There has been a good deal of buzz regarding this Toyota internal document, which purports to show the various “wins” of the company’s Public Policy and Governmental/Regulatory Affairs office in Washington, D.C. In particular, the media has focused the document’s claim that Toyota saved $100 million by negotiating a limited recall with respect to the sudden acceleration problem in the Toyota Camry. A different aspect of the document caught my attention, however. Many of Toyota’s “wins,” including the recall issue and various rulemakings cited in the internal document, involve dealings with the National Highway Traffic Safety Administration (NHTSA), yet Toyota’s lobbying disclosure filings do not show any lobbying of NHTSA. This might be because Toyota’s communications with NHTSA did not involve “covered executive branch officials” under the Lobbying Disclosure Act. Only a small number of officials at NHTSA, such as the Administrator, Deputy Administrator and other high-ranking officials, would qualify as “covered executive branch officials” under the LDA. Communications with other NHTSA officials do not qualify as “lobbying contacts” and therefore may not trigger a reporting requirement. To make matters more confusing, in some cases it may not be clear whether a particular official is covered or not. Even if Toyota communicated with a covered official, moreover, the communication still may not qualify as a lobbying contact. The LDA exempts certain types of communications related to administrative proceedings from the definition of lobbying contact. For example, communications in formal administrative hearings are exempted if they are made in accordance with written agency procedures. In addition, written communications in public rulemaking proceedings are exempted (on the theory that these communications are available to the public anyway). In many cases the applicability of these exceptions to particular communications may be less than clear, leaving it up to the judgment of the filer as to whether they need to be reported. Regardless of why Toyota’s filings fail to disclose its communications with NHTSA, this is another example of the disconnect between what the LDA identifies as “lobbying” and what the general public may perceive that term to mean.
Will Toyota Sue to Prevent Congress from Getting its Attorney-Client Privileged Documents?
The National Law Journal reports that the U.S. House Committee on Oversight and Government Reform has subpoenaed a former Toyota attorney named Dimitrios Biller, seeking internal documents relating to Biller’s defense of Toyota in rollover litigation from 2003 to 2007. Biller left the company on bad terms in 2007. Subsequently, he accused it of concealing or destroying evidence in personal injury cases, and
This raises some interesting issues about the role of the attorney-client privilege in congressional proceedings. In a previous post, I explained that Congress has generally asserted a right to disregard the attorney-client privilege (and other common law privileges). This claim is not one that sits well with the American Bar Association or the legal profession in general. Nevertheless, it is extremely difficult, as a practical matter, to contest Congress’s position. A lawyer who receives a congressional subpoena for privileged information cannot challenge it in court (because the Speech or Debate Clause precludes a suit against the congressional committee that issued the subpoena). Thus, he or she must either comply with the subpoena or risk being held in contempt, with the possibility of facing criminal fines or prison.
In 1999 a legal ethics panel of the D.C. Bar ruled that a lawyer who was subpoenaed to provide privileged information to a congressional subcommittee had “a professional responsibility to seek to quash or limit the subpoena on all available legitimate grounds to protect confidential documents and client secrets.” Once, however, the congressional subcommittee overruled these objections and threatened to hold the lawyer in contempt, there was no longer a professional obligation to resist. The panel found that “[a] lawyer has satisfied his or her professional obligation to maintain client confidences once all objections have been made and exhausted and is not required by the Rules to stand in contempt of Congress if the subcommittee overrules the objections.” Importantly, however, there is an exception to this rule if the client obtains a court order forbidding the lawyer from complying with the congressional subpoena.
In most cases the lawyer and the client have aligned interests, and a judge might be reluctant to intervene in a congressional matter simply because client files a collusive lawsuit against the lawyer. In the current situation, however, there is a genuine adversarial relationship between
Recall of U.S. Senators
At the Volokh Conspiracy, Eugene Volokh has an interesting post about an effort in
As suggested by Professor Volokh, this CRS report, and a separate post by Todd Zwicki, it seems fairly clear that the Constitution, in contrast to the Articles of Confederation, did not authorize state legislatures to recall their state’s representatives, although the state legislatures did issue “instructions” to their Senators. Nothing in the Seventeenth Amendment expressly authorizes such recalls, and it is hard to think of a reason to read the amendment as implicitly authorizing voters to recall their Senators.
