Author: Michael Stern

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The Constitutionality of the ELECT Act

 

           As an alternative to the constitutional amendment proposed by Senator Feingold (which would eliminate temporary appointment of Senators to fill vacancies), Congressman Aaron Schock of Illinois has proposed H.R. 899, the Ethical and Legal Elections for Congressional Transitions (or ELECT Act), which would require that special elections to fill senatorial vacancies be held within 90 days.  While the ELECT Act would not prevent Governors from making temporary appointments (something that can only be achieved through constitutional amendment), it would greatly diminish the potential significance of such appointments. 

            Over at Election Law Blog, Rick Hasen questions the constitutionality of the ELECT Act.  He argues that it conflicts with the text of the 17th 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.”  (emphasis added) 

            While I initially had some concern along the lines expressed by Professor Hasen, a closer examination of the constitutional text, structure and history reveals a compelling case for the legislation’s constitutionality.  This case is laid out below (drawing in part on Professor Vikram Amar’s testimony to Congress this week): 

1.   Article I, § 4, cl. 1, of the Constitution states that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing Senators.” 

2.   It seems clear that this provision applies to special elections to fill vacancies. 
This is shown not only by the text, but by historical precedent and understanding.   For example, in 1804 the House Committee on Elections noted with regard to a special election to fill a vacant House seat in Pennsylvania, “it is the duty of the executive authority of the respective States to issue writs of election to fill vacancies, yet, by the fourth section of [Article I], it is made the duty of the legislature of each State to prescribe the times, places, and manner of holding such elections.” I Hind’s Precedents of the House of Representatives, § 517. 

3.  Congress has used this authority in recent years to regulate the timing of House special elections.  After the September 11 attacks, concerns about a potential catastrophic attack led Congress to amend 2 USC 8 to set a time limit for House elections under extraordinary circumstances, ie, where a large number of House seats were vacant at the same time. 

4.   Moreover, as Amar points out, Congress used its power under Article I, section 4, prior to enactment of the 17th Amendment, to regulate the filling of Senate vacancies.   Amar states: “Congress in 1866 passed an Act that regulated the manner and timing of all state legislative elections of U.S. Senators. The Act said that whenever there was a Senate vacancy of any kind, both houses of a state legislature, on the second Tuesday they were in session, must vote to fill the vacancy, and if no person was elected, both houses must continue to vote at least once each and every day thereafter of the legislative session.” 

5.  The question then becomes whether the 17th Amendment repealed by implication this congressional authority, and left the state legislatures in sole control of the timing of special elections to fill Senatorial vacancies.  Repeals by implication, however, are highly disfavored, and there are several reasons to believe that no such repeal was intended. 

6.  Certainly the 17th Amendment did not repeal congressional authority over general Senate elections.  Otherwise, Congress would have no power to set a uniform date for Senate elections. 

7.  Moreover, the first clause of the second paragraph of the 17th Amendment, which provides for special elections to fill Senate vacancies, contains no suggestion of an intent to displace congressional authority in this regard.  On the contrary, the language of this provision (“When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies”) is substantially identical to that used in the House Vacancies Clause.  If by using the phrase “as the legislature may direct” they had intended to displace such congressional authority,  it would have been logical to place this phrase at the end of the first clause.    

8.  Instead, the phrase was placed at the end of the second clause, which authorizes the state legislature to empower the Governor to make temporary appointments to fill vacancies.   Since this clause is only applicable to special elections conducted after temporary appointments, it seems unlikely that the phrase was intended to displace congressional authority as to all Senate special elections.   

9.  It is not evident why the framers of the 17th Amendment would have wanted Senate special elections to be treated differently than Senate general elections and House special elections for purposes of congressional authority.  Nor is it evident why they would have wanted to deprive Congress of the authority to regulate only those special elections conducted after a temporary appointment. 

10.  There are several more plausible explanations for why the Temporary Appointments Clause concludes with the phrase “as the legislature may direct.”  The phrase can be explained in one or more of the following ways: (1) it substitutes for the time limitation on temporary appointments, ie, “until the next meeting of the legislature,” contained in the original Constitution; (2) it clarifies that the state legislature has the obligation to set the time of special elections, as the House had concluded with regard to its special elections and (3) it ensures that the legislature will only empower the Governor to make temporary appointments that are truly temporary, ie, that have a specific time limit.  

