17

This other question asks whether the House requires a vote to begin an impeachment inquiry, but several of the answers (including the accepted one) point out that the rules have changed since Clinton's impeachment, and thus a vote by the whole House is no longer required. However, I don't see a what or why for those rule changes.

Aside from the expiry of the position of Independent Counsel, what House rule(s) have changed to permit an inquiry-without-vote? When were they changed, and what reasons (if any) were cited for doing so at the time?

  • When was 1975. Why, not sure, probably frustration with investigation of Nixon administration. – Rick Smith Oct 11 at 16:39
  • Isn't it a committee-level decision? – jeffronicus Oct 11 at 16:47
  • What was House rule XI 2(m), page 19 Power to sit and act; subpoena power. – Rick Smith Oct 11 at 17:01
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    Perhaps without a vote is unclear. Do you intend a vote by the House or a vote by a committee? For the House, see The Impeachment Process in the House of Representatives, PDF p 7, The Rules of the House since 1975 have granted committees the power to subpoena ... previously granted through resolutions ... and footnote 17, House Rule XI, clause 2(m). – Rick Smith Oct 11 at 17:30
  • @RickSmith - Clarified that I'm referring to the full-House vote. Separately, If the rules haven't changed since 1975, that would be a reasonable frame-challenging answer. But I've seen that mentioned in several places, so you'd need to address that. – Bobson Oct 11 at 18:00
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As the answers in Does the US require a House vote to begin an impeachment inquiry? point out, House rules never required a vote to start an impeachment inquiry. In both previous impeachments, however, the House did pass an inquiry resolution in order to give themselves additional subpoena power in order to better carry out the inquiry.

This is not necessary now, however, as House rules already give the majority unilateral subpoena power. CNN states that this actually dates from rule changes made by the previous Republican controlled House:

In addition, Pelosi doesn't need the House vote authorizing an inquiry because her caucus already has extra legal authority compared to past inquiries.

During the Clinton and Nixon impeachment inquiries, the House passed their inquiry resolutions so they could gain tools like more subpoena power and depositions, and included in those resolutions were nods to bipartisanship that gave the minority party subpoena power, too.

But the House rules have changed since the last impeachment of a president more than two decades ago. In this Congress, the House majority already has unilateral subpoena power, a rule change that was made when Republicans last controlled the House, so Democrats don't need to pass any resolution to grant those powers.

https://www.cnn.com/2019/10/08/politics/nancy-pelosi-letter-impeachment/index.html

An article on Lawfare provides more detail on the specific rule changes involved:

What Powers Does a Formal Impeachment Inquiry Give the House?

The impeachment proceedings against both Presidents Nixon and Clinton began with a vote by the full House of Representatives ... In both cases, the resolution granted several specific powers to the committee for it to use in the course of completing the investigation with which it was charged by the full House.

...

until recent years, unilateral subpoena power was relatively rare for House committee chairs. But between the 113th and 114th Congresses, the number of chairs given this power by their committees doubled—and the judiciary committee was among them. The judiciary committee chair retains this authority in the current Congress; its rules stipulate that “a subpoena may be authorized and issued by the Chairman … following consultation with the Ranking Minority Member.”

...

Under practices in place in 1974 and 1998, deposition power for committee staff was periodically authorized by the full House for the purpose of specific investigations. ... Since 1998, however, the rules of the House governing staff depositions have evolved to give committees access to the tool more regularly. In 2007, the House Committee on Oversight and Government Reform was given the ability to set its own rules “authorizing and regulating the taking of depositions by a member or counsel of the committee.”

...

In 2017, the rule permitting staff depositions was extended to cover almost all standing committees, and the member attendance requirement was modified such that it did not apply if the committee authorized the staff deposition to take place when the House was not in session. ... So the judiciary committee already has the power to conduct staff depositions and does not need a special grant of authority to do so.

