Author: Michael Stern

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Senator Kirk’s Term and the Senate’s Constitutional Responsibility

           From comments made on various blogs, as well as exchanges with the election experts cited in this Politico story, I have distilled the following questions/criticisms regarding my prior post on Senator Kirk’s term. 

            1.  What proposition do the precedents cited in my post stand for?   Both the 1939 case involving Senator Berry and Vice President Marshall’s 1918 ruling involved the question of when an appointed Senator stops receiving compensation.  It may be suggested that this is a question distinct from that of when the Senator’s term ends.  While this could be so, in both cases the Senate clearly understood that the question of compensation turned on when the term ended, and that this issue in turn required an interpretation of the Seventeenth Amendment.  Thus, the Senate Judiciary Committee, in Senator Berry’s case, expressly found that under the Seventeenth Amendment, “the term of a Senator appointed to fill a vacancy in an unexpired term ends on the day when his successor is elected by the people.”  The resolution adopted by the full Senate, similarly, did not merely reject Senator Berry’s claim for compensation, but stated that his term ended on the date of the special election. 

            I don’t think, therefore, that one could plausibly dismiss either the 1939 decision or the 1918 opinion of VP Marshall as congressional “dicta,” as it were.  On the contrary, it could be argued that the non-political context of these rulings (Marshall specifically notes his regret in having to reach the conclusion he does) adds to their force. 

            2.  Can’t the Senate make any decision it wishes?  The question of whether Kirk can continue to serve in the Senate after January 19 is certainly an issue that would be adjudicated by the Senate, assuming that a Senator sees fit to raise it.  When I wrote my post, I was also operating under the assumption that the Senate would have the final word on this issue (an assumption that is probably correct, but subject to a caveat in item 3 below). 

            This does not mean, however, that the Senate is free to do whatever it wishes.  As I have pointed out in other contexts, Congress has an obligation to follow the Constitution, regardless of whether the courts are going to review its actions.  In this case, the Senate is obliged to construe the terms of the Seventeenth Amendment to the best of its ability.  This is not the same thing as “doing whatever it wants.” 

            The Senate does not have an absolute obligation to adhere to its precedents, but I would say that it has an obligation to consider precedents that were established after full deliberation and not to depart from those precedents without good reason.  This is particularly true in a case such as this, where it would seem to matter less when an appointed Senator’s term ends than that there be a clear and established rule on the subject.  Otherwise, the question is liable to be determined in different ways depending on the political interests of the majority, which would tend to undermine the rule of law and bring discredit on the Senate. 

            As Thomas Jefferson wrote in the opening of the Manual he prepared for his own guidance as President of the Senate:  “It is much more material that there should be a rule to go by than what that rule is; that there be a uniformity of proceeding in business not subject to the caprice of the Speaker or captiousness of the members.  It is very material that order, decency, and regularity be preserved in a dignified public body.”  

            3.   What about the provisions of 2 U.S.C. § 36?   This statute provides that the salaries of appointed Senators shall “continue until their successors are elected and qualified.”  At a minimum, this law would seem to suggest an intent to reverse the decision as to compensation in the Berry case (in the circumstances of that case, the law would apparently allow both the appointed and newly elected Senators to draw salaries until the latter was qualified).  It should be noted, however, that the law in 1939 also allowed appointed Senators to draw salary following the special election under some circumstances, and it was recognized by the legal analysis prepared for Senate Judiciary Committee that this law was neither determinative of, nor necessarily based on, an interpretation of the Seventeenth Amendment. 

            Nevertheless, my earlier post does not preclude the possibility that post-1939 developments might undermine the force of the earlier precedents, although this would depend in part on the extent to which the Seventeenth Amendment question was actually considered and decided by the Senate.  It should also be noted that a pre-1939 precedent, the seating of Senator Felton as an appointed Senator after a special election had already occurred, may have been too quickly dismissed by the Senate Judiciary Committee in 1939.  The imperative here is simply for the Senate to fully consider and harmonize all of its relevant precedents, and to reach a decision as to the best interpretation of the Seventeenth Amendment. 

