Point of Order

           This article in the Hill raises the question of whether there will be an ethics investigation of Representative Eddie Bernice Johnson, who has “been accused of awarding thousands of dollars in college scholarships to four relatives as well as the child of a top aide over the past 5 years.”  Johnson, a member of the Congressional Black Caucus (CBC), awarded the scholarships funds through a program funded and administered by the Congressional Black Caucus Foundation (CBCF), a private, nonprofit organization.  Johnson’s actions allegedly violated CBCF rules in various respects, including an explicit prohibition against nepotism. 

            Somewhat surprisingly, none of the individuals quoted in the article allude to the most obvious reason that there will be an investigation, namely the existence of the Office of Congressional Ethics (OCE).  Prior to OCE’s establishment in 2008, it is entirely possible, even likely, that the House Ethics Committee would have regarded this as an internal matter for the CBCF and taken no action. 

            The OCE changes the dynamics considerably.  H. Res. 895, which established OCE, charges it with conducting a preliminary review of “any alleged violation by a Member, officer, or employee of the House of any law, rule, regulation or other standard of conduct applicable to the conduct of such Member, officer, or employee in the performance of his duties or the discharge of his responsibilities.”  If the OCE concludes, after conducting a preliminary and second phase review, that further review is warranted, it refers the matter, along with limited findings, to the House Ethics Committee. 

            As determined by the OCE in its rules, a preliminary investigation is opened when there is a “reasonable basis” to believe that the alleged violation has occurred.  The “reasonable basis” standard, defined as a “reasonable and articulable basis for believing the allegation,” appears to be a pretty low threshold.  A second phase review is initiated when there is “probable cause” to believe that the alleged violation has occurred.  “Probable cause” exists when the “evidence is sufficient to lead a person of ordinary caution and prudence to believe or entertain a strong suspicion that a Member, officer or employee committed a violation.”  

            Finally, OCE will refer a matter to the House Ethics Committee if there is “substantial reason” to believe the allegations.  “Substantial reason” exists if “there is such relevant evidence a reasonable mind might accept as adequate to support a conclusion.”  In other words, it is not necessary that the OCE believe that a violation occurred, only that there be enough evidence that a reasonable person could draw this conclusion.  Moreover, if OCE cannot obtain the information needed to make the “substantial reason” determination, it may nonetheless refer the matter based on the lower standard of probable cause.   

            The application of these standards to the Johnson case would seem to make a referral nearly a fait accompli.   It appears to be undisputed that Johnson distributed CBCF scholarship funds to relatives, including her own grandchildren, in clear contravention of a CBCF rule against nepotism.  (It also appears that some of the awardees may have ineligible under CBCF rules because they did not reside in Johnson’s district).  Johnson may offer various reasons in defense or mitigation, such as her ignorance of the rules, but it is hard to see how a “reasonable mind” would be required to accept them. 

            It might be argued that CBCF rules, being those of a private organization, are not the type of rules which OCE is supposed to enforce.  Johnson’s distribution of scholarship funds, it might be contended, was not part of her official duties or responsibilities, and therefore falls outside of OCE’s jurisdiction. 

            I think it is very unlikely that such a defense would work.  CBCF is a private organization, but CBC is a congressional member organization authorized by the Committee on House Administration.  The links between CBCF and CBC go well beyond the ceremonial.  The CBCF is chaired by a member of the CBC and many CBC members serve on its board.  The scholarship program in question is designed specifically to be awarded by each CBC member to residents of his or her district.  Moreover, Representative Donald Payne, the current chair of CBCF, recognized the applicability of congressional ethics standards when he announced that “the CBCF will usher in the creation of an Ethics Advisory Committee” to “ensure that all CBCF initiatives are in compliance with the ethical standards of Congress.”  

            Finally, even if Johnson’s conduct was not “official” in the purest sense, she would remain subject to general congressional ethics standards such as that a Member “shall behave at all times in a manner that shall reflect creditably on the House.”  (House Rule XXIII, cl. 1).  While these rules are not normally applied to purely personal conduct, there can be little doubt that they would apply to Johnson’s quasi-official conduct here. 

