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Lois Lerner and Waiver of Fifth Amendment Privilege

Everybody is talking about whether Lois Lerner waived her Fifth Amendment privilege by making an exculpatory opening statement at yesterday’s hearing of the House Committee on Oversight and Government Reform (eg, these posts at Hot Air and the Volokh Conspiracy). As Juliet Eilperin notes, “[l]ike a lot of legal questions, it depends on whom you ask.”

It also depends on how you approach the question. Chairman Issa has indicated that he is consulting with counsel, and counsel (presumably the House Counsel’s office) will give him an answer based on reading the case law and advising on how the courts would likely react to the waiver issue if the committee and the House were to hold Lerner in contempt for refusing to answer questions. As I mentioned yesterday, this issue arose when I was at the House Counsel’s office in 2002 after Bernie Ebbers, the former CEO of WorldCom, made an exculpatory opening statement before taking the Fifth at a House hearing.

At the time, Ebbers’ lawyer (Reid Weingarten) argued that there was no waiver because Ebbers had made an exculpatory statement, but had not testified to any incriminating fact. He relied on cases where witnesses in judicial proceedings had been held not to waive the privilege when they answered questions but had not provided an incriminating response. There is, however, a strong argument that these cases are distinguishable because they involve witnesses who were compelled to answer questions and had no right to refuse to answer unless their responses would in fact incriminate them. They might apply to a congressional witness who answered preliminary questions before taking the Fifth, but they arguably do not apply to a congressional witness who voluntarily makes an opening statement. The latter situation (again, arguably) would be controlled by the principle that “a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.” Mitchell v. United States, 526 U.S. 314, 321 (1999).

For present purposes, let’s assume that the House Counsel advises Issa that it is likely (not certain) that the courts would hold that Lerner had waived her self-incrimination privilege under the facts presented. Let’s further assume that the law has not changed materially since 2002. Finally, let’s assume that there have been at least a few other congressional witnesses since then who have pulled similar stunts, but the House has not previously held any of them in contempt.

Under these circumstances, COGR could move forward with holding Lerner in contempt, but I would argue that it would be unwise to do so from the perspective of the House’s institutional interest. Instead, I would encourage the committee to declare prospectively that witnesses who make voluntary opening statements will be presumptively considered to have waived their privilege against self-incrimination with respect to questions within the subject matter of those statements (i.e., questions that would be within the scope of cross examination of an opening statement).

It is undoubtedly in the House’s institutional interest to discourage witnesses from making a self-serving opening statement and then refusing to answer a committee’s questions about it. On the other hand, it is also in the House’s institutional interest to turn square corners and maximize the chances that its legal position will be upheld in court. If COGR holds Lerner in contempt for the same conduct that Ebbers and other congressional witnesses have been allowed to get away with, its action will be tainted by the perception of unfairness and selective enforcement, and a court will be more likely to find that no waiver occurred. By contrast, if the committee puts witnesses clearly on notice that voluntary opening statements will be deemed to waive the privilege, any future enforcement action is far more likely to be successful.

Consistent with this position, Chairman Issa and Ranking Member Elijah Cummings could write to Lerner’s attorney and give him an opportunity to formally withdraw her opening statement. If he refuses to do so, it would be appropriate for the committee to move forward with contempt.

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Taking the Fifth Before Congress

In a letter to the House Committee on Oversight and Government Reform yesterday, Lois Lerner’s attorney (veteran DC lawyer William Taylor) informed the committee of her intention to invoke her Fifth Amendment rights at today’s committee hearing. Taylor said that she should not be required to appear at the hearing because to do so would serve “no purpose other than to embarrass or burden her.” COGR required Lerner to appear, but dismissed her after she refused to answer questions, though not before she made an exculpatory  statement in which she denied any wrongdoing.

This raises a number of legal questions, which we will proceed to consider.

1. Why can a witness invoke the Fifth Amendment before Congress when the privilege against self-incrimination applies only to criminal cases? With surprisingly little controversy (but see here for an academic view to the contrary), it has long been accepted by Congress and the courts that a congressional witness may invoke the Fifth. The theory is that if a witness were forced to testify in a congressional hearing, that testimony could be used against her in a subsequent criminal case. Note that this theory only holds if in fact the testimony could be used in court.

