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Government Not Impressed by Menendez’s “Policy” Approach to Speech or Debate

The government has filed its brief in opposition to Senator Menendez’s Speech or Debate arguments. A fuller analysis will have to wait, but the arguments look to be pretty much as I expected.

From the brief’s conclusion:

Defendant Menendez’s broad, unprincipled interpretation of the Speech or Debate Clause is a blueprint for immunizing criminal activity on Capitol Hill. Under defendant Menendez’s interpretation, all a Member of Congress—or staffer—would have to do in order to shield his illegal activity from criminal prosecution is insert the word “policy” into a corrupt conversation, mention an unrelated bill in an unlawful email, write something legislative on a calendar entry for an illicit gathering, threaten to hold a hearing at the conclusion of a meeting, or ask for a briefing at the end of an effort to influence the Executive Branch.

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Professor Seth Barrett Tillman: Hillary Can Run from Jail

(see update below) More precisely, Tillman argues here that any attempt to disqualify former Secretary Clinton from the presidency based on conviction of a crime, including 18 U.S.C. § 2701 (which provides that anyone convicted “shall forfeit his office and be disqualified from holding any office under the United States”), would be unconstitutional. FWIW, I think he is right.

Now if Clinton were to be elected to the presidency while actually serving time in prison, a different set of issues would be presented. But I think we can cross that bridge when we come to it.

(Clarification: Tillman does not believe that section 2701’s disqualification language is unconstitutional, but he believes it would be unconstitutional if it were intended to apply to the presidency and other elected positions. In part for this reason, he would interpret the “office under the United States” language as not applying to elected positions).

Update: former Attorney General Mukasey, to whom Tillman was in part responding, has emailed Professor Eugene Volokh to acknowledge “on reflection, … Professor Tillman’s [analysis] is spot on, and mine was mistaken…. The disqualification provision in Section 2071 may be a measure of how seriously Congress took the violation in question, and how seriously we should take it, but that’s all it is.” 

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Rare Bipartisan Agreement: Let’s Sweep Baku Gifts Under the Rug

It’s hard to decide which is the worst part of the House Ethics Committee’s report on member/staff travel to Baku, Azerbaijan, but I am going to go with the discussion of tangible gifts. At least it is easiest to explain why that part is wrong. I will discuss other aspects of the report in future posts.

As you may recall, a large number of members and staff traveled to a 2013 conference in Baku, courtesy of a rather shadowy group of Turkish American non-profit organizations. The travel was approved in advance by the Ethics Committee, but the approval letter explicitly warned each traveler about the possible receipt of gifts from foreign governments during the trip. Specifically, the letter noted that “[a]ny tangible gifts valued in excess of $350 received from a foreign government must, within 60 days of acceptance, be disclosed on a Form for Disclosing Gifts from Foreign Governments and either turned over to the Clerk of the House, or, with the written approval of the Committee, retained for official use.” Report at 20 n. 95.

Continue reading “Rare Bipartisan Agreement: Let’s Sweep Baku Gifts Under the Rug”

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Will Senator Menendez’s Speech or Debate Gambit Work?

Last week Senator Menendez’s legal team moved to dismiss all of the charges against him on the ground that they depend on evidence protected by the Speech or Debate Clause. The key issue is whether the Clause’s protection applies to certain meetings and communications between Menendez (and/or his staff) and executive branch officials, including Secretary of HHS Kathleen Sebelius and Marilyn Tavenner, the head of the Center for Medicare and Medicaid Services (CMS).

The prosecution alleges that Menendez was attempting to pressure the executive branch into making policy changes for the benefit of Dr. Salomen Melgen, a close personal friend who had given the senator significant campaign contributions and personal gifts. In the case of Sebelius and Tavenner, for example, Menendez questioned CMS’s prohibition on multi-dosing of the drug Lucentis, a policy that exposed Melgen to significant legal and financial jeopardy.

Menendez does not dispute that Melgen brought the Lucentis issue to his attention, but he argues that this does not prevent his communications with the executive branch from constituting protected legislative oversight. His brief states:

Senator Menendez serves as a member of the Committee on Finance, which oversees HHS and CMS. In June 2009, Senator Menendez alerted his staff to a Medicare issue concerning his “close personal friend,” Dr. Melgen, and his staff then began investigating the issue. Throughout their entire investigation, the prosecutors failed to grasp the policy issues at stake and wrongly concluded that because Dr. Melgen was using facts personally known to him in his administrative matter that he must have been asking for his friend to intervene in his case. Nothing could be further from the truth, and discovery bears out that Senator Menendez made no effort to ever intervene in Dr. Melgen’s pending matters. The issues from Dr. Melgen’s case highlight a broader policy question of this Administration’s actions that benefit pharmaceutical companies while discounting issues experienced by practicing physicians—a policy question that falls squarely within Senator Menendez’s oversight responsibilities as a member of the Senate Finance Committee.