11.  This still leaves the question of why the Temporary Appointments Clause does not say “as the legislature or Congress may direct.”  Other than inadvertence, the absence of a reference to Congress may be explained by the fact that it is the state legislature alone which may empower the Governor to make temporary appointments, and the drafters wanted to ensure that the legislature directed the time and manner of the special election in conjunction with any delegation of the temporary appointment power.  The fact that Congress might use its authority to regulate elections to circumscribe the state legislature’s discretion in the matter is not inconsistent with the language used in the Temporary Appointments Clause. 

12.  These textual, structural and historical arguments might be overcome if there were evidence that the framers of the 17th Amendment actually intended to displace congressional authority.  According to Amar, however, the evidence is to the contrary.   He indicates that the Members of Congress who debated the amendment evidenced an understanding that Congress would retain the authority to regulate all Senate elections. 

            Given the novelty of the issue, there remains the possibility that a persuasive case against the constitutionality of the ELECT Act could be made.  At the moment, though, I have not heard such a case, and the arguments in support of the Act’s constitutionality seem quite compelling. 

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Obama’s First Signing Statement and the Grassley Rider

President Obama has issued his first signing statement with regard to the Omnibus Appropriations Act for FY2009.  Professor Eric Posner, at the Volokh Conspiracy, observes that Obama’s signing statement contains many of the “same old Reagan/Bush/Clinton/Bush theories” about executive power and prerogatives. 

Professor Peter Strauss, on the other hand, responds that Obama’s signing statement was in fact narrower in its claims with regard to certain whistleblower protections contained in Part D, Section 714 of the Act (which I will refer to as the “Grassley Rider” after its principal proponent in the Senate).  The Grassley Rider prevents funds from being used for the salary of any federal officer or employee who attempts to prevent “any other officer or employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress” or retaliates against such officer or employee.  In short, it protects federal whistleblowers who wish to communicate with Congress about matters relating to their jobs or agencies. 

With regard to the Grassley Rider, Obama says “I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.” 

Strauss claims that “[t]his is so much less of a reservation than President Bush (and his predecessors) asserted as to give hope that he is serious about transparency, and about taking the muzzle off government personnel. They would simply have ended the sentence at ‘Congress.'”  [note: Strauss’s email, along with Posner’s initial post, may be found among the VC posts for March 12]. 

Strauss is simply wrong.  Because the Grassley Rider is not a new provision, but has been included in annual appropriations measures since FY1997, one can compare Bush’s signing statements on this exact issue.  For example, in a December 10, 2004 signing statement, Bush stated that he would construe the Grassley Rider “in a manner consistent with the President’s constitutional authority to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties.”   

Like Obama, Bush purported to authorize the withholding only of certain categories of information.  In reality, however, these categories are extremely broad.  Indeed, if Bush had stopped after “deliberative processes of the Executive,” his statement would have arguably covered pretty much anything the executive wanted to withhold.  As anyone who has performed congressional oversight will tell you, the deliberative process privilege can be and has been (not necessarily properly) used to withhold a great deal of information that the executive prefers not to share with Congress.  The words “or the performance of the Executive’s constitutional duties” I translate as meaning “just in case there is something that we can’t justify withholding under deliberative process or other privilege, we will still withhold it if we think it appropriate to do so.” 

How is Obama’s statement any different from Bush’s, though?  Although it uses different phrases, it amounts to exactly the same thing.  “I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”  If Obama had stopped at “properly privileged,” his statement would still cover anything under Bush’s foreign relations and national security categories (executive privilege) and Bush’s deliberative process category (deliberative process privilege).  As a practical matter, this is enough to give the executive flexibility to withhold information in virtually all circumstances.  (Needless to say, the word “properly” is meaningless because it is the executive that will decide what is “properly” privileged).   

By adding “or otherwise confidential,” Obama, like Bush, leaves himself a catchall category that can be used to justify the withholding of any information that might be difficult or impossible to withhold under a deliberative process theory.  It is hard to imagine any information (other than that which is already public) that couldn’t be withheld under this catchall provision.  

The only possible difference between Bush and Obama would be if one could say that the “performance of the Executive’s constitutional duties” is somehow broader than the “otherwise confidential” category.  However, if anything, the reverse would seem to be true.  The term “confidential” could arguably cover any non-public information of any kind.  And certainly any information that the administration thought would impair the performance of its constitutional duties could be claimed to be confidential (even if it somehow could not be argued to fall within the deliberative process privilege). 

Bottom line, both Bush and Obama claim an executive branch prerogative to withhold any information from Congress when it is (allegedly) in the public interest to do so.   

