Since it looks as if there may be an impasse on the Senate Select Committee on Intelligence's access to White House documents, and the UK's Daily Telegraph is reporting that Senator Richard Durbin is threatening to invoke a committee rule allowing the Democrats to run a parallel inquiry, I thought I'd try to figure out whether this is possible under the Committee's Rules of Procedure.
Amazingly, the answer is more or less, 'Yes, this is possible.' Technically, though, it's not a parallel process — just a committee activity organized by interested Senators. Any five members can call a committee meeting even if the Chair doesn't want them to (Rule 1.5). There are eight Democrats on the committee — including John Edwards (hey, any reporters reading this? Can you ask Edwards whether he'd support Sen. Durban in an effort to hold an independent inquiry? Or do I have to wait until Edwards guests at Lessig's blog?) And, it only takes five members to initiate an investigation, which gets the staff up and running on the problem. (Rule 6).
More importantly, the Vice Chair — that's Sen. John D. Rockefeller IV (D-W.Va.) — has the power to issue a subpoena. (Rule 7)
The Committe does have the power, however, to amend its own rules. (Rule 14) Although it's split 8-8 between Democrats and Republicans, the Chair is a Republican, and I presume he'd have the tie-breaking vote. So if the Democrats really got going on this, the Republicans could stop it — if they could maintain party unity. (Senator Olympia Snowe is one of the committee Republicans.)
Here are the key paragraphs from the Rules of Procedure:
1.3. A special meeting of the Committee may be called at any time upon the written request of five or more members of the Committee filed with the Clerk of the Committee.
1.4. In the case of any meeting of the Committee, other than a regularly scheduled meeting, the Clerk of the Committee shall notify every member of the Committee of the time and place of the meeting and shall give reasonable notice which, except in extraordinary circumstances, shall be at least 24 hours in advance of any meeting held in Washington, D.C. and at least 48 hours in the case of any meeting held outside Washington, D.C.
1.5. If five members of the Committee have made a request in writing to the Chairman to call a meeting of the Committee, and the Chairman fails to call such a meeting within seven calendar days thereafter, including the day on which the written notice is submitted, these members may call a meeting by filing a written notice with the Clerk of the committee who shall promptly notify each member of the Committee in writing of the date and time of the meeting.
Rule 3. Subcommittees
Creation of subcommittees shall be by majority vote of the Committee. Subcommittees shall deal with such legislation and oversight of programs and policies as the Committee may direct. The subcommittees shall be governed by the Rules of the Committee and by such other rules they may adopt which are consistent with the Rules of the Committee.
Rule 4. Reporting of Measures or Recommendations
4.1. No measures or recommendations shall be reported, favorably or unfavorably, from the Committee unless a majority of the Committee is actually present and a majority concur.
4.2. In any case in which the Committee is unable to reach a unanimous decision, separate views or reports may be presented by any member or members of the Committee.
Rule 6. Investigations
No investigation shall be initiated by the Committee unless at least five members of the Committee have specifically requested the Chairman or the Vice Chairman to authorize such an investigation. Authorized investigations may be conducted by members of the Committee and/or designated Committee staff members.
Rule 7. Subpoenas
Subpoenas authorized by the Committee for the attendance of witnesses or the production of memoranda, documents, records or any other material may be issued by the Chairman, the Vice Chairman, …
rule 14. changes in rules
These Rules may be modified, amended, or repealed by the Committee, provided that a notice in writing of the proposed change has been given to each member at least 48 hours prior to the meeting at which action thereon is to be taken.