Menendez Br. at 13-15 (citations omitted).

To prevail on this motion, Menendez will likely have to persuade the court of two propositions, each of which is fairly considered a long shot. The first is a procedural/evidentiary point about how the court should evaluate whether the senator’s executive branch communications were protected legislative activity, on the one hand, or unprotected “constituent service,” on the other. Menendez seems to argue that so long as his communications were ostensibly about policy issues, rather than a particular individual or case, they are protected even if they were actually motivated by a desire to help that individual (and, presumably, even if the executive branch officials understood this to be the senator’s primary or sole objective). See Menendez Br. at 8 (“Courts must examine the substance of the communications themselves to determine whether the communications are apparently legislative activity and thus immunized by the Speech or Debate Clause.”) (emphasis in original); id. at 9 (“An errand on behalf of an individual that does not require a change in policy would be unprotected case work . . ., but the appearance of a broader policy issue changes the Speech or Debate analysis entirely.”) (emphasis added).

This position seems to me to be more lenient toward the assertion of Speech or Debate than previously enunciated in the caselaw, including by the Third Circuit’s interlocutory opinion in the Menendez investigation itself. There the court seemed to think that the actual purpose of the communications, not merely their ostensible policy content, was relevant to the Speech or Debate analysis. See In re Grand Jury Invest. (Menendez), slip op. at 4-5 & n. 3 (3d Cir. Feb. 27, 2015). Because Menendez’s communications were not “manifestly legislative acts,” the Third Circuit held, the district court must make specific factual findings about the legislative or non-legislative character of the communications. To the extent the communications had both a legislative component (e.g., gathering information for legislative purposes) and a non-legislative component (e.g., attempting to influence how the agencies treated Melgen’s case), the court instructed that these components should be separated, if possible, and if not the district court “must ascertain the nature of the act or communication by assessing its predominant purpose.” Id. at 5.

This language suggests that Menendez’s communications will not be protected if their predominant purpose was to benefit Melgen, even if they were phrased in purely policy terms. Put another way, a member cannot obtain Speech or Debate protection for his otherwise unprotected constituent service merely by avoiding any explicit reference to the actions he wants the agency to take. Cf. U.S. v. Blagojevich, slip op. at 12 (7th Cir. July 21, 2015) (“’Nudge, nudge, wink, wink, you know what I mean’ can amount to extortion under the Hobbs Act, just as it can furnish the gist of a Monty Python sketch.”).

The second questionable part of Menendez’s argument is the proposition that attempts to influence executive agencies are protected by Speech or Debate if they qualify as legislative oversight. As I noted in a previous post, and as the Third Circuit explained in U.S. v. McDade, 28 F.3d 283, 300 (3d Cir. 1994), the Supreme Court has often stated that attempts to influence the executive branch do not fall within the Speech or Debate Clause. Menendez does not explicitly refer to this caselaw, but he presumably will argue that the Court’s broad language should be read as applying only to routine casework for constituents, not to efforts to monitor or guide an agency on matters of policy, particularly by a member of a committee with jurisdiction over the subject.

The court found it unnecessary to resolve this issue in McDade and the recent Menendez panel did not address it directly. It seems unlikely to me that the facts of the Menendez case provide a good vehicle for establishing a “legislative oversight” exception to the general rule laid down by the Supreme Court. But it is somewhat difficult to disentangle this issue from the first question of whether Menendez’s predominant purpose was to assist Melgen rather than to advance a legislative objective.

All in all, I would rate Menendez’s chances of prevailing on his Speech or Debate motion as slim. As noted in footnote 6 of the senator’s brief, however, an order denying his motion can be immediately appealed. Thus, win or lose at the district court level, Menendez will be able to delay his trial, possibly through the end of the Obama administration, if he so chooses.

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Lessons from a Byzantine Scandal

Let’s say you are a Member of Congress who is approached by an obscure nonprofit organization about accepting an all-expense-paid trip to Baku, Azerbaijan during an upcoming recess. (Baku is on the western shore of the Caspian Sea, in case you need a map to locate it, which you probably do). The purpose of the trip is to attend a conference called the US-Azerbaijan Convention: Vision for the Future.

