Our final guest on the first season of Why Public Service? is Michael Stern, who served as Senior Counsel to the U.S. House of Representatives, as well to a handful of committees. during his time on Capitol Hill. Today he runs pointoforder.com, dissecting complex legal issues involving Congress, as well as acts as a policy adviser. In this episode, he talks about his path from law school to Congress, and why he chose public service over private practice.

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Transcript:

Kevin Kosar:

Welcome to Why Public Service?, a podcast of the R Street Institute, a free-market think tank in Washington, DC. I’m your host, Kevin Kosar. In each episode, I speak with an individual who made the choice to participate in governing our nation. Some of my guests have worked for the government. Others have toiled in various private sector organizations, including think tanks, philanthropies, and political groups. All of them share the same goal, however, which is to improve our country through public service.

Kevin Kosar:

Today’s guest is Michael Stern, the creator of pointoforder.com, a site that explains and assesses complex legal issues involving Congress. Mike is a man who wears many hats. Presently, he is a policy adviser to the 501(c)(3) group, Good Government Now, and he serves on the board of the Committee for a Fiscal Responsibility Amendment. Mike also is a founding member of the Balanced Budget Amendment Task Force and sits on the Virginia Freedom of Information Advisory Council. Previously, he served as a senior counsel in the United States House of Representatives. You can learn more about Mike by visiting his site, pointoforder.com. Mike, welcome to the Why Public Service podcast.

Michael Stern:

Thank you, Kevin. Thanks very much for having me.

Kevin Kosar:

Now as our listeners have heard, you’ve held many positions in public service. For today’s episode, I want to speak with you about your experience as a Senior Counsel to the US House of Representatives, a job that few Americans know much about. So my first question for you is how did you end up employed as a senior counsel? What was the career path?

Michael Stern:

I went to law school at the University of Chicago, and after law school, I clerked for a year on the circuit. And then I went back to DC, which is where I was from and worked for a law firm for a number of years. I always intended to go into the government in some capacity, so my plan was to work at a private firm for a while.

Michael Stern:

And then it just got to a point where I was ready to move on, and a good friend of mine at the firm, who later became a federal judge, had contact with the woman who was going to be the incoming General Counsel of the House. And she said to me, “I think this would be a good fit for you. I think it’s something you’d be interested in. You should talk to her.”

Michael Stern:

So I did, and like most Americans, I had never heard about the House General Counsel’s office. But when I found out about it, it seemed like a really good fit because it was kind of like a private law firm for Congress. It’s basically a general service law firm that handles all of the legal issues of the House.

Kevin Kosar:

And that leads very nicely into my next question. What were your responsibilities as a senior counsel? When we hear the word, counsel, it applies a counsel to a client or to someone. Who is the client?

Michael Stern:

So the House counsel is charged with providing representation and legal assistance to all members, officers, and employees of the House in their official capacity, which means that we did not represent members who say had an ethics problem with the Ethics Committee or members or staff who were under criminal investigation, but we did give them legal advice and representation in their official capacity.

Michael Stern:

So, for example, if a member got sued for something arising out of their employment, that is something that we would represent them. When they received subpoenas and things like that, we would represent them. And then also we provide legal advice to all of the offices of the House on things ranging from tort claims or automobile accidents all the way up to major constitutional issues. And so a lot of our practice involve dealing with sort of routine administrative matters, and we also, of course, represent them in litigation, which was the major part of our work.

Kevin Kosar:

Thinking back over the time spent there, were there any particular cases or types of situations that surprised you? They just weren’t the sort of work that you thought you would end up having to do.

Michael Stern:

Sure. So the one that immediately leaps to mind was I mentioned that we were not personally representing members of Congress when they had criminal investigations. But to everything, there’s a bit of an exception, and we had some unique members. And one that I had the opportunity to spend a lot of time with was a gentleman named Jim Traficant, who is a representative from Ohio, was quite a character.

