Tweet
Antonin Scalia: Newest poster boy for defense lawyers
Following up on its activist behavior in going out of its way to hear and decide on the Citizens United case, our radically conservative Supreme Court will hear arguments on Monday in the third of a series of cases involving the concept of "honest services" as it appears in fraud statutes. This action appears to echo what bmaz described when he said: "the Roberts court does seem to have a hard on for this issue" with regard to the Citizens United case.
Here is SCOTUSblog setting the stage for arguments:
For the third time this Term, the Supreme Court will examine the scope of the controversial 1988 law that makes it a crime to commit fraud that deprives someone, such as one’s company, of “the intangible right of honest services.” It does so in the leading criminal case growing out of the Enron business scandal. This time, however, the Court may confront the constitutionality of that law, since the new case involves a claim that the law is so broadly worded that no one can know what it outlaws, thus making it unconstitutionally vague.
Here is how Citizens for Responsibility and Ethics in Washington (CREW) frames the arguments in the set of three cases on "honest services":
The National Association of Criminal Defense Lawyers, backing defendants in the new cases, says the "honest services" provision of U.S. fraud law is unconstitutionally vague and gives prosecutors unbridled discretion to enforce their own views of what’s illegal. On the other side, the watchdog group Citizens for Responsibility and Ethics in Washington deems the law an invaluable prosecutorial tool against corruption.
In a remarkable twist, Justice Antonin Scalia is aligned with the defense lawyers. Continuing from the CREW link:
Justice Antonin Scalia, who complained in February about the law’s indefinite terms, said it "invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate CEOs." He was the lone dissent as the court declined to hear a dispute over the law’s breadth last term. Since then, the other justices changed their minds and decided to enter the fray.
Okay, so the strange bedfellows aspect of Scalia suddenly siding with defense lawyers is resolved when we realize that the list of high profile cases where convictions have been won is taken right from the social list of his buddies who support our corporatist states of America. From CREW, again:
The anti-fraud law at the heart of three disputes before the Supreme Court has been used against such high-profile defendants as lobbyist Jack Abramoff, former Illinois governor George Ryan and his successor, Rod Blagojevich.
In addition, the other two cases heard on "honest services" this term include the convictions of Conrad Black and former Alaska legislator Bruce Weyhrauch.
Bringing the Skilling case to SCOTUS on "honest services" seems to me to be especially shaky, since SCOTUSblog reminds us that his conviction under the "honest services" provision applied to only one of the many counts on which he was convicted:
On May 25, 2006, after the four-month trial, Skilling was convicted of one count of conspiracy to commit securities fraud and wire fraud (the “honest services” charge is keyed to that count), 12 counts of securities fraud, five counts of making false statements to accountants, and one count of insider trading.
Further, Skilling’s challenge centers more on another aspect of his conviction than it does on the "honest services" issue:
Much of Skilling’s challenge deals with his claim that he could not possibly have gotten a fair trial in Houston amid what his lawyers call the “devastating impact” of the scandal on the entire city and region, and the resulting “vitriolic” and “blistering” publicity about the accused executives. His attorneys claimed in the petition that “the community passion” stirred up by the case “was as dramatic as any in U.S. criminal trial history.”
God help us if "too evil to convict" joins "too big to fail". Fortunately, we have the counterexample of attempting to try KSM in New York City to put up against the Skilling conviction in Houston on that point.
At any rate, I don’t have sufficient legal training to evaluate whether the language of the "honest services" provision is indeed too vague for consistent application or if what we have here is another example of our very own SCOTUS engaging in behavior that robs the citizens of "honest services" being performed by Supreme Court justices.
57 Comments
Antonin Scalia, the justice most identified with the term, has said that he is “not a strict constructionist and no-one ought to be,”[6] and has called the philosophy “a degraded form of textualism that brings the whole philosophy into disrepute.” In contrast, he claims to look for the ordinary meaning of words, not their “strict” meaning.
http://en.wikipedia.org/wiki/Strict_constructionism
Funny the ordinary meaning of words is always the Corporate GOPer view first then what ever will please the Fundies.
The GOP loves to claim legitimacy from the ordinary as they screw us over. Its like bipartisan date rape the GOP likes to say after they are done that she liked it.
Do you mean that it’s not just a coincidence? /snark
Its a design feature its
.
I think the Supremes are worried they might get sued for Bush vs Gore if this law stands after all a court case for which there shall be no precedent can’t be considered an honest service.