            For these reasons it seems nearly inevitable that there will be an OCE investigation and referral of this matter (unless the House Ethics Committee pre-empts OCE by taking action first).

           Yesterday the Senate panel charged with conducting the impeachment trial of federal district judge G. Thomas Porteous issued an order disposing of certain pretrial motions.   Of particular note was the panel’s decision to reject Porteous’ motion to suppress his immunized testimony given before a special Fifth Circuit committee which investigates misconduct by federal judges.

          The question presented, the Senate panel notes, is one of first impression, namely whether an impeachment trial is a “criminal case” within the meaning of the Fifth Amendment’s prohibition on compelled self-incrimination.  It is a difficult question because the Constitution is notably ambiguous on this point. 

            On the one hand, a reader of the original Constitution would likely conclude that impeachment is a type, albeit a unique type, of criminal proceeding.  Impeachable offenses are defined in terms of “treason, bribery or other high crimes and misdemeanors.”   Impeachment is implicitly treated as a criminal proceeding in article II, where the President is granted power to “grant reprieves and pardons for offences against the United States, except in cases of impeachment,” and in article III, where it is stated that the “trial of all crimes, except in cases of impeachment, shall be by jury.”  These exceptions would be unnecessary if impeachment were not, at least in some sense, a criminal proceeding.

             On the other hand, it is difficult to square this conclusion with the language of the Bill of Rights.  The Sixth Amendment guarantees the right to a jury trial in “all criminal prosecutions,” which, if applicable to impeachment, would nullify the impeachment process explicitly set forth in the original Constitution.  Similarly, though somewhat less clearly, the double jeopardy clause of the Fifth Amendment has been construed to apply to all criminal offenses, and would therefore be applicable to impeachment if it were considered a criminal proceeding.  

            In his book on impeachment, Raoul Berger surveyed these competing provisions and concluded that “the Framers might well have overlooked some lack of harmony in detail.”  In short, he believes that the Framers utilized the criminal terminology of the English impeachment process, but, by limiting the consequences of impeachment to the nonpenal ones of removal and disqualification, created a new type of proceeding that is essentially non-criminal in nature.  Michael Gerhardt and Charles Black argue that the impeachment process should be viewed as a hybrid or quasi-criminal type of proceeding. 

            The conclusions of these impeachment scholars inform the discussion, but do not necessarily answer the specific question presented to the Senate impeachment committee:  should impeachment be considered a criminal proceeding for purposes of the self-incrimination clause of the Fifth Amendment?  The committee seems to assume that Senate precedent rejecting the application of double jeopardy to an impeachment proceeding necessarily means that the self-incrimination clause is likewise inapplicable.  This does not necessarily follow. 

            Nonetheless, I tend to agree that the committee reached the correct result here.  Berger suggests the analogy between impeachment, designed to remove an unfit officer, and deportation, designed to remove an alien who is not entitled to remain the country.  Although the latter may entail painful consequences, it is not a criminal proceeding to which the self-incrimination privilege applies.  Similarly, to the extent that the privilege is designed to protect against coerced confessions or wrongful convictions in ordinary criminal cases, it would seem to have little relevance to an impeachment proceeding.  The Senate is entitled to consider Porteous’ immunized testimony.

           Before leaving the subject of the ethics case against Representative Waters, a final comment with regard to her attempt to have the charges dismissed.  Her defense team based its motion to dismiss almost entirely on the claim that Waters’ conduct was “nearly identical to” that of Representative Sam Graves.  I have blogged about the ethics charges against Graves, which were dismissed last year. 

            The attempt to equate the two cases is frankly ridiculous.  True, they both involve a Member’s spouse who had an ownership interest in a company that was part of an industry that the Member dealt with in the course of performing official activities.  The similarity ends there, however.   

In Graves’ case, he invited a witness to testify at a committee hearing as a representative of the biofuels industry.  The witness, whom Graves knew, owned stock in two biofuels companies in which Graves’ wife was also invested.  However, there was no indication, either objective or subjective, that this co-investor relationship had any bearing on the invitation to testify.  Any conceivable benefit that Graves might have received from the hearing was (a) remote and speculative, since no legislative or executive action was pending or expected; (b) entirely derivative of the interests of the biofuels industry as a whole, since there was no specific interest of the two companies at stake; and (c) completely unrelated to the fact of this particular witness testifying. 

