DENNIS MYERS Against the Grain Advertisement

There is a bill making its way through Congress that is intended to give the District of Columbia a voting member of the U.S. House of Representatives.

Up to now, the District has had a delegate, a non-voting member of a type also assigned to the Virgin Islands and Guam, American Samoa and the Northern Mariana Islands.

There is a debate over whether Congress, acting on its own, can extend congressional representation to non-states. Some say that article 1, section 2 of the U.S. Constitution limits House representatives to states. Others say article 1, section 8, clause 17 gives Congress authority over the District, and that includes representation.

Last week something peculiar about the debate came to light. The Washington Post reported that the Justice Department's Office of Legal Counsel, after spending time to research the issue, rendered a formal opinion that argued the proposed legislation is unconstitutional. Then President Obama's attorney general, Eric Holder (who heads the Justice Department), stepped in and apparently stopped release of the OLC's opinion. He then "ordered up a second opinion" from lawyers in the solicitor general's office and they claimed that the legislation" IS constitutional.

This kind of thing is more common than might be expected. At one of my first sessions of the Nevada Legislature, the legislature's lawyer was asked to render an opinion on whether Nevada lieutenant governors, while presiding over the state senate, can vote to break ties. The issue was particularly important at the time because of the issue of the Equal Rights Amendment (ERA) in the Nevada Senate. Legislative Counsel Perry Burnett issued an opinion saying yes, that the lieutenant governor can break ties on any measures in the senate.

That was at the 1975 Nevada legislative session. After that session ended Burnett was fired by senators who opposed ERA and Frank Daykin was hired to replace him. Sen. James Gibson, an ERA opponent, then asked Daykin for a new opinion. You will be shocked -- SHOCKED! -- to learn that Daykin found the lieutenant governor could NOT break ties in the senate except on inconsequential matters.

Years later, the Attorney General of Nevada read both the Daykin and Burnett opinions and overruled Daykin.

There are those who might think that it doesn't matter, that these are only OPINIONS, after all. But this use of the word "opinion" is not the same as the popular use. It's like the difference in the use of the term "theory" by the public and by scientists. Legal opinions can have legal effect and force public officials to take or not take actions.

When these kinds of incidents happen, of officials shopping around for legal opinions that support their views, it can undercut the credibility of public counsel generally by making it appear that legal opinions are being produced for political reasons.

After it broke the story of the competing opinions by the Office of Legal Counsel and the Solicitor General's Office last week, the Washington Post editorialized, "When presented with the OLC's negative view of the bill, Mr. Holder took the highly unusual step of seeking the views of his solicitor general's office, which is tasked with a very different mission than that of the OLC. ... The attorney general is the ultimate decision maker at the Justice Department and as such is entitled to overrule opinions from the OLC. But such rejections should be based on well-thought-out differences of legal opinion and not on political preferences. Unfortunately, Mr. Holder's highly unusual solicitation of the solicitor general's office raises questions about what drove his actions. To dispel any concerns, Mr. Holder should order the release of all memos from the two offices on this subject and make his own views public as well." (That has not been done.)

Charles Springer, a former Nevada attorney general himself, once told me that there is an invisible rubber stamp on every legal opinion by public counsel. The stamp reads, "We aim to please."