Sticking us with the Chimp deprived us of President Gore lost us two wars, gave us a ton of debt, destroyed our economy etc etc.
I’m sure the Court of the Revolution that is coming will order the seizure of all Scalia’s cash and his kid’s estates as well. The same goes for the Bush trust fund and everyone at Enron.
Edit got rid of the spaces and crunched my comment why?
That’s happened when I edit as well. Have no idea why or how to change it. I’ve added extra spacing to no avail. Just a big smush.
Not so bad with short comments, but makes reading longer comments difficult.
Indeed. Being anti-bloodshed as a rule, I can’t advocate the National Haircut used to such good effect by my historical namesake. But I do like to daydream about a quasi-Maoist alternative equally suited to banksters and likeminded fraud artists.
Picture it: the members of the erstwhile kleptocracy are dragged one by one to one the platform of a scaffold erected in Wall Street (where else?). After the reading of various lampoons and denunciations, caravans of forklifts rumble up to the scaffold laden with pallets of cash: each miscreant’s personal fortune in $1 bills. The miscreants are then dressed in paper dunce hats and lobster bibs and made to eat every last dollar.
My version has them working at McDonalds for McDonalds wages at trying to get by with no healthcare and the minimum wage in America.
If they complain America needs their skills then fine I want all the bank bailout money returned now with interest.
Capitalism went to Big government for a bailout the WallStreeters have no skills.
Sure the BAnksters got skills — like talking the Fed out of $billion$! The question remains, are they skills the rest of us neeeeed? :)
I personally think Mao was on to something when he made members of the elite take “working vacations” in the country, planting rice, slopping hogs, etc. People with the best of skills can hone the application of said skills with a measure of humility.
I can get behind that:)
*Dreaming of Geithner & Summers, ankle-deep in a sty.*
For a few brief moments, there is a God.
Oh, God, I’m coming!
Would the idea you lied, committed fraud and hurt the interest of the person paying you be such a standard.
I don’t see whats so hard about this.
On No Corporate CEO’s are in trouble Ordinary Man Joe Scalia the Plumber to the rescue!
Joe what investor wants to invest in a country where companies with funny Enron sized fraud books are not punished?
What investor wants to invest in a company if the owner is a friend of the President and thus has no fear of jail?
By tolerating crime you encourage it Scalia are you not concerned with what message you are sending?
I absolutely agree with Scalia and the NADCL, it is overbraod and collects up innocuous and legal behavior in its construct.
Thanks, I was hoping to get your reading on this, which was why I tweaked you with the “association” with Scalia.
Plenty of things are unconstitutionally vague. The only ones that get thrown out are the ones that happen to hurt the aristocracy.
The question of what is too unconstitutionally vague is a legal one the Lawyers here can argue however our point seems to be the Court is biased for Corporations and we don’t see objective argument or have any doubt how the court will rule.
People’s confidence in the Court Right and Left is not high. The Right since Reagan has been waiting for the Supremes to outlaw abortion.
For us Bush vs Gore is a joke that will haunt every historical portrayal of Scalia.
In a sense nobody thinks they have gotten honest service.
Help! I don’t even understand the construct of “Honest Services” as defined.
Dishonest services? That I can understand.
To understand what “honest services” is intended to be, Justice Ginsburg’s provides a useful context of the origin of the phrase in 18 United States Code section 1343 in her opinion for the court in the 2000 decision of Cleveland v. United States.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/531/12.html
For years, lower federal courts and prosecutors had successfully prosecuted corrupt government officials for depriving citizens of “their honest services” under the wire and mail fraud statutes, 18 USC sections 1341 and 1342. The in 1987, the Court overturned the conviction of one who had aided and abetted a government official in a fraudulent schmeme on the grounds that the law did not expressly make criminal a scheme or artifice to defraud anyone of “their honest services” but only applied to schemes or artifices to defraud others of property. Congress adopted 1343 in 1988 to define property as including “honest services.”
I’d add that a challenge for voidness or vagueness does not succeed as where a term has acquired a meaning in the case law. An analogous situiation would be with the Sherman Antitrust Act where the terms “contracts, conspiracies and combinations in restraint of trade” were upheld as not vague because they had well-known meanings from the common law. So here, it seems if the Court does not adopt such a tack here to save this statutes based on the use of “honest services” by the lower courts before 1987 and the multitude of schlubs who did hard time for defrauding citizens of same, there is something clearly rotten in Denmark. . . and on the Supreme Court.