2. When can the witness invoke the Fifth? The witness must have a reasonable belief that her testimony might be used against her in a criminal prosecution. This does not mean that the witness must believe that she has actually committed a crime or that her truthful testimony would lead to her conviction. It just means that there is some realistic possibility that the witness may be criminally prosecuted for a matter to which her testimony might be relevant. This is a fairly low bar.

3. Can government officials invoke the Fifth before Congress and keep their jobs? Although I personally find it difficult to understand how a government official (particularly a senior official like Lerner) can refuse to testify before Congress, which is constitutionally responsible for overseeing the activities of her agency, it is fairly clear that she cannot be fired for doing so. My view is that at the least the President should be able to fire cabinet officials and others who serve at his pleasure for invoking the Fifth, but even this view was controversial when the issue arose during my tenure on the Hill. In any event, Lerner is a career employee, and my understanding is that she cannot be subjected to adverse employment consequences (unlike a private employee) for invoking her self-incrimination privilege.

4. Does Lerner have a colorable basis for invoking the Fifth? Yes. As mentioned earlier, there is a fairly low bar. The Justice Department has commenced a criminal investigation of the matter, and Lerner has reason to believe that she could be the target of investigation and ultimately of prosecution. In particular, it is conceivable that she could be prosecuted for making false or misleading statements to Congress. For example, this letter that she received from Chairman Darrell Issa and Representative Jim Jordan on May 14, 2013 points to various discrepancies between the facts as Lerner knew them and various statements that she made to Congress.

5. Can Congress require a witness to appear at a public hearing to invoke her Fifth Amendment rights? The short answer to this is yes. However, as we have discussed before (see here and here), the D.C. Bar has opined that a committee staff lawyer may violate the legal ethics rules if he or she participates in calling a witness to appear at a public hearing when the witness has asserted an intent to invoke the Fifth. By claiming that there was no legitimate purpose in requiring his client to appear, Taylor probably intended to suggest that committee lawyers participating in the hearing could run afoul of this legal ethics opinion. Perhaps this is why the committee was willing to excuse Lerner so quickly.

6. Does a witness waive her Fifth Amendment privilege when she voluntarily makes an exculpatory statement at a congressional hearing? You would think so, and apparently Representative Trey Gowdy made just that argument after Lerner made her statement. Unfortunately, witnesses at congressional hearings have been getting away with this for years. For example, when Bernie Ebbers, prior to taking the Fifth at a July 8, 2002 hearing before the House Committee on Financial Services, made an opening statement in which he denied all wrongdoing, a number of members argued that this statement waived the self-incrimination privilege. His lawyer (Reid Weingarten), however, argued that a “brief, non-incriminatory statement” did not waive the privilege. This was (and, as far as I know, still is) a debatable position, but the House has not seen fit to challenge it up to this point.

7. Can Congress require Lerner to testify notwithstanding her invocation of privilege? Yes. Recall that the privilege only prevents testimony that can be used in a criminal trial. By statute (see 18 U.S.C. 6002, 6005), a congressional committee may grant a witness immunity so that her statements may not be used against her; once such immunity is granted, the witness can be compelled before the committee. Initiating the process requires a two-thirds vote of the committee. Although in theory the witness receives only “use immunity” (meaning that she can still be prosecuted so long as her compelled statements are not used), the case law (in the D.C. Circuit at least) makes prosecution nearly impossible.

8. Would Lerner be a good candidate for immunity? Maybe. In part that depends on how likely one thinks it is that she would be prosecuted if immunity is not granted. Based on what is known today, by far the most likely criminal charge against her would relate to misleading Congress. But it would be difficult to prosecute her unless one can point to an unambiguous false statement and prove that she knew it was false when she made it. Even if a case could theoretically be made, one has to consider how likely it would be that the Department of Justice would prosecute her for misleading Congress, particularly on a theory that could ensnare many other senior administration officials.

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Why it Doesn’t Matter Whether Celia Roady is a “Lobbyist”

Celia Roady, the Morgan Lewis tax partner who posed the now-infamous planted question regarding IRS targeting of conservative groups at an ABA conference, “focuses her practice on tax and governance issues affecting tax-exempt organizations, including charities, foundations, colleges and universities, museums, and other nonprofit organizations,” according to the Morgan Lewis website.

