Month: September 2008

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OFFICE OF CONGRESSIONAL ETHICS BOARD HOLDS FIRST MEETING

Press Release from  David Skaggs, Chair, and Porter Goss, Co-Chair, of the board of the Office of Congressional Ethics established by House Resolution 895: 

The board of the Office of Congressional Ethics held its first meeting together this Thursday and Friday, September 25 and 26, 2008. Our agenda was designed to provide context and background for the new Office and included productive and informative discussions with House leadership, the leadership of the Committee on Standards of Official Conduct and the leadership of the Bipartisan Ethics Task Force, as well as briefings by various House staff members concerned with the ethics process and the administration of the new Office. We also had very useful meetings with several outside experts in the field who are not affiliated with the House. 

The board hopes soon to select an individual for the senior staff position to serve as Staff Director & Chief Counsel in the new Office. It will then proceed to draft and adopt its rules of procedure. Having some staff capacity and having rules for its operation in place are essential conditions for the Office properly to receive and act on any submissions concerning alleged violations of the ethical standards of the House.  House Resolution 895 prohibits the Office from considering such matters until after the November election, and as a practical matter, we do not expect staffing and adoption of rules to permit the Office to be in operation until early in 2009.

 

The members of the board of the Office of Congressional Ethics were jointly appointed by Speaker Pelosi and Minority Leader Boehner as announced by them on July 24, 2008. The members, in addition to former Congressmen Skaggs (D-CO) and Goss (R-FL), are: former Congresswomen Yvonne B. Burke (D-CA) and Karan English (D-AZ), former House Chief Administrative Officer Jay Eagen, and Professor Allison Hayward. Alternates are: former Federal Judge and former Congressman Abner Mikva (D-IL) and former Congressman Bill Frenzel (R-MN).

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Voting Procedure in the House

       The Select Committee to Investigate the Voting Irregularities of August 2, 2007 (commonly referred to as the “Stolen Vote” committee) has released its final report dated September 25, 2008.    The report describes in some detail the process of voting in the House, which I summarize below:

