The Speech and Debate Clause is to be interpreted “broadly to effectuate its purposes.” Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501, 95 S. Ct. 1813, 1820, 44 L. Ed. 2d 324 (1975). Accordingly, courts have extended the protection of the clause beyond literal speech and debate and beyond actual lawmaking activity. Actions relating to the internal administration of Congress have been found to be protected legislative acts. For example, the seating of the press in the House and Senate galleries, Consumers Union of the United States, Inc. v. Periodical Correspondents Association, 515 F. 2d 1342 (D.C. Cir. 1975), cert. den. 423 U.S. 1051, 96 S. Ct. 780, 46 L. Ed. 2d 640 (1976), and the committee assignments by party caucuses, Vander Jagt v. O'Neill, 524 F. Supp. 519 (D.D.C. 1981) appeal pending, No. 81-1722 (D.C. Cir. argued March 19, 1982), have been found to be legislative action protected by the Speech and Debate Clause. In addition, this District Court has previously held that the administration of a congressional restaurant "while it may not attain to the magnitude of some congressional duties, is clearly an activity which is within the 'legislative sphere'.Parker v. Allen, et al., No. 74-1846, slip op. at 9 (D.D.C. June 6, 1975). [557 F.

Supp. at 367] Status-The case is pending in the U.S. District Court for the District of Columbia. The time for filing an appeal has not yet expired.

The complete text of the February 15, 1983 memorandum of the district court is printed in the "Decisions" section of this report at page — United States v. Myers (criminal)

[See page 39.]

United States v. Kelly

[See page 63.)

United States v. Jenrette (criminal)

[See page 23.)

United States v. Murphy (criminal)

[See page 75.)

United States v. Thompson (criminal)

[See page 75.]

United States v. Williams

[See page 107.)

VI. Challenges to the Internal Rules of Congress and the Statutes

Under Which Congress Operates Murray v. Buchanan (formerly Morton)

No. 81-1301 (D.C. Cir.) On June 13, 1980, Jon Garth Murray, Director of the American Atheist Center of the Society of Separationists, Madalyn Murray O'Hair, and the Society of Separationists filed suit in the U.S. District Court for the District of Columbia against Azie Taylor Morton, Treasurer of the United States; G. William Miller, Secretary of the Treasury; Thomas P. O'Neill, Speaker of the House; Warren G. Magnuson, President Pro Tempore of the Senate; Walter Mondale, President of the Senate; and the Chaplains of the House (James David Ford) and the Senate (Edward L. Elson). (Civil Action No. 80-1475] In their complaint, the plaintiffs alleged that the use of Federal funds, and the laws authorizing the use of those funds, to pay chaplains "to perform essentially religious functions" violated "the First Amendment's prohibition on passing laws which respect an establishment of religion", and violated plaintiffs' "right to freedom from religion". (Complaint, June 13, 1980, at 5) Suing as Federal taxpayers and atheists, the plaintiffs sought injunctive relief to restrain the defendants from expending or receiving Federal funds for the salaries of the chaplains or for their staff or expenses, as well as declaratory relief that the statutes authorizing expenditures for the chaplains were unconstitutional.

On September 12, 1980, the U.S. Attorney for the District of Columbia filed a motion to dismiss the complaint on behalf of the United States, the Congress, the Senate, and the Senate and Executive department defendants. The motion was based on the following grounds: (1) the court lacked subject matter jurisdiction because adjudication would violate the doctrine of separation of powers; (2) the plaintiffs lacked standing; (3) the action was barred by the doctrine of res judicata; and (4) the complaint failed to state a claim upon which relief could be granted. On the same day, the General Counsel to the Clerk of the House filed a similar motion on behalf of the House defendants.