So how do we know that it is really in the public interest?  Bush and Obama have the same answer—trust us.

 

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Federal Prosecutors Push Boundaries of Illegal Gratuities Statute

 Justice Scalia’s opinion for a unanimous Court in U.S. v. Sun-Diamond Growers, 526 U.S. 398 (1999), begins dryly with the observation: “Talmudic sages believed that judges who accepted bribes would be punished by eventually losing all knowledge of the divine law.  The Federal Government, dealing with many public officials who are not judges, and with at least some judges for whom this sanction holds no terror, has constructed a framework of human laws and regulations defining various sorts of impermissible gifts, and punishing those who give or receive them with administrative sanctions, fines and incarceration.” 

Sun-Diamond involved a trade association which was convicted of having provided former Secretary of Agriculture Mike Espy “approximately $5,900 in illegal gratuities,” including tickets to the U.S. Open tennis tournament, luggage, meals and a crystal bowl.  These gifts were alleged to have violated the illegal gratuities statute, which prohibits giving anything of value to a public official “for or because of any official act performed or to be performed by such public official.” 

The Supreme Court reversed the conviction.  Although the indictment alleged that there were two matters in which the trade association had an interest pending before Espy at the time the gifts were given, there was no allegation of a specific connection between either of them and the gifts.  Instead, the instructions permitted the jury to convict if it found merely that the gifts were because of Espy’s official position.  As the Court noted, these instructions would permit conviction if the jury found the gifts were designed “to build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future.”  Moreover, the prosecution’s theory would lead to ridiculous results, such as “criminalize[ing] a high school principal’s gift of a school baseball cap to the Secretary of Education, by reason of his office, on the occasion of the latter’s visit to the school.”  The Court therefore rejected the government’s position in favor of a narrow reading of the statute.  

After Sun-Diamond, prosecutors could only charge under the illegal gratuities statute if they could prove a link between a thing of value conferred on a public official and a specific “official act” for or because of which it was given.  Combined with a subsequent decision of the D.C. Circuit, Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007) (en banc), which narrowed the definition of “official act” to mean only formal actions connected to a “class of questions or matters whose answer or disposition is determined by the government,” Sun-Diamond made it extremely difficult to prosecute under the illegal gratuities statute.  Indeed, the Campaign Legal Center recently described the law as “toothless.” 

One consequence of these judicial decisions is that prosecutors have increasingly turned to “honest services fraud” as an alternative to charging illegal gratuities.  Without getting into the details of an honest services case (a controversial issue which may be the subject of a future post), an honest services count will typically allege that a public official received a stream of things of value in order to deprive the public of its right to the honest services of that official.  For example, last year’s indictment of Abramoff associate Kevin Ring alleged that Ring and other Abramoff conspirators “attempted to groom . . . public officials by offering and providing things of value with the intent of making those public officials more receptive to requests for official actions on behalf of their clients in the future.”  In other words, the honest services charge can be used to accomplish exactly what the Supreme Court said in Sun-Diamond could not be accomplished with the illegal gratuities statute. 

However, last week’s indictment of former congressional staffer named Frasier Verrusio, who worked for Representative Don Young as the Policy Director of the House Transportation Committee, contains no honest fraud count.  Perhaps this is because Verrusio is not alleged to have received a stream of things of value over time.  All of the gifts that Verrusio is alleged to have received were in the course of one all-expenses paid trip to New York for Game One of the 2003 World Series.   The indictment charges instead that Verrusio violated the illegal gratuities statute by accepting these gifts.

The indictment alleges that on October 17, 2003, Verrusio accepted an invitation from James Hirni, a lobbyist, to attend the World Series game.Hirni arranged for Verrusio to fly to New York on October 18 (cost $228.50), attend the game (cost $110) and stay overnight at a hotel (cost $300).During this trip, Verrusio and a Senate staffer named Trevor Blackann were entertained by Hirni and one of Hirni’s clients, an official from an unidentified “Equipment Rental Company” which had an interest in the Federal Highway Bill then pending before Verrusio’s committee.They were transported in a chauffeured SUV (cost $275 per person), taken to dinner ($115 per person) and a strip club ($150 per person), and Verrusio received a souvenir baseball jersey ($130).The indictment values all of the gifts received by Verrusio at about $1,300.