Good answer
If, as Bmaz thinks, the wording and construction are overly broad, then what are the chances that this Congress, as corrupt and beholden to special interests as it is, will write a new, more tightly defined and tailored law to replace this one in the prosecutor’s (and public’s) arsenal?
Those odds will portrayed as 59-41 in favor of a good fix, but the reals odds of fixing it are around a million to one against.
A logical extension to this discussion would be to explore charging decisions made by prosecutors in cases like this.
For example: are there alternate charges, and if so why are the ‘honest services’ charges the ones that are charged.
In addition, are the convictions obtained for ‘honest services’ accompanied by acquittals on other ‘fraud’ charges?
In other words- what is the history- why has ‘honest services’ apparently become so important to obtaining convictions in these types of cases (political and corporate fraud)?
Very good question how is this law actually working is it working good have their been any abuses of this law?
Real abuses not Right Wing Media ginned up abuses.
Maybe the Lawyers here can way in this is getting out of my knowledge comfort zone.
OT but relevant to your anthrax postings, have you seen this? http://cryptome.org/0001/meryl-nass.htm
Yes, I’ve seen that. Nass has done some good work earlier on the anthrax issue, but I don’t agree with some of her charges in that piece. There also is a NYTimes editorial on anthrax today, but I’ve only skimmed it so far.
Wonderful post Jim White.
And now he wants a change of venue? He’s not swinging from a rope and it happened in Texas. I’d say that’s pretty fair.
So Scalia is going to bat for Jeffrey Skilling. That’ll make a nice headline. Regardless of whether the law is inadequate, why conflate it with Enron for God’s sake.
The phrase ‘willful misrepresentation’ comes to mind. How can that fall outside the bound of any definition of ‘honest services.’
How is Antonin Scalia’s health?
OT, but seriously important.
Election Systems is about to consummate a deal to buy Diebold, which will give it control of 70% of the vote-counting business nationwide.
This is accordong to the lone tiny reference I saw this week. Naturally, the MSM don’t think it’s important enough to bring to your attention.
Why should anyone care about a right wing corporation with a terrible performance record counting most of our votes?
For anyone interested in this issue, I’m sure the blackbox website is the authoritative source for more info.
sorry if someone has already said this, but both sides are right. The law strikes me as being way overbroad and vague, *and* it should be replaced with a better-written version in order to carry out the purposes for which this sloppy POS was written.
This all a very expensive campaign by Conrad Black because how dare we actually convict him!
We’ll see if he managed to buy him some reverse justice
The basic principle that underlies the Void-For-Vagueness Clause of the Fourteenth Amendment is that criminal statutes must be sufficiently specific so that people equipped with ordinary intelligence can understand what is prohibited and “conform their conduct to the requirements of the law.”
A lawyer seeking to challenge the constitutional validity of a criminal statute under the Void-For Vagueness Clause can argue that the statute is void on its face and/or void as applied to the lawyer’s client.
Void on its Face: The statute is so vague that no one can figure out WTF it means except overeager prosecutors who get to arbitrarily decide when and to whom it applies. Therefore, the statute must be killed. We saw a lot of these kinds of cases before common law crimes were replaced by statutory crimes defined by legislative bodies based on the Model Penal Code, a comprehensive set of proposed statutes put together by a committee of lawyers, law professors, and judges. For example, the MPC got rid of legal standards defining criminal intent as acting with an evil heart.
Void as Applied: This is an example of the Don’t-throw-the-baby-out-with-the-Bathwater principle because the statute is sufficiently specific in many situations but not in a particular defendant’s situation.
The issue the Supreme Court has chosen to decide is whether a citizen’s right to honest services is sufficiently specific so that potential defendants, including corporations, corporate officials, and corporate employees can reasonably figure out where the boundary lines are and conform their conduct to the requirements of law.
The answer depends in part, I think, on whether a citizen has a right to “honest services” in a caveat emptor world (i.e., let the buyer beware). Fraudulent behavior appears to violate the statute, so perhaps that’s a reason to deny the statute is void on its face and focus on the lesser argument that it’s void as applied to a particular defendant. Then again, there are other statutes that criminalize fraud, so why do we need this one?
What about “puffing?” How does a sales rep avoid crossing the line? After all, not all misrepresentations materially affect whether a buyer gets the benefit of the bargain.