In a memorandum filed in support of the motion to dismiss, the U.S. Attorney asserted that the case was nonjusticiable because the authority to appoint and compensate officers such as the chaplains of either house of Congress was "textually committed" to the legislative branch by Article I of the Constitution. Additionally, the memorandum argued that since the plaintiffs were not members of either body of the legislature, they lacked standing, as taxpayers or otherwise, to challenge the compensation of legislative officers. Even if the court were to decide that the case presented justiciable issues, the U.S. Attorney continued, the practice of Congress choosing an officer designated as chaplain and paying his expenses could withstand constitutional challenge. The memorandum noted that both history and relevant case law demonstrated that having a chaplain and opening daily legislative sessions with a prayer was constitutional. It followed, therefore, that compensating the chaplain was likewise constitutional. Further, under the standards to be considered in reviewing Establishment Clause questions, the challenged practices clearly passed constitutional muster. The purpose of having a chaplain and opening legislative sessions with a prayer was "secular"-it called upon the legislators "to reflect upon their solemn purpose and the gravity of the responsibility placed upon their shoulders.” [Memorandum in Support of Motion of United States to Dismiss, September 12, 1980, at 10) The primary effect of the opening prayer did not advance religion-it simply provided the "appropriate atmosphere for beginning the legislative session." [Id. at 11] And there was no excessive entanglement with religion. Finally, the memorandum asserted, the doctrine of res judicata barred the action, since plaintiff Madalyn O'Hair's virtually identical suit seeking similar relief against essentially the same parties had been dismissed with prejudice in 1973. [O’Hair v. Nixon, Civil No. 410-73 (D.D.C. March 21, 1973)]

21-618 0-834-17

In his memorandum in support of the motion to dismiss, filed on September 15, 1980, the General Counsel to the Clerk made comparable arguments. In essence, the General Counsel took the position that the complaint failed to state a claim for which relief could be granted because, as a matter of law, neither the chaplaincy, nor the statute providing his salary, violated the First Amendment's Establishment Clause. The General Counsel summarized his argument as follows:

As interpreted in accordance with the Supreme Court's three part requirement of Lemon v. Kurtzman, 403 U.S. 602 (viz., statute must have a secular purpose, a primary effect other than the advancement of religion, and no tendency to excessively entangle the government in religious affairs), the Legislative Branch Appropriation funding the Chaplain, and the rule of the House creating the Chaplain as an officer of the House and describing his duties is the purely secular one of fostering a spiritually wholesome environment in which to perform the Article I legislative function devolved upon Congress and its individual Members-a function carried out before and after adoption of the Constitution since the First Congress. Nor does the Chaplain have the primary effect of establishing religion, based not only on the Supreme Court's analysis of prayer by Chaplains of Congress as the performance by a religious person of a secular function but also on the premise of the Free Exercise Clause that the government must not manifest hostility toward religion, especially where Members are required by the Constitution and Rules of the House to attend sessions of the House away from their home districts, and their family clergymen. Finally, the Chaplain does not represent "excessive entanglement" with religion as evidenced by the absence of any surveillance of or involvement in his office by the House or its instrumentalities. Memorandum of Points and Authorities of Honorable Thomas P. O'Neill. . ... in Support of Motion to Dis

miss, September 15, 1980, at 8] In addition, the House defendants asserted that under its clear constitutional authority to choose its officers and make its internal rules, the House had "provided a chaplain for two hundred years

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without executive or judicial interference" and that the political question doctrine, "as a well recognized incident of separation of powers,” together with the Speech or Debate Clause i immunity from being questioned about matters within the constitutionally defined powers of Congress, made the case nonjusticiable. (Id. at 9]

In an order filed on September 19, 1980, U.S. District Court Judge Louis F. Oberdorfer granted Senator Jesse Helms of North Carolina, Senator Gordon Humphrey of New Hampshire, and Congressman Guy Vander Jagt of Michigan leave to intervene in the case as party defendants. In their subsequent answer to the complaint, filed on September 22, 1980, the intervening defendants also sought dismissal of the action for reasons in line with those put forth by the other defendants.

