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fendants point to nothing-that even remotely suggests
any intention by the Founders to commit final decision of
the issue raised by this case to the legislature for binding

resolution. [Id. at 11] Moreover, insisted the Moore plaintiffs, a court had the ability to determine the revenue impact of a tax bill and so there were in fact “judicially discoverable and manageable standards” for resolving the issue. Finally, the plaintiffs rejected the argument of the United States and the Senate that the "enrolled act rule" barred consideration, asserting that under the defendants' interpretation "the courts would be precluded from adjudicating the constitutionality of virtually all legislation." [Id. at 19]

The Moore plaintiffs next argued that they had standing because their votes that "no bill for raising revenue should be originated in 1982 ha[d] ... been nullified by the defendants" and they were “necessarily denied the opportunity to participate in the origination process.” (Id. at 22] Further, the plaintifs contended, the fact that they had an opportunity to vote on the final bill and the Rousselot resolution did not cure their injury and deprive them of standing: "Participation in the debate and voting on a bill received from the Senate is not a substitution for the constitutional right to participate, through committee consideration as well as floor debate and vote, in the origination of a new bill." [Id. at 23]

Turning to the equitable discretion doctrine, the Moore plaintiffs claimed that it was inapplicable and should not be employed to dismiss the case, since the possibility of any legislative relief was "remote.” Although the Moore plaintiffs conceded that they could introduce legislation to repeal the Tax Equity and Fiscal Responsibility Act of 1982, they argued that it "would at best have only an indirect impact on damage which has already been done, (and] Riegle does not require plaintiffs to take such a useless act.” [Id. at 25]

Finally, the Moore plaintiffs asserted that neither the Speech or Debate Clause nor the doctrine of sovereign immunity was applicable to the case. With respect to the former, the plaintiffs contended that it did not apply to "the institutions qua institutions," and need not apply to the individual defendants in situations where only declaratory relief was sought. With respect to sovereign immunity, the Moore plaintiffs maintained that it did not apply when, as in this case, it was claimed that constitutional rights had been abridged.

Also on November 1, 1982, the Moore plaintiffs filed a reply to the defendants' oppositions to their motion for summary judgment. (Although the House defendants' opposition was filed on October 18 (see discussion, supra, page 386), the United States and Senate defendants did not actually file their opposition until November 9 (see discussion, infra, page 389).) In their reply, the Moore plaintiffs insisted that the various Congressional, historical, and judicial precedents cited by the defendants were either unreliable, conflicting, or incorrect.

On November 3, 1982, U.S. District Judge Joyce Hens Green issued an order consolidating the Moore and Paul cases.

On November 8, 1982, Rep. Paul filed his opposition to the defendants' motions to dismiss. In essence, Rep. Paul adopted the arguments set forth by the Moore plaintiffs in their November 1st opposition.

On November 9, 1982, the United States and Senate defendants filed a memorandum in opposition to the Moore plaintiffs’ motion for summary judgment. The memorandum incorporated by reference the arguments of the United States and the Senate in their October 18th motion to dismiss and in addition asserted that a historical review of (1) the Constitutional Convention of 1787; (2) Congressional precedents since the beginning of the republic; and (3) pertinent legal precedents demonstrated that "plaintiffs' interpretation of the origination clause is not only at odds with the judgment of the Congress passing this Act, but moreover with two hundred years of precedent.” (Memorandum in Opposition to Plaintiffs' Motion For Summary Judgment Submitted By Applicant-Intervenor United States and Senate Defendants, November 9, 1982, at 3] Additionally, the defendants claimed that: (1) H.R. 4961, as introduced in the House, included provisions increasing taxes in certain respects, and (2) the legislation as passed, despite the Senate amendments, included provisions from the original House bill.

In sum, the United States and Senate defendants argued that H.R. 4961 as introduced and reported in the House was a revenueraising bill as contemplated in the Origination Clause. In particular, the defendants asserted that Congressional precedents confirmed that "the term 'Bills for raising Revenue' encompass both bills to reduce, and bills to increase, taxes. These precedents reflect, moreover, that the question of compliance with the Origination Clause has been resolved not in the courts, but internally, in Congress.(Id. at 11] Further, the defendants noted, Congressional precedents also reflected the existence in the Senate of broad power to amend those measures which fit in the revenue raising bill category. That power encompassed the amendments to H.R. 4961, the defendants insisted.

On November 15, 1982, the Senate defendants and the United States filed separate reply memoranda in support of their joint motions to dismiss the complaints. The memoranda in essence reiterated many of the arguments that had been raised previously, while emphasizing areas of particular concern.

The Senate defendants stressed that the cases should be dismissed on narrow grounds: namely, that neither the plaintiffs nor the Congressional defendants were proper parties, nor was a declaratory judgment action the proper vehicle, to litigate the alleged violation of the Origination Clause. Again, the Senate defendants insisted that the Riegle case and its doctrine of equitable discretion required dismissal because the "plaintiffs' grievance is with the Congress of which they are members; They have had and continue to have collegial remedies." (Reply of Senate Defendants in Support of the Motion To Dismiss, November 15, 1982, at 5] Further, the Senate defendants argued, private taxpayer plaintiffs had the opportunity to raise an Origination Clause defense, thus also bringing the case within the Riegle doctrine. Such private plaintiffs, not Members of Congress, were the proper parties, the Senate defendants intimated. The Speech or Debate Clause and the doctrine of

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

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