A brief glance at the itinerary for this event leaves little doubt it enjoys the official sanction of the Azerbaijan government. You and your colleagues will be meeting with the President of Azerbaijan himself, as well as the Speaker of Parliament, and will receive briefings from government agencies such as Customs and Border Protection, the Ministry of Foreign Affairs, and SOCAR, the state-owned oil company. These discussions will cover US-Azerbaijan relations, regional security challenges posed by Russia and Iran (between which nations Azerbaijan has the misfortune to be sandwiched), and matters relating to the construction of oil pipelines and energy security generally.

You decide, reasonably enough, that this looks like an interesting and educational trip that will help you gain a deeper understanding of these important matters on which you make policy. So you instruct your staff to work with the nonprofit organization, which we will call the “Turquoise Council of Americans and Eurasians” (TCAE), to submit the required forms and information to the House Ethics Committee, which then pre-approves the proposed trip pursuant to House Rule XXV, clause 5(d)(2).

And off you go, along with ten of your House colleagues, 32 staffers, 75 state legislators, and former elected officials such as Bill Richardson, Dick Lugar and Dan Burton. A journalist attending the conference describes it as “among the biggest concentrations of American political star power ever seen in the Caucasus,” which admittedly may be akin to boasting of the best gas station sushi in the state of Oklahoma.

The trip goes fine. You attend the scheduled events, try not to mispronounce too many Azeri names, and maybe even sneak in a little sightseeing in Baku’s Old City. You listen to a lot of speeches, including from former Obama administration officials David Plouffe, Robert Gibbs and Jim Messina. They mostly repeat the same pablum you could have heard in DC, though Gibbs does recount an amusing anecdote about then-Senator Obama haggling with a local rug merchant during a 2005 CODEL to Baku.

But no sooner than you have returned to the US, visions of lamb shish kebob still dancing in your head, the carping starts. At first it is largely directed at Plouffe, Gibbs and Messina, who received “five-figure checks” for their remarks at the Baku conference and are perceived as cashing in on their government service. (Public Citizen’s Craig Holman, the perpetual Dr. Bellows in pursuit of Major Nelson, says the Azeri government is “trying to buy favors with those who are well connected with the U.S. government” and suggests the three were “letting themselves be used as lobbyists.”) There is also criticism of the Baku conference as a whitewash of Azerbaijan’s less than stellar record on human rights and democracy.

The criticism hits closer to home, though, when it appears that your trip may not have complied with the rules regulating congressional travel after all. Although TCAE and other nonprofit organizations purported to be the sole source of funds for the congressional trips, reports emerge (see here and here) suggesting that the money actually came from other sources, particularly SOCAR. These allegations, which come out about the time you are filing your post-travel disclosure, are followed a year later by this Houston Chronicle article, which suggest congressional travelers to the Baku conference should have known that the conference was being funded by SOCAR and other oil companies based on banners and other conference materials that prominently identified these corporate sponsors.

Things go down hill from there. The Office of Congressional Ethics opens an investigation into the matter, asking you to provide documents and other information regarding your trip. The House Ethics Committee also starts looking into the matter and asks OCE to halt its investigation. OCE refuses, leaving you stuck in the middle. Then someone leaks OCE’s “confidential report” and you find your trip to Baku has made the front page of the Washington Post. It is somewhat unclear exactly what findings and recommendations OCE made, as the Post did not publish the report itself, but the Post article makes various insinuations about your ethics and judgment.

So, did you actually do anything wrong?

Like so much that has happened along the silk roads for the past couple millennia, it’s complicated.

Continue reading “Lessons from a Byzantine Scandal”

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Congressional Standing to Sue: A Response to Grove and Devins on the History of Congressional Litigation

William and Mary law professors Tara Leigh Grove and Neal Devins have written this article arguing for “a limited congressional power to represent itself in court.” Specifically, they argue that while the House or Senate may enforce subpoenas (including subpoenas directed to the executive branch) in court, neither house may intervene in federal litigation to defend the constitutionality of federal statutes where the executive branch refuses to do so.

Professor Jack Beermann responds to Grove and Devins here. He disagrees with one of their conclusions, noting “there is no constitutional provision that can fairly be interpreted to prohibit Congress or one House of Congress from defending the constitutionality of a duly enacted federal statute.” Moreover, although Beermann agrees with Grove and Devins that the House or Senate may litigate in support of the investigatory power, he largely disagrees with their reasoning on this point also.

