III. Judicially Imposed Limits

No other statute or rule restrains Members of Congress from communicating with agency decision-makers. However, certain federal court opinions discourage inordinate pressure on officials charged by law with responsibility for making administrative decisions. While such pressure may not violate any standard of conduct overseen by this Committee, Members should be aware that a court’s perception that a Member has overstepped may lead it to invalidate the very determination that the Member was seeking. Judicial reaction varies, depending on the degree of formality of the administrative proceeding, the goal of the congressional intervention, and the impact that the intervention had on the agency’s determination.

Senator Douglas pointed out with respect to proceedings conducted by administrative personnel that a legislator “should make it clear that the final decision is in their hands.”[16] Federal courts have nullified administrative decisions on grounds of due process and fairness towards all of the parties when congressional interference with ongoing administrative proceedings may have unduly influenced the outcome. In a seminal case, the court set aside a decision of the Federal Trade Commission because of aggressive questioning of agency officials by a Senate committee regarding their rationale for deciding an issue still pending before the officials in a formal setting.[17] The court’s concern had nothing to do with undisclosed communications; the questioning occurred during public hearings. Nonetheless, the court held that “common justice to a litigant requires that we invalidate the order entered by a quasi-judicial tribunal that was importuned by members of the U.S. Senate, however innocent they intended their conduct to be, to arrive at the ultimate conclusion which they did reach.”[18]

When congressional action is directed at less formal, non-adjudicatory administrative proceedings, courts are loathe to interject themselves between the legislative and the executive branches. As one court explained:

Americans rightly expect their elected representatives to voice their grievances and preferances concerning the administration of our laws. We believe it entirely proper for Congressional representatives vigorously to represent the interests of their constituents before administrative agencies engaged in informal, general policy rulemaking, so long as individual Congressmen do not frustrate the intent of Congress as a whole as expressed in statute, nor undermine applicable rules of procedure. Where Congressmen keep their comments focused on the substance of the proposed rule . . . administrative agencies are expected to balance Congressional pressure with the pressures emanating from all other sources. To hold otherwise would deprive the agencies of legitimate sources of information and call into question the validity of nearly every controversial rulemaking.[19]

The court focused here on “the intent of Congress . . . as expressed in statute.” In another case, a court set aside an administrative determination that appeared to have been influenced, at least in part, by “irrelevant or extraneous” political considerations.[20] There, a subcommittee chairman had stated that funding for unrelated aspects of the agency’s budget would be withheld until the department’s Secretary approved a particular project. The court emphasized that it was not finding that the Member had acted improperly, but it nonetheless remanded the case, directing the Secretary to “make new determinations based strictly on the merits and completely without regard to any considerations not made relevant by Congress in the applicable statutes.”[21]

Agency investigations occupy a middle ground between formal adjudications and informal rulemaking. An administrative decision in this context need not be completely immune from congressional pressure, provided that the agency has an independent basis for its conclusion. Thus, for example, one corporation tried to resist a Securities and Exchange Commission subpoena on the ground that it had resulted from political pressure instigated by a corporate competitor. The court ruled: “That the SEC commenced these proceedings as a result of the importunings of [a Senator and his constituent, the competitor], even with malice on their part, is not a sufficient basis to deny enforcement of the subpoena. [But t]he SEC order must be supported by an independent agency determination, not one dictated or pressured by external forces.”[22]

Courts have historically refused to intervene when Members attempted to expedite an administrative process rather than urging a particular outcome. In the words of one court, “where the Congressional involvement is directed not at the agency’s decision on the merits but at accelerating the disposition and enforcement of the pertinent regulations, it has been held that such legislative conduct does not affect the fairness of the agency’s proceedings and does not warrant setting aside its order.”[23]