sovereign immunity also meant that the Congressional defendants were not proper parties, the Senate defendants reemphasized. And the declaratory judgment act further barred the suits, they concluded.

In its separate reply memorandum, the United States again argued that: (1) the Riegle case required dismissal of the suits; (2) plaintiffs lacked standing because they had suffered neither a nullification of their votes nor a denial of any right to vote; (3) the suits presented a non-justiciable political question; (4) the Congressional defendants were immune from the suits under the Speech or Debate Clause; (5) the actions were barred by the doctrine of sovereign immunity; (6) the "enrolled act rule" was dispositive of the cases; and (7) historical precedent supported the interpretation that the Origination Clause encompassed all tax bills, not just tax bills that increased revenues.

On November 29, 1982, a hearing was held before Judge Green on the motions to dismiss and for summary judgment, and the matter was taken under advisement.

On December 16, 1982, Judge Green issued a memorandum opinion and order dismissing the actions on the basis that the plaintiffs lacked standing. [Moore v. United States House of Representatives and Paul v. United States, 553 F. Supp. 267 (D.D.C. 1982)] Judge Green held that even assuming the legal conclusion that the Tax Equity and Fiscal Responsibility Act of 1982 was enacted in violation of the Origination Clause, "plaintiffs have not demonstrated the injury-in-fact required by Art. III to invoke judicial power." [553 F. Supp. at 270]

Judge Green noted that the separation of powers concerns underlying the concept of standing were "particularly acute" when the plaintiffs were Members of Congress. Injury in fact in such a case, she ruled, must amount to a complete nullification of the opportunity to vote. In these actions, however, Judge Green found that the plaintiffs had not been deprived of their right to vote.

As the legislative history plainly reflects, plaintiffs had ample opportunity to exercise their voting rights and in fact, save for plaintiff Williams, voted their disapproval of TEFRA at every turn. Plaintiffs fully participated in the legislative process which culminated in the passage of the act they now challenge. They were simply outvoted. The argument that plaintiffs' votes were effectively nullified by the Senate's usurpation of their right to originate revenue raising bills, and the House acquiescence therein, is unpersuasive. To support this contention, plaintiffs rely on Kennedy v. Sampson. In that case, however, the plaintiff had standing because his successful vote had been nullified by the allegedly illegal pocket veto of the President. But where, as in this case, "Congress itself, and not the Executive, renders any individual legislator's vote ineffective, the courts have no role." Goldwater v. Carter, 617 F.2d at 712.

In short, plaintiffs speak as a frustrated minority. Unless the institution of Congress itself has suffered injury-in-fact at the hand of the Executive, an individual

legislator has no standing to complain of impairment to
the effectiveness of his vote. "His injury can only be de-
rivative." Goldwater v. Carter, 617 F.2d at 712. Here, Con-
gress specifically considered and rejected the suggestion of
any constitutional infirmities in the enactment of TEFRA,
and in fact opposes this lawsuit. Judicial interference into
this intra-legislative dispute is constitutionally precluded.
[Id. at 270-71]

Even if the plaintiffs' claim of injury to their rights as Members of Congress to originate bills for raising revenue was deemed constitutionally sufficient to confer standing, Judge Green concluded that the doctrine of equitable discretion announced in the Riegle case would mandate dismissal of the the actions. She stated:

In the instant case, plaintiffs must be relegated to their legislative remedies, despite their previous failures to convince their colleagues of the rightness of their views, and no matter how remote their chances for success in the future. "It would be unwise to permit the federal courts to become a higher legislature where a congressman who has failed to persuade his colleagues can always renew the battle." Riegle v. Federal Open Market Committee, 656 F.2d at 882 [Id. at 271]

Judge Green added that a private taxpayer plaintiff could challenge the constitutionality of the 1982 tax act by filing for a refund after January 1, 1983 and could bring a similar action under the Origination Clause.4

On January 3, 1983, the Moore plaintiffs filed a notice of appeal of Judge Green's decision to the U.S. Court of Appeals for the District of Columbia Circuit. [No. 83-1077] On February 15, 1983, Rep. Paul also filed a notice of appeal to the circuit court. [No. 83-1190] Status-The cases are pending in the U.S. Court of Appeals for the District of Columbia Circuit.

The complete text of the December 16, 1982 memorandum opinion of the district court is printed in the "Decisions" section of this report at page 679.