            Finally, it should be noted that 2 U.S.C. § 36 raises an intriguing possibility that the Senate’s decision as to Senator Kirk could be subject to judicial review.  Under this law, the fact that there is an appointed Senator from Massachusetts apparently prevents the newly elected Senator from drawing a salary the day after the special election, which he or she would otherwise be entitled to do.  The newly elected Senator from Massachusetts would arguably have a justiciable claim for denied compensation under Powell v. McCormack, 395 U.S. 486 (1969), based on the allegation that the Senate had unconstitutionally permitted Kirk to remain in the Senate.

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Can Senator Kirk Vote after January 19?

           Paul Kirk, the interim Senator from Massachusetts, has told reporters that he would cast a vote for health care reform, even after the January 19 special election between Democrat Martha Coakley and Republican Scott Brown.  Due to the need to count military and absentee ballots, the Secretary of the Commonwealth may not certify a winner in the election until February 20, a full month after the election is held.  During that time, the Senate may be holding key votes on health care and other matters. 

            There has been controversy surrounding the notion that Kirk would vote for a health care bill even if (as seems possible, though unlikely) Massachusetts voters elect Brown, who has announced his opposition to the bill.  But regardless of who wins the special election, can Kirk continue to vote in the Senate after January 19? 

            My review of Senate precedent suggests the answer is no.  A CRS report notes that “[p]revailing practice is for state governors to fill Senate vacancies by appointment, with the appointee serving until a special election has been held, at which time the appointment expires immediately.”  This practice is in accordance with the Seventeenth Amendment, which provides that “the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” 

            The Massachusetts law, passed in September to authorize Kirk’s appointment, provides that an appointed Senator shall serve “until the election and qualification of the person duly elected to fill the vacancy.”  This would seem to support the position that Kirk can continue to serve after the special election is held.  However, the Senate has previously found that substantially similar state laws cannot extend the term of an appointed Senator beyond the date of the special election. 

            On May 7, 1937, George Berry was given a temporary appointment as U.S. Senator from Tennessee to fill a vacancy created by the death of Senator Nathan Bachman.  On November 8, 1938, a special election was held to fill the seat.  In accordance with Tennessee’s normal practice, it took several weeks before the votes were counted and a winner was not certified until January 3, 1939.  The applicable Tennessee law provided that a temporary Senator “shall hold office until his successor is elected at the next biennial election and qualifies.”  Based on this law, Berry claimed that he was entitled to hold office and be paid until his successor was certified and/or actually seated by the Senate. 

            Berry’s claim was referred to a subcommittee of the Senate Judiciary Committee, which held a hearing and considered legal arguments on the matter.   A legal analysis prepared for the subcommittee found that “in view of [Seventeenth Amendment’s] purpose of providing for representation in the Senate by persons elected by popular vote both for full terms and for unexpired terms it seems reasonable to assume that no temporary appointment was to be authorized except for the intervening period between the creation of a vacancy and the day when the people by their votes actually elect a successor, or, in other words, until they elect a person to fill the vacancy.”   

In addition to the text and purpose of the Seventeenth Amendment, the analysis relied on various Senate precedents, including an October 15, 1918 ruling by Vice President Marshall, who found that the phraseology of the amendment was “radically different” than that of various state laws that permitted appointees to serve until their successors were “elected and qualified.”  Marshall concluded that regardless of the fact that Senators-elect must “run the gamit of executive, administrative, judicial and senatorial investigation before they are entitled to qualify and take their seats as Members of the United States Senate,” the terms of their appointed predecessors nonetheless expire on the day of election.  While the Vice President noted that “[e]quitably, it would seem that the present incumbents ought to be permitted to hold until their successors elected on the 5th of November have been sworn in as Senators, [] such . . . is not the law.”   

The Senate subcommittee and committee concluded, based on its hearing and review, that “the term of service of a Senator appointed to fill a vacancy in an unexpired term ends on the day when his successor is elected by the people.”  1939 Congressional Record, p. 998.  There was evidently no controversy among either the subcommittee or full committee regarding this legal conclusion, and the committee then presented a resolution to the Senate for adoption, expressing the view that Berry’s term of service expired on November 8, 1938, the date of the special election.  As Senator Connally, a member of the subcommittee, explained to the Senate, the fact that the Tennessee statute purported to extend Berry’s term until the qualification of his successor was of no force because the statute was “plainly in conflict with the provisions of the seventeenth amendment.”  Accordingly, the Senate adopted the proposed resolution without dissent.  1939 Congressional Record, p. 1058. 