  1. Votes in the House are conducted by the “tally clerks” at the direction of the Chair. Under House Rule XX, clause 2(a), the preferred method for conducting a record vote is by electronic device. In most cases, the rule requires that the minimum time for such a vote be 15 minutes.
  2. The process of voting is controlled by the Chair (the Member who has been designated by the Speaker to preside over the House proceedings at that particular time and who is referred to as “Mr. or Madam Speaker” during that time). The Chair acts in a “non-partisan capacity” and receives guidance and advice from the Parliamentarian as to how to comport with the rules, precedents and best practices of the House. The Parliamentarian, as an agent of the Chair, may also provide advice to the tally clerks on the proper conduct of the vote.
  3. The Electronic Voting System (EVS) is operated by the “seated tally clerk,” who sits at the primary EVS terminal on the Speaker’s Dais. The seated tally clerk is assisted by a standing tally clerk, while a third tally clerk monitors the vote from a terminal in the Office of Legislative Operations.
  4. The seated tally clerk will initiate the EVS when the Chair states “The yeas and nays are ordered. Members will record their vote by electronic device.”
  5. The EVS includes a clock that tracks the minimum amount of time for the vote, 46 voting stations located on the House floor, and display boards. Two display boards, located above the east and west doors of the House chamber, display the time remaining in the vote and the running tally. A third display board, located behind the Chair, displays the vote of each Member.
  6. Members may cast or change their votes by using their personal voting card at one of the voting stations and pushing one of three buttons- a green button for “yea,” a red button for “nay,” or an amber button for “present.”
  7. Members may also cast their votes manually in the area in front of the rostrum known as the “well.” Well votes are received by the standing tally clerk, who verifies the information on the “well card” and hands it to the seated tally clerk for entry into the EVS.
  8. A Member may change his or her vote any number of times during a record vote. However, after the first 10 minutes of a 15-minute vote, a Member can change his or her vote only by manual voting in the well, unless the Member voted “present,” in which case the vote can still be changed electronically as long as the voting stations remain open.
  9. The seated tally clerk keeps a handwritten list of Members who change their votes after the first 10 minutes.
  10. Members are responsible during electronic votes for verifying that their votes are recorded accurately.
  11. The process of closing the vote begins when the Chair asks whether any Members wish to vote or change their vote. The Chair will ask this question sometime after the first 10 minutes of a 15-minute vote, and this signals the seated tally clerk to turn off the 46 voting stations (thus requiring that all remaining votes be cast or changed at the well). However, if the seated tally clerk perceives that there are a number of Members still seeking to vote, the tally clerk may leave the voting stations open for some period.
  12. When the Chair asks whether any Members wish to vote or change their vote, the seated tally clerk gives the handwritten list of Members who changed their vote to the reading clerk, who proceeds to announce that information to the House. Any changes to votes thereafter are announced immediately by the reading clerk.
  13. Once the minimum time for a vote is expired, the Chair determines when to close the vote. This decision is to be made on the “totality of the circumstances,” based on the Chair’s balancing of the obligation to conduct the vote efficiently (which means closing the vote at the earliest opportunity after the minimum time has expired) and the obligation to protect a Member’s right to vote (which counsels keeping the vote open when the Chair sees that there are Members who have yet to vote).
  14. Generally, the practice of the Chair has been to delay closing the vote until there are no more Members in the chamber who are seeking to vote. It is commonplace, at the end of a vote, for latecomers to straggle into the chamber while the Chair is attempting to close the vote. It can take the Chair several minutes, and several attempted announcements, to close the vote, long after the minimum time for voting has expired.
  15. With one exception, the Chair has complete discretion as to when to close the vote. That exception is the rule, adopted for the first time in the current Congress, that prohibits a vote from being held open for the sole purpose of reversing the outcome of a vote.
  16. When the Chair is ready to terminate the vote, the gavel is brought down. Operating pursuant to the Chair’s direction, the seated tally clerk determines when all votes have been entered into the EVS and reflected on the display boards. At that time, the seated tally clerk indicates to the standing tally clerk that the tally displayed is reliable and selects the option on the EVS to “terminate the vote.”
  17. At the same time the standing tally clerk prepares the “tally slip” (a small slip of white paper containing the vote tally) and hands it to the Parliamentarian, who in turn hands it to the Chair.
  18. At this point the Chair will usually take the tally slip and read the vote tally aloud. As the Chair does so, the seated tally clerk will typically select the option on the EVS called “setting the vote to final” (doing so causes the word “FINAL” to appear on the display boards). However, this in itself does not end the vote, and if additional Members enter the chamber, the Chair may still allow them to vote, requiring the EVS to be reopened and another tally slip to be prepared.
  19. It is only when the Chair makes an “unequivocal announcement of result” that the vote is final under House rules. Thus, when the Chair states “the amendment is adopted” or “the bill is passed,” the vote is concluded and cannot be reopened. Even this has some wiggle room, as House Parliamentarian John Sullivan explained: “I can recall on occasion when a Chair uttered what in a transcript would look like an unequivocal statement of result, but it is just because the last syllable was coming out of his mouth he wanted to pull up because a Member was running down the aisle. . . . We rationalize that the Chair hadn’t put the period on the end of the sentence in that circumstance.”
  20. As the “unequivocal announcement of result” is announced, the seated tally clerk selects the “releasing the displays” option on the EVS. The EVS then asks for “verification of the release.” While the earlier steps in releasing the EVS are reversible, the verification of the release clears the display board and shuts down the vote as a technical matter.
  21. After the vote is closed, the tally clerks on the rostrum proof the well cards with the tally clerk located in the Office of Legislative Operations. After this is done, the vote totals are released to the Clerk’s public website.
  22. Data for each vote taken by electronic device is collected in several files: transaction logs, checkpoint file, vote journal log, and hardware and software error logs. These files are only available internally and not to the public. The transaction logs record all voting transactions by each Member during a particular vote, including every vote cast, the time each vote is cast, any changes, and the manner in which the vote is cast (ie, from a voting station or a well card).
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People Who Live in Glass Houses (Revised)

         

          A federal judge has ruled that the Library of Congress violated Title VII when it refused to hire a prospective employee who was a male-to-female transsexual.  Specifically, the plaintiff, who applied for a position with the Congressional Research Service (part of the LOC) while having the appearance and dress of a man, was made a job offer prior to CRS learning of the plaintiff’s intent to undergo surgery for “transitioning from male to female.”  The job offer was then withdrawn.  Judge Robertson ruled that by taking this action in response to the prospective employee’s “decision to transition, legally, culturally, and physically, from male to female, the Library of Congress violated Title VII’s prohibition on sex discrimination.” 

            The LOC, of course, is a legislative branch entity and falls under the jurisdiction of the Committee on House Administration.  The chairman of that committee, Robert Brady, has issued a statement which reads in part that “I applaud the Court’s decision, which should serve as a wake-up call to organizations that fail to include gender identity in their employee non-discrimination policies.” 

