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What the Bleep is an “Official Office”?

Much outrage ensued last month when the Office of Personnel Management issued a proposed regulation that allows the federal government to defray the cost of congressional health care purchased on the Exchanges pursuant to the Affordable Care Act. Less notice was taken of OPM’s more dubious decision, or rather non-decision, on the question of who is required to purchase insurance on the Exchanges in the first place.

Legislative Background

Some background is required. During the heath care debate, Senators Coburn and Grassley “argued that if Democrats were so keen on creating new health care programs, the president, administration officials, members of Congress and their staff should also be required to participate.” They offered amendments to that effect. Eventually the sausage machine spit out a provision that embodies their concept, but only applies to Congress, not to the executive branch. Go figure.

Specifically, as enacted into law, Subsection 1312(d)(3)(D) of the ACA provides that “Members of Congress and congressional staff” are only eligible to receive health insurance “offered through an Exchange under this Act.” When this provision becomes effective, therefore, Members and anyone who qualifies as “congressional staff” will no longer be able to participate in the general health insurance program for federal employees (the FEHB).

The question then is who qualifies as “congressional staff.” As far as I know, “congressional staff” is not a term of art defined in the law, but the ordinary meaning of the term would generally cover legislative and administrative employees of the House and Senate, with the possible exception of those who solely provide support services like installing the furniture, running the restaurants, etc. See Cong. Rec. 655 (Jan. 5, 1995) (“[O]ur legislative and our administrative personnel [are what] many people think of when you think of Capitol Hill staffers.”) (Sen. Glenn).

The ACA, however, contains a unique and rather unhelpful definition of “congressional staff.”  It defines the term as meaning “all full-time and part-time employees employed by the official office of a Member of Congress, whether in Washington, DC or outside of Washington, DC.”

Note the apparent lack of content in this definition. It hardly seems necessary to explain that “all full-time or part-time employees” are covered or that they may work “in Washington, DC or outside of Washington, DC.” Or they may be short or tall, fat or thin, I’m guessing.

The only real point of the definition seems to be to limit “congressional staff” to those “employed by the official office of a Member of Congress.” But what is an “official office”? Do Members have “unofficial offices”? No one seems to know what an “official office of a Member of Congress” is, and, as the Congressional Research Service has observed, this phrase has not previously been used in statute or appropriations law.

If clarity had been desired, there are many existing statutory definitions that could have been used. For example, if the intent had been to limit “congressional staff” to those employed in a Member’s personal office, it would have been easy enough to say this plainly. See 2 U.S.C. § 1301 (9)(a) (defining “employing office” for purposes of the Congressional Accountability Act as including “the personal office of a Member of the House of Representatives or of a Senator.”). Of course, a cynic might conclude that obscure language was deliberately used so as to maintain plausible deniability in case someone read the provision before it was passed.

During the legislative process, Coburn and Grassley apparently objected to the definition of “congressional staff” as too narrow, contending that it would exclude “higher-paid committee aides and leadership aides.” They wanted to use Grassley’s original definition, which had covered all employees paid through the House and Senate disbursing offices. That would not only have been broader, but more intelligible and consistent with existing statutory usages. See, e.g., 2 U.S.C. §§ 89a, 130b, 130c and 130d (defining House and Senate employees as those who receive pay from the relevant disbursing authorities).

But Coburn and Grassley lost (they blame the Senate leadership), and the definition is what it is. So those required to implement the law have to figure out what constitutes a Member’s “official office.”  Continue reading “What the Bleep is an “Official Office”?”

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Legal Ethics in Representing Witnesses Before Congress

According to this Legal Times piece, Dickstein Shapiro has a problem with the House Committee on Oversight and Government Reform. Does it also have a legal ethics problem? The Legal Times relates:

Before beginning to question the five witnesses, committee chair Darrell Issa (R-Calif.) paused to criticize a Dickstein employee’s activities prior to the hearing. The employee—who was not identified, except as a female member of the firm’s lobbying group—“made multiple contacts to committee members and specifically asked them not to ask you questions,” Issa said.

Issa produced a copy of what he termed “a disturbing” email, with the sender’s name blacked out. It read: “If possible, please do not direct questions to Jonathan Silver…He’s a client of my firm. :)”

Issa said, “From the committee’s standpoint, the question is whether to refer this to the bar association, whether it’s an interference with Congress, which I find it to be.”