Based on this authority, it would appear that a valid point of order could be raised as to Senator Kirk’s participation in Senate proceedings after January 19, 2010.

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Andy Stern and the Unbearable Lightness of Being (a Lobbyist)

           Andrew Stern (no relation), president of the Service Employees International Union (SEIU), was a registered lobbyist for SEIU until February 20, 2007, when SEIU de-listed him and 15 others in a Lobbying Disclosure Report.  Prior to that time, SEIU had listed Stern as a lobbyist on several issues, including health care, immigration and labor matters.    

            Stern’s de-listing has been challenged by two limited government advocacy groups, who point to publicly available information that Stern continues to engage in extensive lobbying activities.  In a letter to the Clerk of the House, Secretary of the Senate, and Acting U.S. Attorney, they point to the fact that White House logs show that Stern visited covered executive branch officials on 11 occasions in the first quarter of 2009, and on 10 occasions in the second quarter.  In addition, they provide evidence suggesting that Stern regularly met with Members of Congress and other covered legislative branch officials during this period. 

            There can be little doubt that Stern had sufficient “lobbying contacts” (defined by the LDA as communications with covered officials regarding virtually any policy matter) to qualify him as a “lobbyist” under the law.  However, to qualify Stern must also have spent at least 20% of his time on “lobbying activities,” which are defined to include both lobbying contacts and efforts in support of such contacts, including preparation, research, planning and coordinating with the lobbying activities of others. 

            If Stern is assumed to work a 40 hour week, he would have 520 work hours in a quarter.  Thus, he would have to spend 104 hours on “lobbying activities.”  It seems unlikely that Stern, or almost anyone else, would spend that much time on lobbying contacts alone.  If Stern spent an average of two hours on each White House visit and spent a like amount in direct communications with the Hill, this would still be less than half the amount of time required to qualify as a lobbyist.   

            Thus, even if one could identify all of Stern’s lobbying contacts and determine exactly how much time he spent on them, it is unlikely that it would add up to 104 hours.  Therefore, one would have to come up with some way of determining how much time Stern spent on other activities in support of lobbying contacts.  No doubt Stern spends some amount of time on direct preparation for lobbying contacts.  But it is likely that he spends a good deal more time on activities, such as learning about and discussing the public policy issues at the core of SEIU’s lobbying, that cannot be unambiguously categorized as lobbying or non-lobbying. 

            In order to determine whether Stern qualifies as a lobbyist, one would first have to have some source of information to determine the number and duration of his lobbying contacts, then to identify and quantify the time spent on direct lobbying support, then to identify and allocate the time spent on ambiguous activities and finally to compare the resulting number to an estimate of Stern’s total work hours (which are probably much higher than 40 hours a week).  This might be doable for some people who are full-time lobbyists and/or bill by the hour, but it would be very difficult for Stern and many others. 

            In short, while there seems little doubt that Andy Stern spends a good deal of time lobbying the highest levels of government (indeed just today he was scheduled to meet with the President to discuss a proposed tax on high-cost insurance plans), the determination of whether he qualifies as a “lobbyist” within the meaning of the LDA will likely come down to his own guesstimate.  The simple fact is that the LDA was designed to provide a broad overview of the amount and type of lobbying performed by various interest groups; but the vagueness of its definitions, the lack of recordkeeping requirements and the minimal enforcement make it a very unreliable instrument for determining who is a “lobbyist.”

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The 9/11 Commission Recommendation Congress Forgot

As a former member of the 9/11 Commission noted today, Congress has failed to implement one key recommendation of that Commission—relating to how Congress organizes its own homeland security and intelligence committees.  The Hill states that “[f]ormer Sen. Bob Kerrey (D-Neb.) said that Congress’s failure to adopt [this recommendation] contributes to problems at the country’s intelligence agencies in the wake of the failed Christmas Day attack.” What follows is a piece I wrote, but never published, right after the 2006 elections.

