Mr. Speaker, I actually find very little in Mr. Dreier's comments I disagree with. I agree with almost everything he has said, and I commend him for that very thoughtful speech. Mr. Speaker, before I comment on the specifics, I'd also like…
Mr. Speaker, I actually find very little in Mr. Dreier's comments I disagree with. I agree with almost everything he has said, and I commend him for that very thoughtful speech.
Mr. Speaker, before I comment on the specifics, I'd also like to thank the members of the task force, especially Mr. Smith, who was the ranking member for Republicans. It was a great opportunity to become a friend of another Member. We did disagree in the end, but I found it to be a very thoughtful, fruitful, and enjoyable experience.
I also want to thank other members of the committee: Mr. Price, Mr. Scott, Ms. McCollum, Mr. Meehan before he left, Mr. Hobson, Mr. Camp, and Mr. Tiahrt. I thought we had some great meetings, and it was a pleasure to me to engage in this endeavor.
I also want to thank the Members of the freshman class of 2006. They're the ones who really kept the pressure on us to try to fix our ethics rules. They came here on the backs of public discontent with our actions, and they have kept our feet to the fire. I thank them for that.
I also want to thank the many people that helped us walk through this. There are many people whom I will list in my extension of remarks at a later time because there are too many of them. I do want to point out one staff member, in particular my own, Christina Tsafoulias, who worked countless hours trying to get through this. I want to thank her publicly for that.
On the specifics, again I think I agree with most everything Mr. Dreier said. This is really all about public trust, but the point that seems to be missed is the public does not trust us on ethics issues at this point. Maybe that's fair. Maybe that's unfair. Maybe it's based on reality. Maybe it's based on perception. But it is a fact. They do not trust us. They don't trust us for many different reasons. As I see it, I can point to two different issues in particular: the perception of the good-ol'-boy network. Now, maybe that's not fair, but it's certainly what our constituents think. They think we are all here protecting each other. They think that we operate beyond closed doors and smoke-filled rooms to make sure that
no bad things get said about our colleagues. I don't think that is true, but that's certainly the perception. When people don't have trust in the system, they don't have trust in us, and I think that's an important thing to address.
The other part of it, as was already pointed out, is transparency, or the lack thereof. That encourages people to think that the good-ol'-boy network is all that we rely on. As far as partisanship, I totally agree. Any system that results in partisanship on ethics matters is unsuccessful. But partisanship has two points: yes, there is partisanship to initiate witch hunts, and that is a concern, I believe, this proposal addresses that by requiring joint appointments and by requiring one Democratic appointment and one Republican appointment to initiate a review. It totally undermines any legitimate concerns about partisanship witch hunts.
But the other side of the coin that nobody here wants to talk about is the potential for partisan stonewalling, which we have suffered in this House in the past where one party simply says, You cannot look at our Member. Period. End of discussion. And if you do, we will remove Members from the Ethics Committee who look at that Member, which has happened in this House, and everybody knows it.
And to think that partisanship is only a one-sided witch hunt is a mistake. Partisanship is also stonewalling. It's also protecting our fellow colleagues who may or may not have done something wrong simply because they come from the same party as we do. That's just as wrong as partisan witch hunts, and I believe this proposal addresses that as well.
I also want to comment on the two proposals that were dropped on us lately. One of them had been in one form or another for a while; but both of them, in their final form, were dropped on us lately. I will simply tell you that, yes, we did look at them; and I have an opinion here which I will submit to the Record from the Congressional Research Service and one from the House counsel that states by bringing non- Members into a Member-oriented item to have official votes on matters in this House is likely to be unconstitutional.
Now, I know that some people don't want to hear it, and certainly it won't be definitive until the Supreme Court were ever to act on it, but there is all of these constitutional questions on everything we do. I, for one, am a lawyer. I try to figure out how unconstitutional an issue might be; and if the answer is it's more likely to be unconstitutional than not, I won't do it. If the answer is I think it's constitutional, you try it. If it gets knocked down in court later on, so be it.
So these two proposals, according to two independent agencies we could get direct answers on quickly, believe that it's unconstitutional.
As far as the rule goes, I have had a year's worth of debate, and I would have welcomed anybody to come to any of our meetings and participated at any time they wanted to have the hours-on-hours of discussion. At the same time, this is a pretty simple proposal. I know some people don't like the concept of an independent entity having something to do with our ethics process. I respect that opinion. I disagree with it, but I respect it. It is a fair concern. At the same time, that's what this is.
