Month: September 2011

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When is a Meeting not a Meeting?

When the Supercommittee says so, apparently.  According to this Politico article, the Supercommittee has been “supersecret,” holding a six and half hour closed session in the Capitol yesterday.

But wait, the Supercommittee rules require that its “meetings” be open, unless the Supercommittee votes in open session to close them. Wasn’t this a meeting? Senator Kerry seems to think so. Asked for comment on what occurred, he would say only that it was a “good meeting, we had a good meeting, a good meeting.” Not terribly informative, but the one thing that seems clear is that it was a meeting.

Maybe not. According to a colloquy between co-chairs Jeb Hensarling and Patty Murray at the organizational meeting, the term “meeting” in the Supercommittee rules refers to a “meeting for the transaction of business” as provided for by House and Senate rules. This means that sessions involving “markups of legislation and reports” are covered by the open meeting rule, but “less formal caucuses” or “working sessions” are not.

Committee markups refer to “sessions where committee members consider changes in the text of the measure or matter before them” or “determine whether a measure pending before a committee should be amended in any substantive way.” Since there are no legislative measures pending before the Supercommittee, it cannot yet conduct a markup. Indeed, even once legislative language has been drafted, it is not clear that consideration of accepting or changing such language would constitute a markup, since there is no measure formally pending before the Supercommittee.

In short, as the Supercommittee interprets its rules, all of its sessions that do not involve voting on specific legislative language appear to be beyond the scope of its open meeting rules. And it is not clear that even consideration of specific language would need to take place in open session, particularly if there is no formal vote. According to the Supercommittee’s interpretation, all of its deliberations could take place behind closed doors, with only the final vote on its report and proposed legislative language being public.

 

 

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Legislative Instructions and the Article V Convention

In thinking about the question of whether an Article V convention may be limited, it is helpful to distinguish between two types of limitations. The first goes to a limitation on the authority of the convention itself—this limitation would hold that proposed amendments outside the scope of the convention’s authority (as established by the states in their applications) are invalid and therefore without legal effect. This might be termed a corporate limitation.

The debate over the “runaway convention” has focused almost entirely on whether an Article V convention may be subject to such a corporate limitation. If such a limitation is permissible, then various constitutional actors, such as Congress, the courts, and the state legislatures, may be permitted or required to declare an out-of-scope amendment invalid. This would be the basis, for example, of a congressional rule that would prohibit the submission for ratification of an out-of-scope amendment.

But there is a second type of limitation that relates not to the authority of the Article V convention as a body, but to the authority of individual state delegations. This might be termed a constituent limitation. The basis of this limitation would be the authority of state legislatures to instruct their delegations as to what matters they are permitted to consider.

Interestingly, there has been little debate over the power of state legislatures to instruct their delegates to a convention. As noted in my last post, even Professor Paulsen, one of the leading proponents of the unlimited convention theory, acknowledges that convention delegates “might well operate to some extent” pursuant to instructions. Moreover, there seems to be little question that instructing delegates was the common if not invariable practice of the founding era. As Professor Rob Natelson, who has written extensively on the Article V convention process, observes: “As in all prior federal conventions, delegates to a convention for proposing amendments are representatives of the state legislatures, and therefore subject to instructions.” R. Natelson, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 Tenn. L. Rev. 693, 747 (Spring 2011).

Denying the power of state legislatures to instruct their convention delegates would seem to be extremely difficult. After all, it was a common, if controversial, practice for state legislatures to instruct their U.S. Senators in the founding era and for many years afterward. See C. Terranova, The Constitutional Life of Legislative Instructions in America, 84 N.Y. L. Rev. 1331, 1332 (Nov. 2009). Indeed, “[f]rom the beginning, state legislatures instructed their senators to propose or support constitutional amendments.” J. Bybee, Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment, 91 Nw. U. L. Rev. 500, 565 (1996-97).