I’m going to stop short of expressing my personal opinion for reasons that should be apparent from reading my disclaimer below.
DISCLAIMER: I was a criminal defense lawyer representing clients charged with felonies in state and federal courts for 30 years and now I’m a law professor. I’ve taught Criminal Law and Criminal Procedure, as well as other subjects. While I was practicing law, I was a member of the National Association of Criminal Defense Lawyers (NACDL) and I served two terms on the Board of Directors. NACDL filed an amicus brief in this case after I retired from actively practicing law and after I dropped my membership in NACDL..
“Puffing” has always been a particular favorite of mine. In a society based on the supremacy of contract, puffing incorporates the concept of acceptable lying as a core value.
Little wonder, then, that lying in all its manifestations has become so widespread that any who long for honesty are automatically regarded as kooks.
I should have added that to avoid violating the Double Jeopardy Clause, the elements of each offense charged must differ in some respect. If not, a defendant could be convicted of multiple offenses when only one crime was committed.
The Rule: Compare the elements of all the crimes of conviction (i.e., what must specifically be proven) rather than the defendant’s conduct and if the elements of any two or more statutes are identical, those charges merge for sentencing purposes and the defendant may only be sentenced on one offense (the one with the highest potential sentencing maximum).
I don’t believe anyone is arguing that the Double Jeopardy Clause is implicated since the “right to honest services” element apparently is unique, but I wonder if it’s not just another way to define fraud (i.e., an intentional misrepresentation). Therefore, the Double Jeopardy Clause might be implicated.
Honesty and integrity are penalized whereas deception and lawlessness are rewarded with impunity. At least that’s how it looks from down here where the people reside. Where I and many like me are literally a paycheck away from destitute. The corporate executives that steals more money in a single year than I will ever see in multiple lifetimes… tells me to pick up my marbles and go home, no point in playing this game with the neighborhood bully that will steal them all anyway. Thoreau had it right… only there is no Walden pond for me, the filthy gutter and a cardboard box is this American’s path to revolution. No Justice – No Peace.
Section 1346: For the purposes of this chapter, the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services.
In Skilling’s case, SCOTUS will determine if below is permissible in the context of above. Do the terms “defraud” or “deceive” no longer have meaning for the courts.
A corporate executive’s efforts to deceive stockholders, accountants, federal regulators and the investing public about the company’s financial condition and performance — if there is no proof that the executive obtained some private gain. (That is what former Enron Corp. CEO Jeffrey K. Skilling is arguing for in his case, Skilling v. U.S., 08-1394, just granted on Tuesday and likely to be heard in either February or March.)
The relevant question as to the potential double jeopardy issue is whether the statute with the reference to a victim’s “right to honest services” is just the flip side of defining fraudulent intent. How is acting to defraud another person different from acting with intent to deprive someone of honest services?
This is probably overkill on double jeopardy, but there you have it. Scroll on by, if disinterested.
If I’m a corporate shareholder, do I have a right to honest services by the CEO of the corporation? The statute says I do, but how is that different from my having a right not to be deceived by the CEO acting fraudulently?
If this were a blue collar case, Skilling would not be heard by the Supreme Court. The Roberts Court has already overturned two decisions relating to Enron. If Skilling also wins, does he get a new trial, significantly reduced sentence so he walks in a few years. Is Sarbanes-Oxley next for the chopping block. He was the CEO who designed and led the fraud, not just followed direction. Relief for Skilling against backdrop of what’s happening now on Wall Street…guess we’ll all get the message.
The “law” in the US has nothing to do with justice. Never has. However, whatever fairness the law had will be gone once the SCOTUS finishs up dismantling it. Yup, justice only for the rich and the corporations. Nothing at all for the rest of us. Then again, the liberal SCOTUS did not do much to make justice equal either. Just because the police say that you can have a lawyer means less than nothing if you can not afford a lawyer. Many public defenders-not all by any means-are either totally incompetent or so overworked as to be incompetent.
