Category: House Rules

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Must Committee Websites Be Fair and Balanced?

An article this week by Fortune senior editor Stephen Gandel questions whether certain House committee websites, particularly that of the Financial Services Committee, comply with rules and regulations established by the Committee on House Administration. These provide that committee websites may not:

  1. Include personal, political, or campaign information.
  2. Be directly linked or refer to Web sites created or operated by campaign or any campaign related entity, including political parties and campaign committees.
  3. Include grassroots lobbying or solicit support for a Member’s position.
  4. Generate, circulate, solicit or encourage signing petitions.
  5. Include any advertisement for any private individual, firm, or corporation, or imply in any manner that the Government       endorses or favors any specific commercial product, commodity, or service.

Gandel’s primary concern is that much of the Financial Services website is “dedicated to just how bad the [Dodd-Frank act] is.” He suggests this violates the rules that “websites can’t contain political information or solicit support for a member’s position.”

I think Gandel misunderstands the meaning of the term “political” as used in these rules. The House Ethics Manual provides that “[o]fficial resources of the House must, as a general rule, be used for the performance of official business of the House, and hence those resources may not be used for campaign or political purposes.” The phrase “campaign or political” is a term of art referring to election or campaign-related business, as opposed to the official business of the House.

Continue reading “Must Committee Websites Be Fair and Balanced?”

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Alec Rogers on “Mr. Speaker! The Life and Times of Thomas B. Reed, the Man who Broke the Filibuster”

My former colleague Alec Rogers has been kind enough to share this review of James Grant’s biography of Speaker Thomas Reed:

James Grant is best known for his financial analysis, shared with those willing to part with a pretty penny, via the eponymous Grant’s Interest Rate Observer (current subscription rate: US$910).  For decades, Wall Streeters have prized his contrarian, quirky insights, and those that have been willing to act on his skepticism even during the most bullish of markets have seen their investments in his publication returned countless times over.  The Observer has never wanted for historically based pieces, looking into America’s financial past for insight into contemporary markets.

Grant’s love of history, however, has led him to venture into writing full length biographies, the subjects of which have been themselves quirky, interesting characters (e.g. the financier Bernard Baruch, President John Adams).  The subject of his latest book, Mr. Speaker! The Life and Times of Thomas B. Reed, the Man who Broke the Filibuster, however, really demonstrates Grant’s talents for uncovering undervalued assets.  The result is an intriguing trip with a fascinating guide into a part of American history that’s all too quickly rushed through in a typical history class.

Thomas Brackett Reed is not exactly a household name, perhaps not even in the home of a political historian.  A Mainer born and bred, Reed was a Member of Congress and eventually the Republican leader in the House during much of what has now become known, thanks to Mark Twain, as the “gilded age” for what Twain perceived as being only a superficially elegant surface covering a corrupt underbody.  Reed rose to the Speakership when the Republicans held the majority in 1889 and 1895 for a combined six years.  It was there Reed was to make his mark on the House if not the country.

To fully appreciate the story, it’s important to understand that Reed’s tenure in Congress and Speakership occurred mostly in the period before the Presidency had matured into the powerful office of today.  Prior to William McKinley, the occupant of the Oval Office was still more of the “chief magistrate” that earlier generations of Americans had mostly known.  Only during crisis such as the Civil War had they seen glimpses of what the office could and would become once America became a world power.  As a consequence, Reed and his ilk were able to be far more influential than we might otherwise suppose, living as we do during a time when the President is seen as virtually synonymous with the federal government itself.

Continue reading “Alec Rogers on “Mr. Speaker! The Life and Times of Thomas B. Reed, the Man who Broke the Filibuster””

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Congressional Regulation of the Press Galleries

As described in this Hill article by Alexander Bolton, Vice President Biden’s office has filed a complaint with the Senate Press Gallery regarding the tactics used by a credentialed reporter who used the pretense of posing for a photograph with the Vice President to get close enough to ask him a question. In case you were wondering what authority the Press Gallery has, and where it comes from, here is a brief summary.

