Litigation by the Senate Permanent Subcommittee on Investigations to enforce a subpoena for documents from Carl Ferrer, the CEO of Backpage, an online forum accused of contributing to sex trafficking, has taken another interesting twist, with the D.C. District Court ruling that Backpage cannot assert the attorney-client privilege to protect certain documents.  It is rare for a court to issue a ruling on attorney-client privilege in a congressional investigation, and the court’s ruling has significant implications for any individual or company facing demands from Congress for documents, information, or testimony.

Continue Reading The Latest Twist in the Backpage Litigation and its Implications for the Attorney-Client Privilege in Congressional Investigations

Last week, the U.S. District Court for the District of Columbia ruled in favor of the Senate Permanent Subcommittee on Investigations in a rare case that has the potential to contribute significantly to the case law concerning congressional investigations. It is uncommon for a federal court to have an opportunity to rule on a congressional subpoena – congressional subpoenas generally cannot be challenged in court unless the recipient defies Congress and Congress votes to hold the recipient in contempt. Most private sector companies simply cannot endure the bad publicity and reputational damage that accompanies a congressional contempt proceeding.  Backpage, an online forum for classified advertisements that includes advertisements for adult services, and its CEO Carl Ferrer apparently are not swayed by such concerns.

For more than a year, the Senate Permanent Subcommittee on Investigations has been conducting an investigation of Backpage as part of an inquiry into human trafficking. According to the National Center for Missing and Exploited Children, advertisements on Backpage are associated with “a majority of the child sex trafficking cases being reported” to the organization.

After conducting an interview of Backpage’s general counsel in June 2015, the Subcommittee subpoenaed Backpage for documents in July 2015. Almost immediately, Backpage objected to the subpoena on First Amendment grounds. After further back and forth, the Subcommittee subpoenaed Backpage’s CEO Carl Ferrer for a narrower set of documents and ordered him to appear at a hearing on November 19, 2015.  Backpage produced a limited set of documents to the Subcommittee, but it continued to object to a further response on First Amendment grounds.  Ferrer did not appear at the November hearing, and the Subcommittee held a hearing with an empty chair before it – another rarity in congressional investigations.  The Subcommittee approved a resolution to enforce its subpoena, and the resolution was adopted by the full Senate in March 2016.

In its ruling last week, the District Court found for the Subcommittee, rejecting four defenses raised by Ferrer.

First, the court addressed Ferrer’s claim that it lacked jurisdiction to hear the case because the Senate sought to enforce only three of the eight requests contained in the subpoena. Ferrer’s argument was based on a unique aspect of the statute authorizing the Senate to enforce its subpoena in court – the statute states that the court may not “modify” the subpoena. In Ferrer’s view, selective enforcement equates to modification.  The court disagreed, stating that the statute does not constrain the Subcommittee’s ability to seek partial enforcement of its subpoenas.  Therefore, the court was enforcing, unmodified, those parts of the subpoena brought before it by the Senate.

Second, the court rejected Ferrer’s argument that the subpoena was not tied to a legitimate legislative purpose. Under Supreme Court precedents, Congress has the power to investigate any subject on which it can legislate. Given that Congress can legislate on sex trafficking and the internet, and Congress has previously legislated on internet publishers’ immunity for statements of third parties, the court easily concluded that the subpoena was related to a legitimate legislative purpose.

Third, the court examined Ferrer’s First Amendment defenses and concluded that they did not protect him from complying with the subpoena. Ferrer claimed that the Subcommittee’s subpoena encroached on his First Amendment rights, sought to punish disfavored speech, and chilled his exercise of his First Amendment rights. The court was unconvinced.  The court was most critical of Ferrer’s attempted use of the First Amendment to shield Backpage from even searching for materials in response to the subpoena, determining which of the documents reflect speech protected by the First Amendment, and explaining the specific manner in which the subpoena would intrude on First Amendment rights.  The court concluded that Ferrer’s position that “any responsive document that has not been produced contains constitutionally-protected information that no governmental need could possibly overcome” is “untenable and without legal support.”

Finally, the court rejected Ferrer’s claim that the investigation violated his due process rights by being ill-defined in scope and shifting in focus. The court described these arguments as “undeveloped,” “devoid of legal support,” and “unclear.”

The court ordered Ferrer to comply with the Subcommittee’s subpoena within ten days.