In Waters’ case, the company in question, OneUnited, was seeking immediate action, both legislative and executive, for its own benefit.  Because OneUnited stated that the action was necessary to save it from insolvency, there was also an imminent and direct connection between the action sought and a financial benefit to Waters (because her husband’s stock would have been worthless if OneUnited had become insolvent).  Under these circumstances, a reasonable person might suspect that Waters’ actions were motivated by a desire to protect her financial interests.  In Graves’ case, such a suspicion would have been entirely unreasonable. 

As the investigative subcommittee points out in rejecting the motion to dismiss, the Waters’ case would have been similar to Graves’ if she had simply invited a OneUnited executive to testify, as the representative of the minority-owned banking industry, at a committee hearing discussing the overall interests of the industry as a whole.  In fact, this did happen—at a 2007 hearing of a House Financial Services subcommittee—and no one has suggested that it violated any ethics rules. 

The case against Waters is a borderline one, and there are strong arguments that she can make in her defense.  Comparing her case to that against Graves is not one of them.

            As discussed in my prior posts (see here and here), the ethics investigative subcommittee does not allege that Representative Waters violated any rules simply by arranging the initial meeting with Treasury officials to discuss the a bailout of OneUnited and other minority-owned banks.  Instead, the subcommittee alleges that Waters violated the rules by her actions—or, more precisely, her inaction—following the meeting.  Specifically, the subcommittee states that Waters should have, but failed to, instruct her chief of staff to refrain from assisting OneUnited following the meeting.  (see Statement of Violation ¶ 47).

           To evaluate the charges against Representative Waters, discussed in my last post, we should begin with the meeting that she arranged in her September 2008 telephone call to then-Treasury Secretary Paulson.  Although the ethics investigative subcommittee did not find that this meeting itself violated any House rules, the Statement of Alleged Violation devotes its first section to this meeting, and it seems that the meeting is somehow integral to the charges against Waters. 

            In arranging the meeting, Waters was engaged in what is commonly described as “casework.”  The House Ethics Manual describes casework generally as “act[ing] as a ‘go-between’ or conduit between the Member’s constituents and administrative agencies of the federal government.”  Quoting the late Senator Paul Douglas, it states that “there is a ‘sound ethical basis for legislators to represent the interests of constituents and other citizens in their dealings with administrative officials and bodies.’” 

            The Ethics Manual provides broad guidance on performing casework, but it sets forth few hard and fast rules.  As Dennis Thompson notes, referring to the seminal House advisory opinion which forms the basis for both the House and Senate’s guidance on casework, it “advises against very little and prohibits even less.”  (see Ethics in Congress p. 91). 

           An investigative subcommittee of the House Ethics Committee has charged Representative Maxine Waters (D-Ca.) with three counts of ethics violations stemming from efforts that she and her staff made to assist OneUnited Bank, a Boston-based, minority-owned financial institution which sought and obtained a TARP bailout in the fall of 2008.  These efforts were improper, according to the subcommittee because of Waters’ close personal, political and financial ties to OneUnited.  To wit, the bank’s chairman and CEO had contributed to and raised funds for Waters, Waters’ husband had served on the bank’s board of directors from 2004 to the spring of 2008, and, most significantly, Waters’ husband owned stock in OneUnited that was valued, prior to the financial crisis, at about $350,000. 

            The relevant events began in late summer 2008, when the value of Fannie Mae and Freddie Mac fell sharply, threatening the viability of OneUnited, which had invested heavily in these companies.  According to Representative Barney Frank, who turns out to be a key witness in this case, “OneUnited had overbought preferred shares in Fannie Mae and Freddie Mac and was therefore at a greater risk of collapse than any other bank” from the insolvency of these companies. 

