A Discussion of Congressional Legal Issues
From The Hill:
“These new questions have prompted us to review the guidance to ensure that there are no inadvertent loopholes,” said Beth Provenzano, deputy chief of staff for the Senate secretary’s office. She added that the guidance was thoroughly vetted with Senate and House institutional attorneys before it was issued.
“We are actively reviewing the issue to see if there is a problem,” said the House clerk’s office in a statement.
Danielle Brian of the Project on Government Oversight has posted some thoughts regarding the President’s removal of the Inspector General for the Corporation for National and Community Service. While Brian notes various troubling aspects of this matter (for more details see here), she contends that the removal complies with the letter, if not the spirit, of the Inspector General Reform Act of 2008 (a law co-sponsored by then-Senator Obama).
The IG Reform Act provides in pertinent part that “[i]f an Inspector General is removed from office or is transferred to another position or location within an establishment, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer.” The President evidently attempted to comply with this requirement by letter to Congress in which he “explained” the removal as follows: “[I]t is vital that I have the fullest confidence in the appointees serving as Inspector General. That is no longer the case with regard to this Inspector General.”
Brian argues that this “minimal explanation” satisfies the legal requirement. She notes that Congress chose not to adopt a provision that would have limited the President’s ability to remove IGs to specific grounds, namely permanent incapacity, inefficiency, neglect of duty, malfeasance, felony conviction, gross mismanagement or waste funds, or abuse of authority. Because Congress did not require that the President to have a good reason for firing an IG, she argues, it has only itself to blame for the fact that the President has given a bad one.
While Brian may very well be right that Congress would have done better to prohibit removal of IGs except for good cause, I do not see the connection between this issue and the notification provision. Perhaps the President can, for example, remove an IG because his horoscope says that it is a good day to fire someone, but the law still requires him to notify Congress that this is the reason for the removal.
When Congress required the President to state the reasons for removing an IG, it was not looking for an answer analogous to the response to “why did the chicken cross the road?” Explaining that the President removed or transferred an IG because he lacks confidence in him is little better than explaining that the chicken crossed the road to get to the other side. The question remains, why did the President lose confidence in the IG?
The problem here is not that the President has given a bad reason for the removal. It is that he has failed to give a reason at all or, at best, has given only one of the reasons for the removal. The statute requires that the President give the “reasons” for the removal. Unless the President lost confidence in the CNCS IG for no reason at all, the notice to Congress fails to meet this requirement.
Via Election Law Blog, Ken Gross notes that the Clerk and Secretary are reconsidering the guidance that would allow de-listing of a lobbyist who engages in no more than one lobbying contact per quarter. This comports with my information. I suspect that there will be additional guidance in the near future that closes this loophole.
“Many in
Although the language of the new guidance seems quite clear, I think
The Clerk of the House and Secretary of the Senate last week released new guidance on the requirements of the Lobbying Disclosure Act. Among other things, this guidance addressed when a registrant may “terminate” a lobbyist (i.e., remove an individual from the list of persons who act as lobbyists on that registrant’s reports). This is an issue that has become important only in the last couple of years, as being a “registered lobbyist” now involves both regulatory burdens and restrictions on one’s ability to obtain employment in the Obama Administration.
The new guidance states: “A registrant may remove a lobbyist only when (i) that individual’s lobbying activities on behalf of that client did not constitute at the end of the current quarter, and are not reasonably expected in the upcoming quarter to constitute, 20 percent of the time that such employee is engaged in total activities for that client; or (ii) that individual did not in the current quarter and does not reasonably expect in the upcoming quarter to make more than one lobbying contact per quarter.”
As pointed out by the law firm of Caplin and Drysdale (hat tip: Rick Hasen’s Election Law Blog), this guidance is problematic because “[t]he LDA, as well as prior House and Senate guidance, make clear that an individual qualifies as a lobbyist by spending 20% of his/her time engaged in lobbying activities for a client in a calendar quarter and making two or more lobbying contacts over the course of services provided for that client (even if the second contact occurs in a later quarter). Thus, an individual qualifies as a lobbyist if he/she made two or more lobbying contacts at any point during their work for a client, and not merely in the current or subsequent calendar quarter.”
Under the new guidance, someone who has made more than one lobbying contact for a client in the past, and continues to spend more than 20 percent of his or her time on lobbying activities, could apparently be de-listed if he or she made no more than one lobbying contact in the current quarter and did not expect to make more than one in the upcoming quarter. This would essentially mean that one could be an unregistered lobbyist so long as one is careful to limit one’s lobbying contacts to one per quarter, though this would seem contrary to the language and prior interpretation of the LDA.
This would seem to open up a very significant new loophole in the LDA.
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.
Democrats on the House Permanent Select Committee on Intelligence have alleged that Republican members violated committee rules by speaking with The Hill newspaper following a classified briefing by the CIA on interrogation methods. Specifically, Representative Kline (R-Minn.) was quoted by the paper as follows: “The hearing did address the enhanced interrogation techniques that have been much in the news lately,” Kline told The Hill. “Based on what I heard and the documents I have seen, I came away with a very clear impression that we did gather information that did disrupt terrorist plots.” The Democrats are threatening punitive sanctions for this alleged violation.
