[Congressional Record Volume 143, Number 59 (Thursday, May 8, 1997)]
[Senate]
[Pages S4205-S4206]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      LOUISIANA CONTESTED ELECTION

  Mr. WARNER. Mr. President, I would like to report to the Senate that 
the Committee on Rules and Administration is about to embark on a 
bipartisan investigation into allegations that fraud, irregularities, 
and other errors, affected the outcome of the 1996 election for U.S. 
Senator from Louisiana--the first such Senate investigation into vote 
fraud since the early 1950's.
  A review of the basis for this investigation and the developments to 
date is an obligation I have as chairman.
  On November 5, 1996, Ms. Mary Landrieu and Mr. Louis ``Woody'' 
Jenkins competed in a very close election in which Ms. Landrieu was 
declared the victor by Louisiana State officials, by a margin of 5,788 
votes out of approximately 1.7 million total votes cast. This margin 
represented a percentage difference of only 0.34 percent, one of the 
closest contested elections in U.S. Senate history.
  On December 5, 1996, Mr. Jenkins filed a petition with the U.S. 
Senate asking that the election be overturned because of vote fraud and 
irregularities which he believed affected the outcome of the election. 
Along with an amended petition, Mr. Jenkins filed supporting evidence 
with the Senate on December 17.
  Senator Landrieu filed a response to the petition on January 17, 
1997. On February 7, 1997, Mr. Jenkins then submitted an answer to 
Senator Landrieu's filing.
  In accordance with Senate precedent, Ms. Landrieu was seated 
``without prejudice'' as the Senator from Louisiana on January 7, 1997, 
with all of the privileges and authority of a U.S. Senator. Majority 
Leader Lott quoted former Majority Leader Robert Taft in defining the 
term ``without prejudice'' when Senator Lott spoke on the floor on 
January 7:

       [T]he oath is taken without prejudice to the right of 
     anyone contesting the seat to proceed with the contest and 
     without prejudice to the right of anyone protesting or asking 
     expulsion from the Senate to proceed.

  The U.S. Constitution provides that the Senate is--and I quote from 
article I, section 5--``the Judge of the Elections, Returns, and 
Qualifications of its own Members. * * *'' The U.S. Supreme Court has 
reviewed this Constitutional provision on several occasions and held in 
the 1928 case of Reed et al. v. The County Comm'rs of Delaware County, 
Penn. [277 U.S. 376, 388 (1928)]:

       [The Senate] is the judge of elections, returns and 
     qualifications of its members. . . It is fully empowered, and 
     may determine such matters without the aid of the House of 
     Representatives or the Executive or Judicial Department.

  In discussing the responsibilities of the Senate, Senator Robert C. 
Byrd, who has been a member of the Committee on Rules and 
Administration since 1963, stated on the floor of the Senate on January 
15, 1975, as part of the debate on the New Hampshire contested 
election:

       . . . The Constitution of the United States places in this 
     body the responsibility of being the sole judge of the 
     elections, returns, and qualifications of its own members. 
     Article 1, section 5, does not say that the Senate may be the 
     judge; it says the Senate shall be the judge.

[[Page S4206]]

       . . . The Constitution vested in this body not only the 
     power but the duty to judge, when there is a challenged 
     election result involving the office of U.S. Senator. 
     [Congressional Record Vol. 121, Part 1, page 440. (emphases 
     added).]

  And indeed, the Senate has taken this constitutional responsibility 
very seriously, handling approximately 100 contested cases over its 
208-year history. Under the current Senate Rules, responsibility for 
developing the facts and recommendations for the full Senate in 
contested elections lies with the Committee on Rules and 
Administration.
  Following the precedent of the Huffington versus Feinstein contest in 
1995, I and ranking member, Mr. Ford, retained two outside counsel who 
are experts in the field of election law: Mr. William C. Canfield III, 
and Mr. Robert F. Bauer. These are the same two attorneys who assisted 
the committee in the Huffington contest.
  Senator Ford and I requested that these experts review the pleadings 
and provided the following guidance:

       We request a written analysis of the sufficiency of the 
     petition, based on the precedents and rules of the Senate, 
     with specific reference to any documentation submitted by Mr. 
     Jenkins or Ms. Landrieu relevant to the petition. The opinion 
     should focus on the question of whether the petition is 
     subject to dismissal without further review, or requires 
     additional review or investigation, and, if so, the scope and 
     structure of such review or investigation.