            On or about September 7, 2008, the day that the federal government placed Fannie Mae and Freddie Mac into conservatorship, executives from OneUnited approached Waters and asked her to set up a meeting with the Treasury Department to discuss a proposal under which Treasury would bail out minority-owned banks by purchasing from them, at above market prices, Fannie Mae and Freddie Mac shares that they owned.  Although the request was ostensibly on behalf of the National Bankers Association (NBA), a trade association of minority-owned banks, it appears that the OneUnited executives were the driving force behind the request and that the bank’s need for a bail out was the primary, if not exclusive, reason for it. 

            Waters then telephoned Treasury Secretary Hank Paulson and asked for the meeting, and he agreed to her request.  The meeting was attended by Waters’s chief of staff (who also happens to be her grandson), some other congressional staffers, and senior Treasury officials.  Attending for the NBA were OneUnited’s counsel who was also the chair-elect of the NBA, the chairman and CEO of OneUnited, and another senior official of the bank.  No other NBA members were represented at the meeting.  During the meeting, the OneUnited officials specifically discussed their bank’s financial situation and asked Treasury to provide them with $50 million to protect the bank against collapse.  The Treasury officials demurred, saying they lacked legal authority to grant this request. 

            Following the meeting, OneUnited realized that it was unlikely to get relief directly from Treasury.  Accordingly, it began working with allies in Congress, including Representative Waters’ office, to obtain legislative language that would require the federal government to repurchase Fannie Mae and Freddie Mac shares owned by any “Community Development Financial Institution,” i.e., banks such as OneUnited. 

            At around this time, Waters approached Barney Frank to discuss OneUnited’s problem.  According to Frank’s interview with the Office of Congressional Ethics, Waters told him “that she was in a predicament because [her husband] had been involved in the bank, but OneUnited people were coming to her for help.  She knew that she should say no, but it bothered her.”  Although Waters did not tell Frank about her husband’s stock ownership, it was still clear to Frank that “this was a conflict of interest problem.” 

            Frank told Waters that she should “stay out of it.”  He indicated that he would handle OneUnited’s concerns since he had representational interests (OneUnited was a Boston bank) and was sympathetic to OneUnited’s situation (he had a “commitment to minority banks”).  As the chairman of the Financial Services Committee (a committee on which Waters also served), it made sense for Frank to be involved in the issue.  He instructed his staff to take over the OneUnited matter from Waters’ staff. 

            Following her discussion(s) with Frank, Waters told her chief of staff words to the effect that Frank would be handling the minority bank issue so he should “not worry about it.”  However, according to the Ethics subcommittee, Waters never instructed her staff to stop assisting OneUnited.  Although Waters herself apparently had no further involvement in the OneUnited issue, her chief of staff continued to be involved in the OneUnited matter, primarily by monitoring and to some extent assisting OneUnited efforts to obtain a legislative fix.  OneUnited was successful in obtaining a provision in the TARP legislation that authorized and encouraged the Secretary of the Treasury to bail out banks in OneUnited’s specific situation, a provision that Frank indicated was crafted with OneUnited in mind.  Ultimately, OneUnited received more than $12 million in TARP funding in December 2008 and was also able to raise significant amounts of private capital to keep itself afloat. 

            Based on these facts, the Ethics subcommittee has charged Waters with several violations.  It is important, however, to first note what Waters is not charged with.   The subcommittee does not allege that Waters’ actions in arranging the meeting with the Treasury Department or speaking to Frank regarding OneUnited themselves violated the ethics rules.  The subcommittee does not allege that Waters or her staff used improper means to advance OneUnited’s interests (e.g., by threatening or pressuring executive agencies).  Finally, the subcommittee does not allege that the actions by Waters or her staff on behalf of OneUnited were motivated by Waters’ financial interest in the bank (claims, by the always understated CREW, that Waters “abused her office for personal financial gain” notwithstanding). 

            So what is the basis for the ethics charges against Waters?  The lynchpin is the personal financial interest that Waters had in OneUnited.  Because the failure of OneUnited would have resulted in Waters, through her husband, losing a very substantial investment, the subcommittee alleges that Waters had an obligation to avoid actions that would create the appearance of acting for her own personal benefit, or of receiving a personal benefit (the preservation of her husband’s investment) from the exercise of her official influence, or of dispensing special favors to OneUnited.  Waters allegedly violated this obligation by failing to instruct her chief of staff not to assist OneUnited, even after she acknowledged to Frank that she should not be involved in the OneUnited matter. 