            It turns out, though, that one of those organizations is the U.S. House of Representatives.  Specifically, the Committee on House Administration, which has jurisdiction over employment of persons by the House, publishes a Model Employee Handbook which contains no mention of gender identity. 

After reviewing his own website, Chairman Brady might want to check the Rules of the House, which provide that a member, officer or employee of the House “may not discharge and may not refuse to hire an individual, or otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the race, color, religion, sex (including marital or parental status), disability, age, or national origin of such individual, but may take into consideration the domicile or political affiliation of such individual.”

Note that the language relating to sex specifically includes marital or parental status, but says nothing about gender identity. This omission was most definitely not unintentional, as the House was well aware, at the time that it adopted its rules in January 2007, that neither sexual orientation nor gender identity have generally been considered to be included under the federal employment laws. In fact, the House was aware of this specific dispute regarding the LOC. Surely, then, the House’s failure to include gender identity (or sexual orientation) in its rules was far from inadvertent.

Indeed, as noted in Judge Robertson’s opinion, a bill that would have banned employment discrimination on the basis of both sexual orientation and gender identity (H.R. 2015) was introduced in the House during this very Congress. However, Representative Barney Frank, the principal sponsor of the bill, withdrew the gender identity provisions on the grounds that they were too controversial to pass the House. The revised version of the bill, entitled the Employment Non-discrimination Act of 2007 (H.R. 3685), banning discrimination on grounds of sexual orientation only, passed the House but has not been enacted into law.

If Chairman Brady thinks it important for organizations to include gender identity in their employment discrimination policies, perhaps he should start with his own organization. He should not impose new employment discrimination laws on the LOC that the House refuses to adopt for itself.

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D.C. Circuit Considers a Stay in the Miers Case

           I attended yesterday’s D.C. Circuit argument on the Justice Department’s stay application in the Miers case.  The panel consisted of Judges Randolph, Ginsburg and Tatel.  A few takeaways: 

            Despite having asked the parties to brief appellate jurisdiction, the court didn’t seem interested in that subject.  The sense I got was that the judges are satisfied that they have jurisdiction over at least some part of the case. 

            It seemed as if the judges were interested in granting a stay, but it was not clear why.  The judges did not give much indication of disagreement with the rulings of the court below.  Judge Randolph made a point of noting, in response to House Counsel’s assertion that the Justice Department’s position on absolute immunity was “bogus” and “frivolous,” that this was the position of every administration since the Nixon Administration.  However, while the panel may believe that absolute immunity is a question of first impression, I did not detect any indication that the judges disagreed with how Judge Bates resolved that question.  Toward the end of the argument, Judge Tatel asked DOJ attorney Carl Nichols what was his “best case” in support of the absolute immunity position.  Nichols cited Nixon v. Fitzgerald (holding that the President is immune from civil suits) but acknowledged that Harlow v. Fitzgerald (denying the same immunity to presidential aides) “would be difficult for us.”  I am probably biased here (as I don’t think much of the absolute immunity argument myself), but I don’t think the judges found that very convincing.

With regard to the Justice Department’s threshold arguments, standing and cause of action, there was no discussion of the latter and the former did not come up until the very end of the argument, when Judge Randolph pointed out that if the House were to exercise its “self-help” remedy by arresting an executive official for contempt, the court would have to hear the same issues in the form of a habeas petition brought by the detained official. None of the panel seemed to understand why this would be a more appropriate way to resolve the dispute than the declaratory judgment action brought by the House.

(Judge Randolph asked Nichols whether the House had ever arrested an executive official for contempt. Nichols stated that he was not aware of any such case. In fact, at least two executive officials have been arrested for contempt, but in neither case were they asserting executive branch privileges or refusing to testify on the direction of the President.)

Most of the argument focused on the how much harm the House would suffer if a stay were granted. This is a tricky question because, although both parties agreed that the subpoenas here would “expire” at the conclusion of the Congress (i.e., in the first week of January 2009), the parties themselves seemed unsure as to what that would mean for the case. Nichols argued that the case would “likely” be moot at the expiration of the Congress, but suggested that this might depend on several factors that he did not identify. He also argued that the only legitimate purpose for the subpoena was to obtain information in aid of legislation, and that there was no possibility, even if the case were not stayed, that the House would be able to get any useful information and use it for legislative purposes in this Congress. In other words, a stay would not really matter because the clock will run out either way. (For that very reason the Justice Department has previously taken the position that congressional subpoenas expire upon adjournment sine die, another position that it has apparently altered for the purposes of this case.)