Continue reading “Congressional Regulation of the Press Galleries”

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Supercommittee Rules Not So Clear

The Supercommittee rules are out, but they leave some unanswered questions. To begin with, the rules provide that “[t]he rules of the Senate and the House of Representatives, to the extent that they are applicable to committees, including rule XXXVI of the Standing Rules of the Senate and clause 2 of rule XI of the Rules of the House of Representatives for the 112th Congress, and do not conflict with the applicable provisions of the Budget Control Act, shall govern the proceedings of the Joint Select Committee.” That’s great, but what happens if there are differences between the House and Senate rules?

For example, clause 2 of House Rule XI requires each committee meeting and hearing be opened to the public unless the committee determines by record vote, with a majority being present, that one of certain specified grounds for closure are present, including that disclosure of evidence or matters to considered “would endanger national security, would compromise sensitive law enforcement information, [or] would tend to defame, degrade or incriminate any person.”

The grounds for closing a Senate committee meeting or hearing under paragraph 5(b) of Senate Rule XXVI are similar, but not identical. Any of the grounds identified in the House Rules would probably also justify closing a Senate meeting or hearing, but the Senate identifies additional grounds, such as the need to protect certain confidential financial or commercial information, that would not justify closure under the House Rules. (Admittedly, these particular differences are not likely to be important, but one wonders whether the same could be said of all the differences between House and Senate rules).

More importantly, Supercommittee Rule V(2) states that “[e]ach hearing and meeting of the Joint Select Committee shall be open to the public and the media unless the Joint Select Committee, in open session and a quorum being present, determines by majority vote that such hearing or meeting shall be held in closed session.” This provision does not specify any grounds for closing a meeting or hearing. There was apparently some discussion at the Supercommittee meeting today that there could be closed-door discussions of “important issues,” although it is not clear whether this referred to formally closed meetings or merely to informal discussions among members.

To the extent that Rule V(2) might be interpreted to allow closing of hearings or meetings to facilitate delicate negotiations, this is a problem. Neither the House nor Senate rules permit closing of hearings or meetings for reasons of deliberative privacy. I would conclude, as does John Wonderlich, that Rule V(2) should not be read to permit closure for reasons forbidden by both the House and Senate rules (particularly since the Supercommittee Rules do not provide any rule of interpretation in the event of a conflict between its additional provisions and those of the House and Senate rules that it incorporates). However, it seems entirely possible that some members of the Supercommittee believe that they can close hearings and meetings for any reason, the House and Senate rules notwithstanding.

 

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The Supercommittee, Moral Entrenchment, and the Puzzle of Statutized Rules

The Budget Control Act of 2011 (“BCA”) establishes a number of expedited procedures to govern House and Senate consideration of the legislative proposal from the “Supercommittee.” In essence, it requires that both the House and Senate have an up-or-down vote on the bill as proposed, and it forbids amendment of the bill in either house.

These provisions, of course, amend the normal rules of procedure that apply in the House and Senate.  The BCA expressly recognizes this and provides that these procedures are enacted “as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such they shall be considered as part of the rules of each House, respectively, or of that House to which they specifically apply, and such rules shall supersede other rules only to the extent that they are inconsistent therewith.”

It is not unusual for Congress to enact in statute special rules to expedite the consideration of particular legislation (examples include “fast track” approval for trade agreements and the closing of military bases under the Base Realignment and Closure Act). Such “statutized rules” raise some thorny constitutional questions, however. See Aaron-Andrew P. Bruhl, Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J.L.& Po. 345 (2003).

For example, are the House and Senate legally bound to follow the rules prescribed in the BCA? The generally accepted answer to this is no. Because the Constitution grants each house the power to determine its own rules, a statute cannot remove this power, and thus each house must remain free to change its rules independently. Indeed, the BCA expressly states that its congressional procedural provisions are enacted “with full recognition of the constitutional right of either House to change such rules (so far as relating to such House) at any time, in the same manner, and to the same extent as in the case of any other rule of such House.”