Roady has also been described by news reports as a “lobbyist,” but that is not quite right. She was registered in 2005 and 2006 to lobby for two clients, the Schwab Fund for Charitable Giving and the Vanguard Charitable Endowment Program. In both cases the subject of the lobbying was “tax treatment of donor-advised funds of charitable organizations” and in both cases the lobbying registration was terminated on January 19, 2007. Thereafter Roady was not registered to lobby for any client, and thus no longer a “lobbyist.” Or at least a “registered lobbyist.”

Roady’s lobbying reports reflect contacts only with the Senate Finance Committee and Joint Committee on Taxation. One might therefore assume that she had no discussions with executive branch agencies regarding the subject of her lobbying effort. The Lobbying Disclosure Act requires a report of “the Houses of Congress and the Federal agencies contacted by lobbyists employed by the registrant on behalf of the client.” As pointed out by the ABA Lobbying Manual (4th ed.), at p. 136, this language might be read to require disclosure if conversations take place with any federal agency, but it has been interpreted by the Clerk of the House and Secretary of the Senate to apply only if there has been a “lobbying contact” with the agency. This means, for example, that Roady would only have to list the IRS if she had discussions with someone who qualified as a “covered executive branch official” and those discussions did not fall within one of 19 exceptions to covered communications.

Roady clearly has a close relationship with various people at the IRS, including Lois Lerner, the director of the IRS’s exempt organization division, who called Roady before the ABA conference to request that she ask a question regarding the Inspector General’s investigation of improper targeting of conservative organizations. One would expect that Roady has communicated frequently with Lerner and other IRS officials regarding matters of importance to her own clients so one might wonder why those conversations never triggered a disclosure obligation under the LDA. Certainly Lerner is senior enough to qualify as a “covered executive branch official.” [Ok, maybe not so certainly- see comment from Dave Mason below]

One way that Roady might have been able to avoid triggering a disclosure obligation would be to communicate in ways that fell within one of the exceptions to the Lobbying Disclosure Act. For example, with respect to her lobbying on “tax treatment of donor-advised funds of charitable organizations,” Roady would have had to disclose if she had had a conversation with Lerner (or another high-ranking IRS official) on behalf of one of her clients. But suppose Roady’s involvement in this issue was not limited to her advocacy on behalf of private clients? At around the same time of her lobbying effort, she served on a working group of the “Panel on the Nonprofit Sector,” a project of Independent Sector, which describes itself as the “leadership network for nonprofits, foundations, and corporate giving programs committed to advancing the common good in America and around the world.” This project resulted in a report which, among other things, made a series of recommendations regarding donor-advised funds (see p. 39). So if Roady discussed these issues with Lerner or others at the IRS, who is to say if she was doing so on behalf of her paying clients or Independent Sector?

Speaking of Independent Sector, another way that Roady might communicate with high-ranking IRS officials without engaging in “lobbying contacts” is to appear with them on panels or at professional conferences (like the ABA conference itself). As public events, these probably fall outside the definition of “lobbying contacts.” Roady (like many other Washington tax lawyers) frequently participates in such events. For example, if you had been at the Ritz Carlton on April 24, 2013, you could have attended a program jointly sponsored by Independent Sector and Georgetown Law School, and featuring tax and legal experts such as Roady and . . . wait for it . . . Lois Lerner.

(This event was titled, ironically, “Nonprofit Governance: Advancing Your Mission Through Lobbying.” You see, the tax law generally restricts nonprofits from engaging in lobbying, but it is a tad vague on what exactly constitutes lobbying or how much is allowed. This “leaves public charities in quandary- they are permitted to engage in some lobbying but too much may jeopardize their tax exemption, and there is no bright-line test for determining how much lobbying is too much.” If this problem sounds to you  a lot like the issue of how much political activity can be engaged in by tax exempt groups, we think alike.)

Even more ironically, Roady may have avoided “lobbying contacts” in part because of her appointment by the IRS to be a member of its Advisory Committee on Tax-Exempt and Government Entities. This appointment would not have been possible if Roady had still been a registered lobbyist because President Obama has barred lobbyists from serving on such committees. However, the LDA also exempts communications “made in the course of participation in an advisory committee” from the definition of “lobbying contacts.” Thus, having been appointed to the committee due to her cozy relationship with the IRS, Roady’s service on the committee provided her with a basis for communicating with senior IRS officials without triggering a registration obligation.