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    Yes, but I think the actual question is WTF exactly is that rule change... (I was thinking of asking this too, but Bobson beat me to it.) – Fizz Oct 11 at 16:53
  • Nice find with the Lawfare article. Also, from there the White House has been raising the same [counter]argument since the Mueller inquiry. Their latest letter is not the first of this kind. There was a similar one on May 15 also signed by Cipollone. Also relevant the 2-1 DC appellate court decision: cnbc.com/2019/10/11/… – Fizz Oct 11 at 17:28
  • @Fizz Yeah, I've only stumbled upon them recently, but they've got a lot of really interesting analysis – divibisan Oct 11 at 17:33
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    @Fizz I suspect that it may have been a committee rule change, but I am not certain. The house granted subpoena power to committees in 1975 and modified it in 1977. The committee may delegate the subpoena power to the chairman under conditions that it may determine. I suspect that the committee rules determining the conditions are what changed. I'm writing this off the top of my head, though, based on some research I did yesterday and may not remember entirely correctly. – phoog Oct 11 at 18:41
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    @Bobson Pretty much. The House sets its own rules and in recent years they’ve chosen to extent their subpoena and deposition powers to more and more committees to the point where there’s really no need to grant extra powers in order to hold an impeachment inquiry. – divibisan Oct 13 at 0:34
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A tiny bit more detail from ABC:

The GOP minority does not have subpoena power, much to their chagrin, although Republicans changed the playbook in 2015 when they rewrote rules delegating subpoena power to individual chairmen without full approval from the House of Representatives.

Democrats reaffirmed that process earlier this year, adopting impeachment rules that includ[e] granting their chairmen the right to issue subpoenas unilaterally.

So I think that's the change that CNN is referring to. I haven't yet found the exact text of the decision, but we know its substance and year now.

And the exact rule in which this change is incorporated is

Rule XI, clause 2(m)(3) also allows committees to adopt rules to delegate the authorization and issuance of subpoenas to a committee’s chair “under such rules and under such limitations as the committee may prescribe.” This same subparagraph requires subpoenas to be signed by the chair or by a member who has been designated by the committee.

And the full text from Jefferson's Manual, 2017 edition (pp. 582-584):

Power to sit and act; subpoena power

(m)(1) For the purpose of carrying out any of its functions and duties under this rule and rule X (including any matters referred to it under clause 2 of rule XII), a committee or subcommittee is authorized (subject to subparagraph (3)(A))—

(A) to sit and act at such times and places within the United States, whether the House is in session, has recessed, or has adjourned, and to hold such hearings as it considers necessary; and

(B) to require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents as it considers necessary.

(2) The chair of the committee, or a member designated by the chair, may administer oaths to witnesses.

(3)(A)(i) Except as provided in subdivision (A)(ii), a subpoena may be authorized and issued by a committee or subcommittee under subparagraph (1)(B) in the conduct of an investigation or series of investigations or activities only when authorized by the committee or subcommittee, a majority being present. The power to authorize and issue subpoenas under subparagraph (1)(B) may be delegated to the chair of the committee under such rules and under such limitations as the committee may prescribe. Authorized subpoenas shall be signed by the chair of the committee or by a member designated by the committee.

(ii) In the case of a subcommittee of the Committee on Ethics, a subpoena may be authorized and issued only by an affirmative vote of a majority of its members.

(B) A subpoena duces tecum may specify terms of return other than at a meeting or hearing of the committee or subcommittee authorizing the subpoena.

(C) Compliance with a subpoena issued by a committee or subcommittee under subparagraph (1)(B) may be enforced only as authorized or directed by the House.

And the history of changes of that XI (m)(3) is also given in Jefferson's Manual, but I'm quoting only a part of it:

Before the adoption of clause 2(m) under the Committee Reform Amendments of 1974, effective January 3, 1975 (H. Res. 988, 93d Cong., Oct. 8, 1974, p. 34470), only the Committees on Appropriations, the Budget, Government Operations, Internal Security, and Standards of Official Conduct were permitted by the standing rules to perform the functions as specified in subparagraphs (1)(A) and (1)(B), and other standing and select committees were given those authorities by separate resolutions reported from the Committee on Rules each Congress. In the 94th Congress the paragraph was amended to require authorized subpoenas to be signed by the chair of the full committee or any member designated by the committee (H. Res. 5, Jan. 14, 1975, p. 20). In the 95th Congress the paragraph was amended to permit a subcommittee, as well as a full committee, to authorize subpoenas and to allow a full committee to delegate such authority to the chair of the full committee (H. Res. 5, Jan. 4, 1977, pp. 53–70). The special rule for authorizing and issuing a subpoena of a subcommittee of the Committee on Ethics (formerly Standards of Official Conduct) was adopted in the 105th Congress (sec. 15, H. Res. 168, Sept. 18, 1997, p. 19319). In the 106th Congress subparagraph (3)(B) was added, and clerical and stylistic changes were effected when the House recodified its rules in the same Congress (H. Res. 5, Jan. 6, 1999, p. 47). A clerical correction was effected to paragraph (m)(1) in the 107th Congress to correct a cross reference (sec. 2(x), H. Res. 5, Jan. 3, 2001, p. 26). Gender-based references were eliminated in the 111th Congress (sec. 2(l), H. Res. 5, Jan. 6, 2009, p. 7). This paragraph was amended in the 112th Congress to reflect a change in committee name (sec. 2(e)(8), H. Res. 5, Jan. 5, 2011, p. 80).

A subpoena issued under this clause need only be signed by the chair of the committee or by any member designated by the committee, whereas when the House issues an order or warrant the Speaker must under clause 4 of rule I issue the summons under the Speaker’s hand and seal, and it must be attested by the Clerk pursuant to clause 2(d) of rule II (formerly clause 3 of rule III) (III, 1668; see H. Rept. 96–1078, p. 22). A statute empowers the chair of the Committee of the Whole, the Speaker, chairs of joint, select, or standing committees, and Members to administer oaths to witnesses (2 U.S.C. 191; III, 1769).

There's another (pretty long) paragraph on the history of clause (ii) that governs subpoenas issued by the Committee on Ethics, but since that's not involved in the impeachment (as far as I can tell, that committee apparently deals with malfeasances of Congress members) I'm not quoting it here.

So the rules which allow the committees (except Ethics) to make their own rules for subpoenas are actually not that new. It's not clear to me where the committee-specific rules are recorded. It is possible that ABC is correct and whatever committees were involved in the Obama inquiries changed their committee-specific rules to take full advantage of XI (m)(3) in 2015, but I'm not sure how to check that in official records.

There is however a 2015 Politico article on that:

Democratic lawmakers are harshly criticizing House Republicans for altering committee rules governing how chairmen can subpoena witnesses and documents.

In a letter shared with POLITICO, the Democrats slams the GOP conference for changing rules on a number of House committees to make it easier for Republicans to subpoena witnesses without consultation or approval from minority lawmakers - an effort that came as Republicans are preparing aggressive oversight efforts for President Barack Obama’s final two years in office.

Sixteen Democrats, all ranking members of House committees, accused Republicans of attempting to create Darrell Issa-like committee structures, referring to the former Oversight and Government Reform chairman who was criticized by Democrats for his dogged probes into the White House.

“For decades, responsible committee chairmen—both Democratic and Republican—recognized that the coercive power of subpoenas should be used only as a last resort, and they obtained the concurrence of the ranking member or called a committee vote before issuing subpoenas,” the lawmakers wrote on Tuesday.

[...]

In January, Republicans moved to give a number of key committees, including the Energy and Commerce Committee, the Judiciary Committee and the Financial Services Committee new subpoena powers. A handful of other committees also considered changing their governing rules.

For a number of panels, rule change would eliminate long-standing requirements that the chairmen either consult or get consent from the minority party before issuing subpoenas for testimony and documents or hold a majority vote. The committees who saw rule changes include panels with oversight into controversial Obama policies like the Dodd-Frank financial regulations law, immigration and Obamacare.

This year House Republicans are changing the rules to give some chairmen unfettered authority to issue subpoenas unilaterally, adopting an abusive model embraced only by Senator Joe McCarthy, former Rep. Dan Burton, and Rep. Darrell Issa,” the lawmakers wrote. “To their credit, some well-functioning committees, such as the Committees on Appropriations, Armed Services, Intelligence, and Veterans Affairs, did not expand subpoena power for their chairmen.”

At the time, Republican defended the rule change as necessary to effectively investigate the Obama administration.

So yeah, those 2015 changes were committee-specific rule changes apparently made by the committees themselves, changes which were permissible under the standing House rules. Interestingly, that article says that the Intelligence committee did not change its rules at the time. I'm guessing they've done that after 2015.