           

9/11 COMMISSION’S MESSAGE TO CONGRESS: REFORM YOURSELF 

Nancy Pelosi, the incoming Speaker of the House of Representatives, has promised that a Democratic-led House will move immediately to enact all of the unfulfilled recommendations of the 9/11 Commission.  She has also promised to make dramatic changes in the way Congress does business. 

Her willingness and ability to keep these promises will be tested by what is unquestionably the most important unfulfilled recommendation of the 9/11 Commission: that Congress reform itself.  Specifically, the Commission recommended significant changes with regard to how Congress is organized for oversight of intelligence and homeland security. 

Of particular note is the Commission’s call for strengthening congressional oversight of the intelligence community.  The Commission found that the House and Senate intelligence committees lack adequate authority and capability to conduct effective oversight  Indeed, the Commission concluded starkly that “congressional oversight for intelligence—and counterterrorism—is now dysfunctional.” 

The institutional weakness of the intelligence committees stems in large part from the secrecy of the intelligence community they oversee.Information on highly classified programs is difficult to obtain and, when the information is shared with the committees, may be provided in such a compartmented fashion as to make it of little or no use.

For example, during the recent inquiry by the House Permanent Select Committee on Intelligence (HPSCI) into the activities of former Representative Duke Cunningham, we discovered a potentially relevant computer disk in Cunningham’s classified file at HPSCI.Because HPSCI did not have the technology to read the disk, it had to request assistance from an intelligence agency.After the agency obtained the disk, however, it refused to provide access to the files contained on the disk on the grounds that HPSCI was not cleared for the information in question.

The secretive nature of the intelligence community also deprives the intelligence committees of some of the most powerful oversight tools: the ability to hold public hearings and to issue public reports.Other congressional authorizing committees can use public hearings and reports to pressure agencies to modify policies and practices or simply to be more forthcoming with information, but the intelligence committees usually cannot.

Theoretically, the intelligence committees should have leverage over the intelligence agencies as a result of the legal requirement in section 504 of the National Security Act of 1947 that that intelligence expenditures be specifically authorized as well as appropriated, which would appear to require the approval of the intelligence committees as well as the appropriators.However, experience indicates that the appropriators have found ways to circumvent this requirement, ranging from putting expenditures in budget categories (such as military intelligence) which are not subject to the legal requirement to simply waiving the requirement outright.As a result, the appropriators are perceived to have far more sway over intelligence spending than the intelligence committees, a fact that undercuts the oversight capabilities of the latter.

To address these deficiencies, the 9/11 Commission recommended major changes in how the intelligence committees are structured, such as combining the appropriating and authorizing authorities in a single committee for each House.These new intelligence committees would be composed of relatively few members (with majority party representation never exceeding that of the minority by more than one) who would be “clearly accountable for their work” and would be served by a nonpartisan staff working for the entire committee.

The 9/11 Commission stressed the critical importance of the congressional reform portion of its recommendations, noting that “the other reforms we have suggested . . . will not work if congressional oversight does not change too.”Weak and divided congressional oversight makes it difficult for Congress to ensure proper and effective implementation of the Commission’s executive branch intelligence reforms, which were enacted into law by the Intelligence Reform and Terrorism Prevention Act of 2004.

Divided congressional oversight also enables agencies, contractors and others to play one committee off against another, exploiting committee rivalries for their own advantage and profit.In addition, it wastes the time and effort of agencies and high level officials who must report to and appear before many different committees.

As the 9/11 Commission recognized, however, getting Congress to reform itself is no easy task.It noted that “[f]ew things are more difficult to change in Washington than committee jurisdiction and prerogatives.To a member, these assignments are almost as important as the map of his or her congressional district.”

It is not surprising, therefore, that Congress has largely failed to implement the Commission’s congressional reform recommendations.As Thomas Mann and Norman Ornstein note in their recent book, The Broken Branch, congressional leaders responded “limply and inadequately” to these recommendations and the steps that were taken, particularly with regard to intelligence oversight, “[fell] far short of the constructive recommendations of the 9/11 Commission.”