                                                                                                                                                                                                                                                     

So how does the indictment establish that these gifts were “for or because of” an official act by Verrusio?The answer is somewhat murky.Equipment Rental Company had hired Hirni and his firm to seek three amendments to the Federal Highway Bill in August 2003, but the fact that Verrusio’s committee had a matter pending before it in which Equipment Rental Company had an interest does not make this case any different than Sun-Diamond.Indeed, it is not even clear from the indictment that Verrusio knew of this interest prior to accepting the invitation to the World Series game.The indictment does not allege any communication to Verrusio about the matter prior to the dinner in New York on October 18, when Verrusio, Blackann, Hirni, and the Equipment Rental official “discussed the Federal Highway Bill and Equipment Rental Company.”The indictment does not allege, however, that Verrusio was asked to take any particular action at that time.

To be sure, a reasonable person can infer from the circumstances that the gifts to Verrusio were for one or more of the following purposes: (1) to gain access to Verrusio (and Blackann) during the trip so that the interests of Equipment Rental Company could be discussed; (2) to build goodwill on Verrusio’s part toward Hirni and Equipment Rental Company; and (3) to encourage Verrusio to take favorable actions on the amendments desired by Equipment Rental Company during consideration of the Federal Highway Bill.However, none of these purposes (and certainly not the first two) appear to be sufficient under Sun-Diamond to violate the gratuities law.

Moreover, the allegations regarding Verrusio’s actions after the trip do not tend to establish any connection between the trip and a specific official act.The indictment alleges that on October 22, “Hirni emailed to [Verrusio] information about the three amendments that Equipment Rental Company was seeking to insert in the Federal Highway Bill.”On October 27, Verrusio replied, “apologizing for not responding sooner to Hirni’s October 22 email . . . [and] telling him that the amendments needed more work ‘for anyone to be able to help with progress . . . .’”This sounds more like a polite blow-off than anything else.

The indictment does not suggest that Verrusio ever did “help with progress” on the amendments.The three amendments were inserted into the Senate version of the Federal Highway Bill, but Verrusio, according to the indictment, did not play a role in this.The indictment does allege that Verrusio played a role in “protecting” the amendments after they had been inserted, but the only acts attributed to Verrusio in this regard was that he “suggested” to Hirni and his lobbying partner that they organize a letter writing campaign to counter the efforts of a rival industry group to strip the amendments out of the bill. It seems highly dubious that this “suggestion” qualifies as an “official act” under Valdes or that the gifts received by Verrusio were “for or because of” this act within the meaning of Sun-Diamond.

Legal analysis aside, there is something troubling about Verrusio’s prosecution here.There can be no question that Verrusio exercised extremely poor judgment, at best, in deciding to accept Hirni’s offer of a trip to the World Series.But in the absence of any evidence that Verrusio was asked to perform any official acts in connection with the gifts, or that he actually did perform any official acts for the benefit of Hirni or Equipment Rental Company, it seems hard to understand why prosecutors would treat this single incident as a criminal matter.

As Justice Scalia recognized in Sun-Diamond, federal law provides an intricate set of rules regarding permissible and impermissible gifts, and it would be contrary to this scheme to construe the illegal gratuities statute so broadly as to subsume all of these rules within it.Moreover, a broad reading of the statute would mean that nothing but the government’s discretion would prevent prosecutions of any Member of Congress or staff who received a gift from persons with interests in legislation before them.

As federal prosecutors have no special knowledge of the divine law, it is best not to tempt them with such discretion.

 

 

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Minnesota Supreme Court Rebuffs Franken

            The Minnesota Supreme Court has rejected Al Franken’s petition to direct the Governor and Secretary of State to issue an election certificate prior to resolution of the election contest for U.S. Senate.  First, the court found that “[t]he plain language of [the Minnesota statute] provides that no election certificate can be issued in this Senate race until the state courts have finally decided the election contest.”   

The court then turned to Franken’s argument that the Minnesota law in this regard conflicted with the federal constitution, particularly the Senate’s authority to judge its own elections.  As I have previously explained, however, this argument makes no sense because the Senate clearly has the authority to seat Franken, or his opponent for that matter, regardless of whether a certificate has issued.  The Minnesota court made this same point, noting that “if the Senate believes delay in seating the second Senator from Minnesota adversely affects the Senate, it has the authority to remedy the situation and needs no certificate of election from the Governor to do so.” 

Finally, the court dealt with Franken’s contention that “the state should not put the Senate in the position of abrogating its own rules in order to provide Minnesota with the full and timely representation that the Constitution and federal statutes contemplate.”  The court also rejected this argument, holding essentially that accommodating the Senate’s rules as a matter of comity was not a function of the court when the Minnesota legislature had made a different policy choice.