What percentage of people in prison or on death row are totally innocent? 10%? 30%? half? In Ill. the gov commuted all the death sentences because so many were discovered to be innocent. Yet the conviction of the innocent(poor) continues apace. Never the rich, they can afford lawyers. Just like OJ did. Don’t lawyers understand how it appears to the majority of people who make less than $40K per year when they get their(wealthy) client off and someone else, say a young african american man,(or here in SoTx a hispanic man of any age) gets convicted of the exact same offence and gets years in prison? How can defense lawyers who get wealthy clients off when everyone knows they are guilty sleep at night? Technicalities be damned. In a criminal case a person is either totally innocent or else he is guilty. Being guilty and getting off due to an error on the part of the police is inexcusable
I can well understand the frustrations that made the Austin IRS bomber do what he did. The IRS spent several years(10) persecuting me for what finally turned out to be a $90 underpayment on the very first tax form I ever filed. They spent much more just on the salaries of the people involved.Yet at the same time rich people file taxes that have nothing to do with reality and simply walk away because the IRS will not prosecute
Then they put a tax lein on a house that my wife owned. A tax lein on the WRONG HOUSE.(the lein was supposed to be on a house that someone else owned in a different STATE!) It took 5 years and cost over $10K to get that fixed, and never once did they admit to making a mistake.
I understand but do not agree with his solution. Worker bees do not make policy. However they do enforce it. Way to many times govt worker bees-bureaucrats being the next stage up the chain-do not bother to really do their jobs and that is what makes people feel powerless and very very angry.
Wow. I now have absolutely no remaining shred of confidence in our laws or our justice. On any count. Regardless of how this particular issue is *decided.* Based on the topics discussed in this thread I can see it really is a bunch of nonsense created to provide the desired outcome for a price to anyone who can pay the price. Kinda like the Senate.
How is this law not double jeopardy is my question? Next question how come all the stock awards based on Enron’s fake good results that were cashed out by Enron executives who were in on it not given back to shareholders?
Ponazi scheme, lying about accounting at Enron, Fraud why aren’t these guys all in jail?
Interrupting this important and informative thread discussion, with Jim’s permission, to briefly use this open comment thread for an exchange about the ongoing real filibuster research that selise is conducting…
OT – thanks powwow, and as before, many apologies to jim.
powwow, here’s the temp link.
there are two identical files (of about 4MB and 12MB), differing only in the amount of compression (i forgot to ask your preference on file size – the original scan w/o ocr is about 33MB. if you are going to print a copy, that’s the best one to use. i can easily upload it if you like, just let me know). please let me know when you’ve successfully downloaded the file(s) of your choice — part of what i tmay have to be doing today is taking the site down for a bit (could be a few hours or a few days *g*).
Excellent, selise. I’ve now downloaded and saved the 12MB file, and have scrolled through each page. It seems very readable all the way through, and I can copy and paste legible text from the PDF for printing sections out via word processing software or for excerpting in a comment. I also seem to be able to print quite-readable pages directly from the PDF. So I don’t think I’ll need any other version of the file.
After I get a chance to carefully read through the whole PDF, I’ll post any pre-diary observations and/or highlight any other noteworthy sections of the debate in this thread (sometime later today/this evening, further utilizing Jim’s much-appreciated hospitality).
excellent! thanks powwow!
if all goes well (and knowing my luck, i shouldn’t count on it), i will post a working thread diary with some bits from this this CR, as we discussed last week, this evening. depending on when i get it posted, we can discuss it here and/or there.
just one word of caution – when you copy and paste text from the pdf, that’s the ocr i’ve added to the pdf image. so, depending on where you copy and paste from it will need a little or a lot of proofing. there is even one corner the ocr couldn’t read at all (the top right of page 26138 or 3rd page of the pdf).
As always, powwow and selise, I’m happy to provide a location for you to continue your important work.
((((jim!)))) thanks!
something i forgot to mention to powwow, i can easily and quickly make smaller files also if that would be helpful (for example one page per file or more compression on the complete file), just let me know….
Well, that was a remarkable and fascinating debate to read, from a day back in September, 1986…
Some observations, for what they’re worth, pending selise’s working thread diary:
1. It all took place in a post-cloture environment (a cloture motion had just passed, 97-1, on a motion to proceed to a Product Liability Reform Act). Which ended up complicating or impacting the final wording and reach of the appeal by Minority Leader Byrd, because both Party leaders assumed in the end that certain Rule 22 restrictions applicable only during post-cloture debate (basically the ability for the Presiding Officer to rule an action out of order as “dilatory”) would help limit any possible future abuse of the exclusions to the two-speech rule that Byrd’s appeal, as new precedent, created. [Interestingly, the question of whether the two-speech rule even applies post-cloture was never raised in the debate.]