Effective oversight of the executive branch requires more than a simple willingness to demand information and to issue a subpoena if necessary.Congressional oversight must be serious, systematic and ongoing.Oversight must be focused on improving intelligence and homeland security, rather than on getting contracts for friends or constituents, or on scoring political points.

It is much easier for Congress to reform the executive branch than to reform itself.By enacting the congressional reform recommendations of the 9/11 Commission, however, Congress can show that it is no longer business as usual on Capitol Hill.

 

 

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Congress’s Responsibilty for the Constitutionality of Healthcare Legislation

           When questions arise about the constitutionality of a proposed piece of legislation, such the healthcare legislation currently pending in Congress, Members of Congress frequently deflect them by saying that any constitutional issues will be dealt with by the courts at a later time.  Senator McCaskill, for example, responded to a question about the constitutionality of the individual mandate by offering assurances “that if anything in this bill is unconstitutional, the Supreme Court will weigh in.”   Senator Conrad similarly suggested that the issue was a technical legal one outside of his responsibility.  

            This approach, however, is misguided for several reasons.  First, Members of Congress have a responsibility, independent of the judiciary, to uphold the Constitution.   They take an oath to uphold the Constitution, and it is difficult to see how this oath is consistent with passing legislation without regard to its constitutionality.  

As Donald Morgan explains in Congress and the Constitution (1966), Congress traditionally has taken quite seriously its obligation to consider constitutional questions.  What Morgan calls the “judicial monopoly theory” (the idea that only the courts have the power and responsibility to address constitutional issues) was unknown to early Congresses and constitutional thinkers.  Even those who argued for judicial primacy in constitutional interpretation acknowledged Congress’s role.  Justice Story, for example, stated that “if a proposition be before Congress, every member of the legislative body is bound to examine and decide for himself whether the bill or resolution is within the constitutional reach of the legislative powers confided to Congress.” 

Second, Congress cannot rely on the courts to determine all constitutional issues.  Some such issues (e.g., impeachment, determining the rules of congressional proceedings) are recognized to be “political questions” exclusively committed to the decision of the political branches.  Even ordinary constitutional issues, moreover, can only be resolved by the courts if they arise in a justiciable case or controversy.  For example, it is not clear that anyone has standing to challenge certain aspects of the healthcare reform legislation, such as the preference given to Nebraska with regard to Medicare reimbursement.  And even when such challenges can be brought, it is likely to be many years before they are finally resolved. 

Finally, and perhaps most importantly purposes of the healthcare bill, it is a mistake to equate a measure’s ability to survive judicial review with its constitutionality.  I refer here not to the possibility that the courts may be wrong, but to the nature of the review that the courts undertake.  As Professor Volokh points out, when the issue is whether a law exceeds Congress’s enumerated powers, the courts don’t decide the issue de novo.  Instead, they defer to Congress’s own judgment on the issue, overturning that judgment only in circumstances where it would be unreasonable for Congress to reach the conclusion that the measure in question falls within a particular enumerated power. 

Thus, if Members of Congress leave the constitutionality of healthcare reform to the courts, the question of constitutionality becomes largely circular.  Members will defer to the judgment of the courts, and the courts will defer to the (supposed) judgment of Congress.  Every exercise of power becomes constitutional, without anyone ever taking responsibility for explaining why.    

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Spin City

           There was a minor flap last week when the White House claimed that this Congressional Research Service report (entitled “Lobbying the Executive Branch: Current Practices and Options for Change”) vindicated the administration’s lobbying policies.  The White House claim was reported rather uncritically by the media, including Kenneth Vogel of Politico.  In an article entitled “President Obama’s lobbying reforms praised by Congressional Research Service,” Vogel wrote that “congressional researchers concluded that the administration’s crackdown has ‘already changed the relationship between lobbyists and covered executive branch officials’ and suggested that Congress might consider enacting similar restrictions on itself.”  On the White House blog, meanwhile, Norm Eisen wrote “[w]e’re pleased that CRS recognized . . . the President’s historic restrictions on lobbying are having a significant impact in making sure that the government serves the public interest and not special interests.” 