House Counsel Irv Nathan acknowledged that the subpoena would expire at the end of the Congress, but suggested that this might not moot the case because it would fall within the mootness exception for cases capable of repetition but evading review. Judge Tatel pointed out, however, that this exception only applies if the case is capable of repetition for the same plaintiff, and is therefore arguably inapplicable because the House Judiciary Committee itself (along with the House as a whole) expires at the end of the Congress.

It is not clear to me that the case should be mooted by the expiration of the Congress. As both parties acknowledged at the argument, the court of appeals in the AT&T case apparently did not view the expiration of the Congress as mooting the controversy before it. Moreover, in the census litigation, the three-judge district court (which included Judge Ginsberg) rejected the Justice Department’s argument that the House lacked standing to assert the injuries of a future Congress. The court gave two reasons for its conclusion (1) it noted that the House is in some respects a continuing institution (such as for owning property) and (2) it found that in any event the House had a “special relationship” with its successors so as to allow it to vindicate the rights of the latter. It seems to me that similar reasoning would allow the 111th Congress to continue to litigate the rights of the 110th.

In the final analysis, I suspect that the D.C. Circuit’s decision here will turn on some fairly practical considerations. I think that the court may be nervous about letting the case go forward in the district court because of the possibility that the court will get further embroiled in this political dispute. On the other hand, the judges (particularly, but not solely, Judge Tatel) were clearly concerned about depriving the House of the opportunity (to which Judge Bates found it was entitled) to get the evidence needed for its investigation.

This suggests the possibility that the court will issue some sort of creative order (not unlike what happened in the AT&T case) designed to resolve the matter without the need for further judicial proceedings. For example, the court might give the parties a limited period of time, say a week, to reach a settlement of the matter. If the White House/Justice Department failed to make a reasonable offer to resolve the dispute, the stay would be lifted. As I have indicated before, I think that the offer of a private (preferably transcribed) interview with Miers would be a reasonable offer, if the White House dropped the condition that the House waive its right to seek additional information from Miers.

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More on Sunny Isle

Today’s Roll Call discusses Chairman Rangel’s reporting of his Sunny Isle condo transactions.  The article notes “the inconsistent reports are myriad errors, discrepancies and unexplained entries on Rangel’s personal disclosure forms over the past eight years that make it almost impossible to get a clear picture of the Ways and Means chairman’s financial dealings over time.” 

I remain puzzled as to how these discrepancies, which are evident on the face of the disclosure forms, escaped notice by the House Ethics Committee for so many years.

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DC Circuit to hear argument in Miers Case

The U.S. Court of Appeals for the D.C. Circuit today set oral argument in the White House subpoena case for September 16th at 2:30 p.m. before Circuit Judges Douglas Ginsburg, David Tatel, and Raymond Randolph. The sides each have 15 minutes.

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Chairman Rangel, Sunny Isles and the Perils of Financial Disclosure

          Representative Charles Rangel, the chairman of the House Ways and Means Committee, has been in hot water for several matters, most recently his ownership of a beach property in the Dominican Republic.  Rangel has acknowledged that he failed to pay taxes on income from the property and failed to properly disclose that income on his annual financial disclosure report (FD).            

            Rangel’s FDs, it should be noted, were filled out by hand, presumably by Rangel himself.  If that is the case, it should hardly be a surprise if there are inaccuracies in the filings.  Filling out an FD is a time-consuming and complicated process, and the rules and guidance are often unclear.  One can imagine that a Member of Congress would not have the time to do a proper job of it.

             A look at Rangel’s FDs illustrates the legal and ethical jeopardy that Members of Congress may face when these reports are scrutinized, particularly in light of the Justice Department’s ongoing prosecution of Senator Ted Stevens for filing false FDs. Rangel’s FDs, like those of other Members of Congress, may be found at opensecrets.org (I accessed them through the CREW website).     

Rather than look at one of the previously scrutinized matters, I focused my attention on Rangel’s ownership of a condominium in Sunny Isles, Florida. This was mentioned in passing in a July 11, 2008 NY Times article by David Kocieniewski, who noted that Rangel “bought a condominium in 2004 in Sunny Isles, Fla. for $50,000 to $100,000 and sold it last year for $100,000 to $250,000.”