 

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Renzi Making Progress on Speech or Debate?

  

           The Renzi case involves, broadly speaking, three distinct types of Speech or Debate issues.  The first involves the question of whether the government violated the Speech or Debate Clause when it wiretapped Renzi’s cell phone.  The Magistrate appears to have largely rejected that theory in an order issued several weeks ago. 

            The second issue involves whether the activities for which Renzi was indicted were themselves protected by Speech or Debate.  Principally, these activities involved Renzi’s negotiations and discussions with private parties about the land exchange legislation that lies at the center of the case.  Renzi argues that these activities are protected as part of the legislative process, while the government contends that these activities only involve communications about future legislative activity and are therefore unprotected.   

The third issue concerns whether the grand jury relied on Speech or Debate information in deciding to indict Renzi.  In other words, even if the activities for which Renzi was indicted are not protected, the indictment could be dismissed on the grounds that the grand jury relied on privileged evidence to make its indictment decision.  (Renzi argues that there were materials presented to the grand jury that clearly refer to past legislative acts and therefore, even under the government’s theory, are protected under Speech or Debate.).   In the Magistrate’s previous order, he indicated that dismissal on this ground would be warranted only if it were shown that “privileged materials were essential to the grand jury’s decision to indict.”  

            The Magistrate has now issued an order requiring the government to disclose to Renzi’s defense team portions of the grand jury transcript and the instructions given to the grand jury regarding the Speech or Debate Clause.  The order finds that Renzi “has sufficiently demonstrated a particularized need to review the grand jury transcripts because grounds may exist to dismiss the indictment because protected material may have been presented to the grand jury.”  The judge also set oral arguments for April 30 and May 1 on various motions, including Renzi’s motion to dismiss the indictment on Speech or Debate grounds.   

            It is unclear how much should be read into this new order.  If the Magistrate agrees with Renzi regarding the second issue (or is leaning in that direction), disclosure of additional grand jury materials would seem to be irrelevant because it is clear that the indictment on its face charges Renzi with activities that are protected under Renzi’s theory.  On the other hand, if the Magistrate sides with the government on this issue, it seems unlikely (though not impossible) that Renzi could prove that other materials presented to the grand jury were “essential” to its decision.  It may be that the Magistrate is merely developing a full record for the district court’s consideration.  Still this shows that the Magistrate understands the seriousness of the Speech or Debate questions presented in the case. 

            One thing seems certain.  The Speech or Debate litigation in this case is going to drag on for quite a while.  It also seems unlikely that Renzi’s trial, which was originally scheduled for this spring, will happen anytime soon.

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Burris’s Options if a Special Election is Called

          

            Senator Burris, through his attorney, has indicated that he believes it would be illegal for the Illinois legislature to change the date of the special election to fill the remainder of the Senate term.  It is also apparent that he is willing to mount a vigorous legal challenge. 

             If Illinois enacts a law requiring a special election, Burris may seek relief in either state or federal court (or both) seeking to prevent the election from being held.  It is possible, perhaps likely, that he will be unable to obtain a ruling on the merits, however.  I imagine that the courts would be reluctant to enjoin an election, and they may be inclined to dismiss Burris’s challenge on standing, ripeness or other threshold grounds.  After all, it is always possible that Burris could win the special election or that the Senate would refuse to seat the winner. 

            Assuming that the special election was held (and someone other than Burris prevailed), Burris might also seek to enjoin the issuance of a certificate of election.  At that stage, however, it seems likely that the courts would defer to the Senate, which has the constitutional power to judge the election of its members.   

            Burris’s next option would be to ask the Senate to refuse to seat the winner of the special election.  (This request in itself might create a difficult question for the Senate, because Burris’s right to challenge the credentials of a Senator-elect would be dependent on his being a member of the Senate, but it could be argued that once the certificate of election issued, Burris ceased to be a member of the Senate.)  The Senate would either refer the matter to the Committee on Rules and Administration, or proceed to have the full Senate vote on whether to seat the winner.  Either way, the Senate would have to confront the difficult constitutional issue posed by Illinois’s changing of the special election date. 

            Assuming that the Senate decides to seat the special election winner and unseat Burris (which, politically, seems like a virtual certainty), Burris could proceed to challenge his exclusion from the Senate in federal court.  It is possible that this issue would be deemed a political question unreviewable by a court.  But it is also possible that a court would view the political question doctrine as inapplicable to the issue at hand, since the question presented is a pure legal issue under the Seventeenth Amendment which involves no exercise of discretion or judgment by the Senate. 