Although the power of state legislatures to instruct senators was vigorously debated and never conclusively resolved, it would be much more difficult to argue that state legislatures lack the power to instruct convention delegates. After all, none of the indicia of senatorial independence (namely the fact that the Constitution provides specific, and presumably exclusive, criteria for their qualifications, term limits and procedures for removal) apply in the case of convention delegates. There are thus no grounds to infer that the Framers intended to deprive state legislatures of their power to instruct convention delegates.

Of course, there no doubt will be debate over exactly how far state legislatures may go in instructing delegates, as well as how such instructions may be enforced (hence Paulsen’s reference to delegates operating “to some extent” pursuant to instructions). Some may argue that legislatures may give general instructions (ie, confine your deliberations to this subject), but not instruct on specific wording or votes. But I would question whether such a distinction can be drawn in either practice or principle. After all, an instruction to confine deliberations to a particular subject is effectively an instruction to refuse to consider or support particular amendments which are deemed to be outside that subject. Nor does this distinction appear to comport with the general history of legislative instructions. See Terranova, supra, at 1331 (“Under the Articles of Confederation, state legislatures often formally instructed their federal representatives on particular votes, continuing a practice common in England and the American colonies”) (emphasis added).

The one exception would be whether the legislatures may instruct their delegates to vote to propose a particular amendment. This can be distinguished in practice and principle from other votes, and it may be argued that delegates retain the discretion to refuse to vote for any amendment at all. But if the legislatures have the power of instruction, it must extend to instructing delegates to vote against particular amendments (or voting against all amendments with specified exception(s)).

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How to Count to 34: Paulsen on the Article V Convention

In the debate over the “runaway convention,” Professor Michael Stokes Paulsen occupies an unusual, and perhaps unique, position. In a seminal 1993 article, Paulsen argued that an Article V convention could not be limited, but that this wasn’t something that people should be worried about. He observed: “The power of the convention delegates to limit their own agenda at the convention (a power over which the applying states might well exercise considerable control by selecting delegates committed to enforcing a limitation on the agenda), combined with the power of the states to decline to ratify any unwanted amendment the convention proposes, should be regarded as a complete answer to fears that the convention wil generate popularly unacceptable results.” M. Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677, 760 (1993).

Recently Paulsen has rejoined the Article V debate with an article entitled “How to Count to Thirty-Four: The Constitutional Case for a Constitutional Convention,” published in the Summer 2011 issue of the Harvard Journal of Law & Public Policy. In this article Paulsen revises and extends his previous remarks regarding the Article V convention. Although much of the article reiterates points he has made before, it is well worth reading (and quite a bit shorter than the 1993 article).

Paulsen argues that the Article V convention was not intended to be a limited one, at least in the sense of a formal limitation to its overall authority. He says that “[r]epresentatives or delegates to such a convention might well operate to some extent pursuant to the ‘instructions’ of the people thus represented, but a convention was not a pass-through or a cipher, but rather an agency- a deliberative political body.”

In this sentence Paulsen makes two assertions about the nature of an Article V convention. The first relates to the role of instructions in an Article V convention. The second relates to the nature of a “convention” as a deliberative body. I will address the second point in this post.

Continue reading “How to Count to 34: Paulsen on the Article V Convention”

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Article V and the “Runaway Convention”

Article V requires Congress, “on the Application of the Legislatures of two thirds of the several States,” to “call a Convention for proposing Amendments.” This process for proposing constitutional amendments has never been used, in large part because of fears that it would lead to a “runaway convention.” The exact definition of a runaway convention depends on whom you ask, but most often it refers to a convention that proposes an amendment beyond the scope of what the states contemplated when they applied for the convention in the first place. The term also raises the specter of a radical and unexpected constitutional change, such as a proposal to repeal the Bill of Rights or the like.

My article on the subject, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765 (Spring 2011) appears in the Tennessee Law Review’s symposium issue on Article V conventions. I evaluate the risks of a runaway convention in light of the constitutional text, structure and purpose of Article V and suggest that these risks are much smaller than often suggested. I also suggest additional safeguards that can be put in place to further minimize any risk of a runaway convention.