If that is so, then either the House or Senate is legally free, notwithstanding the procedures specified in the BCA, to supersede those procedures with respect to consideration in its own body. As Professor Bruhl notes, this may not mean so much in the Senate, where it can be extremely difficult to change the rules. In the House, however, changing the rules is quite easy. It is typical in the House that legislation sent to the floor is accompanied by a special rule from the Rules Committee that sets the terms of the debate and consideration for that particular bill. This special rule can vary or waive any of the provisions of the Standing Rules of the House.

For example, this CRS report discusses the use of expedited rules in military base closings, and notes some instances where the House waived the requirements of those rules. The report states: “As House Parliamentarian Emeritus Charles W. Johnson observes, a chamber may ‘change or waive the rules governing its proceedings. This is so even with respect to rules enacted by statute.’ These changes can be accomplished, for example, by the adoption of a special rule from the House Committee on Rules, by suspension of the rules, or by unanimous consent agreement.”

I am informed by a congressional source that it is unlikely the Rules Committee would promulgate a special rule to accompany the Supercommittee’s proposed bill. The reason, however, is not lack of constitutional power to do so; rather it is the fear that the adoption of a special rule, if it contravened any of the procedures established in the BCA, could jeopardize the bill’s “privileged status” in the Senate. In other words, the BCA forms something like a contract between the House and Senate, and one party’s breach of the requirements would arguably free the other from complying with its terms.

Nevertheless, there would appear to be no legal barrier to the House changing the procedures set forth in the BCA if a simple majority so desires (the situation is more complicated in the Senate due to the ability of a minority to filibuster a motion to amend the rules). In what sense, then, can the BCA be said to have entrenched the rules governing consideration of the Super-committee’s legislation? As Bruhl observes, “statutized rules can be understood as devices for preventing Congress from engaging in certain types of procedural opportunism [yet because] Congress believes that the Constitution limits its ability to constrain itself in matters of procedure [, they are] a curiously noncommittal form of commitment.”

Another way of describing the effect of statutized rules is that they are “morally entrenched.” That is, they reflect a promise by the House and Senate to follow certain rules, and not to utilize such constitutional power as they have to alter or amend such rules. But if should they break their promise (which has happened from time to time with regard to other statutized rules), there is (probably) no legal violation and (certainly) no legal remedy.

To make things just a little more complicated, it should be noted that BCA differs from the typical statutized rule situation in a couple of ways. First, because of the short duration of the Supercommittee, the provisions of the BCA only affect the Congress that enacted it. This is important because there is precedent in the House for the proposition that a statutized rule can constitutionally bind the Congress that enacted it. Bruhl thinks, and I agree, that this precedent is probably wrong, but it could be used to argue that the 112th Congress is in fact without constitutional power to modify the rules set forth in the BCA (absent a statutory amendment). The savings provision quoted earlier might defeat such an argument anyway, but the provision arguably does nothing more than reflect a particular understanding of the constitutional powers of the House and Senate, which understanding might turn out to be incorrect.

Second, the BCA does more than merely prescribe a particular procedure for considering certain legislation. It imposes a consequence (automatic spending cuts in excess of one trillion dollars) for the failure to enact the legislation proposed by the Supercommittee. If Congress passes such legislation in accordance with the requirements of the BCA, then any constitutional questions regarding the procedure would not affect the validity of the final product. Moreover, even if Congress enacts a law that varies substantively from the requirements of the BCA, or in a manner that violates the BCA’s procedural prescriptions, it is likely that this law will be written in such a way as to ensure that BCA’s automatic spending cuts are overridden.

But what happens if Congress cannot agree on any legislation and the automatic spending cuts go into effect? At that point could not there be a constitutional challenge to the procedures established in the BCA? It could be argued that the BCA unconstitutionally attempts to prescribe procedures for the House and Senate, violating the constitutional mandate that each house determine the rules of its own proceedings.