An up-or-down vote on that, I think, is a fair thing for the American people to let them know how we feel about this concept.
The material I referred to previously I will insert into the Record at this point.
Congressional Research Service,
Washington, DC, March 4, 2008.
Memorandum
Subject: Permissibility of Non-Members Being Appointed to a
Committee of the House of Representatives.
From: Jack Maskell, Legislative Attorney, American Law
Division.
This memorandum responds to requests from congressional
offices for a brief overview of the permissibility and
constitutionality of allowing the House to appoint non-
Members, that is, persons who are not current Members,
Delegates, or Resident Commissioner, to a committee of the
House of Representatives, with full voting privileges in
committee. Although the House of Representatives has
extensive authority and discretion concerning its own
internal proceedings and rules, the Constitution requires
that Members of the House be elected every two years by the
people of the several states, and thus a rule which would
allow persons who are not elected to the House to carry out
the constitutional functions of the House of Representatives
through full voting membership on one of its committees would
raise constitutional questions.
Each House of Congress generally has broad authority to
determine its own internal, procedural rules, and to
establish those procedures and internal structures within the
body to assist in implementing the institution's
constitutional duties. Under Article I, Section 5, cl. 2 of
the Constitution, which grants to each House the express
authority to ``determine the Rules of its Proceedings * *
*,'' the institution of the House, within the framework of
express constitutional requirements, has broad discretion
concerning its own internal operations and functionings as
befits a legislative assembly which is an independent, co-
equal branch of government under our tripartite governmental
system of separated powers. Under this authority, the courts
have traditionally given deference to the explication,
application, and definition of internal procedural matters in
both Houses of Congress. As noted by the Supreme Court in
United States v. Ballin: ``The question, therefore, is as to
the validity of this rule, and not what methods the Speaker
may of his own motion resort to * * * Neither do the
advantages or disadvantages, the wisdom or folly, of such a
rule present any matters for judicial consideration. With the
courts the question is only one of power. The Constitution
empowers each house to determine its rules of proceedings. It
may not by its rules ignore constitutional restraints or
violate fundamental rights, and there should be a reasonable
relation between the mode or method of proceeding established
by the rule and the result which is sought to be attained.
But within these limitations all matters of method are open
to the determination of the house, and it is no impeachment
of the rule to say that some other way would be better, more
accurate or even more just. It is no objection to the
validity of a rule that a different one has been prescribed
and in force for a length of time. The power to make rules is
not one which once exercised is exhausted. It is a continuous
power, always subject to be exercised by the house, and
within the limitations suggested, absolute and beyond the
challenge of any other body or tribunal.
When there are interpretative and definitional ``gaps'' in
language of constitutional provisions, for example, the
courts have allowed each House to fill in the details of such
constitutional provisions regarding its internal procedures.
As noted by the Supreme Court in the case regarding the
procedure that the Senate adopted to carry out its
constitutional duties to ``try'' impeachment cases: ``As a
rule the Constitution speaks in general terms, leaving
Congress to deal with subsidiary matters of detail as the
public interests and changing conditions may require * * *.''
The Supreme Court in Nixon v. United States, thus deferred to
the institution of the Senate in its determination under its
own rules of proceeding as to the method that the Senate uses
to ``try,'' as required by the Constitution, an impeachment
of a federal judge. Specifically, the Court deferred to the
judgment of the Senate to use only a small portion of the
entire membership of the Senate body, in the form of a
committee, to actually hear and take the evidentiary
testimony (and then to report to the full Senate which votes
to convict or not on the impeachment), since there was a
``textual commitment to a coordinate political department''
of the matter in the Constitution.
The courts have thus recognized the authority of
committees, and have allowed the committees broad
investigative and oversight authority, for example, because
committees of the House act as the House for those purposes
that are expressly delegated to those committees by the Rules
of the House (and have only those authorities and powers that
are in fact delegated from the full institution). The Supreme
Court has recognized the House's ``utilization of its
committees'' to carry out a ``legislative function belonging
to it under the Constitution.'' Since the committees act as
and on behalf of the House pursuant to its Rules, are
creatures of the House, and are in legal and actual essence a
division or sub-entity of the entire institution (carrying
out and exercising the constitutional functions of that
institution delegated to them), there is a very strong
indication that such committees exercising such functions may
generally be composed only of Members of the House.