One safeguard of particular relevance to this blog would be for the House or Senate (or both) to adopt a rule that would prohibit submitting an out of scope amendment to the states for ratification. Before an amendment proposed by a convention may be ratified by the states, Congress must select the method of ratification (i.e., whether the amendment will be ratified by state legislatures or by state conventions). If the proposed amendment is constitutionally invalid, Congress need not (and indeed should not) submit it to the states for ratification.

By adopting a rule that an out-of-scope amendment will not be submitted to the states for ratification, the House and/or Senate could do a great deal to calm fears of a runaway convention and thereby empower the states to exercise their Article V powers as the Framers intended. Of course, Congress may be reluctant to take this step for the same reasons that the Framers provided for the Article V convention in the first place- Congress has no desire to facilitate adoption of the type of amendments that the states are likely to propose. The phrase “term limits” comes to mind.

This weekend there will be a conference at Harvard Law School to discuss the Article V convention process. I will be having a discussion/debate with Professor Mary Margaret Penrose regarding the runaway convention. Professor Penrose’s response to my article may be found here. My brief reply (imaginatively entitled “A Brief Reply to Professor Penrose”) can be found here.

 

 

 

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After Only 499 Years, Have We Forgotten Richard Strode?

Warning: If you are not deep in the weeds of Speech or Debate, this post may not be for you.

With regard to the question of whether the Speech or Debate Clause prohibits former Congressman Renzi’s prosecution in connection with his role in developing certain land exchange legislation, one English precedent stands out as particularly significant. As far as I recall, it has not been discussed in any of the briefs thus far, so it is worth noting as the petition for certiorari is prepared.

The case, which will be celebrating its half-a-millennium anniversary next year, is described thusly by the Supreme Court in footnote 13 of United States v. Johnson, 383 U.S. 169 (1966):

See, e. g., Strode’s Case, one of the earliest and most important English cases dealing with the privilege. In 1512, Richard Strode, a member of Commons from Devonshire, introduced a bill regulating tin miners which appears to have been motivated by a personal interest. He was prosecuted in a local Stannary Court, a court of special jurisdiction to deal with tin miners, for violating a local law making it an offense to obstruct tin mining. He was sentenced and imprisoned. Parliament released him in a special bill, declaring “That suits, accusements, condemnations, executions, fines, amerciaments, punishments, corrections, grievances, charges, and impositions, put or had, or hereafter to be put or had, unto or upon the said Richard, and to every other of the person or persons afore specified that now be of this present Parliament, or that of any Parliament hereafter shall be, for any bill, speaking, reasoning, or declaring of any matter or matters concerning the Parliament to be communed and treated of, be utterly void and of none effect.”

Strode’s case shows that a Member of Congress cannot be prosecuted for introducing or supporting a bill, even if he does so for corrupt reasons.

No doubt the prosecution would attempt to distinguish the Renzi case on the grounds that Renzi is not being prosecuted for introducing or supporting land exchange legislation, but for “extorting” private parties by refusing to support land exchange legislation unless it included property owned by his business associate. But this narrow reading of Strode’s case would seem to be inconsistent with Parliament’s broad declaration.

Could Strode have been prosecuted for “conspiring” with private interests in order to draft or introduce the tin mining legislation? Could he have been prosecuted if it were alleged that merely drafting, introducing or announcing his support for the tin mining legislation was a corrupt act? Surely the point of Parliament’s declaration was that Strode was free to draft, introduce and support whatever bill he liked, regardless of his alleged motives for doing so.

If I were Reid Weingarten, I would argue that the Justice Department is trying to overturn 500 years (by the time the case actually reaches the Supreme Court) of precedent on parliamentary independence.

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“Would You Like Tax Hikes or Spending Cuts With Your Eggs?”

John Wonderlich of the Sunlight Foundation reports on a possible closed meeting of the Supercommittee tomorrow. Initially this was described as an “executive session” of the Supercommittee; later it was “clarified” that it will be a “private breakfast meeting.”