Michael Stern:

Before he came to Congress, he had been charged with bribery when he was a state official, and had won his case. His qualifications for Congress included the fact that he had beat the feds in his first prosecution. So he came to Congress and, lo and behold, the fed started to investigate him again. So despite our best efforts to persuade him to get… He really needed to get his own counsel to deal with this criminal investigation. He refused to do so.

Michael Stern:

As a consequence, we sort of had to step in to protect the interests of the House without becoming his personal lawyer and try to constantly explain to him that we were not doing that. But, nonetheless, we tried to give him some guidance on how he should proceed, things like asserting speech or debate, which is really not something he knew or cared anything about. So that was a very interesting experience trying to protect the interests of the House with the US Attorney’s office on the one hand and Mr. Traficant yelling at me constantly on the other.

Kevin Kosar:

Yes, Representative Traficant was famously unruly right up to the hair atop his head.

Michael Stern:

He certainly was.

Kevin Kosar:

In your experience as House counsel and in your subsequent house experience, what lessons did you learn about governance?

Michael Stern:

I’ll focus mostly on my experience in the House counsel’s office. One of them is the difficulty that I experienced or we experienced in trying to get members to think about the interests of the institution versus the interests of their immediate political problem, whatever it might be. Whether it’s the party or the administration asking them to do something that was in the administration’s interest, but not necessarily in the interest of the House, that was a challenging aspect of being in the House counsel’s office, and to some extent, also other Hill jobs.

Michael Stern:

And just as an example of that, early in the George W. Bush administration, there was a dispute between what was I think, then was still the General Accounting Office… But, anyways, now the Government Accountability Office or GAO and the administration about turning over certain records related to the famous Cheney Energy Task Force. The administration refused to turn over the records. The GAO was seeking them, and I decided to use its statutory authority to sue to get the records. And the House was controlled by Republicans and was not really interested in getting into a fight with the Republican administration.

Michael Stern:

But there was an institutional interest in allowing GAO to do its job even if the people who were in charge of the House at that particular time didn’t particularly agree with what GAO had decided to look at at that moment. And so there was a tension there and, and it was not as successful as I would like to have been in trying to get the House to back up GAO. But that was a general problem that I think exists and still is a problem today.

Michael Stern:

Another reflection of that was I was in the Senate Homeland Security & Governmental Affairs Committee, which was responsible for implementing the recommendations of the 9/11 Commission. And we were pretty successful in doing that with everything except those recommendations that related to reorganizing Congress and improving the reorganizing jurisdictions of committees.

Michael Stern:

So as to make oversight of Homeland security and intelligence matters more effective, those involved treading on the turf of existing committees and existing chairpersons. And that was much more difficult than reorganizing the executive branch, which wasn’t a piece of cake either. But we were pretty successful in implementing the recommendations regarding Executive Branch, not so successful in those that related to Congress itself.

Kevin Kosar:

Your description of the difficulty of getting members of Congress to kind of play their role in the constitutional system reminds me of James Madison’s famous quote, “You need to create a system wherein the interests of the individual connect to the authorities of the office.” Butchering the paraphrasing, but that’s the sense of it, that you can’t expect people to be angels and to do the right thing. They have to pursue their own interests, but at the same time, it’s got to benefit the institution as a whole. And on a day-to-day basis, your experience, I take it, was that that was a tough circle to square.

Michael Stern:

It was, and I’ve read a lot of congressional history, and I think it’s always been somewhat that way. But I definitely have the impression that it is worse in the modern era. Maybe that’s just a matter of what things seem like to us versus what they really were.

Michael Stern:

But it does strike me that it’s become ever harder to get members to think in an institutional fashion whereas at one point, I think they did more connect their own interests with augmenting the prestige of the institution. And maybe that’s because members became committee chair for life and knew that their power depended on the institution being strong.

Michael Stern:

So maybe things like term limits for committee chair backfired in that regard. I don’t really know, but it does seem to be an increasing problem.

