Mr. UDALL of Colorado. Madam Speaker, I regret that it is necessary for the House to consider this matter today, but I will support the resolution because I have concluded that the Bush administration has made it necessary to do so. When this is disposed of, I hope we can promptly return to the pressing needs of the American people that Congress needs to address.
Last year, the Judiciary Committee began reviewing the actions of the administration related to the firings of a number of U.S. Attorneys and allegations that this was part of a pattern of improper politicization of the Justice Department.
After failing to get requested information voluntarily, the Committee served subpoenas on then-White House Counsel Harriet Miers and Chief of Staff Josh Bolten. The president then invoked executive privilege and Ms. Miers and Mr. Bolten, despite the subpoenas, refused to appear before the Committee. In response, the Judiciary Committee approved a resolution citing them both for contempt of the Congress.
I am not a lawyer and certainly not an expert on questions of executive privilege. But it seems clear to me that the administration has refused to negotiate in good faith to resolve this matter, offering only to allow some interviews under severe restrictions, including a bar to keeping of transcripts.
This is not the first time Congress has sought information from a president's advisors. The Congressional Research Service reports there have been 74 instances since World War II where even sitting White House advisers, including White House counsel, have testified before Congress, including 17 between 1996 and 2001. But I am not aware of any instance in which executive privilege has been invoked as a reason why a former advisor--such as Ms. Miers--will not even make an appearance before a Congressional committee in response to a subpoena.
And I am not persuaded by the administration's explanations about why it refused to allow Ms. Miers and Mr. Bolton to even appear, let alone to testify. For example, we have been assured that the President was not involved in the decision to fire the U.S. Attorneys. But if that is true, how can executive privilege, which is intended to assure that a president will receive candid advice, apply to this matter?
After reviewing the history of this matter, I find myself in agreement with someone who is both a lawyer and a distinguished former Member of Congress--Mickey Edwards, who during his service here as a Representative from Oklahoma chaired the Republican Policy Committee.
Commenting on this matter, he has written, "If Congressional leaders are not able to persuade the administration to reverse its position and allow Ms. Miers to testify and Mr. Bolten to produce documents, then all Members of Congress, regardless of party, should insist that the subpoenas be enforced promptly and vigorously and to use civil litigation if, as the White House has hinted, it prohibits the D.C. U.S. Attorney from performing his enforcement duties.''
I agree, and because that is exactly the purpose of this resolution, I will vote for it.
The material previously referred to by Mr. Lincoln Diaz-Balart of Florida is as follows:
Amendment to H. Res. 982 Offered by Mr. Lincoln Diaz-Balart of Florida
Strike all after the resolved clause and insert the following:
"That upon adoption of this resolution, before consideration of any order of business other than one motion that the House adjourn, the bill (H.R. 3773) to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes, with Senate amendment thereto, shall be considered to have been taken from the Speaker's table. A motion that the House concur in the Senate amendment shall be considered as pending in the House without intervention of any point of order. The Senate amendment and the motion shall be considered as read. The motion shall be debatable for one hour equally divided and controlled by the Majority Leader and the Minority Leader or their designees. The previous question shall be considered as ordered on the motion to final adoption without intervening motion.
(The information contained herein was provided by Democratic Minority on multiple occasions throughout the 109th Congress.)
The Vote on the Previous Question: What It Really Means
This vote, the vote on whether to order the previous question on a special rule, is not merely a procedural vote. A vote against ordering the previous question is a vote against the Democratic majority agenda and a vote to allow the opposition, at least for the moment, to offer an alternative plan. It is a vote about what the House should be debating.
Mr. Clarence Cannon's Precedents of the House of Representatives, (VI, 308-311) describes the vote on the previous question on the rule as "a motion to direct or control the consideration of the subject before the House being made by the Member in charge.'' To defeat the previous question is to give the opposition a chance to decide the subject before the House. Cannon cites the Speaker's ruling of January 13, 1920, to the effect that "the refusal of the House to sustain the demand for the previous question passes the control of the resolution to the opposition'' in order to offer an amendment. On March 15, 1909, a member of the majority party offered a rule resolution. The House defeated the previous question and a member of the opposition rose to a parliamentary inquiry, asking who was entitled to recognition. Speaker Joseph G. Cannon (R-Illinois) said: "The previous question having been refused, the gentleman from New York, Mr. Fitzgerald, who had asked the gentleman to yield to him for an amendment, is entitled to the first recognition.''
Because the vote today may look bad for the Democratic majority they will say "the vote on the previous question is simply a vote on whether to proceed to an immediate vote on adopting the resolution ......... [and] has no substantive legislative or policy implications whatsoever.'' But that is not what they have always said. Listen to the definition of the previous question used in the Floor Procedures Manual published by the Rules Committee in the 109th Congress, (page 56). Here's how the Rules Committee described the rule using information from Congressional Quarterly's "American Congressional Dictionary'': "If the previous question is defeated, control of debate shifts to the leading opposition member (usually the minority Floor Manager) who then manages an hour of debate and may offer a germane amendment to the pending business.''
Deschler's Procedure in the U.S. House of Representatives, the subchapter titled "Amending Special Rules'' states: "a refusal to order the previous question on such a rule [a special rule reported from the Committee on Rules] opens the resolution to amendment and further debate." (Chapter 21, section 21.2) Section 21.3 continues: Upon rejection of the motion for the previous question on a resolution reported from the Committee on Rules, control shifts to the Member leading the opposition to the previous question, who may offer a proper amendment or motion and who controls the time for debate thereon."
Clearly, the vote on the previous question on a rule does have substantive policy implications. It is one of the only available tools for those who oppose the Democratic majority's agenda and allows those with alternative views the opportunity to offer an alternative plan.