Instead of producing the subpoenaed documents, this week, Ferrer appealed the District Court’s decision to the Court of Appeals for the District of Columbia Circuit, and simultaneously sought to postpone his compliance with the subpoena while the appeal is pending. In his motion to stay compliance with the subpoena, Ferrer focused on his First Amendment arguments: The District Court “misapprehends the nature of Mr. Ferrer’s First Amendment claims and undervalued the constitutional interests at stake,” the filing said.

Depending on the outcome of the appeal, this case may contribute significantly to the case law concerning congressional investigations and the enforceability of congressional subpoenas.

Litigation to enforce a congressional subpoena against a private sector company or individual is rare. According to the Senate Legal Counsel’s filings in the case, the Senate has sought to enforce a subpoena under its civil enforcement authority only five times, with the last enforcement proceeding occurring in 1994. This case provides an opportunity for the appellate court to consider aspects of the statute that are rarely addressed in litigation, such as Ferrer’s argument regarding the statute’s limitation on courts modifying a subpoena.

Practitioners and scholars generally consider jurisdictional challenges to congressional investigations to be foreclosed by the modern scope of Congress’s legislative authority. Because Congress’s legislative reach is so broad, and its investigative authority is coextensive with its legislative authority, Congress can investigate practically anything, the reasoning goes. The appellate court may have an opportunity to address these issues if Ferrer continues to argue that the subpoena is not tied to a legitimate legislative purpose.

Finally, and potentially most significant, it appears that the D.C. Circuit will have an opportunity to address the limitations that constitutional protections place on congressional investigations. Although Congress takes a dim view of many privileges and protections, including the attorney-client privilege and executive privilege, Congress readily acknowledges that it is bound by constitutional limitations such as the First Amendment. There is very little recent case law addressing constitutional protections in the context of congressional investigations, even as the Supreme Court’s views on the First Amendment and other constitutional rights have evolved over recent decades.

Upcoming Congressional action for the duration of March appears likely to resolve the budget and appropriations impasse of the last several months. House and Senate leaders and the White House were able to reach an agreement last month on topline spending numbers for Fiscal Year (FY) 2018, which began last October 1, and FY 2019.  This two-year spending deal will likely put an end to the months of partisan debate over defense and domestic spending caps following five short-term spending bills that led to two government shutdowns. The current stopgap spending measure (P.L. 115-123) expires on March 23, giving members just three short weeks to complete work on a $1.2 trillion omnibus bill.

The budget compromise provides for almost $300 billion in additional federal spending over the limits established by the 2011 Budget Control Act (BCA). House and Senate appropriators are now working to allocate the funds into the 12 annual appropriations bills and draft the legislation that meets the parameters of the agreement.  Lawmakers hope to roll these 12 bills into a single legislative vehicle, an omnibus bill, that can pass both chambers before the March 23 deadline. It remains to be seen whether the spending bill could carry a number of controversial policy issues that remain unresolved, including gun control, immigration and border security, and health care, among other topics.

There have been discussions among the White House and congressional leaders about potential gun safety or other related legislation following Florida’s recent disheartening mass school shooting, but Republicans and Democrats are divided on what should and can be done.  President Trump has indicated openness to an increase in the age requirement for buying rifles from age 18 to 21, a proposal to extend mandatory background checks to include sales at gun shows and over the internet, incentives encouraging the arming of teachers, and a ban on bump stocks or assault weapons. At least some of these measures would require departures from prevailing Republican orthodoxy. Under application of Senate rules, action there would require some bipartisan cooperation in order to achieve 60 vote thresholds on any of these measures. The Senate could also attempt to strengthen the National Instant Criminal Background Check System (NICS) to prevent criminals from purchasing firearms. Democrats support NICS legislation, although some conservative Senate Republicans have expressed due process concerns.  A version of this legislation passed the House in December, but was paired with a provision providing concealed carry reciprocity to legal gun owners.  It is unclear whether the House would take up the NICS legislation on its own.  It is possible that less controversial gun or school safety measures could be incorporated into the omnibus spending package.

Continue Reading The Congressional Agenda for March

In late October, the House of Representatives quietly approved a bill that would dramatically strengthen Congress’s procedures for enforcing congressional subpoenas.  In adopting the bill, the bipartisan leadership of the House Judiciary Committee highlighted the challenges that Congress faces in obtaining materials from executive branch agencies.  Significant portions of the bill, however, apply to all congressional subpoenas, including subpoenas issued to private sector individuals and entities.