Rule 3.9 of the D.C. Bar Rules of Professional Conduct provides that “a lawyer representing a client before a legislative or administrative body in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3, 3.4(a) through (c), and 3.5.” The comments state that “[a] lawyer appearing before such a body should deal with it honestly and in conformity with applicable rules of procedure,” and “legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts.”

Rule 3.5(a) provides that a lawyer shall not “seek to influence a judge, juror, prospective juror, or other official by means prohibited by law.”

Rule 3.5(b) prohibits ex parte communications “during the proceeding unless authorized to do so by law or court order.”

Finally, Rule 3.5(d) prohibits a lawyer from “engag[ing] in conduct intended to disrupt any proceeding of a tribunal, including a deposition.”

Exactly how these provisions apply in the context of a congressional proceeding is a question that Bar Counsel has probably never faced before. In fact, my impression (confirmed by Jack Marshall at a recent seminar) is that even most legal ethics experts have never heard of Rule 3.9. But if the Dickstein employee is a member of the D.C. bar, or is supervised by a member of the D.C. bar responsible for her conduct, there would seem to be some serious ethics questions raised.

 

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Article V and the Single Amendment Convention

Can an Article V convention for proposing amendments be limited to considering a single amendment specified by the state legislatures in their applications? Even within the relatively sparse literature on the Article V convention, little attention has been paid to this question. Professor Rob Natelson, who has written extensively in support of the proposition that a convention may be limited to a particular subject, has expressed skepticism regarding the viability of a “single amendment convention.” Natelson’s view, however, is less a firm conclusion about the original meaning of Article V than a prediction regarding the practical difficulties likely to attend an effort to hold a single amendment convention, including the possibility that Congress or the courts would refuse to recognize it.

Recently a prominent originalist scholar, Professor Michael Rappaport (well known to the readers of this blog), has concluded that Article V permits a convention for proposing amendments to be limited by either subject or the wording of a particular amendment. See Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 81 Const. Comm. 53, 56 (2012) (“The Constitution allows the state legislatures to apply not merely for a convention limited to a specific subject matter [but allows them] to draft a specially worded amendment and then to apply for a convention limited to deciding only whether to propose that amendment.”).

Although the issue is not free from doubt, I agree with Rappaport that the state legislatures have the power to limit an Article V convention to a single amendment. This is so for five reasons: Continue reading “Article V and the Single Amendment Convention”

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Speech or Debate in Congressional Employment Litigation

In June a panel of the D.C. Circuit decided Howard v. Office of the CAO, in which a former congressional employee argued the Speech or Debate Clause did not bar her lawsuit challenging adverse employment action under the Congressional Accountability Act. If it stands, the case resolves a question left open by Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1 (D.C. Cir. 2006) (en banc), appeal dismissed and cert. den. sub nom., Office of Senator Mark Dayton v. Hanson, 550 U.S. 511 (2007). However, the Chief Administrative Officer of the House has petitioned for rehearing en banc, and the D.C. Circuit has ordered Howard to file a response, so it is possible the Howard case will be reheard by the full court.

Continue reading “Speech or Debate in Congressional Employment Litigation”

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Rob Natelson on the Article V Convention

In an article recently published in the Harvard Journal of Law and Public Policy, Professor Rob Natelson provides a brief but illuminating summary of how the Article V convention fits within the constitutional plan designed by the Founders. Natelson, the nation’s foremost expert on state initiation of constitutional amendments, explains that the Article V convention played a pivotal role in addressing two main arguments made by anti-Federalists, who predicted that the Constitution would undermine the sovereignty and autonomy of the states:

The first argument was that the Constitution granted too much power to the federal government, which could lead to abuse of that power. The second argument was more subtle but ultimately proved more prescient: Even if the Constitution, when honestly, fairly, and objectively read, did not give the federal government excessive power, ambitious and clever people would nonetheless twist its language to justify the seizure by the central government of enormous power, regardless of the understanding of those who wrote and ratified the instrument.

R. Natelson, The Article V Convention Process and the Restoration of Federalism, 36 Harv. J. Law & Pub. Pol’y 955, 956 (Spring 2013).