            It seems undeniable that OneUnited’s requests to Waters and her office created a conflict of interest situation.  But the ethics rules do not require Members of Congress to avoid taking official actions merely because a conflict of interest is presented.  The ethics subcommittee purported to derive, from rather vague and general ethics rules, a specific line which Waters impermissibly crossed.  In my next post I will consider whether this line makes sense under the circumstances presented to the subcommittee.

           Perhaps the most significant aspect of the Second Circuit’s decision in Green Party of Connecticut v. Garfield, discussed in my last post, involves Connecticut’s ban on soliciting of campaign contributions by contractors and lobbyists.  In contrast to the ban on direct contributions, which the court found to be a peripheral First Amendment activity subject to the more lenient “closely drawn” level of scrutiny, the Second Circuit stated “a limit on the solicitation of otherwise permissible contributions prohibits exactly the kind of expressive activity that lies at the First Amendment’s ‘core.’”  Accordingly, it held that the ban on solicitations was subject to strict scrutiny, i.e., the restriction could only be upheld if it was “narrowly tailored” to further a “compelling interest.”  

            The district court had found that the government had a compelling interest in combating the threat posed by “bundling” of campaign contributions by contractors or lobbyists, particularly with respect to contributions from their employees or clients.  The danger is that “contractors and lobbyists will promise to deliver large number of coordinated contributions to a state official in exchange for political favors.”

            The court of appeals expressed some skepticism as to whether there was a compelling interest in stopping bundling.  The court seemed to feel that it was unlikely that bundling would lead to “quid pro quo” corruption (in other words, an actual agreement to exchange political favors for bundled contributions).  Instead, the court apparently viewed bundling as more analogous to independent expenditures, where the indirect benefit received by the candidate is viewed as insufficient to justify curtailment of First Amendment rights. 

            Even assuming the threat of bundling implicated a compelling interest, however, the Second Circuit concluded that the solicitation ban was not “narrowly tailored” to address that interest.  Without holding that any of these methods would necessarily survive strict scrutiny, the court identified several less restrictive alternatives to “address the perceived bundling threat.”  These included: (1) a direct ban on bundling itself; (2) a ban on large-scale efforts to raise funds, such as “a ban on state contractors organizing fundraising events of a certain size;” and (3) a ban on soliciting money only from certain individuals, such as banning contractors from soliciting money from employees and lobbyists from soliciting money from clients. 

            Accordingly, the court held that the solicitation ban violated the First Amendment with respect to both contractors and lobbyists.  It should be noted that this ruling, if it is followed by other circuits, would mean that federal laws to ban lobbyist fundraising face a high constitutional hurdle.  

           In Green Party of Connecticut v. Garfield, decided last month, the Second Circuit considered a First Amendment challenge to Connecticut’s Campaign Finance Reform Act, a law that prohibited campaign contributions and fundraising solicitations by (1) state contractors and prospective contractors and (2) lobbyists.  The law also covered certain individuals, such as family members, associated with contractors and lobbyists. 

            There are two aspects of this decision that I find of interest.  The first, which I will discuss today, involves the court’s application of the “appearance of corruption” standard to the ban on campaign contributions.  The court begins its analysis by finding that limitations on campaign contributions are not subject to the most exacting standard of review, strict scrutiny, but only the more relaxed “closely drawn” standard (under which a law will be upheld if it is closely drawn to match a sufficiently important governmental interest).  This is based on the theory that campaign contributions, while they implicate a First Amendment interest, are “closer to the edges than to the core of political expression.”

           From Election Law Blog, news that Marty Lederman is leaving OLC to return to teaching at Georgetown   Hmmm.

           State officials in West Virginia disagree as to when state law permits or requires a special election to fill a vacancy in the office of U.S. Senator.  The Secretary of State believes that current law requires the election to be held in November 2012, while the Attorney General believes that the law permits, if not requires, the election to be held in November 2010.   

