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answer the Speech or Debate Clause, politicial question, and standing arguments raised by the defendants.

Initially addressing the Speech or Debate issue, the plaintiffs asserted that the scope of the immunity afforded by the Clause did not extend to the defendants' actions in this case. In the plaintiffs’ view, the Democratic Caucus and the Steering and Policy Committee were not legislative committees and no actions by or within them were within the sphere of legitimate legislative activity. They argued:

Mere existence within the Legislative Branch, generic references, funding and staffing are hardly determinative of legislative responsibility or a place in the sphere of legitimate legislative activity. The seminal case of Kilbourn V. Thompson, 103 U.S. 377 (1880) dealt with a similarly funded, staffed and integral part of the House, viz, Sergeant at Arms of the House, but the Speech or Debate Clause did not protect him. The Defendant entities tently partisan political bodies with no legislative or oversight responsibility. Defendants can point to no legislation referred to either, no legislation initiated by either, no bipartisan participation in either, nor any hearings held by either. To term these entities “legislative committees” is a Procrustean feat which tortures the concept of legislative activity. In short, the activities of these Defendants bear none of the hallmarks of legislative activities. Although the activities these entities engage in may be "entirely legitimate activities, they are political in nature rather than legislative in the sense that term has been used by the (Supreme] Court in prior cases. But it has never been seriously contended that these partisan matters, however appropriate, have the protection afforded by the Speech or Debate Clause." United States v. Brewster, 408 U.S. 501, 512 (1972). Thus, while Members who vote, report or debate in the course of deliberations of a committee within the legitimate legislative sphere are immune from suit, id. at 526, the political activities of Defendants are not similarly insulated. Id. at 512. Nor does the fact that individual Defendants occupy legislative positions protect them from questioning on their outside activities Hutchinson v. Proxmire, 443 U.S. 111 (1979) and Davis v. Passman, 442 U.S. 228 (1979). [Plaintiffs' Memorandum of Points and Authorities in Opposition to Defendants' Motion to Dismiss,

October 5, 1981, at 3-4] Moreover, according to the plaintiffs, the defendants' claim that they were acting pursuant to a rule of the House was false because the acts complained of occurred prior to the adoption of the rules for the 97th Congress. Any assertion to the contrary, the plaintiffs maintained, raised questions of unconstitutional delegation of legislative function.

Finally, the plaintiffs contended, the defendants' actions did not come within the ambit of the Speech or Debate Clause as it had been interpreted by the Supreme Court in light of its historic purpose:

The importance of this committee control has been underscored by Justice Rehnquist in Doe v. McMillan, 412 U.S. 306 (1972) where he commented that "a committee of Congress, . . . in the legislative scheme of things, is for all practical purposes Congress itself.” Id. at 394. [T]o allow Defendants to twist the Speech or Debate Clause into a vehicle for protecting the political overreaching attacked by Plaintiffs' Complaint is to make a mockery of the Clause by inhibiting the free and fair function of that which it is designed to protect. This Court should hold that the behavior Defendants seek to protect is without the ambit of the Speech or Debate Clause. In effect, the majority is given the right to intimidate and harass legislators--a role heretofore conceded by political theorists to the Executive in discussion of the historic antecedents of the Speech or

Debate Clause. (Id. at 7 (footnote omitted)] Turning next to the political question issue, the plaintiffs argued that the defendants' view of the doctrine was "based upon the inaccurate doctrinal premise that a case which involves political rights and political actors necessarily presents a political question." [Id. at 12] In the instant case, the plaintiffs asserted that their claim was not a political question but "a question of constitutional construction, possibly involving the determination of the boundaries of the grant of authority contained in Article I, § 5, cl. 2 of the Constitution, and certainly involving questions of fundamental constitutional rights." [Id. at 14] The case could be distinguished from the Winpisinger case relied on by the defendants, the plaintiffs said, because the requested relief would not interject the court into the activities of another branch of government. “On the contrary, if plaintiffs were granted the relief they have requested, no additional role or oversight would be required of this court." [Id. at 15)

On the last issue-that of standing—the plaintiffs contended that they and the classes they represented did have standing to challenge the allocation of committee positions. With respect to the traditional test for standing, the plaintiffs summarized their argument as follows:

Plaintiffs and the classes they represent clearly meet the
current standards applied by the Courts to determine
standing to sue. Plaintiffs have suffered actual injury by
the deprivation by Defendants of Plaintiffs' rightful House
Committee positions and the resultant diminution of influ-
ence that deprivation has engendered. Plaintiffs' injury
was directly caused by Defendants' improper actions. The
interest which Plaintiffs seek to protect by this action are
clearly within the zone of interests intended to be protect-
ed by the Constitutional guarantees upon which they rely.
And, a favorable decision would redress the injuries Plain-

tiffs have suffered. [Id. at viii] With respect to the doctrine of circumscribed equitable discretion, the plaintiffs argued that it would be inappropriate for a court to apply it since there was no realistic likelihood that they could obtain redress through legislative action and a similar case could not be maintained by private litigants. The Riegle case cited by the defendants, the plaintiffs asserted, was distinguishable because in that action “there was no doubt that Senator Riegle's objective could be accomplished through legislative redress." [Id. at 26]

On October 8, 1981, U.S. District Judge Louis F. Oberdorfer issued a memorandum and order granting the defendant's motion to dismiss the complaint. (Vander Jagt v. O'Neill, 524 F.Supp. 519 (D.D.C. October 8, 1981)] Although Judge Oberdorfer held that he was satisfied that “constitutional deprivations and the loss of voting power alleged would, all things being equal, give plaintiffs standing to bring this action" [524 F. Supp. at 520-521), and that there was no viable legislative remedy, he concluded that the plaintiffs had "not overcome the defendants" challenge to this Court's jurisdiction by virtue of both the Speech and Debate (sic) Clause and the corollary Separation of Powers doctrine." [Id. at 521]

Judge Oberdorfer ruled that party caucus deliberations and those of the Steering and Policy Committee are protected by the Speech or Debate Clause as preparatory and integral to consideration of and votes on the subjects on the House floor. He explained:

The Court is persuaded that actions taken by House Mem-
bers belonging to one party pursuant to decisions made by
them in a caucus of that party are actions performed
within the “legitimate legislative sphere." See Eastland v.
United States Servicemen's Fund, 421 U.S. 491 (1975); Doe
v. McMillan, 412 U.S. 306, 312-13 (1973); United States v.
Brewster, 408 U.S. 501 (1972); See also Dombrowski v. East-
land, 387 U.S. 82 (1967). It is apparent from the face of the
complaint and reasonable inferences therefrom that de-
fendant Members determined in caucus somewhat unoffi-
cially how they, as a group of party members, would vote
on the floor of the House with respect to the composition
of the Committees of the House. This caucus action was in
preparation for and in discharge of the official duty of the
Members qua Members to elect standing committees. The
rules of the House limit the committees so elected to nomi-
nees of the party caucus. H.R. Rule X, Cl. 6(a)(1), Rules of
the House of Representatives, reprinted in Jefferson's
Manual and Rules of the House of Representatives, H.R.
Doc. No. 95-403, 95th Cong., 2d Sess. 384-85 (1979). Thus,
the actions contested by the plaintiffs were in performance
of legislative duties defined by the House's own rules,
which rules specifically contemplate a nominating role for
the caucus. Accordingly, the actions complained of, even
though they might affect plaintiffs' constitutional rights as
voters and Members, are beyond the reach of this Court by
virtue of the Speech and Debate Clause. Cf. Powell v. Mc-
Cormack, 395 U.S. 486, 508 (1969); Kilbourn v. Thompson,
103 U.S. 168 (1881).

The actions of a caucus in the House are governed by
the House Rules. Art. I § 5, cl. 2 of the Constitution confers
upon the House the power “to determine the Rules of its
Proceedings." This textual commitment of the issue to the
House would oust the Court's jurisdiction, even if such ju-

risdiction were not more explicitly foreclosed by the
Speech and Debate Clause. Baker v. Carr, 369 U.S. 186, 217
(1962); see also Winpisinger v. Watson, 202 U.S. App. D.C.

133, 628 F. 2d 133 (1980). [Id.]
On October 28, 1981, the plaintiffs filed a notice of appeal of
Judge Oberdorfer's decision to the U.S. Court of Appeals for the
District of Columbia Circuit. [No. 81-2150]

On December 8, 1981, the plaintiffs filed their brief in the appeals court, arguing that the lower court decision should be reversed because: (1) the immunity afforded by the Speech or Debate Clause did not preclude judicial examination into the dilution of their constitutional rights as voters and Members of Congress; and (2) the rules of the House did not preclude judicial review to determine if such rules were in compliance with the Constitution or in violation of fundamental law.