The Article V convention responded to both of these arguments, as Madison and Hamilton took pains to point out in The Federalist. First, thanks to the convention process, Article V “equally enables the general and the state governments, to originate the amendment of errors, as they may be pointed out by the experience on one side or on the other.” Federalist No. 43 (Madison). Thus, to the extent the Constitution proved to give too much power to the “general government,” the states could “originate the amendment of errors” without being subject to a congressional veto. This addressed the fear that any excessive national power would be permanently entrenched.

Second, the Article V convention process gave the state legislatures a significant constitutional power to counteract overreach by Congress or the federal government. Hamilton explained in Federalist No. 85 that, as a consequence of Article V’s design, “[w]e may safely rely on the disposition of the state legislators to erect barriers against the encroachments of the national authority.” Thus, Natelson observes: “[T]he Founders saw the amendment procedure as more than a way of responding to changed circumstances. They saw it as a tool for curbing excesses and abuses.” 36 Harv. J. Law & Pub. Pol’y at 957.

While no Article V convention has ever been called, Natelson points out that state legislatures can use their power short of actually calling a convention. Id. at 959. If “state legislatures flex[] their Article V muscles by applying, in a concerted manner, for a convention to propose amendments,” they can force Congress to propose an amendment as the price of not actually triggering the convention call. Id. Thus, “the States forced the United States Senate to agree to the Seventeenth Amendment . . . when thirty-one of the necessary thirty-two [at the time] applied for a convention limited to proposing a direct election amendment.” Id. at 959-60.

Continue reading “Rob Natelson on the Article V Convention”

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Congressional Release of Classified Information and the Disciplinary Power

In reference to my last post, it has been suggested by one of the more faithful commenters at Balkinization, Shag from Brookline, that the Speech or Debate Clause might bar a house of Congress from taking disciplinary action against a member who unilaterally releases classified information without authorization. Shag asks: “Can action by Congress trump the specific Speech and Debate [sic] clause? Is such Speech and Debate permitted to be questioned in a house of Congress with such action but not in any other Place? Does the First Amendment speech clause enhance or detract from the right (privilege) of a member of Congress under the Speech and Debate [sic] clause?” Shag goes on to ask how the original understanding of and historical practice under the Speech or Debate Clause might be applied in the context of “the fairly recently evolved national security state.”

As legal questions go, the ones Shag asks with regard to the Speech or Debate Clause have very straightforward answers. The text of the Clause is clear that it applies only in “any other Place,” i.e., outside the legislative branch. See, e.g., Howard v. Office of the Chief of Administrative Officer, No. 12-5119 (D.C. Cir. June 28, 2013) (“because the Office of Compliance process occurs within the Legislative Branch, not in a ‘other Place,’ the Speech or Debate Clause does not pose an issue in those cases”) (Kavanaugh, J., dissenting); see also United States v. Brewster, 408 U.S. 501, 517-21 (1972) (discussing the fact that misconduct protected by the Speech or Debate Clause may nonetheless be punished by either house under its disciplinary power). As far as I know, no member has ever asserted the Speech or Debate Clause, either as a defense or as a protection against inquiry, in the course of a congressional disciplinary proceeding. Nor has any scholar, court or anyone else with expertise on the Clause suggested that it could apply in a congressional proceeding. Put simply, a member who faces disciplinary action as the result of disclosing classified information can take no solace in the Speech or Debate Clause.

The question with regard to the First Amendment is slightly more complicated. We recently discussed, in the context of the Rangel case, the question of whether and to what extent constitutional protections apply in congressional disciplinary proceedings. As Outside Counsel’s report indicates, even if such protections apply, they cannot be applied in a rigid manner that ignores the unique nature, purpose and history of congressional disciplinary proceedings. Thus, while one can imagine a plausible First Amendment defense in a congressional disciplinary proceeding (say, for example, if the House or Senate sought to punish members who give interviews to a disfavored press outlet), it is unthinkable that the First Amendment would prevent the House and Senate from enforcing rules that are broadly consistent with traditional limitations on member speech. For example, members cannot claim a First Amendment right to violate rules of decorum and debate, by say interrupting another member who has the floor, using foul language in congressional proceedings, or insulting the President.