After passing the House, the legislation is currently pending in the Senate Judiciary Committee.  The staff of the Senate Judiciary has indicated an interest in enhancing Congress’s subpoena enforcement procedures.  In 2015 and 2016, the Senate engaged in a lengthy legal battle to enforce a subpoena against Backpage, an online forum accused of contributing to sex trafficking, and its CEO Carl Ferrer.  We therefore believe that legislation to strengthen congressional subpoena enforcement is likely, but it is not yet clear whether the Senate will support the House bill or propose its own alternative.

The key provisions of the bill, H.R. 4010, the Congressional Subpoena Compliance and Enforcement Act, include the following:

  • The bill would establish special rules applicable only to civil litigation brought by Congress to enforce a subpoena. Courts would be required to “expedite to the greatest possible extent” the resolution of such cases.  Congress would be permitted to request a hearing before a three-judge panel of the district court, rather than proceeding through the usual district court process.  In such instances, the legislation would eliminate intermediate appeals – any appeal would go directly to the Supreme Court.
  • The legislation would authorize “monetary penalties” against the head of a government agency found by a court to have willfully failed to comply with any part of a congressional subpoena. Importantly, the legislation would prohibit the use of any government funds to pay the penalty, presumably leaving the government official personally on the hook.
  • In a change that has significant implications for companies and individuals that receive congressional subpoenas, the legislation would provide that privileges against responding to a subpoena may be waived if a recipient does not specifically assert the privilege in a detailed privilege log provided to Congress.
  • The legislation also prescribes – with extreme precision – the information that a subpoena recipient must include in a privilege log. The bill would require, for each record withheld, the following:
    • “An express assertion and description of the legal basis asserted for withholding the record.”
    • The type and general subject matter of the record, and the date, author, addressee, and custodian of the record.
    • “The relationship of the author and addressee to each other.”
    • “Any other descriptive information that may be produced or disclosed regarding the record that will enable the congressional committee or subcommittee issuing the subpoena to assess the legal basis asserted for withholding the record.”
  • The legislation would require that subpoena respondents submit electronic information to Congress in the native electronic format.
  • Finally, the legislation reiterates Congress’s longstanding position that it is not bound by common law privileges, including the attorney-client privilege. The bill states that the legislation may not be interpreted “to establish Congress’ acceptance of any asserted privilege or other legal basis for noncompliance with a congressional subpoena.”

Recent disputes between Congress and subpoena recipients – including the Fast and Furious investigation in the Obama Administration and the Senate’s investigation of Backpage – would likely have evolved very differently under the procedures proposed in this legislation.  Indeed, the privilege log requirement may be a direct reaction to issues Congress confronted with Backpage.

Although the legislation was sponsored entirely by Republican Members of Congress, it passed the Judiciary Committee unanimously, and it passed the House under suspension of the rules, which requires a two-thirds supermajority.  Although congressional subpoenas are often the subject of partisan conflict, the wide support for this legislation likely reflects the parties’ shared institutional interests in seeing subpoenas enforced.

The long saga of the legal challenge by Carl Ferrer, CEO of Backpage, to a subpoena issued by the Senate’s Permanent Subcommittee on Investigations (“PSI”) appears to have reached a conclusion.  A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit this week dismissed the case as moot and additionally vacated a series of prior rulings by the district court in the case.  The D.C. Circuit’s ruling effectively wipes the slate clean, erasing a district court action that seemed to open the door to a rare adjudication of Congress’s ability to compel the production of documents covered by the attorney-client privilege, while possibly making it significantly more difficult for individuals and companies to assert the privilege before Congress.

Although it may come as a surprise to many observers, including experienced litigation attorneys, both the Senate and House maintain that they are not required to respect the attorney-client privilege or the related attorney work product doctrine.  Congressional lawyers contend that such privileges are judicial, common law privileges that do not bind legislatures.  Congress’s position is rooted in the Constitution’s separation of powers and the inherent legislative authority to conduct investigations.

Congressional investigators often use this dynamic as a source of leverage over corporations and others from whom they seek to obtain documents or testimony.  Although it is relatively rare for a committee actually to compel production of privileged documents, it does happen.  For example, Congress did so in a high profile case involving Bank of America some years ago.  Over the years, Congress, corporations, and the courts have managed to steer clear of opportunities to test Congress’s position that it need not respect the attorney-client privilege, and there has never been a definitive court ruling on the topic, even though Congress has staked out this position for more than a century.