League of Women Voters of California v. Federal Communications Commission

No. 82-00912-ADX (U.S. Supreme Court)

On April 30, 1979, the League of Women Voters of California; U.S. Representative Henry Waxman of California; and the Pacifica Foundation, a non-profit educational corporation owning and operating five major market noncommercial FM radio stations throughout the United States, brought suit against the Federal Communications Commission ("FCC") in the U.S. District Court for the Central District of California. [Civil Action No. 79-1562-MML] The complaint challenged the constitutionality of 47 U.S.C. § 399(a)

* At least four cases have been filed by private plaintiffs challenging the constitutionality of the Tax Equity and Fiscal Responsibility Act of 1982: McBrearty v. The Executive Branch, Civil Action No. 83-5021 (W.D. Ark.); Paul v. The Executive Branch, Civil Action No. 83-C-224-S (W.D. Wisc.); Graham v. United States, Civil Action No. 82-5610 (E.D. Pa.); and Davis v. United States, Civil Action No. 82-2862 (S.D. Tex.).

which provided in relevant part that "no noncommercial educational broadcasting station may engage in editorializing or may support or oppose any candidate for political office." The plaintiffs sought both declaratory relief and an injunction against the statute's enforcement. The gravamen of the complaint was that section 399(a) was unconstitutional on its face in that it violated First Amendment rights to freedom of speech and of the press, and, as to plaintiff Pacifica, that it violated its right to equal protection of the laws under the Due Process Clause of the Fifth Amendment (since it deprived noncommercial broadcasters of constitutional rights exercised by commercial broadcasters).

The FCC filed an answer to the complaint on July 25, 1979. An amended complaint was filed on August 27, 1979, and an answer was filed on September 12, 1979.

On September 24, 1979, the plaintiffs filed a motion for summary judgment. In a memorandum accompanying the motion, the plaintiffs outlined the reasons why they believed section 399(a)'s absolute ban violated the First Amendment's guarantees of freedom of speech and of the press and the Fifth Amendment's guarantee of equal protection under the Due Process Clause. At the outset, the memorandum contended that editorializing and endorsement of or opposition to political candidates by noncommercial broadcasting stations was speech "squarely within the protection of the First Amendment." It noted further that except where special regulations were needed to protect children, "every court-sanctioned regulation on the content of broadcast speech has been designed to increase the variety of views and opinions expressed over the air." [Memorandum of Points and Authorities in Support of Motion for Summary Judgment, September 24, 1979, at 8] It pointed out that what was involved was not only the right of noncommercial broadcasting stations to editorialize, but also the critical right of the broadcast audience-the public-to receive such editorials and thereby be informed. The memorandum continued:

In Red Lion [Broadcasting Co. v. FCC, 395 U.S. 367 (1969)], supra, the Supreme Court unanimously upheld the constitutionality of the FCC's fairness doctrine, which requires that discussion of public issues be presented on broadcast stations and that each side of those issues be given fair coverage. Faced with the possibility that stations might present only one viewpoint on important public issues, the Court found the only solution consistent with the First Amendment rights of the public to be the fairness doctrine's requirement that both sides of the issues be presented.

By enacting § 399(a) to prevent potentially one-sided editorializing, Congress has done precisely what the Supreme Court in Red Lion found to be an unconstitutional infringement of the First Amendment rights of the broadcast audience. Section 399(a)'s censorship of all noncommercial broadcasters' editorials denies to plaintiffs Henry Waxman and the League of Women Voters and to all members of the public access to the "uninhibited market

place of ideas" which is their constitutional right. [Id. at
11 (footnote omitted)]

Second, the memorandum contended that the Government could show no compelling interest which would justify the absolute prohibition found in section 399(a). Such a ban, the plaintiffs argued, was only permissible in cases where the utterances did not constitute "speech" at all-e.g. obscenities, false and deceptive advertising, defamation, and so forth. The only conceivable governmental interest in this case, the memorandum noted, was in preventing "public criticism and comment" directed at Congressional incumbents, "a purpose [which] is totally improper and cannot serve as a basis for upholding the statute." [Id. at 15] The plaintiffs also asserted that the fear that noncommercial stations might become a "giant government-controlled propaganda machine" was totally unfounded, not only because of the restraints built into the Corporation for Public Broadcasting charter and the FCC political editorializing rule (and the fairness doctrine) but also because noncommercial stations received but a fraction of their income from the Federal Government.