            Anyone who has read a lot of CRS reports would understand that how unlikely it is that CRS would make an unqualified judgment about anything, much less express an amorphous and subjective opinion such as that implied by Politico and the White House.  In fact, if one reads the CRS report, it is apparent that CRS makes no judgments about the wisdom, efficacy or significance of the Obama administration’s lobbying policies.  It simply identifies the various policies that have been adopted, summarizes critiques of those policies, and notes several potential options for additional regulation.  The interpretation adopted by the White House and Politico is based solely on part of the first sentence of the following paragraph, which appears at the top of page 13 in the report: 

Creation of restrictions on federally registered lobbyists’ access to executive branch departments and agencies has already changed the relationship between lobbyists and covered executive branch officials. If desired, there are additional options which might further clarify lobbyists’ relationships with executive branch officials. These options each have advantages and disadvantages for the future relationships between lobbyists and governmental decision-makers.  CRS takes no position on any of the options identified in this report. 

            It seems clear that the phrase “changed the relationship” is part of an awkwardly worded transitional sentence and signifies nothing more than the undisputed fact that the administration has imposed certain new restrictions and requirements on lobbyists and lobbying communications with the executive branch.  Nowhere in the report is there any attempt by CRS to evaluate the real world impact of these changes or to draw any conclusions regarding their effectiveness.  In other words, CRS is observing that reforms have been made, not “praising” them.  

            One can perhaps understand Norm Eisen’s attempt to spin the CRS report in the most favorable light to the administration.  But what’s Kenneth Vogel’s excuse? 

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House Statement of Disbursements Available Online

 

           The House of Representatives Quarterly Statement of Disbursements is available online today (hat tip: Sunlight Foundation).  This report has been published in hard copy for many years, but this is the first time that it has been made available over the internet, pursuant to a June 3, 2009 directive from Speaker Pelosi. 

            As an example of how this report might be mined for interesting information, I searched the document for the term “town hall.”  This search revealed that 41 Members had submitted reimbursement requests described as being for “town hall” events during the July 1 to September 30 quarter.  Since earlier Statements are not available online (and I am not planning to go through these multivolume sets manually), I can’t say how that compares to prior years.  The party breakdown is noteworthy, though.  Of the 41 Members, 39 were Republicans and 2 were Democrats.   

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Who Would You Have to Kill to Get an Unqualified Admonition?

           The Senate Ethics Committee has issued a letter of “qualified admonition” to Senator Roland Burris regarding sworn and unsworn statements made by the Senator regarding the circumstances of his appointment to the Senate seat vacated by Barack Obama.  Burris, of course, was appointed by then-Governor Rod Blagojevich, who subsequently was impeached and indicted for misconduct that included attempting to sell that same Senate seat.  The Committee informs Senator Burris that “you should have known that you were providing incorrect, inconsistent, misleading, or incomplete information to the public, the Senate, and those conducting legitimate inquiries into your appointment to the Senate.” 

            The Committee points in particular to Burris’s January 5, 2009 affidavit, in which he averred that he was contacted on December 26, 2008 by Sam Adams, Jr., an attorney employed by Governor Blagojevich (and a fine beer), who asked if he would be interested in accepting the Governor’s appointment to the Senate seat.  In the final paragraph of the affidavit, Burris states: “Prior to the December 26, 2008 telephone call from Mr. Adams, Jr., there was not any contact between myself or any of my representatives with Governor Blagojevich or any of his representatives regarding my appointment to the United States Senate.”  (emphasis added) 

            Unfortunately for Burris, this statement is difficult to reconcile with a conversation that he had with Rob Blagojevich, the Governor’s brother, on November 13, 2008.  Even more unfortunately for him, that conversation was tape recorded by federal investigators, and the transcript was produced to the Senate Ethics Committee.  

            The conversation was initiated by Blagojevich, who called Burris to seek his help in raising money for his brother’s campaign.  Burris, however, quickly brought up the subject of the Senate seat, telling Blagojevich “I’m very much interested in, in trying to replace Obama.”  The remainder of the conversation continues in that vein, as Blagojevich and Burris strategize as to how Burris could raise funds for the Governor without creating a public trail which might make it more difficult for Burris to be appointed.  As Burris summarized toward the end of the conversation: “number one, I, I wanna help Rod.  Number two, I also wanna, you know hope I get a consideration to get that appointment.” 