2. Probably understandably, the Republican majority, under Dole, was much more focused on preserving the integrity of the two-speech rule, and particularly its ability to constrain real filibusters, than the Democratic minority, under Byrd, who was more focused on keeping the Senate running smoothly on a day-to-day basis. Due at least in part to the post-cloture context of the controversy, Byrd’s approach held a bit more sway than Dole’s, so a future abuse of that 1986 precedent seems a possible unintended consequence, outside cloture, using, in particular, unanimous consent requests (deemed to be “business” and possible to make without yielding the floor, and, according to the pre-vote debate, clearly included in the “non-speech” category of the new precedent if routine or “procedural”), given the failure to clearly define and limit (beyond examples given) the meaning of “procedural” motions and requests as used in the appeal.
3. In addition to the Constitution preventing Senate operations in the absence of a quorum, Senator Byrd pointed out that the Constitution provides that any Senator may ask for the yeas and nays [a rollcall] on any measure – so including such requests as speeches under the two-speech rule could easily run into direct conflict with the Constitution.
4. A very important distinction between types of footnotes in Riddick’s Senate Procedure was pointed out by Senator Byrd, which comes into play when rulings by the Chair, and conflicts between Senate procedures, are at issue:
The Chair’s ruling that day, that Byrd ended up appealing, was based on opinions given to parliamentary inquiries during a real filibuster by Huey Long in 1935, and thus was not based on official “precedent” of the Senate. The 1986 vote to overrule the Chair’s ruling and sustain Byrd’s appeal, however, did set new Senate precedent [the 'Footnote 561' precedent that explicitly excludes certain "procedural" actions from the two-speech rule].
[According to this important differentiation that I'd overlooked, at least one "precedent" that I've cited - including in comment 16 in the first working thread - that seemed 'an odd man out' and a poor fit with others, is in fact not precedent, but apparently simply a response to a parliamentary inquiry. That cite states: "A Senator who has spoken twice on the same question may be recognized to make a motion..." (Footnote 559 in the DEBATE PDF). I'll have to go back and check and compare other cites that I've noted in the working threads, since "See" and "See also" cites can only really be considered guidelines, not actual precedent.]
5. Huey Long’s son, himself a Senator for 38 years, provided a history lesson about the day that the 1935 opinions by the Chair were given in the midst of his father’s filibuster (when he was in the Senate gallery as a 15-year-old), in the process showing either that the two-speech rule had not been previously used to constrain real filibusters, or that it was not always or predictably deployed to constrain real filibusters before Long’s 1935 filibuster. [Because the previous Senate one-man record filibuster of 18 hours was allowed about 12 interruptions for quorum calls without La Follette losing his right to be recognized, whereas Long was immediately challenged under the two-speech rule, as soon as he first suggested the absence of a quorum.]
6. Chris Dodd and Tom Harkin were right in the middle of this 1986 debate about the two-speech rule, along with Hollings, Hart and others. The Senate Parliamentarian was Bob Dove. Three or four different Republican Senators sat as “Presiding Officer” during the course of the debate on the two-speech rule that day.
In sum: Minority Leader Byrd did a superb job of bringing to an orderly, clear and logical resolution a nasty dispute that erupted between Senators Kasten and Hollings, on an important question that impacts the daily functioning of the Senate, with the help of Majority Leader Dole. Nevertheless, the next time the issue is raised during a real filibuster, there may well be the need to do some further finessing of that 1986 precedent to block bad faith abuse of the two-speech rule exclusions that the appeal and new precedent created.
thanks powwow! just a quick update to let you know i hadn’t fallen off the edge of the planet. spent most of the night rebuilding my website (that had the server crash a few months ago) so there would be a semi-permanent place to store the pdf (with all my other
junkhosted files) for linking. still have at least a few days of work on that, but it’s ok, i think, for now. here’s the new pdf link (same file as you already have, but now with a link i can use for oxdown).going for coffee, then some questions and then to post diary.
powwow, i started to write a long reply to your comment, and then thought better of it — will save that for a real working thread if you would be so kind as to repeat your analysis there.
so for now, only a couple of quick questions that may impact the bits i include in the diary:
1) on the top right of page 26137: is that a useful example of the quorum call / business / quorum call question? is it an example of your point #3? if useful for discussion, i’d like to include it, if not in the main post at least in a comment (i’m debating with myself because i wonder if inclusion in the main post will detract from the flow.