Of course, given the many vagaries of the LDA, someone who really does not want to register can often find a colorable basis for failing to do so. Lack of enforcement makes it unlikely that a non-registrant will even have to explain his or her failure to register. While these problems may militate in favor of tightening the requirements of the LDA, they also make it foolish and counterproductive to punish those who do register.

Thus, while the policy of banning lobbyists from serving on advisory committees may or may not prove to be unconstitutional (as currently being argued before the D.C. Circuit), the Roady case illustrates why it certainly will not fulfill Obama’s stated goal of changing the “culture of special interest access.” All it does is incentivize non-compliance with the LDA, and reward those who can find a way not to register.

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Renzi trial (chock full of Speech or Debate goodness) begins

The corruption trial of former congressman Rick Renzi began this week in federal court in Arizona. A number of Speech or Debate issues can be expected to arise during the trial. The Bipartisan Legal Advisory Group (affectionately known as BLAG) has already filed this amicus brief addressing the question of whether Renzi would waive the Speech or Debate privilege by introducing in his defense evidence of certain legislative activities, such as the fact that a particular bill (referred to as the Resolution Copper Company bill) was introduced in the House and that another bill (referred to as the Preserve Petrified Forest Land Investors bill) was never introduced.

BLAG asserts (correctly, as far as I know) that no case has ever found a waiver of the Speech or Debate privilege. It contends that no such waiver can take place unless the privilege-holder (in this case Renzi) makes an “explicit and unequivocal renunciation,” as the Supreme Court put it in U.S v. Helstoski, 442 U.S. 477, 491 (1979). Renzi’s introduction of evidence regarding legislative activities (which would violate the privilege if introduced by the government) does not amount to such a renunciation, according to BLAG. Thus the government would not be entitled to introduce privileged evidence itself, even if directly responsive to the evidence introduced by Renzi.

Needless to say, the government will argue that this is a tad unfair, but BLAG maintains that the court can address this problem by exercising its discretion under Federal Rule of Evidence 403. It suggests that the court may choose to exclude the evidence offered by Renzi or condition its admission on Renzi’s waiver of Speech or Debate with regard to certain responsive evidence (for example, evidence that would be within the scope of cross-examination).

Another potential issue in the Renzi case relates to a subpoena for documents that was received by the House Intelligence Committee (I don’t know which side served it). According to a notice under House Rule VIII filed by the committee on March 12, 2013, the committee intends to move to quash the subpoena as contrary to the rights and privileges of the House. The docket sheet does not reflect such a motion, though, so I assume that the issue has either been resolved or put off until a future time.




	


	





		

		
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The Government’s Trick Question in Noel Canning
	


	
	

		
The first question presented by the administration’s cert petition in the Noel Canning case turns out to be a trick question:


“Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.”


Why is the government using the word “enumerated”? By using that word, and using it only in connection with one of the two references to Senate sessions, it leaves the impression that there is a difference between a “session” and an “enumerated session” of the Senate. It would not seem to be in the government’s interest to leave that impression.


Nor would it seem to be in its interest to highlight the word “enumerated.” I can just hear Justice Scalia: “Where in the Constitution does it refer to ‘enumerated’ sessions?” “Would this case be different if Congress alphabetized its sessions?”


As it happens, I think there is a difference between a “session” and an “enumerated session” of the Senate. That means that there is a third option beyond those presented in the government’s question. There can be no recess appointments within a “session” of the Senate, but there can be recess appointments that are not between “enumerated sessions” of the Senate. So the correct answer to the government’s question is “no.”

	


	





		

		
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Miranda, Congress and the Boston Marathon Bombing Suspect
	


	
	

		
A few years ago the Obama Administration considered asking Congress for legislation to expand the “public safety” exception to Miranda v. Arizona, 384 U.S. 436 (1966), so as to allow law enforcement officials to hold and interrogate suspected terrorists without providing the so-called “Miranda warnings.” I argued that existing Supreme Court precedent did not preclude the courts from giving deference to such a statute, particularly if were supported by reasoned fact-finding and/or included alternative methods of ensuring the voluntariness of statements made by suspected terrorists.