Third, the memorandum contended that even if there were legitimate Government interests supporting section 399(a), because there were narrower, less drastic, means of satisfying those interests, the section was still unconstitutional. It pointed to several measures short of a total ban on editorializing already in effect, such as the fairness doctrine and the right of reply legislation, and suggested other alternatives.

Turning to the Fifth Amendment equal protection issue, the plaintiffs argued that the noncontent-based distinction between noncommercial and commercial broadcasters was not premised on the required "substantial" government interest and therefore could not be sustained as a matter of constitutional law.

On October 11, 1979, U.S. Attorney General Benjamin Civiletti informed Senate Majority Leader Robert Byrd by letter that the Department of Justice, which represented the FCC in the case, would not defend the constitutionality of the statute. The Attorney General in essence agreed with many of the arguments raised by the plaintiffs in their memorandum. He concluded that the statute violated the First Amendment and that no compelling state interest could be identified to justify the prior restraint on speech. He also noted that section 399(a) was overbroad (since public broadcasting stations receiving no public funds were covered) and that there were less restrictive ways to achieve the purposes of the statute. He noted that the FCC agreed that the statute "cannot be defended successfully in its present form." In a stipulation filed with the court on October 23, 1979, the FCC stated that it had "determined to discontinue its defense of the constitutionality of Section 399(a) . . ." and had so advised Congress. On January 18, 1980, the Justice Department, for the FCC, stated to the court that it had "no opposition to the arguments advanced by the plaintiffs in support of their Motion for Summary Judgment that §399(a) is unconstitutional."

On January 17, 1980, the Senate moved to appear in the case as amicus curiae pursuant to Senate Resolution 328 (125 Cong. Rec.

21-618 0-83-26

S19431, Dec. 20, 1979) and the Ethics in Government Act (2 U.S.C. § 2881(a), providing that permission to appear as amicus "shall be of right" if the appearance is timely). Simultaneously, the Senate Legal Counsel moved to dismiss the complaint and to defer responses to the plaintiffs' motion for summary judgment until the court had ruled on the motion to dismiss. The defendant FCC took no position on these motions.

In a memorandum accompanying the motion to dismiss, the Senate argued that the court did not have jurisdiction to hear the action because there was no ripe case or controversy, there were no adverse parties, and the plaintiffs had not exhausted their administrative remedies. The memorandum characterized section 399(a) as a provision passed by Congress "to keep the massive infusion of federal money into the media commenced by the Public Broadcasting Act of 1967 from bringing in its wake political entanglements and control and partisan use of public money." [Memorandum in Support of Senate's Motion to Dismiss, January 17, 1980, at 1]

On the case or controversy point, the Senate contended that the suit was "anticipatory" and not presented in a concrete form suitable for judicial resolution. "A proper judicial ruling," the memorandum stated, "must be informed, as this one is not, by the characteristics of the government-controlled broadcaster who makes the candidate endorsement or editorial violative of 47 U.S.C. §399(a), and by what he says, and how." [Id.] In this case, the Senate asserted, the plaintiffs did not allege that they had violated the statute, that it had been enforced or threatened to be enforced against them, or even that they had, or planned to have, engaged in, solicited, or prepared specific candidate endorsements or editorials by public broadcasters. Further, the Senate argued, if the court refused to rule on this anticipatory case, only "relatively mild statutory sanctions" [Id. at 17] would apply if the plaintiffs did later violate the statute (with likely mitigation), which did not constitute sufficient "hardship" to warrant the court's intervention.

On the second point, the Senate asserted that the parties were not adverse on the merits because, in short, "plaintiffs assail 47 U.S.C. §399(a); the Department of Justice, representing the defendant FCC, does not defend it; and there are no other parties." [Id. at 18] The Senate emphasized that the parties in the case came to court "fresh from the rejection by Congress of the goal they seek here." [Id. at 1] The memorandum explained:

[T]his suit was brought by Representative Waxman immediately upon his failure to obtain repeal of 47 U.S.C. § 399(a) by Congress "Opposing" Representative Waxman is the Executive Branch which joined in efforts to amend 47 U.S.C. § 399(a). "It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act." Chicago & Grand Truck Railway v. Wellman, 143 U.S.C. 339, 345 (1982), quoted in Ashwander v. Tennessee Valley Authority, supra, 297 U.S. at 346. Traditionally, courts have taken agreement between private and Executive parties as a cue to dismiss constitutional attacks.

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