Bruhl argues, reasonably enough, that statutized rules do not violate the Constitution so long as each house remains free to change those rules without interference from the other house or the President. But one could ask whether each house is free to depart from the procedures specified by BCA, for example by amending the Supercommittee’s proposed bill, when the consequence of doing so would be the automatic spending cuts triggered by non-compliance with BCA. In essence, by providing a draconian “penalty” for changing the procedures established in the statute, the BCA imposes an unconstitutional condition on the exercise of the rulemaking power.

One final piece of this puzzle. Section 401(b)(3)(B) of the BCA provides that “[a]ny change to the Rules of the House of Representatives or the Standing Rules of the Senate included in the report or legislative language shall be merely advisory.” This means, apparently, that even if the Super-committee proposes legislative language that effects a permanent change in House or Senate rules, and the Congress passes a bill that purports to enact those changes, the changes are not in fact effective. The Super-committee could not, for example, force Congress to enact a rule that makes the Super-committee permanent, or requires Congress to use expedited procedures for future legislation.

This seems to be the legislative equivalent of the genie saying that you get three wishes, but “ixnay on the wishing for more wishes.” See Aladdin (1992). It seems to reflect some discomfort with the enormous power that the BCA invests in the Supercommittee. As a constitutional matter, it seems to put the BCA in the awkward position of both entrenching certain rules and prohibiting future legislation from entrenching additional rules.

Hopefully I will get some feedback on these thoughts, and refine them as we go along.

 

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Sunshine for the Super-Committee?

The legislation creating the “Joint Select Committee on Deficit Reduction” (AKA, the “Super-committee”) contains little detail on rules and procedures that the Super-committee is to follow.  Title IV of the Act establishes the Super-committee and provides for public notice of its hearings, but is otherwise silent on how much of its processes are to be open to the public.

However, as John Wonderlich of the Sunlight Foundation pointed out to me, House Rule X(10)(b) provides that “[e]ach select or joint committee, other than a conference committee, shall comply with clause 2(a) of rule XI unless specifically exempted by law.” The legislation establishing the Super-committee does not exempt it from the requirements of either Rule X or Rule XI.

Does this mean that the Super-committee is bound to follow the requirements of House Rule XI(2)(a)? It is not clear how the House’s rules could impose a requirement on a joint committee established by law. On the other hand, it could be argued that the language of House Rule X(10)(b) is part of the background rules for formation of a joint committee, and the failure of the legislation to specifically exempt the Super-committee from those rules evinces an intent that they be followed.

An alternative argument might be that the House Members of the Super-committee are bound to seek compliance with the requirements of House rules regarding joint committees. Title IV(c)(2) of the legislation provides that “Members on the joint committee who serve in the House or Representatives shall be governed by the ethics rules and requirements of the House.” Although procedural requirements of committees are not normally what one thinks of as “ethics rules,” the Code of Official Conduct (Rule XXIII) does require that a Member “adhere to the spirit and the letter of the Rules of the House and to the rules of duly constituted committees thereof.” One might argue that this indirectly obligates the House Members on the Super-committee to treat the House Rules regarding joint committees as a form of instruction. Cf House Practice, ch. 13, §11 (instructions to House managers of conference committee).

If the House Rules regarding joint committees are either directly or indirectly applicable to the Super-committee, then several significant requirements come into play. First, under Rule 2(a)(1)(A), the Super-committee would be required to adopt written rules in a public meeting (“unless the committee, in open session and with a quorum present, determines by record vote that all or part of the meeting on that day shall be closed to the public”).

Even more significantly, the rules adopted by the Super-committee “may not be inconsistent with the Rules of the House” and must “incorporate all of the succeeding provisions of [Rule XI, clause 2] to the extent applicable.” Among the provisions of clause 2 that would appear applicable are subsection (e)(1), which requires that records of committee actions be maintained and made available to the public, and subsection (g), which requires that all meetings and hearings are presumptively open, and may be closed only when the committee determines by record vote that “disclosure of matters to be considered would endanger national security, would compromise sensitive law enforcement information, would tend to defame, degrade or incriminate any person, or otherwise would violate a law or rule of the House.”

