Month: April 2014

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House Rules on Decorum and Debate: Are there Words You Can Never Say on the Floor?

Apropos nothing in particular, here is a recent National Journal article discussing whether the House categorically forbids the use of certain vulgar or profane words in the course of debate. House Rule XVII(1)(b) simply states that “[r]emarks in debate (which may include references to the Senate or its Members) shall be confined to the question under debate, avoiding personality.” The Parliamentarian’s Note to this section, though, explains that “Members should refrain from using profanity or vulgarity in debate,” citing seven separate rulings from 1991 to 2004.

The short answer seems to be that there isn’t a George Carlin type list of words that cannot be uttered on the House floor, but there are many more than seven words that are frowned on, particularly if directed at the president, a senator or another member of the House.

The rules of decorum are enforced by the presiding officer. As former House Parliamentarian Charlie Johnson (in a book co-authored by William McKay, the former Clerk of the House of Commons) explains, however, the presiding officer typically will not act unless a point of order is raised from the floor. See Parliament and Congress 189 (“Because the person occupying the Chair is not a full-time non-partisan presiding officer, but rather is a Member of the Majority party selected by the Speaker to perform a non-partisan role for a temporary period . . ., the occupants of the Chair are understandably more reluctant to render rulings on their own initiative.”). Even the former prohibition against references to the Senate or individual senators, founded on Jefferson’s observation that “it is the duty particularly of the Speaker to interfere immediately, and not to permit expressions to go unnoticed which may give a ground of complaint to the other House,” was liberalized by a rules change in the 109th Congress. As Johnson and McKay note, “[t]his rules change instantly overrode two centuries of precedent based on the standard stated in Jefferson’s Manual, and relieved the Chair of the constant responsibility to admonish Members against political criticisms of the Senate or individual Senators.” Id. at 190.

For those interested in a comparison to Westminster (as Professor Magliocca might be), the substantive rules of decorum appear similar, but the Speaker of the House of Commons takes a more active role in enforcement. This, Johnson and McKay explain, is due to “the credibility and traditional stature of a truly non-partisan Speaker and panel of three Deputies who eschew all political activity in the Chair [which allows] them to take initiatives to preserve to preserve order, [which actions] are not subject to challenge by appeal.” Id. at 192.

The National Journal article notes two studies by the Annenberg Public Policy Center regarding civility in Congress. One report discusses breaches of decorum and various categories of offending words such as “name-calling,” “aspersion,” accusations of mendacity and “taboo words” considered vulgar (the report identifies 11 such words that have been officially found to be taboo). Perhaps reflecting the procedural differences mentioned above, the Annenberg Center also found that the U.S. House is more vulgar than the House of Commons (USA!, USA!).

The National Journal author sought comment from Tom Wickham, the current House Parliamentarian, who is responsible for advising the presiding officer on these delicate issues. Unfortunately, “Wickham, in keeping with tradition, declined to discuss how his office rules on language.” Probably a wiser choice than unleashing a string of obscenities on the inquiring reporter, but still . . .

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The D.C. Circuit on the Nuclear Option

One additional tidbit from the D.C. Circuit’s decision in Common Cause v. Biden is worth noting. In footnote 5, the court discusses the Senate’s exercise of the “nuclear option” last fall:

That opportunity to appeal [from the ruling of the presiding officer] constituted the so-called “nuclear option” the Senate invoked to modify the cloture rule as applied to executive branch and lower federal court nominees. On November 21, 2013, the Senate considered, and defeated, a cloture motion on a nomination to a judgeship on this court. Senator Reid, the majority leader, then raised a point of order to the Chair, positing that a cloture vote for such nominations required only a majority. The Chair rejected the point of order under Rule XXII. Senator Reid then appealed the ruling to the full Senate, and, by a 52-48 vote, the Chair’s ruling was overturned. Thus was set new Senate precedent interpreting Rule XXII in the context of executive and lower federal court nominations.

(citations omitted). This discussion is no doubt dicta, but it provides at least some explanation of what the Senate did, which is more than it appears we will be getting from the Senate itself. The explanation is somewhat self-contradictory, in it describes the Senate as having both “modif[ied]” Rule XXII and issued a new precedent “interpreting” the rule. Literally, of course, the Senate did not modify Rule XXII, which reads today exactly as it did prior to November 21. We therefore can assume that the D.C. Circuit meant that the Senate “modified” the rule by “interpreting” it to mean something other than what it had “interpreted” it to mean before.

The practice of abruptly changing the interpretation of a rule without explanation ought to be troubling enough. But in the case of Rule XXII, the imagination staggers as to what explanation could be given. Did the Senate “interpret” the phrase “three-fifths of the Senators duly chosen and sworn” in Rule XXII to mean a bare majority? Or did it “interpret” Rule XXII to be simply inapplicable to cloture motions for executive and lower court judicial nominations, although there is nothing in the text of the rule or any other source of legal meaning (such as legislative history) to support such an interpretation?

The only possible coherent explanation for the Senate’s action, other than lawlessness, would be that the Senate viewed Rule XXII as unconstitutional. But while the Senate conceivably could have viewed Rule XXII as unconstitutional in its entirety, or as to nominations alone, there is no plausible way it could have viewed the rule as unconstitutional as to executive and lower court nominations, but not as to Supreme Court nominations. Perhaps it was for this reason the D.C. Circuit did not suggest that the Senate’s action stemmed from a constitutional judgment.