The Supercommittee rules clearly require, at a minimum, that a vote be taken in open session in order to close a meeting to the public. Thus, if the event tomorrow qualifies as a “meeting” within the meaning of the rules, it would not be permissible.

But is it a “meeting” in that sense? According to experienced congressional counsel, a “meeting” within the meaning of the rules requires that there be some sort of formal transaction of business, as opposed to an informal “working session.” If no vote is held nor other formal action taken, presumably it can be argued that any get-together of the Supercommittee falls within the latter category. Whether or not this conforms to the spirit of the rules depends, I would think, on what actually transpires at this private breakfast.

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Kathleen Clark on the “Right to Counsel” in Intelligence Oversight

Professor Kathleen Clark recently published this article regarding congressional oversight of intelligence. In brief, she argues that when leaders of the intelligence committees are given restricted briefings by the executive branch, they should be able to share the information with cleared committee staff members from whom they need to obtain “counsel” (by which she means expert, not necessarily legal, advice). She proposes that the committees proactively establish rules or policies to “clarify that the committee leadership can share information with staff where necessary to carry out its oversight responsibilities, including with respect to covert actions.”

I basically agree with this proposal, which is similar in approach to what I have suggested with regard to sharing information with other committee members:

To make the matter clear and to put the executive branch on notice, the House and Senate should each adopt a rule that allows the Gang of Four to further disseminate the contents of a restricted briefing within the intelligence committees. The rule could provide for notice to the President before such dissemination takes place, which would give the executive branch an opportunity to state any objections it may have. In cases where the President objected, the rule might require that the chair and ranking member agree to overrule the objection (or a vote of the entire committee might be required under some circumstances).

It would make sense for such a rule to address both sharing of information with other committee members and with congressional staff.

I would suggest that the default rule for Gang of Four briefings on non-covert action matters should be that each member of the Gang of Four is free to discuss the information with designated committee staff for purposes of obtaining advice on legislative or oversight matters. If the executive branch wished to alter this rule for purposes of a particular briefing, it would have to provide a justification in advance of the briefing, which the intelligence committee leadership could then decide whether to accept or reject.

It should be noted that staff are not necessarily excluded from Gang of Four briefings; for example, selected staff members were included in the Gang of Four briefings on enhanced interrogations. Gang of Eight briefings on covert action, however, are statutorily limited to the Gang of Four plus the four congressional leaders. Therefore, one would not expect staff to be in attendance.

Because of the highly sensitive and time-limited nature of covert operations, I think that different arrangements may be needed with respect to briefings on such operations. The statute recognizes that the President may withhold prior notification entirely with respect to covert operations (as, for example, was the case with regard to the May 1, 2011 operation against Osama bin Laden).  It therefore may be wise or necessary for the intelligence committees to agree not to share information with staff without prior notice to the executive branch (in the same manner as I suggested with regard to sharing information with other committee members).

Finally, I think that it would be preferable to embody these procedures in House and Senate rules, rather than merely in committee rules. However, because of the difficult of amending the Senate’s rules in particular, Clark’s approach may be prove to be more feasible.

For further background, see Al Cummings’s reports on Gang of Eight and Gang of Four briefings.

 

 

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Are Lindsey Graham and Scott Brown Incompatible?

Under Article I, section 6, clause 2, I mean.

That Clause provides in pertinent part that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” Under this provision, known as the Incompatibility Clause, holding an office “under the United States” is deemed incompatible with service in the U.S. Congress.

Senator Graham serves in the U.S. Air Force Reserves. From time to time he has been called to active duty, including three “mini-tours” in Iraq. During one of his stints on active duty, the Judge Advocate General of the Air Force assigned Graham to sit as a judge on the Air Force Court of Criminal Appeals, an intermediate appellate court in the military justice system. In that capacity, Graham served in 2004 on a panel that upheld the conviction of an airman charged with drug use.

Senator Brown is a member of the Massachusetts Army National Guard. He also is called to active duty from time to time, including a recent week-long training stint in Afghanistan.