In general, the plaintiffs' brief reiterated their arguments in the district court and emphasized their contention that, where the integrity of the legislative process itself was challenged, the Speech or Debate Clause-designed to protect that integrity-should not be used to deny judicial review:

The purpose of the Speech and Debate Clause is to "protect the integrity of the legislative process.United States v. Brewster, 408 U.S. 501, 517 (1972). Here, Defendants seek to immunize conduct that strikes at the very heart of the principle of representative democracy—the very legislative process the Speech or Debate Clause is designed to protect. Defendants have mandated a "procedural" increase in their majority power through the mechanism of enhanced control of various Committees and subcommittees without the authority of due exercise of this country's electoral process.

To allow Defendants to twist the Speech or Debate Clause into a vehicle for protecting the political overreaching attacked by Plaintiffs' Complaint is to make a mockery of the Clause by inhibiting the free and fair function of that which it is designed to protect. This Court should hold that behavior Defendants seek to protect is outside the ambit of the Speech or Debate Clause. (Brief

for Appellants, December 8, 1981, at 9 (footnote omitted)] The brief also argued, as the plaintiffs had done in the lower court, that the Democratic Caucus and the Steering and Policy Committee were "patently partisan political bodies with no legislative or oversight responsibility” [Id. at 7), and that the "mere existence of the caucus within the Legislative Branch, generic references, funding and staffing, are hardly determinative of legislative responsibility or a place in the sphere of legitimate legislative activity." [Id. at 6-7]

Finally, the brief again maintained that the House rules did not bar a review of whether the rules themselves violated fundamental rights. It stated once more the plaintiffs' position that to the extent that "House rules delegate the allocation of committee and subcommittee positions to the Democratic Caucus it is both an improper and unconstitutional delegation of legislative function.” (Id. at 13]

On January 7, 1982, the defendants filed their brief arguing that the district court correctly ruled that (1) the action was foreclosed by the Speech or Debate Clause; and (2) the question of committee assignments was textually committed to the House of Representatives. The brief also restated the defendants' contention that the plaintiffs lacked standing to maintain the action.

On the Speech or Debate point, the brief dismissed the plaintiffs' argument regarding the political nature of the Caucus as "simplistic” [Brief of Appellees, January 7, 1982, at 10), and the argument regarding the timing of the defendants' actions (i.e., prior to the beginning of the 97th Congress) as "irrelevant." [Id. at 14] On the political question point, the brief noted that:

Appellants' theory that the Caucus acted ultra vires in De-
cember 1980 lacks any parliamentary or legal support and
is wholly inconsistent with prevailing House practice, and
the egregious and tortured misreading of applicable House
precedents by legislators themselves to buttress their
flawed cause of action only serves to emphasize the

wisdom of judicial abstention in this case. (Id. at 23] On both these points, the defendants marshalled arguments virtually identical to those put forward in the lower court.

Finally, the defendants' brief criticized the district court for according the plaintiffs standing, terming that holding "irreconcilable" [Id. at 25) with the court's alternative conclusion that the case presented a nonjusticiable political question. The brief again argued that the injuries alleged in the complaint were speculative and remote, and raised the spectre of innumerable lawsuits if standing were granted on the basis of such flimsy allegations:

To accord standing in these circumstances to legislators who fail to obtain a majority on whatever basis would open the floodgates to litigation by disgruntled political factions and there would be no way for the courts to stem the tide. Majorities of legislators, whether they are within the caucus, within committee or formed elsewhere in the House, are constantly coalescing to produce a voting consensus on pending legislation in the House and to bottom standing on the assumption that prospects of shifts are remote would open all votes to judicial scrutiny. There are in the House a number of "legislative support organizations” or “caucuses”, officially sanctioned, which are comprised of Members of the House which advance, through research, legislative drafting and the exchange of information the legislative objectives of particular regions, groups or delegations. E.g., Congressional Black Caucus, Congressional Steel Caucus, Environmental Study Conference, Congressional Rural Caucus, Northeast-Midwest Coalition, 8 Congressional Handbook, 97th Cong., 1st Sess. 152153 (1980). Under the District Court's analysis members of the Environmental Study Conference who were defeated on a program of amendments to the Clean Air Act to

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