            Burris’s affidavit, therefore, would seem to be clearly false.  Moreover, the November 13 conversation was highly relevant to the inquiries being conducted with regard to Burris’s Senate appointment by Governor Blagojevich, who, as the Committee notes, “had recently been arrested and charged with corruptly using his authority to make a Senate appointment in exchange for campaign contributions and other benefits.”  As the Committee rather mildly puts it, “you should have known that any conversations you had about your desire to seek the Senate seat and about any possible fundraising for the Governor were critical to these inquiries.” 

            You think?   

            Furthermore, Burris had plenty of further opportunities to disclose the November 13 conversation prior to the time that he was seated by the Senate.  The Committee notes that “despite repeated and specific questioning, you did not disclose [the November conversation]” to the Illinois House Impeachment Committee at a January 8, 2009 hearing.  Similarly, Burris failed to disclose this conversation during meetings with Senate leaders and the press during this time period   

            Finally, the Committee notes that Burris has given “multiple and at times contradictory explanations for failing to disclose all your contacts with the Governor’s associates, which individually and collectively gave the appearance that you were being less than candid.” 

            To put the matter plainly, Burris repeatedly failed to disclose his conversation with Rob Blagojevich, despite knowing that this conversation was critical to both the Illinois legislature and U.S. Senate on matters of the utmost importance to the public interest (the impeachment of a Governor and the seating of a U.S. Senator, respectively).  Moreover, his conflicting and unpersuasive explanations of this failure leave little alternative but to conclude that it was intentional. 

            In deciding nonetheless to give Burris the lightest possible punishment (a “qualified” admonition), the Committee apparently gave great weight to the fact the Sangamon County State’s Attorney found “no actionable violations of law.”  This, however, would seem a slender reed to support the Committee’s action (or inaction).  The state prosecutor decided that there was insufficient evidence to charge Burris with perjury.  It appears that this decision was based largely on the fact that in testifying before the Illinois Impeachment Committee, Burris gave incomplete, but not false, answers to broad questions.  With regard to the January 5 affidavit, the state prosecutor apparently accepted Burris’s explanation that his statement was meant only to refer to discussions regarding his actual appointment, not merely to his interest in getting an appointment.  Although this explanation might be sufficient to avoid a perjury charge, it is also one that the Committee itself found wanting.   

            In the context of intentional withholding of critical information from the Senate about a matter of such importance, one would think that at least a serious slap on the wrist would be warranted.   

But apparently one would be mistaken.

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The Post’s Spin on Leaked Ethics Report

            When the Washington Post published an expose a few weeks ago regarding a House Ethics Committee report that was inadvertently released by a committee employee, I wondered why the Post did not put the actual report on its website so that readers could understand the full context of the information the Post was reporting.   According to this interview with one of the Post reporters, the explanation is as follows: 

“[T]he Post reporters and editors are handling this document and its contents with the utmost care. We recognize, and have made clear in our discussions with the ethics committee leaders and the implicated lawmakers, that these investigations are typically handled in a significant amount of secrecy, at least until action is taken or deadlines for action by the committee are triggered. We want to be sure we do our share of fairly and evenly reporting deeper into the allegations and contact the lawmakers in question before publishing information about allegations in the document we obtained.” 

            In other words, the Post claims it is withholding information from its readers in order to protect the confidentiality of the ethics process in the House.     

            This is just not credible.  If the Post were concerned about the confidentiality of the ethics process, it would not have reported broadly on the contents of the leaked report.  It is difficult to imagine that publishing the full report would have any greater impact on the confidentiality of the process than the reporting that the Post has done.  If there were particular passages of the report that were particularly sensitive, they could have been redacted before the document was made public. 

            It is far more likely that the Post’s refusal to make the document public is motivated by a desire to protect its “scoop,” not by the public interest.  This is unfortunate because publishing the actual document would be more useful to its readers, and might even prompt those readers to provide valuable feedback that could advance the public’s understanding of the issues.