In Ferrer’s case, the company withheld attorney-client privileged documents, as well as other documents, but PSI contended that the company had not explicitly asserted the attorney-client privilege until relatively late in the process.  The district court agreed and held that Backpage had waived its ability to object based on the attorney-client privilege, and it ordered the company to produce documents.  PSI’s arguments, however, opened potentially dangerous ground for Congress.  In finding that Ferrer had waived the privilege, the court’s ruling seemed to suggest that such a privilege existed before Congress.  After all, how could Ferrer have waived something that did not exist?

During the weeks and months that the litigation and appeal developed, PSI completed its investigation, issued a final report, and held its final hearing in January 2017.  In the D.C. Circuit, PSI informed the court that it would not certify its continued interest in enforcing the subpoena, which was required in this instance because a new Congress convened in January, and it advanced the mootness argument, perhaps in recognition of the risk associated with an appellate ruling on the attorney-client privilege before Congress.  Although Ferrer, with the support of various amici, continued to press the appeal, the Court determined that the case was moot because PSI no longer was seeking to compel production of documents.  The Court then went one step further and actually vacated the decisions of the district court below, so that the lower court’s decisions will not have precedential value in future cases involving congressional investigations.

This outcome essentially restores the status quo ante, in which congressional investigation committees and those under investigation will bargain around Congress’s position on the attorney-client privilege without any real guidance from a controlling court decision.  Given the dramatic impact that would have been felt if the Backpage case had led to a ruling on the applicability of attorney-client privilege in congressional investigations, it is not altogether surprising that PSI in the end sought to avert a ruling by the court on the issue, and that the D.C. Circuit was very willing to oblige.

Republican leaders in Congress plan to take the initial steps towards repealing and replacing Obamacare this week, hoping to deliver on the campaign promises made by most Republicans over the past six years and by President-elect Trump during the 2016 election cycle.

Both chambers are expected to begin their consideration of the Fiscal Year (FY) 2017 budget resolution, the legislative vehicle that will provide for the repeal of Obamacare.  Adoption of a budget is a necessary precondition to a reconciliation bill, which Republicans plan to use as the vehicle to repeal Obamacare.  Reconciliation instructions in the budget resolution would direct congressional committees to develop legislation that would repeal a number of spending authorizations, taxes, and programs established through the health care law.   This repeal legislation can then move through a fast-track process and can pass the Senate with only a simple majority, rather than the traditional 60-vote threshold because the bill is not subject to a filibuster.  Republican leaders are proceeding with the intent of sending legislation to President-elect Trump for signature upon his inauguration.  Moving to repeal President Obama’s signature legislative achievement with no replacement legislation ready is causing some Republicans to express reservations about the speed with which Congress is moving.  Whether these members are able to slow the train will become a focus in the coming weeks.

The Senate is expected to begin the week with votes on amendments to its version of the budget resolution, S. Con. Res. 3.  A successful procedural vote last week initiated 50 hours of debate on the measure.  The debate time is set to expire on Wednesday, after which the chamber will begin an extended sequence of back-to-back votes on the amendments.  The first vote is scheduled for Monday evening, on an amendment offered by Senator Rand Paul (R-KY) that would revise the underlying resolution in order to balance the budget by 2024 while still providing for the repeal of Obamacare.  A second vote is scheduled for Tuesday afternoon on an amendment offered by former Democratic presidential candidate Senator Bernie Sanders (I-VT) that would prevent the Senate from taking up any legislation that would cut Social Security, Medicare, and Medicaid benefits.  It is unclear at this point how many Senate amendments will receive a vote during the course of debate.  Senate Democrats have filed upwards of 20 amendments as of this writing.  Many of these propose to keep the Senate from considering any reconciliation legislation that would repeal insurance mandates, or, much like the Sanders amendment, would reduce Medicare, Medicaid, or Social Security benefits, or roll back funding for disease prevention efforts, reduce healthcare tax credits, or other vulnerable provisions of the Patient Protection and Affordable Care Act.  Consideration of amendments and final passage of the budget resolution are expected to take up the majority of the Senate floor schedule this week.