Kevin Kosar:

Those are real day-to-day challenges of governance. My next question relates to, for you, what did you find the toughest part of the job? Was it that what you just spoke of, the wrangling of members to see the institutional interests? Or were there other things… You said it was a small office, the resources available, or something else?

Michael Stern:

It’s a good question. I would say that one tough aspect of it was you were in a nonpolitical job in a sense, right? We’re representing the House. The House counsel’s office reports to the Speaker. The Speaker is supposed to consult with something called the Bipartisan Legal Advisory Group, which consists of the three majority leaders and two minority leaders.

Michael Stern:

But, basically, day-to-day, it’s the Speaker’s office that you’re dealing with. Obviously the Speaker is not a nonpartisan entity, so you’re kind of threading that needle between the partisan aspects of the House, which are just sort of endemic and the trying to represent the House as a whole. And certainly you’re representing members on both sides of the aisle on general lawsuits that they might be involved in or subpoenas or things like that.

Michael Stern:

There was one particularly sensitive issue that we were involved in early… It was fairly early in my tenure. It arose out of the Gingrich ethics investigation. I don’t know if this is something that people really remember anymore, but when I started it was the first Congress that the Republicans had taken over. I wasn’t right at the beginning, but in that second year of that Congress and Speaker Gingrich had just had this very contentious ethics proceeding against him.

Michael Stern:

And at the end of that process, which that case was basically wrapped up right before I arrived. But at the end of that process, there was a conference call among all the Republican leaders talking about how to deal with ultimately a settlement of the ethics matter, and the terms of it and so forth, which somebody recorded.

Michael Stern:

Some citizen managed to overhear on their ham radio or whatever it was and record this conversation of this very politically sensitive conversation among the Republican leaders, is then turned over to the ranking minority member of the Ethics Committee, Mr. McDermott, who used it.

Michael Stern:

And it was a huge controversy about whether that was legal, and whether speech or debate applied to protect his use of the material, which was illegally recorded. And that was a very sensitive matter that involved a lot of legal research and memos, and talking to both sides, and trying to thread that line between the nonpolitical and [inaudible 00:14:43].

Kevin Kosar:

You trained as an attorney. You spent the early part of your career in the private sector. You had a chance also to go over to the Executive Branch to ply your trade. But you stayed in the legislative branch, and you continued to do counsel-type work. Why? And more broadly, why stay with public service? Why not go some other path?

Michael Stern:

So I always was more interested in going into the government in some capacity than staying in private practice for the long term. So I think of it as just being more of a personal choice, and what I think is my aptitude as opposed to some sort of altruistic commitment to public service in the abstract. But it’s just my own… What interests me, what drives me to keep learning and branching out into new fields related to, in particular, just the Legislative Branch, which I feel has been kind of neglected both by legal academics and lawyers in practice.

Michael Stern:

There is just much more knowledge about and study of the Executive Branch than there is of the Legislative Branch, and I think that is a problem for our constitutional system. I guess I’m trying to do my small part to rectify that.

Kevin Kosar:

Yes, as the Legislative Branch is supposed to be the fountain of all law in this country, and yet the Legislative Branch, one need not be a lawyer to be elected to it. And, in the course of lawmaking, therefore, it’s not surprising that members of Congress do have need to take counsel from people who are trained in the law.

Kevin Kosar:

Mike, thank you so much for sharing your experiences, and thank you for joining me on the podcast.

Michael Stern:

Pleased to be here. Thank you very much.

Kevin Kosar:

Thank you for listening to Why Public Service?, a podcast of the R Street Institute. Please subscribe to the podcast and share it with your friends. Even better, rate and review us on iTunes so we can reach more listeners. Tell us what you thought about it, and who we should interview next by finding us on Twitter @RSI. If you want to know more about R Street, sign up for our newsletters at www.rstreet.org. I’m your host, Kevin Kosar. Thank you to producer William Gray and editor Parker Tant from parkerpodcasting.com.