            All of this is a long way of saying that the attempt to remove Burris by means of a special election is likely to result in a long legal fight, probably on multiple fronts, and present a major distraction to the Senate.   A special election is by no means an easy way out for the Senate.  To the contrary, an ethics investigation, culminating in a decision on Burris’s expulsion, is the cleanest and most constitutionally appropriate way of resolving this vexing problem.

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Can the Illinois Legislature Change the Date of the Special Election to Replace Senator Burris?

As noted in the previous post, Lisa Madigan, the Attorney General of Illinois, issued this opinion dated February 25, 2009 regarding the proposal to set a date for an earlier special election to fill the vacant Senate seat of Barack Obama, the seat currently filled on a temporary basis by Roland Burris.  She concludes that “[i]t is well within the Legislature’s power to consider and enact changes to the current law to specify an earlier date for the election.”  

While this conclusion may or may not be correct, the opinion fails to support the conclusion and, in fact, largely ignores the real issue here.  At the time that then-Governor Blagojevich appointed Burris, Illinois law authorized the Governor to make a temporary appointment to fill a vacant Senate seat until the time of the next general election (ie, in November 2010), at which time a special election will be held to finish out the term (ie, the remaining two months).  The Illinois legislature is now considering moving up the time of the special election.   

            The Seventeenth Amendment 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 question is whether the legislature must direct the time, place and manner of the election at the time it empowers the executive to make temporary appointments. 

            Under one reading, the legislature may direct the conduct of the special election at any time.  Thus, for example, the legislature could empower the executive to make temporary appointments and leave open the time for the special election, which the legislature would establish after the appointment on a case-by-case basis. 

            This reading, though, runs into some problems.  Black’s Law Dictionary defines “temporary” as “that which is to last for a limited time only, as distinguished from that which is perpetual, or indefinite, in its duration.”  If the executive makes an appointment without a specified date for a special election (or one where the specified date is subject to change), the appointment is arguably indefinite, rather than temporary.  Put another way, the power which the Seventeenth Amendment authorizes the legislature to delegate arguably requires the appointment be made with a definite time limit (as opposed to a time limit which can subsequently be shortened or lengthened). 

            Another problem with this reading of the Seventeenth Amendment is that it gives the state legislature the power to punish or reward a Senator based on performance in office.   If an appointed Senator votes in a way that displeases the legislature, it could move up the date of the special election.  Conversely, if the legislature approves of his or her votes, it could move back the special election.  It seems unlikely that the Seventeenth Amendment was intended to give the legislature such control. 

            Two other observations.  First, the historic practice of the states in carrying out the Seventeenth Amendment has some bearing here.  If there are examples of states changing the time of the special election after appointment, Madigan doesn’t cite them.  Second, the issue here is analogous to one that arose in the 2000 presidential election when it was argued that the Florida legislature could, under its Article II power to direct the manner in which presidential electors are appointed, change the law to take the election contest away from the courts and itself determine the correct slate of electors.   

            Rather than deal with the complexities of this issue, the Madigan opinion largely focuses on irrelevancies, such as whether Burris has a property interest in his Senate seat.  This may have a bearing on the question of whether or when Burris could challenge the legality of a special election, but it doesn’t have anything to do with the legality itself.  If Burris has no property interest in his Senate seat, neither does his colleague, Senator Durbin.  Clearly, however, the Illinois legislature could not constitutionally authorize a special election to replace Durbin before the end of his term.  

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When Does Senator Burris’s Term End?

Lisa Madigan, the Attorney General of Illinois, has issued this opinion regarding the proposal to set a date for an earlier special election to fill the vacant Senate seat of Barack Obama, the seat currently filled on a temporary basis by Roland Burris.  (Hat tip to Rick Hasen’s Election Law Blog and this post on Law Dork). Madigan concludes that “[i]t is well within the Legislature’s power to consider and enact changes to the current law to specify an earlier date for the election.”  

In a later post I will discuss the substance of the issue, but first I would note this peculiar sentence in Madigan’s opinion (also discussed in the Law Dork post): “Under the current language of section 25-8, U.S. Senator Burris’s temporary appointment will conclude in January 2011 following an election in November 2010, the next election of representatives in Congress.” 

This seems quite wrong.  The Illinois statute (section 25-8) provides: “When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.”  This law is clear that an election to fill the vacancy takes place at the next general election and that the Senator-elect then fills the vacancy as soon as the certificate issues.  Burris’s term would therefore end immediately after the November election. 

