Professors Akhil and Vikram Amar. They opined that each of these categories were indistinguishable: each category referred to Executive Branch and Judicial Branch officers, including the President (and, apparently, the Vice President).


I contest their atextual position.


If you are interested in the “officers” dispute, or if you just want to know where the bodies are buried … this paper is for you. “Six Puzzles for Professor Akhil Amar.” Sometimes the title says all you really need to know…


Over at the Originalism Blog, Professor Michael Ramsey says he may take stab at solving these puzzles. I hope he gets them right, or Gotham City is DOOMED!