            In light of this disagreement, the Governor has proposed legislation that would “clarify” state law with regard to vacancies.  Specifically, with respect to Senate vacancies, the proposed legislation would require the Governor to proclaim a special election whenever the unexpired term equals or exceeds two years and six months.  If the vacancy occurs one hundred and twenty days or more before the next general election, the Governor would be required to set the special election on the general election date.  If the vacancy occurs less than one hundred and twenty days before the special election, the Governor can set any special election date, as long as it is not within sixty days, and no more than one year from, the occurrence of the vacancy.  In addition, the Governor is required to set a special primary election, which may not be within sixty days of the special election. 

            In the meantime, the Governor has named a temporary appointee for the vacant office.  (Although I have not seen the formal certificate of appointment, the Governor presumably has executed or will execute such a certificate by next week, when the appointee’s credentials are apparently to be presented to the Senate). 

            These machinations raise a couple of interesting questions.  First, can the Governor properly appoint a temporary Senator before issuing a writ of election setting the date of the special election?  The language of the Seventeenth Amendment arguably implies that the writ of election comes first, a reading suggested by the following language from the Seventh Circuit’s discussion of the Obama vacancy in Illinois: “The principal clause [of the Seventeenth Amendment] describes a chain of events: when a vacancy happens, the state executive issues a writ of election, which calls for an election in which the people will fill the vacancy. The proviso qualifies this chain of events by permitting an appointee to intercede temporarily between the start of the vacancy and the election that permanently fills that vacancy.” 

            Second, if the Governor makes an appointment in accordance with state law, can the legislature subsequently change the date on which the special election is to occur?  Extremely alert readers will recall that this issue arose in connection with the Obama vacancy.  After Governor Blajojevich appointed Roland Burris to fill the vacancy, the Illinois legislature discussed changing the law to require a special election to be held earlier than the date provided by existing law.  Burris argued that such a change would be unconstitutional and threatened to fight it in court.  As I discussed at the time, a post-appointment change in the election date may be unprecedented and presents serious constitutional issues.

            If the West Virginia legislature were to adopt the law proposed by the Governor, the Governor would be required to set a special primary election at the very beginning of September, and the special election would be held on the general election date in November.  This is on the assumption that the Byrd vacancy occurred on June 28 (the date of his death), which would be more than one hundred and twenty days before the general election (127 by my count).  Of course, it is arguable that this result is the same as was required under pre-existing law, in which case the second constitutional issue would not arise.

           The West Virginia Attorney General has issued this opinion rejecting the Secretary of State’s legal conclusion that a special election to fill the Byrd vacancy cannot be held until November 2012.  The Attorney General’s reasoning is essentially the same as what I suggested in these prior posts (see here and here), namely that the West Virginia legislature’s evident intent to require a special election when to fill a vacancy with an unexpired term of more than two years and six months, combined with the Seventeenth Amendment’s purpose of ensuring popular election of Senators, requires reading the ambiguous provisions of West Virginia law so as to allow the calling of a special election as soon as possible.  The Attorney General also distinguishes the Robb v. Caperton case on the grounds that it dealt solely with state judicial offices.

           The Obama administration announced this week that the President will give a recess appointment to Donald Berwick to serve as administrator of the Centers for Medicare and Medicaid Services.  The appointment will come during the Senate’s current eleven and a half day adjournment for the Independence Day holiday. 

            Berwick was nominated for the position in April, but the Senate Finance Committee has yet to schedule a hearing on the nomination.  The recess appointment was denounced not only by Senate Republicans, but by Committee Chair Max Baucus (D-Mont.), who stated: "Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee — and answered." 

            The Recess Appointments Clause (U.S. Const., art. II, sect. 2, cl. 3) provides: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."  This provision raises two basic interpretative issues: (1) what constitutes “the recess” of the Senate referred to in the clause? and (2) what does it mean for a vacancy to “happen during” such a recess? 