Compounding the busy floor activity in the Senate is a busy hearing schedule with several committees beginning their official “advice and consent” role on the cabinet nominations of the President-elect.  There are nine nomination hearings on the calendar, scheduled to begin on Tuesday of this week.  Although several of the hearings may be contentious, the prospect for blocking any of the nominees is slight, given the Democrats’ decision in 2014 to eliminate the 60-vote threshold for executive branch nominees.

Senator Jeff Sessions (R-AL) will appear before his colleagues on the Judiciary Committee on Tuesday over his nomination to serve as Attorney General; the committee will hear from outside witnesses on Wednesday.  On Tuesday afternoon, the Homeland Security and Governmental Affairs Committee will hold its hearing on Gen. John Kelly, nominated to be Secretary of Homeland Security.  Rep. Mike Pompeo (R-KS) is scheduled to testify before the Intelligence Committee on Wednesday regarding his nomination to serve as Director of the Central Intelligence Agency.  Also on Wednesday, Elaine Chao, former Secretary of Labor under President George W. Bush (and the wife of Senate Majority Leader Mitch McConnell), will appear before the Committee on Commerce, Science and Transportation on her nomination to serve as the Secretary of Transportation.  Betsy DeVos is scheduled to testify before the Health, Education, Labor & Pensions Committee regarding her qualifications to serve as Secretary of Education.  The Foreign Relations Committee will also meet on Wednesday on the nomination of Rex Tillerson to serve as Secretary of State.  On Thursday, Dr. Ben Carson will testify before the Committee on Banking, Housing, and Urban Affairs on his nomination to be Secretary of Housing and Urban Development, and Wilbur Ross will appear before the Committee on Commerce, Science, and Transportation on his qualifications to serve as Secretary of Commerce.  Also scheduled on Thursday is an appearance by Gen. James Mattis before the Armed Services Committee regarding his nomination to serve as Secretary of Defense.

Besides the nomination hearings, National Intelligence Director James Clapper, FBI Director James Comey, Adm. Michael Rogers, Commander of US Cyber Command, and CIA Director John Brennan are scheduled to testify before the Intelligence Committee on Tuesday regarding Russian intelligence activities.  This appearance follows their testimony before the Senate Armed Services Committee last week and the release of a declassified intelligence report on Friday which concluded Vladimir Putin had a direct role in Russia’s cyber hacking during the 2016 election cycle.

Across the Capitol, the House is scheduled to convene on Monday when it plans to take up five bills under suspension of the rules, four within the jurisdiction of the Energy and Commerce Committee and one within the jurisdiction of the Science, Space, and Technology Committee.  These are bills the House passed in the previous Congress.

On Tuesday, members will take up an additional nine bills, which had passed the chamber in the prior Congress, under suspension of the rules.  The House will then begin consideration, under a rule, of several bills related to regulatory reforms.  The first of these is H.R. 79, the Helping Angels Lead Our Startups (HALOS) Act, introduced by Small Business Committee Chairman Steve Chabot (R-OH).  This bill would require the Securities and Exchange Commission to revise its general solicitation regulations to provide carveouts for certain activities related to startup investment and financing pitches.  This legislation passed the House in 2016.

During the remainder of the week, the House will take up three additional regulatory reform bills, each subject to a rule.  H.R. 5, the Regulatory Accountability Act of 2017, introduced by Judiciary Committee Chairman Bob Goodlatte (R-VA), is a package of six regulatory reform bills that passed the House during the 114th Congress.  Largely aimed at preventing the development of new federal regulations, the legislation would require federal agencies to provide greater justification for any proposed regulations and to choose the lowest-cost rulemaking alternative to meets statutory objectives.  Also among the provisions are a repeal of the Chevron and Auer doctrines that would end judicial deference to an agency’s interpretation of governing statutes and an agency’s interpretation of its own regulations. The bill would also prevent new rules with billion-dollar annual costs from taking effect until courts can resolve litigation challenging their promulgation.

Additionally, members will consider H.R. 78, the SEC Regulatory Accountability Act, legislation that would specify new requirements for the Securities and Exchange Commission to meet when developing or amending regulations.  Action is also expected on H.R. 238, the Commodity End-User Relief Act, a reauthorization of the Commodity Futures Trading Commission (CFTC), an independent agency charged with regulating futures and options markets related to commodities, through 2021.  The bill also proposes some controversial changes that would limit the agency’s ability to impose Dodd-Frank Act derivatives rules and requires the CFTC to analyze the costs and benefits of all new rules.  During House consideration of this bill last year, President Obama issued a veto threat over the legislation.