The rule in question is HPSCI Rule 12(a)(1), which states:
(1) Generally. Except as otherwise provided by these rules and the Rules of the House of Representatives, Members and Committee Staff shall not at any time, either during that person’s tenure as a Member of the Committee or as Committee Staff, or anytime thereafter, discuss or disclose, or cause to be discussed or disclosed:
(A) The classified substance of the work of the Committee;
(B) Any information received by the Committee in executive session;
(C) Any classified information received by the Committee from any source; or
(D) The substance of any hearing that was closed to the public pursuant to these rules or the Rules of the House.
If Kline had disclosed classified information to the press, he would be in violation of subsection (C) of this rule. Such action would also violate House Rules and, potentially, federal law. However, there appears to be no allegation that classified information was released. (It is difficult to see how Kline’s statement, which is essentially the same as claims publicly made by former Vice President Cheney and many others in the past several months, could be said to reveal any classified information).
Nonetheless, subsection (B) prohibits not merely the discussion or disclosure of classified information, but of any information received in executive session. Democrats can argue, therefore, that Kline violated the subsection by discussing the topic of the briefing and by disclosing that the information in the briefing indicated that enhanced interrogation techniques resulted in intelligence that disrupted terrorist plots. Such a statement, they may contend, constitutes “discussing” and/or “disclosing” the information that was received.
Republicans can counter that subsection (B) does not prohibit discussing or disclosing the fact or topic of an executive session briefing, only “information received” in the briefing. (They can point to the fact that the topic of the briefing was on the HPSCI website). They can further argue that Kline did not discuss or disclose any information received in the briefing (e.g., by identifying terrorist plots that were disrupted), but merely stated his conclusion based on receiving that information. They might also contend that the purpose of subsection (B) is to prevent the inadvertent disclosure of classified information, and that Kline’s statement was carefully worded to avoid any possibility of doing so. Finally, they may argue (see this) that under the broad reading of subsection (B) the Democratic members of HPSCI would also be in violation. [Update: In this connection, it should be noted that Speaker Pelosi has made a number of remarks in recent weeks regarding an executive session briefing she received while a Member of HPSCI].
For purposes of thoroughness, we should also consider subsection (D). Although the proceeding in question has been variously described, I suspect that it was a briefing, not a hearing. If so, subsection (D) would not technically be applicable. In any event, I am not sure that asking the question of whether Kline’s statement disclosed the “substance” of the hearing, rather than any “information received” therein, advances the cause of either side. One might argue that the term “substance” is broader, thereby prohibiting even a general characterization of a hearing that does not reveal particular information. One could equally well argue that it is narrower, prohibiting only a disclosure of the essence of the hearing, rather than merely particular bits of information. In short, analyzing the question under subsection (D) does not seem to advance the ball any.
As a lawyer, the temptation is to analyze these competing claims based on the language and purpose and legislative history of the rule, and in light of any relevant precedents interpreting the language. It is doubtful, however, that such an analysis would yield any more definitive answers than suggested by the arguments summarized above, and I would suggest that the legalistic approach really misses the point. The Parliamentarians will tell you that the House and committee rules must be interpreted and applied in the spirit of “comity.” Although this philosophy can be frustrating to lawyers, it makes sense in light of the overriding goal of the rules—to establish settled expectations that allow the members to work together with some degree of mutual confidence. Neither using the rules to punish marginal or technical violations, nor looking for loopholes that enable circumventing the rules, is consistent with this goal.
Seen in this light, it is clear that the door opened by Representative Kline’s statement to the press, whether or not it was technically in compliance with the rules, needs to be firmly closed. In and of itself, the statement probably revealed nothing of significance regarding the executive session proceeding, but its natural effect is to pressure others on the committee to respond with their own public characterizations of the proceeding, which will not only risk the disclosure of sensitive information but call into question HPSCI’s ability to conduct future closed proceedings.
The larger problem, however, is that the political dispute regarding enhanced interrogations, and particularly the argument over what Congress knew and when it knew it, threatens to undermine HPSCI’s critical role in overseeing the intelligence community, and more broadly to harm the functioning and institutional reputation of the House. The only way to solve this problem is for the majority and minority to agree on an approach to resolving the matter. This is what then-HPSCI chairman Pete Hoekstra and Ranking Member Jane Harman did went confronted with the politically sensitive issue of Duke Cunningham’s activities as a member of the committee. They established a framework agreement to govern the rules of the investigation, retained a special counsel (me) to investigate and report, and worked together to ensure that the investigation received the committee’s full cooperation.
With respect to the question of what was disclosed to Congress about enhanced interrogations, this should be a relatively easy task. There were only a limited number of briefings regarding enhanced interrogations, a limited number of participants, and a limited number of relevant documents. A neutral fact-finder should be able to review this evidence and come to conclusion fairly quickly.