2) i had planned to include three parts: the first and last small bits, with the bulk of the post simply quotes from the record. for the intro, i thought to quote from riddick’s on debate – the bit you quoted that got me interested in this reference (“rule of reason”) and for the end, i plan to use a bit of byrd’s recent letter. that will give us three connected items to discuss…. unless you have alternative suggestions.
3) from your point #1: i didn’t understand the rule 22 restrictions discussed to be applicable only during post-cloture debate. what part of the debate are you referencing? (i must have missed it and that’s too important to leave out).
personally, i found this bit of the record v interesting reading and appreciated how byrd walked the senate (and therefore me, the reader) through the issues of past precedent, how the senate was about to inadvertently create a new precedent and the procedure for creating instead a precedent more to the liking of the members of the senate.
Yes, selise, very much so, I’d say. With the caveat that the exchange explicitly references cloture, which for most of a real filibuster, at least, would not be governing. But I don’t see anything in that exchange that doesn’t also apply outside of cloture (except maybe that there hadn’t actually been a quorum call since the “business” of the cloture motion vote itself occurred – but, apparently, in post-cloture debate under Rule 22, intervening business starts to count only immediately after the cloture vote itself, thus that vote didn’t qualify).
There is one oddity or oversight in the Presiding Officer’s assertion about intervening business, I think, that seems to indicate that the Parliamentarian wasn’t quite up to speed yet: Senator Kasten had made a couple of unsuccessful unanimous consent requests after/since the cloture motion vote, which are supposed to qualify as “business” between quorum calls, but Dove seems to have overlooked them, and Hollings didn’t know enough to point that out.
Notice, too, how Senator Hollings – though obviously not very up to speed on the rules (unaware that debate isn’t considered “business,” for example) – was very quickly able to improvise to get around that hurdle by pretending to appeal the (absolutely-standard, unquestionably-accurate) mundane ruling (or at least enforcement of regular order) of the Presiding Officer and asking for the yeas and nays (only to withdraw the appeal later), in order to get his quorum call. A classic example of how someone in a real filibuster would be working to take advantage of every available technicality, especially if the other side is dozing.
I don’t think that exchange is all that useful, though, as an illustration of my #3, because it’s focused on the yeas and nays as intervening “business” between quorum calls rather than as “non-speech” under the two-speech rule. [The best illustration of my #3 is probably just Byrd's explanation of that provision, on Page 26141, first column.]
Sounds fine to me. You’ll have an editing window of about an hour or so, I think, to change anything that doesn’t look right to you. And we can provide other context, etc., in the comments, as need be.
There’s no such thing as out-of-order “dilatory” action outside Rule 22 cloture – unless and until the Senate establishes some new precedent or rule about that, mirroring Rule 22′s post-cloture restrictions. That “dilatory” limit on post-cloture actions is, I think, perhaps another argument for why it’s debatable that the two-speech rule was intended (by those who first wrote the cloture rule) to apply post-cloture (because it’s basically not needed, given the restrictions on time for any one Senator, etc.). [The ability of the Presiding Officer to rule an action out of order as dilatory is referenced in that main Cloture/Filibuster CRS report we've been citing from the beginning.]
The place in the debate where this thinking/acknowledgement comes into play is right at the end (middle column of 26153), before the vote on the appeal, when Dole and Simpson are (rightly) questioning the potential effects on the two-speech rule (both in and out of cloture, presumably) of the new precedent, and particularly where Dole says:
[The Presiding Officer says it is correct.]
After which Simpson adds:
Simpson then goes on a bit, but unfortunately the transcript isn’t crystal clear – I think an “a” was dropped before “few precedents” in his next sentence, which would change the meaning from there are “few” precedents, to a more logical: there are “a few” precedents, to back up his understanding as stated in the preceding paragraph [he never waited for the Presiding Officer to answer his "Is that correct?"].
One other point of interest about the post-cloture environment: I don’t think this situation would have been as likely to develop the way that it did, if the Senate hadn’t been in the 30 hours of post-cloture debate – during which the Presiding Officer is required to carefully track the time used by each Senator. The Chair/Parliamentarian indicated at one point that it was the way that time had been recorded as used by Hollings that helped lead to the ruling that two previous speeches had already been made by him (of a minute or two each).
Indeed. It was very important that Byrd was given the time by other Senators, and the other Party, to read the transcript, get his bearings, and think things through, and to explain what he needed to explain, despite the restrictions on time, post-cloture. It was an impressive performance. I can only imagine how a similar situation would unfold today…