Nevertheless, there are a couple of interesting questions presented by this case. First, who should make the decision as to whether the recall is unconstitutional? The Constitution makes each House the judge of the elections, qualifications and returns of its Members. Therefore, it would be up to the Senate, at least in the first instance, to determine the effect of any recall vote by
The counterargument would be that state officials and state courts are bound by oath or affirmation to support the Constitution (under Article VI) and cannot authorize actions that violate it. This is presumably true if holding the recall vote would itself violate the Constitution. But Volokh suggests that an advisory recall vote (i.e., essentially a request by the voters that the Senator resign) would be constitutional. Therefore, New Jersey could, and arguably should, allow the recall vote to go forward on the grounds that, assuming it is constitutionally ineffective as a mandatory recall, it is constitutionally valid as an advisory recall.
I don’t think that the constitutionality of a hypothetical advisory recall is quite the issue, though. The key point is that holding the recall vote, even though it purports to be mandatory, doesn’t actually do anything. It is only if the result of a successful recall vote is presented to the Senate that the constitutional question arises. If the Senate judges that the recalled Senator is still entitled to his seat (as it almost certainly would), it cannot be said that the recall vote has violated the Constitution. Put another way, the Constitution does not prohibit recall votes; it simply doesn’t give them any legal effect.
I am persuaded by this analysis that state officials are not constitutionally obligated to block the recall vote simply because they believe that it will have no constitutional effect. But this doesn’t necessarily mean that they are obligated to let the vote go forward, either. Ultimately, the question of whether the recall vote should go forward would seem to be one of state, not federal, law.
Lobbying Down Under
At a time when there is much discussion of lobbying reform in the
Mark Patterson’s Executive Decision
It’s worth taking a closer look at the “issue areas” that Mark Patterson, the former Goldman Sachs lobbyist now serving as the chief of staff to Treasury Secretary Geithner, is restricted from participating in, and asking how these prohibitions might be interpreted and enforced. Today let’s look at the issue of executive compensation.
Under the terms of Treasury’s February 4, 2009 recusal memorandum, Patterson is prohibited from involvement in “shareholder votes on executive compensation.” This prohibition evidently stems from Patterson’s 2007 lobbying against H.R. 1257, a bill supported by then-Senator Obama, which would have authorized shareholders to vote on executive compensation packages. As this article notes, Goldman Sachs CEO Lloyd Blankfein, who received compensation of about $70 million in 2007 (though a mere $9 million for 2009), was not a fan of this proposal, and Patterson was one of the lobbyists who (successfully) tried to kill it. Thus, “a Washington influence-peddler who worked against Obama’s effort to limit excessive corporate pay is now a key member of the Obama administration team that is supposed to contain excessive compensation in the AIG case and in general.”
The authors were told by Treasury that Patterson “recused himself from discussions on this and all other issues he worked on during his time in the private sector.” They then ask “Does this mean that Geithner’s chief of staff cannot be involved in conversations and decisions regarding corporate compensation issues, including the AIG bonuses? If so, wouldn’t that place Geithner at a disadvantage as he tries to handle such matters?”
But Patterson’s recusal memorandum doesn’t prohibit him from involvement in all corporate compensation issues, only “shareholder votes on corporate compensation.” Does Treasury interpret this to allow Patterson to be involved in all executive compensation issues so long as shareholder voting isn’t involved? And if shareholder voting is involved, is Patterson excluded from the entire issue, or can he simply decline to “participate” (leave the meeting, cover his ears?) when shareholder voting comes up?
Judging by Treasury’s response to my FOIA request, there is no documentation as to how the recusal memorandum has been implemented, nor any documentation of Patterson actually being recused from any particular meeting, appointment or matter. It would appear, therefore, that the Treasury General Counsel is not making case-by-case rulings on the memorandum, or at least not issuing formal instructions to Treasury officials with respect to its requirements. Instead, it would seem that it is up to Patterson, consulting the GC’s office as he deems fit, to interpret and apply the memorandum’s prohibitions.