Is there a colorable argument that disclosure of classified information by a member deserves First Amendment protection from congressional discipline, perhaps because of the importance of such disclosure in checking “the fairly recently evolved national security state”? Put me in the deeply skeptical camp on that one. Both the House and Senate have had specific prohibitions against unauthorized disclosure of classified information for decades. Punishing members for unauthorized disclosure of secret information goes back even further. On December 31, 1810, it is reported: “The Senator from Massachusetts (Mr. Pickering) was censured for reading from confidential documents in the Senate in open session before the injunction of secrecy had been removed.” Riddick’s Senate Procedure 270 n.1. It is hard to imagine the House and Senate intelligence and ethics committees agreeing that individual members have a constitutional right to violate congressional secrecy rules just because they believe the public interest requires it.

Whatever the merits of such a constitutional argument, however, it will be weaker if a member makes it without first attempting to use the established congressional procedures for releasing classified information. This was my original point, and if Professor Ackerman or anyone else disagrees, they should explain why.

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Congressional Release of Classified Information and the Speech or Debate Clause

At Foreign Policy, Professor Bruce Ackerman asks “should members of Congress use their special constitutional powers of free speech to force the facts about the [NSA surveillance program] out into the open?” Ackerman notes that under the Speech or Debate Clause, members of Congress “cannot be prosecuted for reading classified material into the public record– and it is up to them, and them alone, to decide what is worth talking about.” He therefore proposes that individual members of Congress who  oppose the surveillance program, such as Senator Ron Wyden, a member of the Senate Select Committee on Intelligence, disclose such classified information regarding the surveillance program as they believe the public needs to know. Ackerman dramatically concludes “[t]he moment of truth is now.”

Ackerman is certainly correct that the Speech or Debate Clause immunizes members of Congress from prosecution for disclosing classified information on the floor or in committee hearings. See Gravel v. U.S., 408 U.S. 606 (1972). As he also recognizes, however, members are not protected against congressional discipline, up to and including expulsion, for revealing classified information without permission.

What Ackerman overlooks is that both the House and Senate have established procedures for releasing classified information. Wyden, for example, could ask SSCI to disclose information regarding the NSA surveillance program under section 8 of S. Res. 400, which provides that SSCI “may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure.” If SSCI votes for public disclosure, it must then notify and consult with the Senate Majority and Minority Leaders prior to notifying the President of the vote. Once the President has been notified and five days have elapsed, SSCI may release the information to the public unless “the President, personally in writing, notifies the committee that he objects to the disclosure of such information, provides his reasons therefore, and certifies that the threat to the national interest of the United States posed by such disclosure is of such gravity that it outweighs any public interest in the disclosure.” In that case, the Senate itself must vote before disclosure may be made.

Ackerman seems to be suggesting that Wyden or other members circumvent this procedure and unilaterally release classified information to the public. This is a bad idea. If the Senate or House allows one member to do this with impunity, nothing would prevent other members from making classified disclosures on the same or other topics. Eventually someone will release information that damages national security and/or provokes a public backlash, thereby giving the executive branch a justification for restricting congressional access to classified information.

Although the congressional procedures for releasing classified information have rarely (if ever) been used, there is nothing preventing Wyden or a like-minded member from seeking to use them now. Certainly such an attempt must be made before there could be any justification for a unilateral disclosure. If there is a moment for unilateral disclosure, in other words, it is not now.

It should be noted, however that SSCI’s draconian interpretation of its secrecy rules might deter Wyden (or others) from publicly disclosing even the fact of an attempt to invoke section 8 of S. Res. 400. This could prevent him from building needed public support for his efforts. Ackerman and others concerned with excessive government secrecy might more profitably focus on that issue rather than advocate for unilateral disclosure that could undermine the entire congressional system for handling classified information.

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When Harry Met Liz (Or How I Learned to Relax and Love the Nuclear Option)

From The Hill:
“Next week Harry Reid is expected to start calling for votes on a range of executive branch nominees. I expect if he can’t get cloture, he will ask the Senate parliamentarian for a change in the rules so he can get the executive branch nominees confirmed,” said Nan Aron, president of Alliance for Justice and a member of the Fix the Senate Now coalition.

 

Personal and Confidential
The Honorable Elizabeth MacDonough
Parliamentarian
United States Senate
Washington, D.C.

Dear Liz:

I am writing you today about a matter of some delicacy. As you know, I have been having a lot of difficulties with the Senate, and with other things, and I am very certain that it is not your policy to add to those difficulties. So I am hoping you can help me out here.