I think Beermann has by far the better of this argument, and it is tempting to let the matter rest there. But I think it worthwhile to correct at least one part of their thesis that Beermann accepts largely without challenge. Grove and Devins contend that the history of congressional involvement in litigation supports the distinction they draw between the investigatory power and other types of cases, including the defense of the constitutionality of federal law.  They say:

Historical practice supports our argument for a limited congressional power to represent itself in court. From 1789 until modern times, the House and the Senate asserted the power to conduct investigations and to litigate any disputes related to those investigations. By contrast, Congress historically delegated control over all other federal litigation to the executive. That was true even when the executive declined to defend a federal law. Although members of Congress occasionally participated as amici in such cases, neither Congress nor its components asserted the power to intervene on behalf of federal laws. This historical pattern remained unchanged until 1983, when the Supreme Court—with virtually no explanation—permitted intervention by the House and Senate counsel in INS v. Chadha.

This description, however, is misleading. To understand why, it is helpful to focus on Congress’s overall practices with regard to litigation in the pre-Watergate era. During the 1970s, particularly during Watergate itself, Congress became (somewhat) more litigious, reflecting factors such as (1) the increasing litigiousness of society itself, (2) an increasing tendency to see congressional-executive disputes as essentially legal in nature and (3) the development of institutional legal offices in both Houses. The intervention of the House and Senate counsel in the 1983 Chadha case must be seen against that background.

Continue reading “Congressional Standing to Sue: A Response to Grove and Devins on the History of Congressional Litigation”

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The U.S. Attorney’s Troubling Decision in the Lois Lerner Case

Here is a link to US Attorney Ronald Machen’s letter to Speaker Boehner declining to submit the Lois Lerner contempt to the grand jury. Machen makes three points in this letter. First, he rejects the argument that the Committee on Oversight and Government Reform failed to follow proper procedures in notifying Lerner that her Fifth Amendment privilege claim had been overruled. Instead, he agrees with the COGR majority that “Ms. Lerner was given notice that her claim of privilege had been rejected and sufficient opportunity to answer the Committee’s questions after receiving that notice,” and he points out that the three Supreme Court cases relied on by Lerner’s defense (and the COGR minority) are clearly distinguishable. This conclusion is in accord with my views. See Can Lois Lerner Skate on a Technicality?

Second, Machen contends, contrary to the COGR majority, that Lerner did not waive her Fifth Amendment privilege. He concludes because Lerner only made general assertions of innocence “lacking substantive content,” her exculpatory opening statement did not constitute a waiver of the privilege. He relies primarily on two court of appeals decisions and one D.C. district court decision, all from the 1950s and none representing controlling precedent in his jurisdiction.

Moreover, it is not clear that these cases would dictate a finding in Lerner’s favor if followed. For example, even the parenthetical Machen uses for one of the cases, Ballantyne v. United States, 237 F.2d 657 (5th Cir. 1956), suggests that it is distinguishable. Ballantyne says that “the United States Attorney could not, by thus skillfully securing from appellant a general claim of innocence, preclude him from thereafter relying upon his constitutional privilege when confronted with specific withdrawals.” But the whole point of the Lerner waiver is that no one elicited her claim of innocence, skillfully or otherwise; her opening statement was entirely voluntary. Manchen obliquely acknowledges this point, but offers little more than the bare assertion that it is “doubtful” this would be sufficient to support a waiver.

This is not to say that Machen’s conclusion on waiver is unreasonable. As I have said, this is a close legal question, and reasonable people can disagree on the outcome. The issue is whether the decision should be made by the U.S. Attorney or by a court.

This brings us to Machen’s third point. Notwithstanding the apparently clear language of the statute requiring that a congressional contempt be presented to a grand jury (see, for example, then-Speaker Pelosi’s position in the Miers case), Machen contends that the decision is within his discretion. He further maintains that under DOJ policies that it is not proper to bring the matter before a grand jury unless he is convinced that Lerner’s privilege claim is invalid. Machen’s position here conflicts with both statutory text and congressional intent, IMHO, although I am not particularly surprised that he has taken this stance.

Essentially the U.S. Attorney’s office is reserving the right to make its own independent judgment about the legitimacy of a congressional contempt citation, even if that means resolving a close legal question in a way that protects a witness in an investigation that could embarrass the administration he serves. It is another in a long line of examples demonstrating Congress’s institutional weakness in controlling the executive.