The article’s information presumably came from Rangel’s FDs, but a closer look raises a number of questions. Rangel’s FD for 2004 does indeed indicate, in the “Assets and Unearned Income” Section, that the Sunny Isles condominium (located in the Winston Towers 500 building in Sunny Isles) was valued at $50,001 to $100,000 at the end of 2004. However, in the “Transactions” Section, it is indicated that Rangel purchased the condominium on March 4, 2004 for $100,001 to $250,000.

It is possible that Rangel bought the property for slightly more than $100,000 and its value declined to below $100,000 by the end of the year. A far more likely possibility, however, is that Rangel marked the wrong box in one of the sections. My guess is that he paid more than $100,000 for the condo, but this is just a guess.

Another interesting fact is that Rangel’s 2004 and 2005 FDs indicate “rent” as the “type of income” for the Sunny Isles condo, but state “none” as the “amount of income.” If he received no income, one wonders why he put “rent” as the type of income. He did the same thing for several years with respect to the property in the Dominican Republic, where he identified rent as the type of income but (apparently inaccurately) put “none” as the amount. This raises a question as to the accuracy of the Sunny Isle disclosure.

Rangel’s 2006 FD is also puzzling. The “Transactions” Section shows that the Sunny Isles condo was sold for $250,000 to $500,000. The date of the transaction is put as “7-21-07.” This, however, must be wrong since the 2006 FD was filed on June 15, 2007 and, in any event, the 2006 FD is only supposed to disclose transactions that occurred during calendar year 2006. One might assume, therefore, that the transaction occurred on 7-21-06, but again, this is a guess.

If Rangel made a profit on the sale of the condo, he also probably should have disclosed that in the “Assets and Unearned Income” Section of the 2006 FD. I say “probably” because the form requires the disclosure of “capital gains” from the sale of an asset. “Capital gains” is a tax term, and it has never been entirely clear to me what happens if a filer sells an asset, and the profit is not a taxable “capital gain” (eg, if a stock is sold in a 401k).

If all of this is not confusing enough, Rangel’s 2007 FD also discloses, in the “Transactions” Section, the sale of the Sunny Isles condo. This time the date of the sale is left blank. The amount of the sale, however, is stated to be $100,001 to $250,000. Was this an attempt to correct the previous year’s filing? Who knows?

In short, Rangel’s FDs leave a number of questions regarding the Sunny Isles condo. Was it purchased for 50-100k or for 100-250k? Was there rental income or not? Was it sold in 2006 or 2007? Was it sold for 100-250k or 250-500k? Did Rangel make a profit on the sale?

The one thing that seems clear is that Rangel’s FDs were not carefully prepared or reviewed prior to filing. Moreover, the House Ethics Committee either did not review the filings, or failed to notice any of the internal discrepancies related to the Sunny Isles condo.

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Miers Case on Hold Until Wednesday

          A panel of judges (Ginsburg, Randolph and Tatel) of the D.C. Circuit has granted an “administrative stay” of Judge Bates’s order in the Miers contempt case.  This stay is not the relief that the Executive Branch is asking for, which is a stay pending appeal, but a brief stay while the court considers whether to grant a stay pending appeal.  The stay issued on September 4, the date on which the White House was supposed to turn over non-privileged documents to the Judiciary Committee.  Presumably, it did not do so. 

            The appellate panel ordered the parties to address three questions by next week: (1) whether there is appellate jurisdiction over the appeal; (2) whether the case will become moot on expiration of the 110th Congress; and (3) if the court has jurisdiction and issues a stay pending appeal, what briefing schedule would the parties propose on the merits.  The final brief on this is due the afternoon of September 10; Harriet Miers is scheduled to testify on September 11. 

            I am not sure what to make of this.  You have a panel of two Republican appointees (Ginsburg and Randolph) and one Democratic appointee (Tatel).  Obviously they recognize the importance of this matter and want to think about it carefully.  I also suspect that they would like (a) to dispose of the case on the narrowest possible grounds and (b) reach a unanimous decision if possible. 

            Finding no appellate jurisdiction may be the simplest way to achieve these objectives (I am assuming that the exercise of jurisdiction here is either discretionary or a very close call legally).  OTOH, they may want to try to put pressure on the parties to resolve the issue through negotiation, which would require exercising appellate jurisdiction.  But it is hard to figure out how they can put pressure on both parties at the same time.  Perhaps they could give the parties a short period to work out a settlement with the proviso that the good faith of each party’s effort would be considered in ruling on a stay pending appeal.