Article I, Section 2 of the Constitution provides that
Members of the House must be elected every two years by the
people of the several States. Membership in the House, and by
extension on committees acting for the House, would thus
appear to require that a Member be elected by the people of
the several states. In a brief review of legal sources, we
have not discovered any precedent where non-Members of the
House have been members of a House committee with full
privileges and votes similar to any Member of the House, and
thus we have found no judicial decisions and rulings on its
permissibility, other than in the case of the elected
delegates or resident commissioners in the House. In Michel
v. Anderson, the United States Court of Appeals, District of
Columbia Circuit, found that there exists what one might
describe as an ``historical exception'' to the general
constitutional proposition that the House must only be made
up of Members elected from the several states, and that
exception, recognized in law from the
very first Congress (1 Stat. 50, 52 (1789)), was that people
in territories and districts under the jurisdiction of the
United States could have a non-voting delegate or
commissioner in the House (that is, that such delegate may
not vote on legislation on the floor) to ``represent'' them:
``The territorial delegates, representing those persons in
geographic areas not admitted as states, then, always have
been perceived as would-be congressmen who could be
authorized to take part in the internal affairs of the House
without being thought to encroach on the privileges of
membership.''
Such non-voting representatives, in the form of elected
delegates from the territories and districts not admitted as
states, have in practice sat on House committees, and could,
according to the court, if authorized by the House, vote in
the ``Committee of the Whole'' (but only if their vote was
not the determinative vote), but could not vote on
legislation on the floor.
However, the court in Michel v. Anderson expressly noted
that this historical exception for territorial delegates was
limited, and noted, in dicta, that such exception and
permission for territorial delegates to participate in
certain internal matters in the House could not be extended
or applied to allow the House to adopt a rule putting other
non-Members on House committees: ``The appellees, for their
part, forthrightly concede that the House could not permit
persons other than the traditional delegates to perform the
role currently played by the delegates. It would, thus, not
be open to the House to authorize by rule, say, the mayors of
the 100 largest cities to serve and vote on House
committees.''
In the case of allowing persons not elected as Members of
the House to be full voting members of a committee of the
House, such as in certain proposals concerning the House
Committee on Standards of Official Conduct, the precedent of
allowing territorial delegates to participate in certain
internal processes of the House, including voting in
committee, may be distinguished on three basic grounds.
First, there is historical precedent recognized from the
first Congress for the people of territories and districts,
not recognized as states, to have some limited, non-voting
representation in the House. In the proposals seeking to add
non-Members to the standing House Committee on Standards of
Official Conduct, no such purpose of representation of
persons in geographic regions under the jurisdiction of the
United States is provided, intended, or accomplished.
Secondly, as discussed above, the court noted in its opinion
that this historical permission for territorial delegates,
provided by law, to participate in certain House proceedings,
was a limited exception, and would not open the House to
``authorize by rule'' the addition of other persons (such as
mayors of cities) ``to serve and vote on House committees.''
Finally, the court noted that the voting of a territorial
delegate, even in a House committee or in the ``Committee of
the Whole'' (with the revote provision), is ``largely
symbolic'' because the vote could not immediately affect
legislation, such as a vote on legislation on the House floor
would. The duties and authority of the House Committee on
Standards of Official Conduct to both recommend the
discipline of a Member directly to the House, and to issue a
``letter of reproval'' on its own accord, upon the requisite
number of the votes of its members, may be seen as part of
the express constitutional authority of the House under
Article I, Section 5, cl. 2, to ``punish its Members for
disorderly Behaviour.'' As such, these activities might be
considered part of the direct and express constitutional
function of the House, delegated to and exercised in some
part by one of its committees made up of its own Members,
and thus something more than merely the ``symbolic act''
which was the subject of the Michel v. Anderson case.
A committee of the House, such as the House Committee on
Standards of Official Conduct, could clearly employ staff to
assist the committee in carrying out its functions, and could
use an ``outside counsel,'' an advisory committee, or ``task
force'' made up of non-Members (and even including on its
membership some sitting House Members) to assist the
committee in its investigative work, fact-finding, and even
recommending to the Committee that it take certain action on
matters. However, it may be argued that under existing
decisions and precedent, allowing persons who are not elected
as Members (or as delegates representing persons under the
jurisdiction of the United States in geographic regions that
are not states) to be full voting members of a House
committee exercising the constitutional functions of the
House delegated to it could, in the words of the U.S. Court
of Appeals, ``encroach on the privileges of membership.''
Jack Maskell
Legislative Attorney.