Author: Michael Stern

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Congress: Beware of the Justice Department’s Attempt to Change Rule 6(e)

In a decision issued this summer, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia considered a petition to unseal the transcript of former President Nixon’s grand jury testimony in 1975. For reasons explained below, the court’s decision to grant the petition has important implications for the ability of congressional committees to access grand jury information. However, a change to the rules of grand jury secrecy proposed by Attorney General Holder this week would undercut both Judge Lamberth’s ruling and future congressional oversight.

Continue reading “Congress: Beware of the Justice Department’s Attempt to Change Rule 6(e)”

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A Congressional Clerkship Program (Or How Larry Kramer Went Back In Time And Stole My Idea)

A few years ago I came up with what I thought was a brilliant and original idea. Well, at least an original idea. Establish a congressional clerkship program, in which recent law school graduates could work for a year providing legal research and advice to Congress. It would be something of a cross between a judicial clerkship and the DOJ Honors Program, and the basic idea would be to give the clerks the same type of experience from a congressional perspective. Congress would get the benefit of top quality legal talent and, equally importantly, would have the opportunity to educate these new lawyers on congressional legal issues that are often overlooked in law schools.

It turns out that a lot of people were way ahead of me. In 2005, 145 Law School Deans, led by Stanford Dean Larry Kramer, had sent a letter to Congress urging the creation of a congressional clerkship program (the letter may be read at the Congressional Clerkship Initiative website). The Deans wrote: “Following the judicial clerkship model, we would propose that a Congressional Clerk serve for one or two years, either for an individual legislator or for a legislative committee, and be comparably compensated.” They predict that “legislative clerks could and would rapidly learn the ropes and become invaluable assistants on tasks ranging from research to crafting positions and writing speeches to the actual drafting of legislation and legislative reports.”

The Deans point out that judicial clerks are top law school graduates and “go on disproportionately to assume leadership positions in the bar and in the profession.” The fact that many such leaders have had judicial clerkship experience, but no comparable degree of congressional experience, explains “in part why the legal profession in this country tends to emphasize litigation and the judiciary over legislation and the lawmaking process.” A robust congressional clerkship program “would do much to improve understanding and appreciation of the legislative process within the legal profession and, through the profession, in the country as a whole.”

Continue reading “A Congressional Clerkship Program (Or How Larry Kramer Went Back In Time And Stole My Idea)”

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More Legal Misinformation About Congress

If there were an award for cramming the most amount of legal misinformation into the shortest segment, Friday’s edition of “Nightly Scoreboard” would surely earn a nomination. The subject was a potential congressional subpoena for White House emails concerning Solyndra, and the discussion took place between host David Asman and former federal prosecutor Annmarie McAvoy.

The premise of the piece was that a congressional subpoena for presidential emails would be “unprecedented” and would raise novel issues of executive privilege and separation of powers. McAvoy explained that “[t]here are certain communications that are not available to the Congress.” The following colloquy ensued:

 McAvoy: The argument will be made that the President has to be able to have full and free and open communications with those who are advising him, be those his senior staffers or be those other people in the industries that he is looking at who can come to him and openly talk to him and that he can communicate with them without having to worry about those communications going over to Congress.

 Asman: But have those statutes even been written- about emails- because this is new territory we’re in?

 McAvoy: It is and it raises a very interesting question because what happens is as we have new technologies essentially the law has to eventually catch up with the technology and it hasn’t as of yet. So they’ll be looking at your basic laws relating—and cases relating—to executive privilege in trying to figure out where this would fit in but there really isn’t a statute that directly applies to emails because it didn’t exist beforehand and none of the presidents before Obama had ever used email.

  Continue reading “More Legal Misinformation About Congress”

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Did Reid Go Nuclear?

As you may have heard, Senate Majority Leader Reid invoked the “nuclear option” yesterday, thereby laying waste to the Senate and all its traditions. At least that it is how Alexander Bolton of The Hill describes Reid’s actions in response to a Republican motion to suspend the rules with respect to the China currency legislation pending before the Senate. Bolton explains that “Reid and 50 members of his caucus voted to change Senate rules unilaterally to prevent Republicans from forcing votes on uncomfortable amendments after the chamber has voted to move to final passage of the bill.”

David Waldman says that Bolton is “way overstating the case” when he uses the term “nuclear option” to describe Reid’s actions. Waldman seems to believe that the term only applies to an action that eliminates or greatly curtails the filibuster, which did not happen here. But Waldman acknowledges that Reid’s action bears “strong similarities” to the nuclear option and that “a very similar procedure can be used to reverse unfavorable rulings on anything, including the filibuster, and doing so on the subject of the filibuster was what people came to understand as the ‘nuclear option’ way back in 2005.” So his disagreement with Bolton is more semantic than substantive.

There is no formal definition of the “nuclear option” and little point in debating the semantics of the term. The real question is whether yesterday’s action by the Senate was part of the normal process of interpreting and applying its rules, or whether it represented a radical change in that process. In my view, the jury is still out on that question. Here’s why. Continue reading “Did Reid Go Nuclear?”

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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.