            A number of legal scholars have argued that “the recess” referred to in the clause is the recess between sessions of Congress, which normally occurs only once a year.  The intrasession periods of adjournment are not recesses within the meaning of the clause, they argue, and the President has no constitutional power to recess appoint anyone during those periods.  In addition, some scholars argue that a recess appointment can only be made if the vacancy has arisen during that recess.  A vacancy that has occurred earlier did not “happen during” that recess, and therefore is not eligible for a recess appointment.  Professor Michael Rappaport laid out these two arguments in his article, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005).   

            If either of these arguments is correct, President Obama’s appointment of Berwick is unconstitutional.  I will leave consideration of the merits of these arguments for another day.  For present purposes, I would just note that one of the foremost academic supporters of the Rappaport position is Marty Lederman, formerly a law professor at the Georgetown University Law Center.  Lederman was outspoken in criticizing President Bush’s recess appointments on the grounds that they violated the Recess Appointments Clause as properly interpreted.  Lederman, for example, was on the legal team that filed a brief (on behalf of the late Senator Edward Kennedy) challenging the constitutionality of Bush’s recess appointment of Judge William Pryor to the Eleventh Circuit Court of Appeals. 

            In addition, Lederman criticized Bush’s recess appointments on the grounds that, regardless of whether they complied literally with the Clause, they constituted abuses of the recess appointment power because they were designed for no purpose other than to circumvent the Senate’s advice and consent function.  For example, Lederman argued that recess appointments made during an eleven and a half day Senate adjournment were  obviously not for the purposes intended by the Clause, namely to deal with emergencies where the Senate was unavailable to provide its consent.  Instead, he contended that such appointments “make a mockery of the procedure contemplated in the Appointments Clause” and represented “constitutional cynicism of the highest order.” 

            Lederman now serves as Deputy Assistant Attorney General for the Office of Legal Counsel.  Which naturally raises the question—has he advised Obama that Donald Berwick is unconstitutional?

            The Governor of West Virginia, apparently not entirely satisfied with the Secretary of State’s determination that the Byrd vacancy cannot be filled by a special election until November 2012, has asked the Attorney General to opine on the question of when such an election is to take place.  The Governor’s letter notes that “[t]he issue of when such an election may lawfully occur raises questions of law that, when examined by persons of sound legal training and experience, may be answered in a way that reasonably calls into question the constitutionality or legislative intent of the law.” 

            I am not sure exactly what that means, but I interpret it as saying that the Secretary of State’s legal determination, while not unreasonable, is arguably in conflict with the intent of the West Virginia legislature, as well as with the requirements of the U.S. and West Virginia Constitutions.  If that is what he means, I agree with the Governor.

           The West Virginia Secretary of State has taken the position that the special election to replace Senator Byrd will not occur until November 2012.  She relies on Robb v. Caperton, a 1994 West Virginia Supreme Court case which applied the same vacancy statute in the context of a judicial vacancy. 

            Robb does provide support for the Secretary’s statutory interpretation, but there are questions whether the court’s reasoning should be extended to the current situation.  In Robb, a circuit judge resigned on April 20, 1994, leaving an unexpired term that would last until December 31, 2000.  The question was whether the vacancy should be filled by election in November 1994 or in November 1996.   

            The court began its analysis with the West Virginia Constitution.  It found the general vacancy provision of Section 7, Article IV, which was “keyed to ‘the next general election,’” inapplicable to judicial vacancies because the latter were governed by the more specific and detailed provision of Section 7, Article VIII.  Under Article VIII, the Governor is directed to fill a judicial vacancy without any election if the unexpired term is less than two years or, if so provided by law, no more than three years.  For vacancies of more than three years, the Governor is directed to issue a directive of election to fill the vacancy “in the manner prescribed by law,” and, in the meantime, to fill the vacancy by appointment. 

            The court found the phrase “in the manner prescribed by law” critical to the analysis of when an election to fill a judicial vacancy should take place.  The court held that “[i]t is clear under W.Va. Code, 3-10-3, the governor has the ability to fill a vacancy in the office of a supreme court justice or a circuit judge until a successor has ‘timely filed a certificate of candidacy, [and] has been nominated at the primary next following such timely filing[.]’”  Since the date for filing a certificate of candidacy had passed in early February, the court concluded that the election to fill the vacancy could not be held until November 1996. 

