mittees in relation to the votes received by all Republican candidates for the House in the 1980 elections.

The complaint stated that Republican candidates for the House received 49.48 percent of the total vote cast (as opposed to 49.15 percent for Democratic candidates) and Republican Members of the House held 44.14 of the seats of the voting members of the House (as opposed to 55.86 percent for Democratic Members) (Id., ss 30 and 31] Despite this, the complaint asserted, the House, on a virtual straight-party vote, refused to provide for committee and subcommittee assignments which would accurately reflect the ratio of majority party Members to minority party Members. The complaint pointed specifically to the Ways and Means, Rules, Appropriations, and Budget Committees, all of which were composed of at least 60 percent Democratic Members. According to the complaint, this under-representation in the House "resulted in the deprivation of 30 committee positions and 37 subcommittee positions to Members of the Republican Party." [Id., 1 43]

There existed, the complaint averred, “no colorable legal theory under which Defendants can deprive Republican Representatives of their committee and subcommittee positions and their right to vote on such committees and subcommittees. The only possible rationale for such deprivation is partisan political advantage.(Id., | 34] Further, the complaint asserted, the disproportionate representation was "contrary to the long-standing prior practice in the House

, where committee composition has historically reflected the proportionate composition of the . . . House." [Id., 144]

As a result of this underrepresentation, the plaintiffs claimed they and the voters they represented were deprived of a series of constitutional rights.

Count I alleged that voters in Congressional districts represented by Republicans were denied equal protection of the laws in contravention of the Fifth Amendment to the U.S. Constitution because the systematic underrepresentation deprived them of “their rightful quantum of influence over Congressional activity and has substantially eroded the power of their vote." [Id., 154]

Count II asserted that the purported underrepresentation deprived the plaintiff voters of their First Amendment right to associate freely with minority party candidates, since they would be "discouraged from voting for and associating with candidates of a party likely to be a minority party in the House . . . if the influence of that voter through the instrumentality of his elected Representative and the power of that citizen's vote would be impaired by the systematic underrepresentation.” (Id., 1 57]

Count III averred that by impairing the influence of Republicans, the defendants had "impermissibly impaired the means for voters in Congressional districts represented by Republican Representatives for petitioning the government for a redress of grievances" [Id., | 62], in contravention of the First Amendment.

Count IV alleged that the defendants, by discriminatorily “diluting" the influence of Republican representatives on the legislative process, “confiscated” the Members' fundamental right to vote and the "rights of the class of voters represented by those Members" [Id., 167], in violation of the due process component of the Fifth Amendment.

Count V asserted that, by denying the plaintiffs the committees membership positions to which they were entitled, the defendants had deprived them of "certain rights and privileges and access to the means for influencing the legislative activity of the House' (Id., 1 70), in contravention of the equal protection requirement of the Fifth Amendment.

Count VI averred that the defendants had deprived the plaintiffs of due process under the Fifth Amendment by diluting their representational influence and potential impact on the legislative process, "strictly on the basis of discrimination by party affiliation.” [Id., 1 76]

Count VII asserted that, by denying the plaintiffs "their full quantum of rights as Member of the House because of their association with the Republican Party" [Id., 1 78), the defendants had "substantially impaired the fundamental rights of free political association of the Plaintiff[s] . . . in violation of the First Amendment to the . . . Constitution.” (Id., 1 80]

Count VIII alleged that the defendants had denied the plaintiffs their right to express political views not in accord with those of the defendants, in contravention of the First Amendment.

Count IX averred that the defendants, by reducing committee participation for the plaintiffs, had impermissibly added majority party membership as an additional qualification for "full participation" as a Member of Congress, in violation of Article I of the Constitution.