The administration, however, did not pursue such legislation. Instead, it apparently adopted internal guidance to clarify how existing legal rules regarding custodial interrogations should be applied in the case of terrorism suspects. The New York Times published a short FBI memorandum it obtained on the issue (I assume that there are more extensive legal memoranda which have not been made public).


The positions set forth in that memorandum may now get a real life test due to yesterday’s arrest of one of the suspected Boston Marathon bombers, Dzhokhar Tsaraev, age 19. According to this article by Josh Gerstein: “’No Miranda warning to be given’ now, a Justice official told POLITICO Friday night. ‘The government will be invoking the public safety exception.’”


The FBI memorandum states “agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights.” This would seem to most obviously cover questions about the location of any explosive devices or materials of which Tsaraev may be aware. More controversially, agents may ask him about other potential plots, other individuals who were involved in planning or executing the Boston Marathon bombings and contacts that he or his brother have had with foreign terrorist organizations.


Furthermore, the FBI memorandum says that “[t]here may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.” This disadvantage of invoking this further exception (lets call it the “intelligence exception”) is that the fruits of the interrogation would likely be inadmissible in court.


To further complicate matters, the bombing suspect is relatively young and badly wounded. Thus, apart from issues of unwarned custodial interrogation, Tsaraev’s lawyer (when he gets one) will probably argue that any statements by his client were involuntary due to some combination of his age, his medical condition, any medications he is receiving, explicit or implicit threats with regard to pain medication, etc.


As a practical matter, therefore, the FBI is probably all in with regard to questioning Tsaraev. In other words, once the decision is made not to Mirandize him, the agents have to proceed as if nothing that he says will likely be admissible. This may not be much of a problem given the amount of evidence that it had accumulated prior to taking the suspect into custody. Accordingly, law enforcement may feel free to be unusually aggressive in its questioning, which could raise some of issues regarding “coercive interrogations” that arose during the Bush Administration.


It would be hopelessly naïve to suggest that Congress could have obviated all of these problems by enacting legislation to define the scope of permissible interrogations for terrorism suspects. Nevertheless, it is worth noting that Congress, rather than simply complaining about executive branch actions after the fact, could actually take a stab at writing the rules that would govern these interrogations. I guess that would be hopefully naïve.


 


 

	


	





		

		
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Noel Canning: Does It All Depend On What The Meaning Of “The” Is?
	


	
	

		
In Noel Canning v. NLRB (Jan. 25, 2013), the D.C. Circuit held that President Obama’s January 4, 2012 recess appointments to the National Labor Relations Board were constitutionally invalid because the Senate was in an intrasession adjournment at the time. The court held that only a period of intersession adjournment constitutes “the Recess” of the Senate within the meaning of the Recess Appointments Clause.


The court has been the subject of some justifiable criticism (see Professors Garrett Epps here and Eric Posner here) for its emphasis on the fact that the RAC refers to “the Recess,” rather than “a Recess.” In the court’s estimation, this fact leads to the “inescapable conclusion” the Framers intended “something specific” by “the Recess.” The court concludes that the Framers must have used “the Recess” to mean something narrower and more specific than any break in the proceedings. It contrasts the Constitution’s use of “the Recess,” which appears only in the RAC and the Senate Vacancies Clause, with its use of the terms “adjourn” and “adjournment” to signify any break in proceedings.


 Continue reading “Noel Canning: Does It All Depend On What The Meaning Of “The” Is?”

	


	





		

		
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Recess Appointment News
	


	
	

		
The Justice Department will not seek en banc rehearing of the D.C. Circuit’s decision in Noel Canning, but will seek certiorari instead (the deadline for filing is April 25). Assuming the Court grants the petition (which, pretty much everyone seems to agree, seems likely), arguments will be heard in the fall. It is worth noting that the NLRB recess appointments at issue will expire, even under the administration’s legal theory, no later than January 2014.


A forthcoming student note, by Amelia Frenkel of NYU Law School, argues that the Recess Appointments Clause does not apply to newly-created offices because such unfilled offices are not “vacancies” or are not vacancies that “happen” within the meaning of the RAC. It follows from this argument that President Obama’s recess appointment of Richard Cordray to become the first director of the CFPB was invalid.