            The statutory language construed by the court is the same language that applies to filling vacancies for other offices, including that of U.S. Senator.   Given that the court thought this language was “too plain” to be interpreted as requiring an election in November 1994, the Secretary would seem to be on solid ground in reaching a similar conclusion with regard to the Byrd vacancy.  Nevertheless, the Robb court’s conclusion was fundamentally premised on the language of Section 7, Article VIII of the West Virginia Constitution, which applies only to judicial vacancies.  Moreover, the court appeared to assume that vacancies in non-judicial offices were required to be filled, under the provisions of Section 7, Article IV, at the next general election, notwithstanding the fact that such offices were governed by the same statutory language.  It is therefore uncertain whether the reasoning of the Robb case should apply here. 

            If the statutory language is construed as the Secretary of State suggests, the results are perplexing, if not absurd.  It is hard to see why the legislature would have chosen a two year and six month cutoff for holding elections, if the intent had not been to have a special election to fill the last two years of the term in question.  When asked about this at her press conference, the Secretary of State was unable to offer an explanation of a legislative policy that might be advanced by this result.    

            Finally, the Secretary of State’s interpretation of the statute is, at best, in considerable tension with the fundamental policy of the Seventeenth Amendment, namely that Senators be elected by the people.  There would seem to be ample grounds for mounting a legal challenge.   

            As mentioned in my last post, I think that the Governor of West Virginia is likely obligated to call a special election to fill the vacancy caused by Senator Byrd’s death.  But when is such an election to take place?  The West Virginia statute does not directly address when the special election is to take place.  Instead, it states that for certain offices, including U.S. Senator, a temporary appointment “shall be until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term.” 

            It is apparently inferred from this language that the special election is to take place on the date of a general election.  This, at least, seems to be the position of the West Virginia Secretary of State, whose website states that in the event of a Senate vacancy: “[T]he Governor appoints someone to serve until the unexpired term is filled at the conclusion of the next candidate filing period, Primary Election, General Election and certification.  The winner of that General Election fills the balance of the unexpired term.” 

            It is not exactly clear what this means in the current context.  In West Virginia, the deadline for filing to compete in this year’s congressional primary was January 30, and the congressional primaries were held on May 11.  It may be argued, therefore, that it is too late for anyone to run for the vacant Senate seat in this year’s general election.  Under this interpretation, the special election would not be held until November 2012, in which case the winner would serve only the remaining two months of Byrd’s term. 

            On the other hand, it is hard to see how this interpretation could be squared with any sensible legislative policy.  Presumably the reason why the West Virginia legislature provided for special elections only when a vacancy occurs more than two years and six months before the end of a term is that it did not believe it worthwhile to hold a special election to fill shorter periods of time.  So either the legislature believed that a special election could be held at some time other than the general election date, or it believed that the special election could be held on the next general election date (so that there would be more than two years left in the Senate term).  Interpreting the statute to make it impossible to hold a Senate special election until the November two months before the original term expires seems inconsistent with the legislative intent. 

            To make matters more confusing, the Secretary of State’s website also contains the following: “Vacancies in the offices of Secretary of State, State Treasurer, State Auditor, Attorney General, and Commissioner of Agriculture are filled by appointment until the next election that is more than two years and six months following the vacancy.”  Vacancies in these offices are covered by the exact same language as governs Senate vacancies, so it hard to see how these offices could be treated differently than a Senate seat.  It is also hard to see how the Secretary’s statement can be squared either with the statutory language or with the principle, also stated on the website, that “[t]he West Virginia State Constitution provides a clear mandate that all elective state and local offices should be filled by the voters as soon as possible after a vacancy occurs.” 

            In any event, if the Governor and/or Secretary of State refuse to hold a special election for Byrd’s seat prior to November 2012, it seems very likely that there will be a legal challenge.  West Virginia voters may plausibly contend that state law requires a special election to be held this November, or if not then as soon as possible.  They may also raise the federal constitutional issue not decided in the Illinois case, ie., whether an unreasonable delay in holding a special election to fill a Senate vacancy violates the language and purpose of the Seventeenth Amendment.