  On April 8, 1997, these two counsel submitted a joint report which, 
in summary, recommended that the committee conduct ``a preliminary, 
limited investigation into the sufficiency of claims in three areas, 
and the dismissal of claims in four areas.'' The areas counsel 
recommended further review of were: vote buying, multiple voting, and 
fraudulent registration.
  Mr. Canfield and Mr. Bauer then appeared before the committee, in 
open session, on April 10 to describe their review and recommendations, 
and to answer questions from the members of the Rules Committee.
  On April 15, 1997, again in open session, Mr. Jenkins and attorneys 
for Senator Landrieu made presentations to the committee which laid out 
their respective views of the contest, the allegations made and 
evidence presented, and the standards of pleading and proof required to 
warrant further committee action.
  As I stated at those hearings, I believe the counsel's report is a 
valuable contribution to the committee's evaluation of the contest. 
Nevertheless, it is important to remember that these lawyers were not 
asked to conduct an investigation, and they did not do so. Rather, they 
reviewed and analyzed only the petition and facts submitted by both Mr. 
Jenkins and Senator Landrieu.
  When the committee met on April 17, 1997, to determine a further 
course of action, I advised my colleagues that I agreed with our 
counsel that an investigation was warranted. Indeed, I believed that 
Senate precedent dictated that an investigation be conducted. It was 
also my opinion that the committee's investigation should:
  First, not be limited to specific areas which might preclude 
investigation of other potential sources of evidence; and
  Second, should involve the use of attorneys with investigative 
experience to conduct an initial investigation in Louisiana within 
approximately a 45-day period.
  In furtherance of these objectives, the committee met on April 17, 
and I offered a committee motion to authorize such an investigation. 
After several amendments, the committee authorized the chairman, in 
consultation with the ranking member to conduct an investigation,

       * * * into illegal or improper activities to determine the 
     existence or absence of a body of fact that would justify the 
     Senate in making the determination that fraud, irregularities 
     or other errors, in the aggregate, affected the outcome of 
     the election for United States Senator in the State of 
     Louisiana in 1996.

  Since the committee hearing of April 17, I have worked with Senator 
Ford toward jointly selecting--as required by 2 U.S.C. 72a(I)(3)--the 
consultants that would assist the committee in the conduct of its 
investigation. The contracts hiring these consultants were signed by me 
and Senator Ford on May 7.
  The investigative team will be headed by Richard Cullen, a former 
U.S. Attorney in Virginia, and George Terwilliger, also a former U.S. 
Attorney and later Deputy Attorney General of the United States, both 
with Republican affiliations, of the law firm McGuire Woods Battle & 
Boothe. They will be assisted by several of their firm's colleagues, 
including Jim Dyke, former top official for Vice President Walter 
Mondale and Gov. Doug Wilder, Bill Broddaus, former Democratic Attorney 
General of Virginia, and Frank Atkinson, former counsel to Gov. George 
Allen, comprising a well-experienced, bipartisan team who will take 
direction from me.
  Participating fully in the investigation--pursuant to a protocol 
establishing the basic procedures under which all counsel will conduct 
the investigation--will be a second team of attorneys selected by 
Senator Ford and headed by Robert Bauer and John Hume of the law firm 
Perkins Coie, with Democrat affiliations.
  This protocol, which was jointly drafted by the two teams, includes 
procedures for subpoenaing witnesses and documents, and conducting 
interviews and taking depositions. It establishes confidentiality 
procedures to protect the integrity of the investigation.
  As Senator Ford and I worked toward the selection of our consultants 
and a joint investigation, I also spoke with the Governor of Louisiana, 
Mike Foster, who has assured the fullest cooperation with the Senate's 
investigation. And, committee staff is coordinating with the Federal 
Bureau of Investigation and the General Accounting Office seeking a 
detail of personnel to assist the committee.
  The Senate's investigation in Louisiana is about to begin. Records 
will shortly be requested from the State, and the teams of counsel will 
go down to Louisiana next week to establish a local headquarters and 
make initial coordination with appropriate State and local officials, 
and prepare for witness interviews.
  Mr. President, in the course of one's career as a Senator there are 
responsibilities you must perform. I did not seek this task, but I will 
truly and faithfully discharge a duty I have been given as chairman of 
the Rules Committee.
  I have but one goal: to see that my work is performed in keeping with 
the tradition of the Senate in past cases and to give the full 
Committee my honest judgement of the established facts, and so that the 
Committee might give to the Senate its honest judgement of these facts, 
respecting the Senate's duty under article 1, Section 5 of the 
Constitution of the United States.
  It is my intention that this investigation will determine the 
existence, or absence, of that body of credible fact that would justify 
the Senate in making a determination that fraud or irregularities or 
other errors, in the aggregate, did or did not, affect the outcome of 
the 1996 election for U.S. Senator in the State of Louisiana--thereby 
fulling the Senate's constitutional duty of judging the results of that 
election.

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