Whether these provisions apply could have a major impact on how the Super-committee conducts its business.

 

 

 

 

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The First Witness at the Clemens Trial

The prosecution opened the Clemens trial today by having Charles Johnson, former House Parliamentarian and one of the world’s leading experts on the House of Representatives, read House Mouse, Senate Mouse to the jury.

Ok, I am making that up, but it was pretty close. The first exhibit offered by the prosecution was the U.S. Constitution. (I am not making that up). Apparently the prosecution needed Johnson to explain to the jurors that Article I establishes a Congress, consisting of a House and Senate, and grants it legislative powers.

The next exhibit was a photograph of the U.S. Capitol. Charlie correctly identified as such. Shockingly, there was no cross-examination on that point.

For the more substantive part of his direct testimony, Johnson explained the rules of the House, the role of committees, the broad investigatory jurisdiction of COGR, and the fact that it has been granted deposition authority by the House. Pretty much what I expected.

Johnson specifically described COGR’s investigatory jurisdiction as uniquely broad among House committees because it includes both its own legislative jurisdiction and that of any other committee of the House. He also mentioned the fact that COGR is supposed to report findings and recommendations to the committee of legislative jurisdiction. (I didn’t hear any discussion of whether it did so). There was no cross on this point.

One interesting question from the prosecution. Johnson was asked whether one purpose of committees holding public hearings was to convey information to the public. Johnson agreed that this was a “by-product” of public hearings, but demurred somewhat on whether this was a primary purpose of such hearings. There was no cross-examination on this point either.

When it was his turn, Rusty Hardin concentrated on getting Johnson to acknowledge that the congressional investigatory power was not unlimited. Johnson didn’t provide much assistance on this point, but he acknowledged that Congress cannot “expose for the sake of exposure” and that it lacks the authority to conduct a trial.

Clearly a major theme of the defense will be that COGR improperly exercised its investigatory authority to conduct a trial of private misconduct, rather than for legitimate legislative purposes. It remains to be seen how far the court will let it take this theme.

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Is a House Vote Required to Release the Clemens Tape?

Last week the Clemens defense team asked the judge to grant it access to the audiotape of the February 5, 2008 deposition in which congressional staff questioned Clemens regarding his use of steroids. COGR had previously provided the prosecution and defense with the transcript of this deposition, at which Clemens made many of the alleged false statements with which he is charged, but the tape has apparently never been released. According to this report, however, “a lawyer for the House appeared in court Wednesday and told U.S. District Judge Reggie Walton that the House clerk has the tape and it can only be released by a House resolution.”

I infer from the House’s position that the tape has been archived under House Rule VII, which provides in part that “[a]t the end of each Congress, the chairman of each committee shall transfer the records to the Clerk any noncurrent records of such committee.” Once the records have been transferred to the Clerk (who stores them at the Center for Legislative Archives in the National Archives), their public availability is governed by other provisions of Rule VII.

Any committee record that was not public prior to archiving will remain unavailable to the public for at least 30 years (unless an order of the committee during the Congress in which the record was created provides for a different period). However, more sensitive committee records, such as “[a]n investigative record that contains personal data relating to a specific living person (the disclosure of which would be an unwarranted invasion of personal privacy) . . . or a record relating to a hearing that was closed under clause 2(g)(2) of rule XI,” are kept closed for 50 years. Thus, under normal circumstances the Clemens tape would not be available to the public until 2038 at the earliest, and possibly not until 2058.

If Clemens issues a subpoena for the tape, however, as the article indicates he will, Rule VII would not provide the governing authority. House Rule VIII governs responses to subpoenas, and Clause 5(a) of Rule VII provides that “[t]his rule does not supersede rule VIII.” Thus, it would seem that the tape would have to be produced in response to a subpoena unless the provisions of Rule VIII dictate otherwise.