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Can a House Committee Subpoena Clinton’s Server?

On the Megyn Kelly show last night, Judge Napolitano stated that Secretary Clinton’s server could not be subpoenaed by a House committee, but only by the House itself, because the committee lacks the power to subpoena “tangible things.” This echoes views expressed by Trey Gowdy, chairman of the Benghazi select committee, who claimed that his committee could not subpoena the server and suggested that whether even the House could subpoena it is an “open constitutional question.”

The Napolitano/Gowdy position strikes me as overly cautious. Admittedly, the question of whether a congressional subpoena can reach “tangible things” very rarely arises, and I am not aware of any precedent or even internal congressional guidance on the point. The quite comprehensive Congressional Oversight Manual, for example, does not seem to mention the issue. However, as described below, it is not necessary to resolve this general question to conclude confidently in favor of a House committee’s authority in the circumstances presented.

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Speech or Debate issues in the Menendez investigation

According to a sealed opinion inadvertently and briefly posted on the Third Circuit’s website, two aides to Senator Robert Menendez are refusing to answer certain grand jury questions based on the Speech or Debate privilege. The opinion is no longer available online, but this New Jersey Law Journal article summarizes the issue before the court.

The investigation concerns Menendez’s relationship with a Dr. Melgen, a Florida eye doctor accused of overbilling Medicare by millions of dollars. Melgen also owns a company that contracted to provide x-ray inspection services for shipping containers in the Dominican Republic. The Justice Department is apparently seeking to determine if Menendez intervened with government agencies on behalf of Melgen’s business interests and whether any such actions were related to campaign contributions and personal gifts Melgen provided to the senator. (For more on the investigation, including a quote from me, see this Washington Post article).

The more interesting Speech or Debate issue relates to meetings and discussions that Menendez had with executive branch officials and agencies regarding Melgen’s Medicare billings. The NJLJ article explains:

The government alleges that Menendez and his staff advocated on behalf of Melgen in a June 7, 2012 meeting with Marilyn Tavenner, then acting administrator of CMS; that Menendez later had a follow-up call with Tavenner; and that Menendez and Sen. Harry Reid, D-Nevada, met on August 2, 2012, with Secretary of Health and Human Services Kathleen Sebelius.

The government wants to question a Menendez staffer, Michael Bernard, about these conversations and “other communications between the senator’s office and Alan Reider, Melgen’s lawyer and lobbyist, about the conversations with those officials.” Bernard refused to answer some 50 questions about these subjects based on the Speech or Debate privilege.

It is easy to understand why the district court would have looked askance at this privilege assertion. In Hutchinson v. Proximire, 443 U.S. 111, 121 n. 10 (1979), the Supreme Court stated that “[r]egardless of whether and to what extent the Speech or Debate Clause may protect calls to federal agencies seeking information, it does not protect attempts to influence the conduct of executive agencies….”; see also Doe v. McMillan, 412 U.S. at 313, 93 S.Ct. at 2025 (“Members of Congress may frequently be in touch with and seek to influence the Executive Branch of Government, but this conduct `though generally done, is not protected legislative activity.'” (quoting Gravel v. United States, 408 U.S. 606, 625 (1972))).

On its face, a conversation between Senator Menendez and executive branch agencies about Dr. Melgen’s case sounds a lot more like an attempt to influence or cajole the agencies than like an attempt to gather information for use in the legislative process. Moreover, even if the conversation could be characterized as partially for the purpose of informal information-gathering, this alone may not be enough to protect the conversation, for reasons that we have discussed before. Unless every conversation that might conceivably produce useful information is protected, there has to be some more specific showing to tie the conversation to a particular legislative activity, such as a committee investigation. Finally, the attempt to protect discussions with Melgen’s lobbyist seems even more far-fetched. Accordingly, it is not surprising that the district court rejected the privilege assertion.

Nevertheless, Menendez’s lawyer, Abbe Lowell, was able to convince the Third Circuit that there was at least a chance that these conversations were protected by Speech or Debate. The appellate panel distinguished between manifestly legislative acts protected by the privilege and “others, such as informal fact-finding and oversight, [which] are not manifestly legislative and can look like unprotected political acts.” If Menendez can prove that the “predominant purpose” of the conversations in question was to gather information for legislative purposes, rather than to get the agencies to act on Melgen’s behalf, his privilege claim should be sustained. Accordingly, the court remanded the case to the lower court for more specific findings as to the content and purpose of each disputed communication.