 

 

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Common Cause’s Impossible Dream: Act II

Not surprisingly, the D.C. Circuit has affirmed the district court’s dismissal of Common Cause’s challenge to the constitutionality of the filibuster. Like the court below, the appellate panel found the plaintiffs lacked standing to sue, but its rationale was somewhat different. The district court’s decision was rooted in the absence of a cognizable injury and the court’s lack of power to remedy the harm allegedly caused by the filibuster rules (namely Congress’s failure to enact two pieces of legislation, the Dream Act and the Disclose Act, that would have benefitted the plaintiffs). It also concluded that the suit was barred by the political question doctrine.

The D.C. Circuit, on the other hand, “focus[ed] on whom Common Cause chose to sue—or, more to the point, not to sue.” The Senate, of course, is responsible for enacting and enforcing its own rules, yet Common Cause did not name the Senate or any senator as a defendant. Instead, it sued the Vice President and three Senate officers.

This was a transparent ploy to circumvent the Speech or Debate Clause, which would certainly have required the dismissal of any suit against the Senate or particular senators. As the court points out, what defeated the Dream and Disclose Acts was “legislative action, activity typically considered at the heart of the Speech or Debate Clause.” There was, however, no need to decide whether the Clause barred suit against the Vice President and Senate officers because these were simply the wrong defendants.

The court was unimpressed by Common Cause’s reliance on Powell v. McCormack, 395 U.S. 486 (1969), in which a member of the House was able to challenge his expulsion by suing the Sergeant at Arms to recover back salary. As we have discussed before, the Sergeant at Arms was responsible for paying Powell’s salary and thus could be said to have caused this very specific injury to the plaintiff. But nothing in the Supreme Court’s decision suggests that congressional officers can be used generally as stand-ins whenever someone wants to challenge an allegedly illegal House or Senate action.

In contrast to the situation in Powell, the court notes “Common Cause does not identify anything the defendants did (or refrained from doing) to cause its alleged injuries.” The only remotely plausible link is the Vice President’s role as presiding officer of the Senate, but any ruling by the presiding officer is subject to appeal to the full chamber. Thus, even if the Vice President had been presiding at the time of the votes Common Cause complains of (which he was not), and even if he had ruled on a relevant issue (which he did not), it would still be the Senate, not the Vice President, that caused the alleged injury.

Accordingly, Common Cause’s failure to sue the Senate or any senator leaves it “Hoist with [its] own petar,” as the court puts it, quoting Hamlet (act 3, scene 4, if you were wondering).

To appeal or not to appeal, that is the question. Perhaps Common Cause’s quixotic quest (to mix metaphors) will yet have a third act. Or perhaps it will decide it is nobler in the mind to suffer the slings and arrows of outrageous fortune. Only time will tell.

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Is SSCI Following the Senate Rules?

According to a press release from Chairman Feinstein yesterday, the Senate Select Committee on Intelligence has “voted to declassify the 480-page executive summary as well as 20 findings and conclusions of the majority’s five-year study of the CIA Detention and Interrogation Program, which involved more than 100 detainees.”

But, wait, SSCI can’t “declassify” anything. Classification and declassification are internal executive branch procedures. Indeed, the press release goes on to say:

The executive summary, findings, and conclusions—which total more than 500 pages—will be sent to the president for declassification review and subsequent public release. President Obama has indicated his support of declassification of these parts of the report and CIA Director Brennan has said this will happen expeditiously. Until the declassification process is complete and that portion of the report is released, it will remain classified.

That makes it sound as if SSCI has merely asked the executive branch to declassify the materials, which is quite different from actually declassifying them.

So what is actually going on here? Continue reading “Is SSCI Following the Senate Rules?”

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Addition and Subtraction in Article V Counting

Yesterday Representative Duncan Hunter (R-Ca.) sent a letter to the Speaker asking for the House to determine how many states have applied for an Article V convention to propose a balanced budget amendment. Hunter’s letter was prompted by Michigan’s passage last week of a resolution applying for such a convention. With the addition of Michigan, 34 states have applied for a convention limited to this purpose at one point in time. If one counts all of these applications, Congress would be obligated to call a convention under Article V.

Most observers, however, would not count all of these applications. That’s because a number of states have rescinded after initially applying for a convention. If these rescissions are valid, then only 23 states currently have applied for a convention, or, in Professor Michael Paulsen’s phrase, have their lights “on” for an Article V convention. Another 11 states would have to apply in order to trigger a convention call by Congress.

Although the question of whether states may rescind their applications is a legal question, I am not sure how much lawyers can add to common sense here. To prohibit state legislatures from rescinding their applications would mean that any applying state would be bound forever (since the Constitution provides no expiration date on applications). If this were the case, no sensible state would apply for a convention except simultaneously with the requisite number of other states needed to trigger a convention call; to apply “early” would leave all of the discretion in the hands of the non-applying states. This seems like an exceedingly odd result, to say the least. And general legal principles, such as the contract law doctrine of offer and acceptance, would tend to support the conclusion that states may withdraw their applications until Congress actually calls the convention (or, perhaps, until the magic two-thirds number is reached).

Note, however, that if Congress wanted to call a convention today (which it most certainly does not), it could easily do so. First, Congress might disagree with my (admittedly cursory) analysis and conclude that the requisite number of states have in fact applied for a convention. Second, Congress might find that it has discretionary authority to call a convention under Article V even under circumstances when it is not compelled to do so. Article V, after all, does not say anything about when Congress may call a convention, only when it must.

Indeed, there would seem to be little doubt that Congress, or for that matter the states themselves, may call a convention even if the technical requirements of Article V are not (or arguably not) satisfied. The Washington Peace Conference of 1861, called to consider potential constitutional amendments to avoid civil war, was not initiated by Article V applications. If a convention does not qualify under Article V, however, it presumably could not propose amendments directly to the states, but only make recommendations to Congress, which would then have to use its own Article V power of proposal. As Professor Natelson explains, this is what happened in the case of the Washington Peace Conference.