As relief, the plaintiffs sought: (1) a declaratory judgment that the disproportionate committee assignments established by House resolution were unconstitutional; (2) a directive that positions on all committees and subcommittees be allocated in proportion to the actual distribution of seats between the majority and minority parties in the House; and (3) a permanent injunction against an allocation of committee assignments that "in any manner that unfairly discriminates against a Member because of his party affiliation. (Id., 1 55c] Finally, in Count X, the plaintiffs sought a writ of mandamus to compel the defendants "to assign seats on committees and subcommittees of the House in accordance with the Rules of Procedure of the House." [Id., 1 89]

On September 21, 1981, the Congressional defendants filed a motion to dismiss the complaint on the grounds that: (1) they were immune from liability under the Speech or Debate Clause of the U.S. Constitution;2 (2) the case was nonjusticiable in that it involved determinations "textually committed" to the legislature and not reviewable by the courts; and (3) the court did not have jurisdiction to entertain the action because the plaintiffs lacked standing.

In a memorandum accompanying their motion, the Congressional defendants argued that:

Plaintiffs seek to carry on a battle waged and lost in the House of Representatives in committee, in caucus and finally on the floor, in the federal courts. Based upon only


2 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.)

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the vaguest and most suppositious allegations concerning ethereal claims of "diluted" and diminished "influence, the "rightful quantum" of participation, "affects (on) their ability to carry out Constitutional duties" and "confiscations of the Member's fundamental right” plaintiffs seek expansive, unprecedented judicial intrusion into an area textually committed to another branch, all without the requisite standing. The specific acts allegedly committed by Congressional defendants in furtherance of the purported plan to underrepresent them are either beyond judicial scrutiny as within the legitimate legislative sphere, or not susceptible to discernible judicial standards for resolution. Where, as here, the plaintiffs seek "to accomplish in this court what they are unable to persuade their colleagues to do,” Reigle v. Federal Open Market Committee, Slip Opinion, at 8, the court should decline to entertain the action and remand the plaintiffs to the proper forum-the House of Representatives. [Memorandum of Points and Authorities in Support of Congressional Defendants Motion to Dis

miss, September 21, 1981, at 18] More specifically, the defendants first asserted that because the complaint was "grounded explicitly" (Id. at 5] in the performance of legislative acts, the Speech or Debate Clause barred the suit. Citing Gravel v. United States, 408 U.S. 606, 625 (1972), the defendants contended that, in defining the "legitimate legislative sphere" for purposes of determining the applicability of the Clause, the Supreme Court had extended its reach to include not only all matters that form "an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation," but also "other matters which the Constitution places within the jurisdiction of either House." Noting that under Article I, section 5, clause 2 of the Constitution the House is given the power to "determine the Rules of its Proceedings," and pursuant to this power the House has provided under Rule X, clause 6(a)(1) that the standing committees are to be elected “from nominations submitted by the respective caucuses,” the defendants concluded that “the actions allegedly taken by the Congressional defendants in committee or in Caucus prior thereto are within the 'legitimate legislative sphere.'[Id. at 6 (footnote omit


Moreover, according to the defendants there was further evidence that the caucus meetings of both parties were within the legitimate legislative sphere in that “transportation to and from the caucuses. , as well as per diem expenses, are provided by law, 2 U.S.C. § 29a(b)(1)(A), as are expenses for travel during regular sessions. In addition, permanent staffs are provided to both caucuses, ... and under the rules they may use the Chamber to meet." [Id. at 6, n. 4] Finally, they asserted, the Democratic Steering Committee also came within the Clause as “a duly established Committee of the House ..., like all other committees, provided with staff, office space and all other support services." [Id. at 7, n. 5)

Turning next to the justiciability arguments, the Congressional defendants maintained that the case represented the "quintessential 'political question'[Id. at 9) involving determinations committed to Congress and not reviewable by the courts. They analogized the action to Winpisinger v. Watson, 628 F. 2d 133 (D.C. Cir. 1980), in which supporters of Senator Edward M. Kennedy's candidacy for the presidency sued President Carter's administration and reelection committee alleging that the defendants misused their public authority and expended Federal funds to promote the President's candidacy in violation of the plaintiffs' constitutional rights:

Likewise here, exercise of judicial power to review Plaintiffs' claim would involve consideration of myriad and interlocking judgments exercised by legislative branch officers in determining committee assignments and would open the floodgates of judicial review to virtually every “other discretionary decision made by the Congress] acting through these high [legislative branch] officials. The Winpisinger court declined to enter this political thicket and determined that "[p]rudential barriers upon courts clearly preclude judicial interference in the daily responsibilities of these defendants and the resultant shift of decision making from the Executive to the Judicial Branch.” Id. at 141. This principle applies with equal, if

not greater, vigor to the Legislative Branch. (Id. at 10-11] Finally, the defendants argued that the plaintiffs lacked standing to challenge the internal legislative decision making process under either traditional concepts of standing or the theory of circumscribed equitable discretion. With respect to the former, the defendants contended that the plaintiffs had not established the necessary injury in fact because the alleged harm was neither "distinct nor palpable.” Instead, according to the defendants, the plaintiffs complained about “their degree of 'influence', or their frightful quantum' of influence in the legislative process, and not any directly identifiable deprivation.” [Id. at 13] Beyond that, said the defendants, the plaintiffs could not “point to a single ‘nullification of a vote or denial of an 'opportunity to vote,' or to any action which has resulted in disenfranchisement of any right or privilege accorded Members of the House by the Constitution.” [Id. (footnote omitted)]

According to the defendants, the plaintiffs also could not meet the second traditional requirement of standing-a causal connection between the alleged actions of the Congressional defendants and the injury the plaintiffs claimed.

Even were the committee proportions about which Plain-
tiffs complain to be changed to that which Plaintiffs assert
is appropriate, it is not clear that these Plaintiffs would be
assigned to the major standing committees specified in the
Complaint. It is mere speculation to assume that any addi-
tional "Republican" committee seats would be assigned to
any of the Plaintiffs. Furthermore, it is speculation to
assume that what Plaintiffs claim is the appropriate level
of Republican membership on committees would necessar-

ily increase in order to achieve the Democratic Republican
proportion sought by the Complaint. [Id. at 14 (footnote

Third, the defendants asserted that the plaintiffs' claimed injury
was not to an interest arguably within the zone of interests to be
protected by the constitutional guarantees in question, “principally
because these guarantees are so broadly drawn, it is difficult to as-
certain how these plaintiffs present an interest distinct from the
generalized interest of all citizens in constitutional governance.'
Schlesinger v. Reservists To Stop The War, 418 U.S. 208, 217
(1973)." Id. at 15-16]

In addition to arguing that the plaintiffs had failed to establish standing under the traditional three-part test, the defendants maintained that they also should be denied standing under the concept of circumscribed equitable discretion articulated in Reigle v. Federal Open Market Committee, 656 F.2d 873 (D.C. Cir. 1981). (See page 157 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1982 for a discussion of that case.)

While Reigle concerned a case brought by a congressional plaintiff against executive branch officials and not fellow legislators, the decision inexorably points to the guiding principle dispositive of this case:

Judges are presented not with a chance to medi-
ate between two political branches but rather
with the possibility of thwarting Congress' will by
allowing a plaintiff to circumvent the process of
democratic decision making. 'This meddling with
the internal decisionmaking process of one of the
political branches extends judicial power beyond
the limits inherent in the constitutional scheme
for dividing federal power.
Slip Opinion at 16-17, quoting Hon. Carl
McGowan, "Congressmen in Court: The New

Plaintiffs”, 15 Ga. L. Rev. 241, 251 (1981)
Contrary to Plaintiffs assertion that they have "exhaust-
ed all remedies," they still have the opportunity, which
the House has not foreclosed, to vote on a resolution in-
creasing the number of minority party members on com-
mittees and subcommittees, and in fact, there is precedent
for the House doing so.

On February 19, 1939 the House approved a resolution increasing the number of “Representatives from the minority political party” to the Special Committee on Wildlife Conservation. H.R. Res. 90, 76th Cong., 1st Sess.; 84 Cong. Rec. 1333 (1939). This avenue remains indefinitely

open. [Id. at 17] On September 25, 1981, the plaintiffs filed a motion to amend their complaint to add as party defendants S. Ariel Weiss and Alvin From, the "chief administrators" of the defendant Democratic Caucus and Democratic Steering and Policy Committee.

On October 5, 1981, the plaintiffs filed a memorandum in opposition to the defendants' motion to dismiss, which attempted to

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