It is in the interests of the House for the majority and minority to come together, agree to turn down the temperature on this divisive political issue, and choose a mechanism to resolve the factual dispute. I would suggest that the newly created Office of Congressional Ethics could perform this function. Alternatively, the matter could be referred to the Ethics Committee, to a special counsel, or even to the House Inspector General. One way or another, however, this food fight should end.
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
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
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
The organization Citizens for Responsibility and Ethics in Washington (CREW) put out this news release regarding a grand jury subpoena received by Representative Visclosky. Entitled “WITH VISCLOSKY’S SUBPOENA, CREW ASKS — WILL HOUSE COUNSEL ONCE AGAIN STYMIE A CRIMINAL INVESTIGATION INTO A MEMBER OF CONGRESS?,” the essence of CREW’s point seems to be that it is per se improper for House Counsel to be involved with Speech or Debate or other privilege issues in connection with a criminal investigation of a Member of Congress. According to CREW director Melanie Sloan, “Although members of Congress campaign against the ‘culture of corruption,’ behind the courtroom door — and out of the public eye – the House Counsel, acting on behalf of both the Speaker of the House and the Majority Leader, routinely steps in to protect members who have abused their offices and the public trust from prosecution. The Republicans and Democrats may not see eye-to-eye on much, but both parties agree members of Congress should be above the criminal laws that apply to the rest of us.”
As a former senior counsel in the House Counsel’s office, I know a little bit about this subject so I telephoned Naomi Seligman, who is listed as the CREW contact person for this issue. Had Ms. Seligman cared to speak with me, I could have explained to her the House Counsel does not represent Members of Congress in criminal investigations. If Visclosky is a potential target of the grand jury investigation (which appears to be the case), the House Counsel will be unable to represent him due to the potential conflict between his personal interests and those of the House as an institution. Accordingly, CREW’s statement that “if recent history is any guide, the House Counsel will soon step in and move to quash the subpoena” is simply false.
If Visclosky should decide to move to quash the subpoena in whole or in part, the motion would be made by his personal counsel. It is not uncommon for personal counsel to consult with House Counsel on this issue, given the latter’s expertise in Speech or Debate issues, but in my experience the decision is in no sense made by House Counsel (or by the Speaker to whom the House Counsel reports). It is true that if a motion is filed, and an issue deemed of institutional significance to the House is raised, the House Counsel may file an amicus brief on behalf of the Speaker and/or the Bipartisan Legal Advisory Group.
Perhaps CREW has intentionally distorted its news release for purposes of making its point in the most simplistic way possible. But if it were interested in actually understanding the process it is criticizing, I would have been happy to explain it to them. But the gentleman who answered the phone refused to allow me to speak with Ms. Seligman, saying that she only speaks with “the press.” Nor was he willing to let me speak with anyone else knowledgeable about the release (despite my explaining the reason for my call).
I guess that CREW is too busy preaching openness and transparency to practice it.
As mentioned in my last post, it is possible that the new guidelines on stimulus lobbying will apply to Members of Congress and thus prohibit agency officials, during the period that competitive grant applications are being evaluated, from engaging in oral communications with Members and their staffs about the applications. (This thought was suggested by Senate staffer Tom Jones on the google group of the Open House Project). As a policy matter, this would make sense because using congressional influence would be an obvious way for applicants to try to affect the award of stimulus funding. This is particularly true if applicants are limited in their ability to approach agency officials directly.
Enforcing such a limitation on Members of Congress and congressional staff, however, is tricky. As a practical matter, it is difficult for agency officials to refuse to take meetings with Members and staff, or to demand that the subject matter of such meetings be limited. Even if there were a prior agreement to respect the restrictions of the executive branch rules, it would be relatively easy to circumvent them. As in, “I know that I am not allowed to talk to you about my constituent’s excellent grant application, but I just wanted you to know that I will be very disappointed if it is not approved.”
Moreover, it is unlikely that congressional actors would suffer any consequences even if they were to blatantly violate the executive branch rules. Although the House and Senate Ethics Manuals warn Members that certain types of administrative proceedings do not permit ex parte communications with agency officials, they stop short of suggesting that such communications would violate congressional rules or result in disciplinary action. In fact, as the Senate Ethics Manual points out, “neither the Senate, nor the House, has to date, disciplined a Member solely because of that Member’s intervention with an executive agency.” (This statement must now be qualified by the fact of the Senate Ethics Committee’s admonishment of Senator Domenici, but it is doubtful that this precedent would be applied in the absence of aggravating circumstances beyond merely providing assistance to a constituent).
So how can the administration ensure that Members of Congress do not undermine the intended effect of the stimulus lobbying restrictions? One possibility would be to require agency officials to publish information about stimulus-related contacts by Members of Congress, just as they are required to do with respect to contacts by registered lobbyists. The published information could identify instances where Members or congressional staff sought to communicate about specific grant applications in violation of the executive branch rules. Such disclosure might deter congressional attempts to circumvent the rules or, at a minimum, would alert competitors to the tactics being used in order to win grant proposals.