The fact that Obama’s original term will expire in January 2011 is of no moment.  The general election will choose both the person who will fill the remaining two months of the unexpired term and the person who will succeed to the Senate seat for a full term beginning on January 3, 2011.  This would hardly be the first time that a House or Senate vacancy has been filled in the same election as chose the successor for the next term.  At least some states have done this with a single ballot line that chooses both offices (which, I suppose, means that you have two elections on one line).  In one case in 1994 (involving JC Watts, I believe) the state law provided that the winner of the general election would be automatically appointed by the governor to fill the House vacancy, which raised some constitutional questions.  The House did seat the Member-elect to fill the vacancy, however. 

Even if Illinois attempted to extend Burris’s current term until January 2011, I am not sure that it would be valid.  Riddick’s Senate Procedure (p. 710) contains this entry:  “The action of the Governor of a State in certifying that the term of a person, chosen at a general election to fill the unexpired term, should begin on the following January 3, was challenged in 1939 as being beyond his power.  The contention was made that the Senate fixes the time at which the service of a Senator begins, and that the Governor had only the right to certify the fact of election.  In that year, the Senate also decided that the term of service and compensation of a Senator appointed by the Governor of a State to fill a vacancy ended on the day of the election of his successor by the people when the Senate was in sine die adjournment.”  

Thus, Burris’s term will end in November 2010, not in January 2011 as suggested by the Madigan opinion.       

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What Would Johnsen Do On the DC Voting Rights Act?

            Dawn Johnsen, the President’s nominee to head the Office of Legal Counsel, has been highly critical of OLC’s performance during the last administration.  For example, she has accused John Yoo of “devis[ing] bogus constitutional arguments for outlandishly expansive presidential power” and has characterized Yoo’s defense of his own legal reasoning as “not merely false, but irresponsibly and dangerously false in a way that impugns OLC’s integrity over time and threatens to undermine public faith in the possibility that any administration can be expected to adhere to the rule of law.” 

            On December 21, 2004, Johnsen, along with other former OLC lawyers, issued a manifesto entitled “Principles to Guide the Office of Legal Counsel” to ensure that OLC adheres to “the rule of law” in the future.  At the core of these principles is the concept that OLC should not engage in results-oriented legal analysis in order to support policies of the incumbent administration.  For example, the first principle is  

When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action. 

            Similarly, Johnsen and her colleagues advise that OLC “should maintain internal systems and practices to help ensure that OLC’s legal advice is of the highest possible quality and represents the best possible view of the law.”  Not surprisingly, this principle requires that “OLC should afford due respect for the precedential value of OLC  opinions from administrations of both parties; although OLC’s current best view of the law sometimes will require repudiation of OLC precedent, OLC should never disregard precedent without careful consideration and detailed explanation.”

            Given these principles, it is inconceivable that Johnsen would advise the President to sign legislation that OLC has previously declared to be unconstitutional without “careful consideration and detailed explanation” from OLC as to why it has changed its mind.  This is particularly true if the proposed legislation would do violence to both the text and structure of the Constitution, conflict with the understanding and intent of the framers of both the original Constitution and the Fourteenth Amendment, contravene historical practice since the founding of the Republic and be inconsistent with controlling judicial precedent.  

            I refer, of course, to the District of Columbia House Voting Rights Act of 2009, which the Senate is scheduled to consider this week.  Less than two years ago the OLC analyzed the question of whether Congress could provide by statute for D.C. to have a voting representative in the House of Representatives, and found that “[i]n the absence of a constitutional amendment . . . the explicit provisions of the Constitution do not permit Congress to grant congressional representation to the District through legislation.”

 

This conclusion should not be, to put it mildly, controversial. The Constitution provides that “[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States,” and, as the Constitution makes clear and virtually everyone concedes, D.C. is not a state. Indeed, in the 2000 case of Adams v. Clinton, a three judge panel, in a decision affirmed by the Supreme Court, rejected the argument that D.C. could be treated as a state for purposes of granting representation in Congress: “Defendants argue that . . . the Constitution leaves no doubt that only the residents of actual states are entitled to representation. An examination of the Constitution’s language and history, and of the relevant judicial precedents, persuades us that defendants are correct and that the District-as-state theory is untenable.”