As we are painfully aware, there is a Senate rule that allows a minority to block almost anything it pleases, including nominations that the President sends us. The Senate adopted this rule a long time ago, even before I was in the Senate. About the time Senator Byrd, may he rest in peace, came to the Senate, I think, though it is hard to believe that anything happened that long ago.

Specifically, Senate Rule XXII provides that to “bring to a close the debate upon any measure, motion, [or] other matter pending before the Senate” requires a vote “in the affirmative by three-fifths of the Senators duly chosen and sworn.” This sounds like mumbo jumbo to your average Joe, but you and I know that it means that I need 60 votes to shut up the “wacko birds” and get anything done around here. Liz, I don’t have 60 votes. I have 55. Sometimes a couple more, sometimes a couple less, but not 60. You see the problem.

People often ask me why, if this rule is such a big problem, we don’t just change it. The answer, as you well know, is that the framers of Rule XXII thought of that. (By the way, it drives me crazy that the Senate Rules always have to be written in roman numerals- I am sure that this was Byrd’s idea). Rule XXII says that to close debate on a “measure or motion to amend the Senate rules . . . the necessary affirmative vote shall be two-thirds of the Senators present and voting.” That means that to change the rules, I need 67 votes.

Liz, I don’t have 67 votes. I have 55. If I had 67, I wouldn’t need to change the damn rule in the first place. Talk about your Catch XXII! (See what I did there? Get it?)

Continue reading “When Harry Met Liz (Or How I Learned to Relax and Love the Nuclear Option)”

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Could Congress Subpoena Snowden?

So let’s say a congressional committee wanted to take evidence from fugitive extraordinaire Edward Snowden. What options would it have?

First, the committee could issue a subpoena to Snowden, just as it would any witness. Although I don’t know of any case directly on point, it seems to me that a congressional subpoena to a U.S. citizen would be effective regardless of where the citizen is located. See generally Blackmer v. United States, 284 U.S. 421, 437 (1932)  (“Nor can it be doubted that the United States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal.”). If Snowden were properly served with a subpoena to testify at a congressional hearing, he could be held in contempt if he failed to appear.

Legally, I don’t think the committee would need any special authority to subpoena Snowden in a foreign jurisdiction as long as it could figure out a way to serve him with the subpoena. Although personal service is the traditional method of serving congressional subpoenas, one might argue that electronic service is adequate under these extraordinary circumstances. But even if service can be accomplished, the committee would still have the practical problem that Snowden could not be punished for contempt until he returns to the United States.

This brings us to another option. As discussed in this CRS memo from 1997, congressional committees have from time to time been authorized to take depositions abroad and seek other means of international assistance in gathering information abroad. The memo, which was written as the House was considering a resolution authorizing extraterritorial investigative activity in connection with the investigation of campaign finance irregularities, explains:

The Committee and its staff are not going to be able to barge into Jakarta or Beijing, set up shop and start subpoenaing foreign nationals or foreign government officials to testify under oath. Rather, the Committee will be given the opportunity to use the various international channels of access to foreign-held information. In the end, the degree of legal formality and difficulty encountered by the Committee if it seeks to hold hearings in a foreign country or to have depositions taken or written interrogation answered, will depend on the nature and sensitivity of the inquiry sought to be conducted which, in turn, will often determine the extent of international comity that will be accorded.

One procedure for obtaining international assistance in obtaining information is the use of letters rogatory, which ask a foreign court to use its own compulsory process to obtain testimony or documents from a witness. At least one congressional committee, the House Select Committee on Assassinations in the 1970s, successfully used letters rogatory to obtain evidence overseas. Other committees, such as the Iran-Contra select committee, have been authorized to use them but did not actually do so. See George W. Van Cleve & Charles Tiefer, International Enterprises in Major Congressional Investigations: Lessons of the Iran-Contra Affair, 55 Mo. L. Rev. 43, 92 (1990).