One relevant part of Rule VIII is the requirement that the recipient of a subpoena certify that compliance would be “consistent with the rights and privileges of the House.” Since the audiotape of the Clemens would be privileged under the Speech or Debate Clause (at least in the D.C. Circuit), it might be argued that producing it would be inconsistent with the rights and privileges of the House. But it would seem odd to say that this provision requires a vote of the House to release the audiotape. After all, COGR has acted as the holder of the privilege in the Clemens case and has chosen to assert or waive the privilege in various contexts. Why would permission of the House be required to waive the privilege as to the tape?

The only other relevant provision is Clause 6(b) of Rule VIII, which provides that “[u]nder no circumstances may minutes or transcripts of executive sessions, or evidence of witnesses in respect thereto, be disclosed or copied.” The term “executive session” most clearly refers to committee meetings or hearings that are closed by a vote of the committee pursuant to House Rule VI. House parlance often uses the term “executive session materials” to refer more broadly to non-public materials, particularly of an investigative nature, but I am not sure whether there is any specific House precedent as to whether those materials generally, or staff depositions in particular, would qualify as “executive session” within the meaning of Clause 6(b). Absent such precedent, I would expect that the Parliamentarians would be consulted on the proper interpretation of Clause 6(b).

Even if staff depositions are considered to be “executive sessions” under Clause 6(b) of Rule VIII, however, it seems very doubtful that this provision would justify withholding of the tape under the present circumstances. After all, the “transcript” of this “executive session” has already been released. Any interest that the House might have had in keeping the deposition confidential has already been eliminated.

I could be wrong, but I am skeptical that the Parliamentarians would insist on a vote of the House under these circumstances.

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Gang Territory: Improving Congressional Oversight of Intelligence

In the most recent edition of the Harvard Journal of Law and Public Policy, Vicki Divoll (former counsel to the Senate Select Committee on Intelligence) argues for what she terms the “Full Access Doctrine”  (FAD). That doctrine would provide that  “under the Constitution, Congress is entitled to seek and receive any information from the executive branch that it needs to carry out its core responsibilities to make laws, appropriate funds, and investigate all matters relating to the intelligence functions of our government.” The executive branch, she contends, has no right to withhold any information from Congress, apart from a narrow category of presidential communications protected under United States v. Nixon, 418 U.S. 683 (1974).

Divoll writes in the context of congressional oversight of the intelligence community, and she makes clear that she is dissatisfied with Congress’s ability to get information needed for such oversight. Specifically, she decries the process by which the executive will brief certain sensitive intelligence matters only to the “Gang of Four” (the chairs and ranking members of the two intelligence committees).

Divoll criticizes the restricted briefings as “meaningless access” because they do not assist Congress in carrying out its Article I responsibilities. She points to the briefings received by the Gang of Four on enhanced interrogation techniques during the Bush Administration. Although the briefings were later cited as evidence that the recipients, including Representative Nancy Pelosi, had implicitly sanctioned waterboarding and other controversial practices, Divoll argues that there was little that the Gang of Four could have done with the information. She notes that they “receive nothing in writing, are told not to take notes, often have no staff assistance, and cannot discuss the material with anyone but the other three Gang of Four members.” In short, the restricted briefing “serves to give the executive branch a scapegoat if a controversial program becomes public, but it provides absolutely nothing to assist Congress in the performance of its lawmaking, appropriations and oversight duties.”

Divoll’s solution to this problem is for Congress to pass legislation establishing new rules governing congressional access to intelligence. Although she does not spell out the details, the legislation would be “based on the constitutional principles that Congress is entitled to demand anything it wants to serve its proper duties, and the President is required to provide it.” While Congress might choose not to receive some types of information (particularly details of covert actions or similar ongoing operations), the President would not have the discretion to withhold information or to provide it only to a select group of Members.