As military officers, albeit part-time and normally inactive, Graham and Brown might be thought to hold  “office[s] under the United States” which would make them ineligible to serve in Congress under the Incompatibility Clause. There seems to be little question that the Incompatibility Clause applies to military offices and thus that regular active-duty officers in the United States military are prohibited from serving in Congress. See Note, “An Officer and a Congressman: The Unconstitutionality of Congressmen in the Armed Forces Reserve,” 97 Geo. L.J 1739, 1744-45 (2009) (collecting evidence that the Framers understood the Incompatibility Clause applies to military offices).

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Supercommittee Rules Not So Clear

The Supercommittee rules are out, but they leave some unanswered questions. To begin with, the rules provide that “[t]he rules of the Senate and the House of Representatives, to the extent that they are applicable to committees, including rule XXXVI of the Standing Rules of the Senate and clause 2 of rule XI of the Rules of the House of Representatives for the 112th Congress, and do not conflict with the applicable provisions of the Budget Control Act, shall govern the proceedings of the Joint Select Committee.” That’s great, but what happens if there are differences between the House and Senate rules?

For example, clause 2 of House Rule XI requires each committee meeting and hearing be opened to the public unless the committee determines by record vote, with a majority being present, that one of certain specified grounds for closure are present, including that disclosure of evidence or matters to considered “would endanger national security, would compromise sensitive law enforcement information, [or] would tend to defame, degrade or incriminate any person.”

The grounds for closing a Senate committee meeting or hearing under paragraph 5(b) of Senate Rule XXVI are similar, but not identical. Any of the grounds identified in the House Rules would probably also justify closing a Senate meeting or hearing, but the Senate identifies additional grounds, such as the need to protect certain confidential financial or commercial information, that would not justify closure under the House Rules. (Admittedly, these particular differences are not likely to be important, but one wonders whether the same could be said of all the differences between House and Senate rules).

More importantly, Supercommittee Rule V(2) states that “[e]ach hearing and meeting of the Joint Select Committee shall be open to the public and the media unless the Joint Select Committee, in open session and a quorum being present, determines by majority vote that such hearing or meeting shall be held in closed session.” This provision does not specify any grounds for closing a meeting or hearing. There was apparently some discussion at the Supercommittee meeting today that there could be closed-door discussions of “important issues,” although it is not clear whether this referred to formally closed meetings or merely to informal discussions among members.

To the extent that Rule V(2) might be interpreted to allow closing of hearings or meetings to facilitate delicate negotiations, this is a problem. Neither the House nor Senate rules permit closing of hearings or meetings for reasons of deliberative privacy. I would conclude, as does John Wonderlich, that Rule V(2) should not be read to permit closure for reasons forbidden by both the House and Senate rules (particularly since the Supercommittee Rules do not provide any rule of interpretation in the event of a conflict between its additional provisions and those of the House and Senate rules that it incorporates). However, it seems entirely possible that some members of the Supercommittee believe that they can close hearings and meetings for any reason, the House and Senate rules notwithstanding.

 

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A Point of Order Final Exam

Consider the following facts:

Jeffrey Sterling served as a CIA officer from 1993 to January 31, 2002. During that time, he became acquainted with a clandestine operational program that was designed to disrupt the nuclear development activities of Iran. According to a book later written by James Risen, this program involved a “botched attempt under the Clinton administration to sabotage Iran’s nuclear program by giving flawed blueprints for key components to a Russian nuclear scientist who had defected. The idea was that the Russian scientist, who was covertly working for the CIA, would feed the flawed designs to the Iranians. But according to the book, the CIA’s efforts went awry when the scientist got nervous and instead tipped off the Iranians to the flaws in the designs.”

The operation, codenamed “Merlin,” was sort of like a nuclear “Fast and Furious.”

Following his less than amicable separation from the CIA in 2002, Sterling approached the Senate Select Committee on Intelligence (SSCI) with information about Operation Merlin in March 2003. He met with SSCI staffers Don Stone and Vicki Divoll and told them that the program had not only been a failure, but may have assisted the Iranians in advancing their nuclear program.

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