It is hard to say for sure how Patterson has handled the executive compensation issue. His calendars, however, suggest that he has participated in matters relating to executive compensation. For example, Patterson was intimately involved in preparing Treasury Secretary Geithner for meetings, testimony, speeches and press interviews in March 2009, when the issue of AIG bonus payments was the hot topic of every event. It seems virtually certain that Patterson participated in the AIG bonus issue, and indeed a March 28, 2009 calendar entry shows he participated in a conference call “follow up on AIG discussion.”
Did the recusal memorandum have any practical effect on Patterson’s ability to participate in executive compensation issues or to influence executive compensation decisions in a manner that might benefit Goldman Sachs? Did the interpretation and application of this memorandum fall entirely on Patterson, operating on the honor system? These might be interesting questions for some congressional investigation.
Treasury’s Lobbying Loopholes
About a year ago I noted that it was difficult to see how Mark Patterson, the former Goldman Sachs lobbyist who now serves as chief of staff to Treasury Secretary Tim Geithner, could join the administration without a waiver of the Obama Executive Order regarding former lobbyists. It subsequently appeared that Patterson would be appointed without a waiver, and that his recusal would not be based on Goldman Sachs’s public lobbying filings, but on a secret list of issues that Patterson and the Treasury General Counsel had developed.
This February 4, 2009 memorandum from the Treasury General Counsel’s office, which I obtained through a FOIA request, confirms that this is indeed how Patterson was appointed. The Treasury Department is not prohibiting Patterson from participating in many of the specific issue areas listed in Goldman’s 2008 and 2007 lobbying reports. Instead, the General Counsel’s office came up with a smaller and narrower (although still substantial) list of issues from which Patterson must be recused.
It is not clear exactly how Treasury came up with this list, but here are a few possibilities. First, some of the issues on the Goldman report are so general (e.g., “general economic conditions” and “investment banking issues”) that they may not be thought to qualify as “specific issues” at all, although this term is not defined either in the LDA or the E.O. Second, the Treasury memorandum emphasizes that the issue must involve a “particular matter,” which means the matter must be focused “on the interests of specific persons, or a discrete and identifiable class of persons.” Thus, one might suspect that Treasury excluded some issues on the grounds that they did not involve a particular matter at all. This, however, seems less likely when one considers that all of the issues listed by Treasury involve general public policy questions, and it is difficult to see how these issues would be any more focused on Goldman Sach’s interests than most of the issues it chose not to list.
Third, Treasury may have determined that Patterson did not in fact lobby or work on some of the issues that are listed in the Goldman reports. Since the reports only identify the lobbyists who engaged in lobbying activities with respect to each general issue area, it is possible that Patterson did not work on some of the specific issue areas listed in the reports. Moreover, the Treasury General Counsel’s office apparently decided that Patterson did not need to recuse himself from “auction rate securities” matters because he merely “facilitated” briefings of congressional staff by his Goldman Sachs colleagues. In the (debatable) judgment of the G.C.’s office, this activity did not constitute “lobbying” within the meaning of the Executive Order.
Finally, Treasury may have decided to more narrowly define some of the issues that Goldman listed on its report. For example, Goldman listed “over-the-counter derivatives” as one of the specific issues on which it had lobbied. Treasury, however, precludes Patterson from participating only in “energy derivatives.”
I have previously suggested some of the deficiencies in Treasury’s approach to this issue:
What are the problems with this approach? First, it seems inconsistent with the E.O.’s purpose in basing its restrictions on the LDA. Presumably, the reason for using the LDA is that it provides an objective and publicly available record of who is a lobbyist, who was lobbied and what subjects were lobbied on. Allowing individual appointees and their agencies to deviate from the public record based on arbitrary and undisclosed criteria hardly seems designed to enhance public confidence in the process.
Second, there are bound to be questions raised with regard to discrepancies between LDA forms and the recusal decisions of particular agencies. How does the administration know that Goldman’s LDA form does not accurately identify the issues Patterson worked on? Is it making its determinations solely on Patterson’s current recollection? Has it looked at the records underlying the LDA filing?