Finally, the House may also begin its consideration of an FY 2017 budget resolution this week.

Because the House of Representatives is still finalizing committee assignments for the 115th Congress, there are currently no official hearings scheduled in the chamber this week.  The full schedule of events for the Senate this week is included  below:

Tuesday, January 10, 2017

Senate Committees

Civilian Control of the Armed Forces
Senate Armed Services
Full Committee Hearing
9:30 a.m., SH-216’s Knowing Facilitation of Online Sex Trafficking
Senate Homeland Security and Governmental Affairs
Full Committee Hearing
10 a.m., SD-342

Attorney General Nomination
Senate Judiciary
Full Committee Hearing
9:30 a.m., SR-325

Russian Intelligence Activities
Senate Select Intelligence
Full Committee Hearing
1 p.m., SD-106

Intelligence Matters
Senate Select Intelligence
Full Committee Hearing (CLOSED)
2:30 p.m.

Wednesday, January 11, 2017

Senate Committees

Secretary of Transportation Nomination
Senate Commerce, Science and Transportation
Full Committee Hearing
10:15 a.m., SR-253

Secretary of State Nomination
Senate Foreign Relations
Full Committee Hearing
9:15 a.m., SD-106

Education Secretary Nomination
Senate Health, Education, Labor and Pensions
Full Committee Hearing
10 a.m., SD-430

Attorney General Nomination
Senate Judiciary
Full Committee Hearing
9:30 a.m., SR-325

CIA Director Nomination
Senate Select Intelligence
Full Committee Hearing
10 a.m., SH-216

Secretary of Homeland Security Nomination
Senate Homeland Security and Governmental Affairs
Full Committee Hearing
2 p.m., SD-342

Intelligence Briefing
Senate Select Intelligence
Full Committee Briefing (CLOSED)
1 p.m., SH-219

Thursday, January 12, 2017

Senate Committees

Secretary of Defense Nomination
Senate Armed Services
Full Committee Hearing
9:30 a.m., SD-G-50

Secretary of Housing and Urban Development Nomination
Senate Banking, Housing and Urban Affairs
Full Committee Hearing
10 a.m., SD-538

Secretary of Commerce Nomination
Senate Commerce, Science and Transportation
Full Committee Hearing
10 a.m., SR-253

Providing an Exception to the Defense Secretary Seven Years Rule
Senate Armed Services
Full Committee Business Meeting

The Supreme Court today refused to block a subpoena by the Senate Permanent Subcommittee on Investigations of the online forum Backpage and its CEO Carl Ferrer. As we previously reported, Ferrer lost at the District Court in his effort to block the Senate subpoena, arguing primarily that the subpoena abridged his First Amendment rights.  Ferrer appealed the District Court’s decision to the Court of Appeals.  Since losing at the District Court, Ferrer has been fighting a parallel battle to delay the enforcement of the subpoena while the appeal is pending.

Ferrer sought a stay of the subpoena from the District Court and lost; sought a stay from the D.C. Circuit Court of Appeals and lost; and finally sought a stay from the Supreme Court. The Supreme Court delayed the enforcement of the subpoena briefly last week to permit both sides to submit briefs, but today’s action lifts that reprieve.  Ferrer will now face a short deadline with which to comply with the Senate’s demand for documents.

Ferrer had previously contended that his case met the legal standard for a stay pending the outcome of the appeal, arguing that he was likely to prevail in the appeal. Ferrer has now lost in all three courts on that question, and he will shortly be required to deliver to the Senate the documents he had long sought to protect. We wonder whether these developments will alter his approach to the appeal, as he would now be advancing the appeal primarily as a matter of principle.  The briefs in the appeal are due next month.

In our previous post, we noted that the case could have significant implications for the law related to congressional investigations and the enforceability of congressional subpoenas. At this juncture, the case serves primarily as a cautionary tale of the difficulties inherent in challenging a congressional subpoena.  Ferrer had to defy the subpoena and endure a congressional contempt resolution merely to get into court, and under today’s order from the Supreme Court, he now must produce the documents to the Senate even before his legal arguments are heard by the Court of Appeals.

It will be a busy week on Capitol Hill with the House returning from its one-week district work period and the Senate aiming to adjourn for its spring recess at the end of the week.