It still seems to me to be a long shot that Speech or Debate would protect against disclosure of these communications. But note that if Menendez persuades the court that particular communications are protected by the privilege, the government would be precluded from putting on evidence about these communications at trial, even from executive branch witnesses. This could significantly complicate any prosecution.

The other Speech or Debate issue relates to the government’s attempt to take testimony from Menendez’s former chief counsel, Kerri Talbot as to whether the senator would invoke the Speech or Debate privilege with respect to certain emails sent to CBP regarding Melgen’s business in the Dominican Republic. Talbot refused to answer these questions on the basis of Speech or Debate privilege. This refusal seems to me to be proper, and, even if it isn’t, it is hard to understand what legitimate interest the government has in asking a staffer about this subject. If it wants to know what Menendez’s legal position is, it can ask Abbe Lowell.

 

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Some Concluding Thoughts on House Delegates

Our review of the House’s treatment of delegates shows (1) the House has traditionally seen the line between debating and voting as the demarcation of appropriate delegate participation; (2) the proper role of delegates has also been described as merely advisory in nature; (3) participation in select and later standing committees has been viewed as falling within the proper debating/advisory function of delegates; (4) since 1970 the House has also permitted delegates to vote on committees and this practice no longer appears to be controversial; and (5) with respect to the constitutional limits of delegate participation, the House has never articulated or recognized a distinction between delegates and other non-members.

The issue of delegate voting in the Committee of the Whole remains a flashpoint of constitutional controversy. The House first permitted such voting in 1993 at the start of the 103d Congress, when the Democrats were in the majority, and has allowed it in subsequent congresses when the Democrats were in control. The Republicans, on the other hand, maintain that such voting is unconstitutional, and it has not been permitted during periods when they were in control.

As the Michel v. Anderson litigation made apparent, the constitutional disagreement between the two parties is actually quite narrow. Because the House Democrats recognized the new rule “came perilously close” to “granting delegates a vote in the House,” they provided for a revote in situations where the delegates would otherwise determine the outcome, and the House Counsel in Michel argued that the revote made the rule “only symbolic.” 14 F.3d at 632. In other words, because the delegates could not influence the outcome directly, their votes were merely advisory.

The Michel litigants vigorously disputed whether the new rule actually gave the delegates some influence over legislative outcomes greater than what they had before. But this was the wrong issue to focus on. Nothing in the Constitution prohibits either house from giving non-members significant influence over the shaping of legislation, and in some cases congressional rules give non-members (e.g., the president in fast track legislation) greater influence than that enjoyed by any individual member.

The real question in Michel should have been whether the Constitution prohibits giving a formal, even if meaningless, vote to non-members in the Committee of the Whole. All parties and the court seemed to agree that the Constitution bars giving any non-member, including delegates, a formal vote in the House itself, even if that vote were purely symbolic. And they also agreed that no non-member other than delegates could be given such a symbolic vote even in the Committee of the Whole.

The notion that there is some unwritten constitutional principle that embodies these distinctions seems faintly ridiculous, and, as we have discussed, the D.C. Circuit offered no real justification for them. So while there is no definitive answer to the question of whether the Constitution prohibits giving delegates a vote in the Committee of the Whole (subject to a revote), we can say with confidence the following: (1) such a vote is contrary to House precedent prior to 1993, including the 1794 precedent that sheds direct light on the intent of the Framers; (2) given the fact that the Committee of the Whole includes all members of the House and is largely indistinguishable from the House itself in its operation, a delegate vote involves different and more significant constitutional concerns than such a vote in a standing committee; and (3) any principled resolution of the issue would have to apply to any non-member, so that allowing delegates to vote in Committee of the Whole would open the door to a rule allowing mayors to vote as well.

In light of these conclusions, one has to wonder whether this game is worth the candle. Is it worth rending the constitutional fabric to give the delegates a symbolic vote that, at the end of the day, does nothing to benefit their constituents? Surely the House could find a way to increase the influence of delegates on issues of importance to DC and the territories without raising this type of constitutional doubt. Although Judge Greene’s claim that delegates traded their right to vote on committees for other concessions in 1871 appears apocryphal, it’s not a bad suggestion for how the House should proceed today.

Delegate Norton’s idea of taking a fresh look at this controversy would be a good start. The House should do so.