Some of these deficiencies are illustrated by the follow-up Treasury memo of March 19, 2009, which expands the restricted issue list to include “alternative energy investment tax credits,” based on the fact that Patterson “recently recalled” working on this issue during his employment at Goldman.
Perhaps an even more serious question is raised with respect to Treasury’s approach to section 3(c) of the E.O., which bars a former lobbyist from appointment “with any executive agency that [he or she] lobbied within the [prior two years].” Goldman’s reports indicate that Patterson lobbied the Treasury Department with respect to financial issues in 2007, which would have barred him from his current position. The Treasury General Counsel, however, “determined after careful consideration that the informational briefing that you provided at the request of a Treasury official in July 2007 did not constitute lobbying.”
This determination, which is not further explained in the memorandum, seems very questionable. Even if the briefing was given at the request of a Treasury official, this would not exempt it from the definition of “lobbying contact” under the LDA (see Section 3(8)(B)(viii) of the LDA). Moreover, even if the briefing were not a “lobbying contact” (if, for example, no covered executive officials were present), it still seems very likely that it would constitute “lobbying activity” (ie, activity in support of lobbying contacts) under the LDA.
Whether or not Treasury’s determination is defensible under the literal terms of the E.O., one should step back and consider the situation in terms of the administration’s supposed aversion to employing lobbyists. Patterson’s calendars for the first half of 2009 reveal, as one would expect, that he has been involved in the major issues facing the department, including matters such as the auto bailout, TALF/TARP, the stimulus, housing, regulatory reform, stress tests, “munis” (perhaps referring to issues concerns the safety of municipal bonds), and the Public Private Investment Program for buying up toxic assets.
Many of these issues clearly have a major impact on Patterson’s former employer. Goldman Sachs, for example, was a TARP recipient which announced in early 2009 that it wished to exit the TARP program as soon as possible, which it did in June 2009. Patterson participated in various meetings regarding TARP, including a June 4, 2009 meeting regarding “TARP repayment.” If one believes (as the Obama administration presumably does) that lobbyists are predisposed to favor the interests of their former employers, why wouldn’t one be just as concerned about Patterson’s involvement in these issues as in the issues listed in Treasury’s memorandum? And if, on the other hand, one believes that Patterson can be trusted to put the public interest over that of Goldman Sachs, what is the point of requiring Treasury to find loopholes in the E.O. in order to hire him?
Tillman on the Perils of Legislative History
The prolific Seth Tillman has posted a new draft article, entitled “Originalism, the Annals of Congress, and the Problem of Constitutional Memory.” The article can be found here. The main takeaway is the need to exercise caution in reading the Annals, which were compiled many years after the fact (something that I did not know).
Tillman intends to draw broader conclusions about the issue of constitutional memory in the as-yet unwritten section V, but we will have to wait for that.
The Filibuster and Its Discontents (Part II)
In my last post I endeavored to show that the Constitution does not, and indeed cannot, prohibit congressional rules that allow minorities to block legislation. The Constitution explicitly grants to each House the power to determine the rules of its proceeding, and the exercise of such power inevitably involves giving minorities the power to bottle up, delay, or outright veto proposed legislation.
Filibuster opponents, however, try to distinguish the filibuster from other congressional rules that enhance minority power. Geoghegan hints at such a distinction when he suggests that the “old cloture rule” was more constitutionally acceptable because “if senators wanted to stop a vote, they had to bring in the cots and the coffee and read from Grandma’s recipe book for chicken soup until, unshaven, they keeled over from their own rhetorical exhaust.” In other words, the old cloture rule was a delaying mechanism, but, Geoghegan claims, the current cloture rule is “in effect” an absolute veto on laws that lack supermajority support.
This turns out, however, to be a distinction without a difference. The change in practice Geoghegan describes is not the result of any change in the cloture rule itself (the old cloture rule actually required a larger supermajority to end debate), but stems from extraneous factors. The most important of these is the massive increase in the Senate’s workload, as well as other demands on the time of individual Senators. As observed in Wawro and Schicker’s 2006 treatise, Filibuster, “filibustering has become costless for bill opponents for the simple reason that the opportunity costs of waiting out a filibuster have become overwhelming when senators are confronted with extraordinarily tight scheduling constraints.”