The Senate is scheduled to return to legislative business on Monday afternoon, with a vote expected at 5:30 p.m. on the nomination of Dr. John B. King, Jr. to serve as Secretary of Education.

The Senate floor agenda for the remainder of the week is unclear, although there are several potential bills the Majority Leader could seek to consider. The Senate may return to consideration of S. 2012, comprehensive energy legislation previously stalled by an amendment to provide emergency funding assistance to Flint, Michigan to assist with decontamination of the community’s drinking water system. Senator Jim Inhofe (R-OK), Chairman of the Senate Environment and Public Works Committee, and Michigan Senators Debbie Stabenow and Gary Peters filed stand-alone legislation to provide federal assistance to address water infrastructure issues, including the Flint situation, and have been working with Senate leadership to negotiate a path forward.

Unfortunately, the deal being negotiated to bring both the energy and water-infrastructure bills to the Senate floor now appears to be held up by an amendment regarding offshore drilling. Senator Bill Nelson (D-FL) has placed a hold on the energy bill over an amendment proposed by Senator Bill Cassidy (R-LA) that would increase revenue sharing for states that allow offshore drilling for oil and gas in the Gulf of Mexico. While drilling authority is under the control of the federal government, a spokesperson for Senator Nelson said the financial incentive generated by the amendment would create “such immense pressure to continuously open up new areas to offshore drilling that it’d only be a matter of time before they’d start looking to open up areas off Florida’s coast.” Even though the energy bill managers and Senate leadership had hoped to wrap up the bill before the Senate adjourns at the end of this week for its spring recess, consideration will be stalled until the hold is resolved.

As negotiations continue on the bipartisan energy and water-infrastructure bills, the Senate may move to consider S. 2609, a food labeling bill sponsored by Senate Agriculture Committee Chairman Pat Roberts (R-KS). The legislation would prevent individual states from instituting labeling requirements for genetically modified foods and instead require that the Department of Agriculture set up a national voluntary standard of labeling for foods with genetically modified ingredients. So far Vermont is the only state set to require the labeling of genetically modified foods, although Connecticut and Maine have passed similar legislation that will only go into effect if neighboring states pass legislation. More than two dozen other state legislatures have introduced food labeling legislation in recent years. Proponents of the bill argue that a patchwork of state labeling laws produces an inconsistent national regulatory regime, allowing a handful of states effectively to set national policy, and adds expensive compliance costs which food companies will pass on to consumers, raising everyone’s food costs nationally. Opponents of S. 2609 believe that consumers have a right to know what is in their food. The House has already passed its own version of food-labeling legislation to prevent states from enacting labeling laws.

Another potential item for Senate consideration is S. Res. 377, a resolution to hold and its CEO Carl Ferrer in civil contempt for refusing to comply with a subpoena issued by the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations. During the Subcommittee’s investigation of underage sex trafficking last year, a subpoena was issued to Mr. Ferrer requiring him to testify before a hearing and for, a classified advertising website, to provide relevant documents. The website refused to comply and Mr. Ferrer refused to attend the hearing, submit testimony, or answer questions. S. Res. 377 would authorize the Senate Legal Counsel to enforce the subpoena and conduct civil contempt proceedings.

Another item that may see Senate action this week is a measure to extend authorization and appropriations for the Federal Aviation Administration (FAA). The current authorization for FAA activity and funding is set to expire March 31. House Transportation and Infrastructure Committee Chairman Bill Shuster (R-PA) introduced the Aviation Innovation, Reform and Reauthorization Act in February. The legislation would reauthorize the Federal Aviation Administration and its funding until 2022, but the bill contains several proposals that are highly controversial, including a provision to privatize the country’s air traffic control system.

Senate Commerce Committee Chairman John Thune (R-SD) unveiled a more modest proposal last Wednesday to reauthorize the FAA through September 30, 2017. The committee is scheduled to vote on its bill at a Wednesday markup, but a short-term extension will be necessary until both chambers can move legislation forward. A proposed short-term extension, H.R. 4721, the Airport and Airway Extension Act of 2016, introduced in the House last Thursday, will provide authorization of current FAA programs through July 15. The House is expected to pass the extension early this week in order to allow for Senate consideration before Senators adjourn for their recess at the end of the week. Continue Reading This Week in Congress – March 14, 2016