On October 27, 1980, the plaintiffs filed an opposition to the motions of the defendants to dismiss the complaint and a motion for summary judgment. In a statement in support of the motion for summary judgment, the plaintiffs attempted to answer the justiciability, standing, res judicata, and constitutionality arguments raised by the defendants. On the justiciability question, the plaintiffs asserted that the courts were equipped to determine the issues of constitutional interpretation posed by the case: reconciling the authority of Congress to appoint officers with the tenets of the First Amendment. On the standing question, the plaintiffs noted that a case relied on by the defendants, Elliott v. White, 23 F.2d 997 (D.C. Cir. 1928), which also involved a requested injunction against paying the salaries of the Congressional chaplains and which was dismissed for lack of standing, was no longer valid law. The basis for the decision in that case, the plaintiffs contended, had been overruled in Flast v. Cohen, 392 U.S. 83 (1968), which accorded standing to Federal taxpayers challenging a Federal law which provided aid to religious schools. On the res judicata question, the plaintiffs claimed the earlier O'Hair v. Nixon case was inapposite since process was quashed and no decision was ever made on the merits. Further, the plaintiffs asserted, the complaint there challenged prayers at the White House, not in Congress.

Finally, on the constitutionality question, the plaintiffs argued that the statutes authorizing the payment of salaries for the legislative chaplains violated the three-pronged test for determining whether a particular government law or activity is permissible under the Establishment Clause. First, the plaintiffs asserted, the statutes had no "clearly secular” purpose, since they authorized the use of public funds to provide legislators with “religious counsel”. Like the laws providing for a daily invocation of prayer in public schools, these statutes had a "significant religious purpose" and thereby contravened the Establishment Clause, the plaintiffs claimed. Only in cases involving "captive” persons, like prison inmates or members of the armed forces, had the U.S. Supreme Court sanctioned funding for chaplains, the plaintiffs contended, and since Congressmen were able to attend the church of their choosing near the Capitol, their freedom of worship would not be abridged by striking down these statutes. Second, the plaintiffs asserted, the statutes had the "primary effect" of advancing religion, even if they had a secular legislative purpose, since the salaries of the chaplains financed “a specifically religious activity-prayer." Third, the plaintiffs asserted, the statutes caused excessive government entanglement with religion, particularly with the Protestant religion (the faith of the chaplains of both houses of Congress.) The use of public funds to support the activities of ministers of particular churches, to the exclusion of the other faiths, the plaintiffs maintained, was impermissible under the First Amendment.

1 The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House, (U.S. Senators and U.S. Representatives) shall not be questioned in any other Place." (art. I, § 6, cl. 1]

On November 6, 1980, the General Counsel to the Clerk, on behalf on the House defendants, filed an opposition to the plaintiffs' motion for summary judgment. He also filed a reply to the plaintiffs' opposition to the motion to dismiss the complaint. Again, the General Counsel challenged the plaintiffs' notions of justiciability, Speech or Debate Clause implications, and First Amendment law. On the last issue, the General Counsel strongly disagreed that the statute involved authorized “religious counsel” for Members, and asserted that “the statute is devoid of any such express or implied grant of such authority." [Opposition to the Motion for Summary Judgment, November 6, 1980, at 4] Moreover, the memorandum continued, “the payment of a salary to the House chaplain can only infinitesimally and metaphysically, provide incidental aid to religion when compared to incidential aid to religion provided by educational grants to religiously affiliated schools . . . or by general public welfare programs." [Id. at 4-5) Finally, the General Counsel argued:

We do not contest that the Chaplain offers prayers or that prayers are by their nature religious. We simply contend, as the court concluded in Colo v. Treasurer and Receiver General, 392 N.E. 2d 1195, 1200 (Mass. 1979) that it cannot be said that they have the primary effect of advancing religion, but rather provide a ceremonial moment of meditation upon the commencement of legislative ses

sions. (Id. at 6] On November 10, 1980, the intervening defendants, Senator Jesse Helms et al., formally moved to dismiss the complaint. In a memorandum in support of this motion, and in opposition to the plaintiffs' motion for summary judgment, the intervenors raised political question, standing, and First Amendment arguments similar to those advanced by the other defendants.

On November 17, 1980, the U.S. Attorney, on behalf of the United States, the Congress, the Senate, and the Senate and Executive branch defendants, filed a memorandum in opposition to the plaintiffs' motion for summary judgment. The memorandum reiterated the arguments raised previously, including that of res judicata.

On January 6, 1981, the district court held a hearing on the outstanding motions and Judge Oberdorfer, after oral argument, indicated his intention to grant the defendantsmotions to dismiss the complaint. This was done in an order filed on January 12, 1981, which also denied the plaintiffs’ motion for summary judgment.

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