Simply put, the change deplored by Geoghegan and other filibuster opponents is the result of the fact that the Senate is no longer willing or able to tolerate the amount of time consumed by real filibusters. It is difficult to see how that fact supports a constitutional challenge to the filibuster itself. One might as well argue that it is “unconstitutional” for the Senate to take lengthy recesses because otherwise it would be able to pass more contested legislation.
To understand the issue better, lets take a simple hypothetical. Suppose the Senate had a rule stating that any presidential nominee would be deemed rejected unless the confirmation vote were unanimous. In other words, any single Senator would have an absolute veto with respect to nominations. If one accepts the premise that the Constitution requires such decisions to be made by majority vote, then this absolute veto rule must be unconstitutional.
Now lets change the rule slightly. Instead of giving each Senator an absolute veto, allow each Senator to place a hold on any nomination. The effect of the hold is to require that the nomination be held in abeyance until an appointed day, immediately prior to adjournment sine die, on which contested nominations are to be debated. The Senate will then take up such nominations beginning with those that have a single Senator objecting, proceeding to those to which two Senators object, and so on. There is not enough time to consider all of the contested nominations, however, so those that have substantial opposition (say more than ten Senators) are never considered.
This hypothetical hold rule might be terrible policy, but how could it violate the Constitution? True, the rule “in effect” allows small groups of Senators to veto nominations. But nothing in the Constitution tells the Senate how long it must stay in session (other than requiring one meeting a year), what items of business it must take up while it is in session, or how to prioritize among different demands on its time. So unless the Senate has a constitutional obligation to stay in session long enough to debate and vote on every nomination, the rule would seem to pass constitutional muster.
The analysis is the same for the filibuster. Like the hypothetical hold rule, the filibuster does not change the vote required for final passage of the bill; it just makes it extremely time consuming to consider a bill that is opposed by more than 40 Senators. Since it is neither required nor possible for the Senate to vote on all legislation, it must decide how to prioritize the time that it has. The fact that the Senate is unwilling or unable to spend the time required for a real “Mr. Smith goes to
The Filibuster and Its Discontents (Part I)
Now that the
This is an old argument, and it suffers from certain well-understood weaknesses. First, the filibuster does not in fact require a supermajority to pass any bill. Instead, it requires a supermajority to proceed to a final debate and vote on passage. Second, it does not apply to “any contested bill” since the reconciliation process allows a significant category of budget-related bills to avoid the filibuster. Third, as Catherine Fisk and Erwin Chemerinsky note in a 1997 law review article on the filibuster, the Constitution is silent on the filibuster and on the voting requirements for final passage of a bill. Geoghegan argues that the presence of specific supermajority requirements in the Constitution (e.g., for ratifying treaties, overriding presidential vetoes and expelling members) means that all other actions must be taken by simple majority vote. However, Fisk and Chemerisnky point out that “[i]t is equally consistent with the text to read it as requiring supermajority votes in at least these instances, but leaving it up to Congress in other situations to decide the required vote margin.”
There is also a more fundamental analytical problem with a constitutional attack on the filibuster. It can be seen by asking how the Framers might have drafted a constitutional provision prohibiting supermajority rules such as the filibuster. They could have provided, for example, that “every bill receiving the approval of a majority of either House shall be deemed passed by that House.” But how would one determine which bills have the “approval” of a majority of the legislative body? There are an infinite number of possible bills that could be presented to the body for approval, and there is no way that a legislature could vote on all of them. And the fact that a legislative majority would be willing to vote for a particular bill does not mean that bill most closely reflects the majority’s preferences because the majority might prefer an alternative bill (or the alternative might be supported by an even larger majority).