A subsequent 2018 article in Politico notes:

Democrats eager to investigate the Trump administration if they seize the House would have the GOP to thank for one of their most potent tools — a sweeping subpoena authority that Democratic lawmakers denounced as an abusive power grab three years ago.

House Republicans changed the rules in 2015 to allow many of their committee chairmen to issue subpoenas without consulting the minority party, overriding Democrats objections that likened the tactic to something out of the McCarthy era.

Now the weapon that the GOP wielded dozens of times against President Barack Obama’s agencies could allow Democrats to bombard President Donald Trump’s most controversial appointees with demands for information. And many Democrats are itching to use it.

“The Republicans have set the standard and, by God, we’re going to emulate that standard,” Rep. Gerry Connolly (D-Va.) told POLITICO.

Before the 2015 rule change, most House subpoenas needed at least some bipartisan cover, requiring a majority vote of committee members and consultation with a panel’s ranking member. The change erased those requirements and allowed the chairmen to proceed unilaterally, although the exact rules vary by committee.

Of the 21 standing committees in the House, 14 allow their chairmen to issue subpoenas on their own initiative, according to the Congressional Research Service.

And in that 2018 CRS document, the Intelligence committee (last row) is also listed as capable of sending subpoenas on the chair's initiative, but it also has a check for the ranking minority member being consulted. Notably however, no committee has a requirement (anymore) for the ranking minority member to concur.

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    Politico has a nice article on the pros and cons a full floor vote (pros and cons which are entirely political), but that's besides the point here. – Fizz Oct 11 at 17:20
4

[W]hat House rule(s) have changed to permit an inquiry-without-vote?

Rules X and XI.

Must the House Vote to Authorize an Impeachment Inquiry?, October 9, 2019:

The House has changed its internal procedures dramatically over time. At one point, the House did not rely on standing committees but instead created select committees to handle many legislative tasks. Through much of its history, the House has limited the investigatory powers of its standing committees and required that those committees go to the floor to receive special authorization to issue subpoenas or spend substantial resources on staff.

Because there is no longer a need to go to the floor, there is no need for a vote to conduct investigations (inquiries). Such votes, prior to the change, would have gone to the Committee on Rules (see below) to establish select or special committees.

When were they changed[?]

October 8, 1974, to be effective January 3, 1975. [Later changes were not researched.]

[W]hat reasons (if any) were cited for doing so at the time?

To reform the structure, jurisdiction, and procedures of the committees of the House of Representatives. The Congressional Record (see below) was not instructive.


Basic information

H.Res.988 — 93rd Congress (1973-1974)

Sponsor: Rep. Bolling, Richard [D-MO-5]

03/19/1974: Introduced in House

10/08/1974: Passed/agreed to in House: Measure passed House, amended, roll call #589 (359-7)

Official Title as Introduced: Resolution to reform the structure, jurisdiction, and procedures of the committees of the House of Representatives by amending rules X and XI of the Rules of the House of Representatives.

Summary: ... Revises Rule XI of the Rules of the House of Representatives with regard to the rules of procedure for committees, including those rules related to regular meeting days, committee records, proxies, investigative hearings, and reporting of bills and resolutions. ... [Only the most relevant item shown.]


Committee on Rules

Jurisdictional Commentary From the House Rules and Jefferson Manual The Committee on Rules

The jurisdiction of this Committee is primarily over propositions to make or change the rules ..., for the creation of committees ..., and directing them to make investigations ... . Effective January 3, 1975, however, the authority for all committees to conduct investigations and studies was made a part of the standing rules (clause 1(b) of rule XI), as was the authority for all committees to sit and act whether the House is in session or has adjourned, and authority to issue subpoenas (clause 2(m) of rule XI) (H. Res. 988, 93d Cong., Oct. 8, 1974, p. 34470).


Congressional Record

Congressional Record -- House October 8, 1974, pp 34407-34470. [This includes an address by President Ford to a joint session of Congress. pp 34421-34424]

A cursory reading of the text shows that, for the most part, the representatives wanted to submit amendments to the amendment to either enhance or protect their committees. In other words, there is little in the discussion to reveal a purpose for the changes, other than the Official Title given above.

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