Other methods of obtaining foreign assistance rely on treaty obligations to facilitate the service of process or the taking of evidence. A congressional committee can also seek a foreign government’s assistance as a matter of comity. The CRS memo describes how the October Surprise Task Force was able to obtain the cooperation of a number of foreign governments in obtaining documents and testimony relevant to its investigation, although, shockingly, “[t]he Government of Iran, contacted on numerous occasions through its Permanent Mission to the United Nations, denied the Task Force’s request to travel to Iran to conduct interviews.” The House Ethics Committee also found it difficult to obtain evidence during its “Korea-gate” investigation:

Key to the investigation was the role played by one witness, Kim Dong Jo, a former ROK official, who was not subject to compulsory committee process. In addition to the ROK’s reluctance to make the witness available, the Committee encountered difficulties with our Justice Department and the State Department, through which formal communications and negotiations with the ROK Government had to be channelled. Over a period of a year, the Committee, with the assistance of the House leadership, engaged in public education, Congressional pressure, negotiation, and finally Congressional reprisal.

As these examples illustrate, the key variable in these efforts in the cooperation of the foreign government. In the case of Russia, this is going to be a problem. The State Department website reports:

In July 2003, Russia unilaterally suspended all judicial cooperation with the United States in civil and commercial matters. The Russian Federation refuses to serve letters of request from the United States for service of process presented under the terms of the 1965 Hague Service Convention or to execute letters rogatory requesting service of process transmitted via diplomatic channels. The Russian Federation also declines to give consideration to U.S. requests to obtain evidence. While the Department of State is prepared to transmit letters rogatory for service or evidence to Russian authorities via diplomatic channels, in the Department’s experience, all such requests are returned unexecuted. Likewise requests sent directly by litigants to the Russian Central Authority under the Hague Service Convention are returned unexecuted.

This certainly raises questions whether a congressional committee could obtain Russian assistance to question Snowden. But it is at least conceivable that Russia, and its erratic president, would see advantage in cooperating with a congressional investigation into Snowden’s activities. They might prefer a congressional deposition of Snowden to permitting the executive branch to interview him.

In any event, you can’t know unless you ask.

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House Counsel and the Congressional “Client”

At the June 28 meeting of the House Committee on Oversight and Government Reform, a question arose about the role of House Counsel in providing legal advice to COGR and its members. Chairman Issa had requested and received a House Counsel opinion on whether Lois Lerner waived her Fifth Amendment privilege by making an exculpatory opening statement at a prior COGR hearing. Issa took the position that this opinion was attorney-client privileged. Although he shared the opinion with Ranking Member Cummings prior to the June 28 meeting, he had asked Cummings to limit distribution of the document to prevent public disclosure.

Specifically, Issa requested that Cummings not distribute the opinion to “all of your members,” presumably because he feared that such wide distribution would inevitably lead to its being leaked. Committee Democrats protested that every member of COGR had an equal right to the opinion because House Counsel is charged with representing the House as a whole. Issa countered that each member of COGR was free to obtain his or her own opinion from House Counsel. He maintained, however, that this opinion was given to the committee majority and had been shared with the minority only as a “courtesy.”

This debate reflects some confusion about the function of House Counsel. It may also reflect the fact that the role of congressional lawyers in general, and House Counsel in particular, is, as the law professors like to say, “under-theorized.” (Which, admittedly, is a bit like your State Farm agent saying you are “under-insured”). As I noted a few years ago:

House Rule II(8), which establishes OHC [the Office of House Counsel], provides that the office exists,

for the purpose of providing legal assistance and representation to the House. Legal assistance and representation shall be provided without regard to political affiliation. The Office of General Counsel shall function pursuant to the direction of the Speaker, who shall consult with a Bipartisan Legal Advisory Group, which shall include the majority and minority leaderships.

This language, which constitutes essentially all of the legal authority defining the scope of the OHC’s functions and obligations, provides only limited guidance as to the OHC’s ethical responsibilities. It could be read to suggest that OHC’s responsibilities run primarily, if not exclusively, to the House as an institution, rather than to individual members or offices. On the other hand, it requires that OHC provide assistance and representation without regard to political affiliation, a directive that seems unintelligible except in the context of providing advice or representation to particular members. Finally, it implies that questions about the OHC’s responsibilities, including issues relating to the House’s institutional legal interests and positions, are to be resolved by the Speaker of the House after consultation with the Bipartisan Legal Advisory Group (BLAG).

Michael L. Stern, Ethical Obligations of Congressional Lawyers, 63 NYU Ann. Survey of Am. L. 191, 199 (2007).

Continue reading “House Counsel and the Congressional “Client””