Given these fundamental facts about the legislative process, there must of necessity be gate-keeping rules to determine which bills actually get presented to the legislative body for a final up or down vote. Such rules exist in the “majoritarian” House of Representatives, as well as in the Senate. A principal example is the committee system, which enables small minorities, or even a single committee chair, to block legislation that might be favored by a majority of the chamber. Similarly, in the House the leadership has nearly total control over the legislative agenda, making it almost impossible for any legislation it opposes to reach the floor.
Because there has to be a mechanism by which a legislative body sets its agenda and determines what bills will be considered for final passage, it is difficult to see how one would formulate a constitutional rule to prevent minorities from using this mechanism to block legislation that they oppose. One could provide, in a formalistic manner, that supermajorities cannot be required in a vote on final passage of a bill, but this would not prohibit the filibuster, which does not apply to votes on final passage. (Ironically, it would prohibit a House rule that requires a supermajority for passage of federal income tax increases—I will discuss the constitutional issues related to this rule in a later post).
Of course, if one had a means of defining a particular legislative measure that must be considered, it would be possible to require that this measure receive a final up or down simple majority vote. Thus, for example, the argument that the Constitution requires the President’s nominees to receive an up or down vote is at least intellectually defensible (although, IMHO, unpersuasive) because the President defines the measure through his nomination. This still leaves undefined the time period within which the final vote must take place, but one could argue that the Constitution requires that the vote take place within a reasonable time of the nomination. In the case of general legislation, however, there is no constitutional definition of measures that must be considered, nor a starting time for consideration, much less a time frame within which consideration must take place.
The Constitution does provide that the President shall “recommend” to the Congress “Consideration [of] such Measures as he shall judge necessary and expedient,” but it doesn’t require that the Congress actually consider them. That this is no oversight is suggested by the fact that the Framers elsewhere did direct Congress to consider certain measures. When the President returns a vetoed bill to the House from which it originated, Article I provides that such House “shall . . . proceed to reconsider it.” Similarly, if two thirds of that House agree to pass the bill, it is to be sent to the other House, “by which it shall likewise be reconsidered.” Interestingly, however, Congress has not interpreted this language to require an actual vote on overriding a veto, and, according to CRS, “[i]t is not unusual for Congress to make no effort to override a President’s veto if party leaders feel they do not have sufficient votes.”
In short, there is simply no intellectually coherent way to require legislative bodies to consider or pass all legislation that may be favored by the majority. Thus, the filibuster cannot be “unconstitutional” in the simple sense suggested by Geoghegan. There are, however, other and more substantial arguments about the filibuster, to which I will turn in future posts.
Can Senator-Elect Brown be Seated Immediately?
It may be recalled that during the controversy over the appointment of then Senator-designate Burris, one of the points of contention was whether the Senate required a certificate of appointment signed by the Illinois Secretary of State in order to seat Burris. Senators Reid and Durbin maintained that Senate rules required such a certificate before Burris could be seated. The Illinois Supreme Court, however, was unimpressed by this contention, noting that “no explanation has been given as to how any rule of the Senate, whether it be formal or merely a matter of tradition, could supercede the authority to fill vacancies conferred on the states by the federal constitution.”
A somewhat analogous issue is now presented with regard to the
It should be noted, however, that Senate precedent permits Senators-elect to be seated prior to the issuance of credentials under certain circumstances. According to Riddick’s Senate Procedure, “in cases where no question was raised concerning the election of a Senator, the Senate by unanimous consent on various occasions has administered the oath of office to such Senators-elect, prior to the receipt of their credentials.” In one of these cases the Senator-elect was seated “on the basis of an authenticated statement prepared by the Secretary of State of the said State showing that the Senator had received a majority of the votes cast for that office but since under State law the canvassing board could not meet until a subsequent date, a formal certificate of election could not be issued.”
This suggests that the Senate could, by unanimous consent, allow Senator-elect Brown to be seated immediately, given that there is no controversy over his election and his opponent has conceded. It may be argued that this option is a matter of legislative grace and that Brown has no “right” to be seated immediately. If, however, one assumes that the Senate intends to allow Paul Kirk to serve until his successor is sworn in (a decision which itself is questionable under Senate precedent), it would seem to be particularly problematic for the Senate to delay Brown’s seating without any apparent justification.