	


	





		

		
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Six Answers for Six Puzzles
	


	
	

		
Over at The Originalism Blog, Professor Michael Ramsey has given his answers to Professor Seth Barrett Tillman’s “Six Puzzles” on the Constitution’s various uses of the terms “officers” and “offices.” FWIW, I tend to agree with all of Ramsey’s answers with one possible exception.


That relates to the first puzzle, which involves the Succession Clause’s provision that “Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President . . . .” The question is whether the term “Officer” encompasses legislative officers (if the answer is no, then it was unconstitutional for Congress to place the Speaker of the House and the President Pro Tem of the Senate in the line of succession).


Ramsey and Tillman believe that because the Succession Clause uses the broad term “Officer,” rather than a possibly narrower formulation such as “Officer of the United States” or “Officer under the United States,” as the Constitution does elsewhere, legislative officers must be covered. Given the Constitution’s varied usages of the terms “officer” and “office,” I find the term ambiguous. Structural and other evidence casts doubt on whether legislative officers were meant to be included. For example, in Article VI the Oath Clause applies to “Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States.” I find it difficult to believe that the Framers deliberately decided to exclude non-member legislative officers from being bound by oath, yet decided to include them in the Succession Clause. It seems more likely that the term “Officers” standing alone was understood to include either executive officers only, or both executive and judicial officers, but that legislative officers were not understood to be “Officers” in the same sense, or were simply considered so unimportant as to be not worth mentioning.

	


	





		

		
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The Nuclear Option, the Law of the Senate and the Conscientious Senator
	


	
	

		
This is my final post (at least for this Congress, hopefully) on the filibuster and the entrenchment of Senate rules. For the first 9 entries in this series, see below:


Legal Scholar Letter to the Senate on Procedures for Changing the Rules


Professor Bruhl and Senate Continuity


Professor Chemerinsky and Senate Precedent on Changing the Rules


Senate Rules from the Internal Point of View


Entrenchment and the Academic “Consensus”


Entrenchment Reconsidered (Part I)


Entrenchment Reconsidered (Part II)


Professor Chafetz and the “Constitutionally Conscientious Senator”


Did the Senate Flub Its Cinderella Moment?


In this post, I will consider the so-called “nuclear option,” its legality or legitimacy under the law of the Senate, and how a “constitutionally conscientious Senator” should vote with respect to its exercise.


The “nuclear option” (also sometimes called the “constitutional option”) may be defined as the use of a parliamentary ruling to declare the Senate rules unconstitutional insofar as they require a supermajority to end debate on a proposed change to the rules. If such a ruling were upheld by a simple majority, it would no longer be possible for a minority of senators to block rules changes (depending on the scope of the ruling, either at the beginning of a Congress or at any time). This would effectively end the (allegedly) unconstitutional entrenchment of the Senate rules claimed by the signatories to the December 12 legal scholar letter.


As explained below, I believe that the “nuclear option” is most reasonably understood as illegal under the existing law of the Senate, in the sense that its use would require overruling a substantial body of Senate precedent. Furthermore, it is believed by most senators, including some that would be willing to invoke the nuclear option if need be, that its use would entail, at the very least, substantial institutional costs in terms of the stability and perceived legitimacy of the Senate’s legal system. At the most, the nuclear option would effectively destroy the Senate’s existing legal system and require the creation of a new system of rules and precedents more or less resembling the House’s majoritarian procedures.


The Senate has previously declined to exercise the nuclear option on a number of occasions, including in 2005 when the Republican majority considered using it to abolish the filibuster with respect to judicial nominations and, most recently, on January 24, 2013, when the Democratic majority considered using it to enact major reforms to the filibuster generally. The evidence from these episodes indicates that many senators, including the “swing senators” (majority senators who refused or were reluctant to support the use of the nuclear option), were concerned about both the legitimacy of the nuclear option under the law of the Senate and the practical effects that it would have on the Senate as an institution.


Rather than trying to convince senators that they misunderstand the Senate’s own traditions and precedents, or that they overstate the likely institutional consequences of the nuclear option, it seems to me that the scholars and academics who have opined on these issues would provide a more useful service to the Senate by proposing constitutional solutions that can reasonably be achieved under the Senate’s existing rules. At the conclusion of this post, I suggest one possible solution.


 Continue reading “The Nuclear Option, the Law of the Senate and the Conscientious Senator”