Divoll’s frustration with the current oversight process is understandable, but her proposal misses the mark, IMHO, in several respects. First, it should be noted that she significantly overstates the extent to which FAD represents established law. Certainly it has never been regarded as the law by the executive branch. It was George Washington who first enunciated the authority of the President to withhold from Congress information that would “injure the public,” following the unanimous recommendation of a 1792 cabinet meeting that included Alexander Hamilton, Edmund Randolph and Thomas Jefferson. Since that time, presidents have often asserted the authority to withhold information from Congress for a variety of reasons, including national security. See, e.g., Mark Rozell, Executive Privilege: The Dilemma of Secrecy and Democratic Accountability 32-53 (1994). No president has ever endorsed FAD or anything like it.

Nor has the judicial branch endorsed the doctrine. Divoll primarily relies on Nixon and United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977), but neither supports her position. Nixon involved a criminal, not a  congressional, subpoena, and it did not suggest that the executive lacked authority to withhold national security information. The Court suggested, in fact, that the outcome might have been different if national security were involved, noting that Nixon “does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties, the courts have traditionally shown the utmost deference to Presidential responsibilities.”

United States v. AT&T did involve a congressional attempt to access national security information (evidence regarding potential abuses of executive branch wiretapping). The court, however, declined to resolve the competing constitutional claims of the executive and legislative branches, instead attempting to steer the parties toward a negotiated settlement. The court’s dicta suggests that it rejected the executive’s claim of absolute authority to withhold national security information, but also that it rejected the assertion of an absolute legislative right to access such information (“We have not accepted the contention that the executive determination that national security may be involved is conclusive and not subject to any further inquiry, nor have we accepted the rival claim that Congressional right of access to documents for legislative purposes is at any time absolute.”). Like Mark Rozell, the court appears to favor an intermediate approach that would weigh the competing interests of the executive and legislative branches with respect to a particular dispute.

Thus, neither the executive nor judicial branches have endorsed FAD. But even if one thinks that Divoll’s view of the law is the correct one, it is hard to see how new legislation would advance the ball. Congress, as she notes, was unwilling to stand up to the Obama administration over relatively minor changes to the law governing covert action notifications. There would seem to be little chance the Congress would be able to enact a far more ambitious statute along the lines she proposes. And even if such a law were enacted, there is no guarantee that the executive would obey it. (See the War Powers Act).

Yet new legislation is not necessary to address the problem of restricted briefings. Congress already has the power to share the information in these briefings with all the members of the intelligence committees. As far as I have been able to determine, there is nothing in law or congressional rules now that would prevent any member of the Gang of Four from sharing the contents of a restricted briefing with their colleagues on the intelligence committees.

To make the matter clear and to put the executive branch on notice, the House and Senate should each adopt a rule that allows the Gang of Four to further disseminate the contents of a restricted briefing within the intelligence committees. The rule could provide for notice to the President before such dissemination takes place, which would give the executive branch an opportunity to state any objections it may have. In cases where the President objected, the rule might require that the chair and ranking member agree to overrule the objection (or a vote of the entire committee might be required under some circumstances).

These types of procedures make sense because there are situations in which it is preferable that sensitive information be as tightly contained as possible. It may be true, as Divoll suggests, that the tendency of the intelligence committees to leak information has been overstated, but it cannot be seriously disputed that there are risks involved in sharing information with all members of the intelligence committees. There have been cases in which members of these committees have released sensitive information, and common sense suggests that Members of Congress are more likely to release information inadvertently than are career intelligence officials.

The major difference between Divoll’s approach and mine is that I would put the burden on the members of the Gang of Four to determine when further dissemination is required. By making it clear that the Gang of Four has the power to seek further dissemination of restricted briefings, my proposal would entail greater responsibility and political risk on their part. Just as there may be a tendency for the executive to use restricted briefings as a means of scapegoating the recipients, so there may be a tendency for the recipients to avoid any accountability for the information they receive. But if the intelligence committees wish to be full partners in the conduct of U.S. intelligence activities, they must be prepared to accept a degree of responsibility as well.