One would think, if one were unfamiliar with the ingenuity of lawyers, that this would be the end of the matter. Nevertheless, there are some lawyers and legal scholars who argue that Congress does have the power to enact the proposed legislation. Most prominent among them is Professor Viet Dinh, a former high-ranking official of the Bush Justice Department, who, interestingly, is also closely associated with the theories of executive power that Johnsen has so vigorously denounced.

It would be charitable to say that the arguments put forth by Dinh and others in favor of the constitutionality of the D.C. House Voting Rights Act are even plausible. As Professor Mark Scarberry suggests in a forthcoming article, the only “somewhat plausible” aspect of the arguments is the assumption that the lack of voting rights for D.C. was an oversight on the part of the framers, an assumption that he tries to lay to rest. Professor Jonathan Turley describes the proposed legislation as “one of most premeditated unconstitutional acts by Congress in decades.” Even some who favor the legislation, like Professor Rick Hasen, acknowledge that it is “probably unconstitutional.”

In any event, we know that Johnsen would never permit OLC to “craft merely plausible legal arguments” to support the President’s desired policy goals. She would never advise the President to sign legislation that was unconstitutional under OLC’s best appraisal of the law, even if there are plausible arguments to the contrary. And she would certainly never permit OLC to overrule its prior opinion without “careful consideration and detailed explanation.”

Would she?

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Jefferson’s Cert Petition on Speech or Debate

          Former Congressman William Jefferson is seeking a writ of certiorari on the question of “whether the indictment of a Member of Congress, although facially valid, should be dismissed when evidence privileged under the Speech or Debate Clause was used in the grand jury to obtain the indictment.”   Jefferson contends that the Fourth Circuit erred in refusing to consider whether Speech or Debate privileged evidence was presented to the grand jury and that its decision conflicts with the law of other circuits, including the D.C. Circuit, the Third Circuit and the Eleventh Circuit. 

            In Jefferson’s case, the district court conducted a review of all the allegedly privileged evidence presented to the grand jury and concluded that no violation of the Speech or Debate Clause had occurred.  The most problematic instance involved a former staffer whose testimony made reference to Jefferson’s role in passing a particular piece of legislation.  However, the district court found that this reference was not material or relevant to the allegations of the indictment and, moreover, was volunteered by the witness without prompting.  Therefore, the judge refused to dismiss the indictment. 

            Jefferson appealed, and the Fourth Circuit affirmed.  The panel stated that “[u]nder [Jefferson’s] interpretation of the Clause, any mention of Speech or Debate Clause material in a grand jury proceeding mandates the dismissal of all charged offenses which relate to such evidence.”  The court, however, rejected this view of the law.  Instead, the court concluded that under Fourth Circuit precedent “a grand jury will not be deemed biased solely because it heard some evidence relating to congressional speech.”   

            This aspect of the Fourth Circuit’s decision does not appear to be in conflict with any other circuit.  No court has held that an incidental reference to legislative activity before the grand jury requires dismissal of the indictment.  The Eleventh Circuit, for example, has stated that “[i]f reference to a legislative act is irrelevant to the decision to indict, the improper reference has not subjected the member to criminal liability [and the] case can proceed to trial with the improper references expunged.”  U.S. v. Swindall, 971 F.2d 1531, 1548 (11th Cir. 1992).    Other courts have suggested that dismissal is required only if the privileged evidence was a “factor” or a “substantial factor” in the grand jury’s decision to indict.  Just last week in the Renzi case, the Magistrate Judge suggested that the standard for dismissing an indictment was whether the “privileged materials were essential to the grand jury’s decision to indict.” 

            Jefferson bases his cert petition on language in the Fourth Circuit opinion suggesting the court is barred from ever going behind a facially valid indictment to assess whether the grand jury relied on Speech or Debate material.  In a footnote, however, the court leaves open the possibility that it could go behind the indictment under some circumstances, such as where there were a pervasive violation of the Speech or Debate Clause before a grand jury.  Moreover, although the Fourth Circuit indicates that the trial judge performed a more “comprehensive review” of the grand jury transcript than was required by precedent, it also states that “[u]nder the facts of this case . . . the [trial] court’s decision to act as it did in assessing Jefferson’s Speech or Debate Clause Claim was within its discretion and entirely appropriate.”  At the end of the day, therefore, Jefferson’s claim was rejected because the trial court properly found that the grand jury did not consider any Speech or Debate material, rather than because of any distinctive legal standard followed in the Fourth Circuit. 

            In short, while there are some important Speech or Debate issues percolating in the lower courts, it seems unlikely that the Supreme Court will take up this particular issue.