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Benford v. American Broadcasting Companies, Inc. [Not Reported)

(4th Cir. 1981), cert. denied, 454 U.S. 1060 (1981) (1) The surreptitious taping of a meeting between Congressional committee staff investigators and an individual under investigation, and the subsequent broadcast of portions of the taped meeting on national network news are not absolutely protected by the Speech or Debate Clause of the U.S. Constitution since they are not an integral part of the deliberative and communicative processes of the committee. (2) The “informing function” of Congress cannot be used as a justification for protecting the publication of materials injurious to private individuals. Bodenmiller v. Stanchfield, 557 F. Supp. 857 (E.D.N.Y. 1983)

(1) Complaints to a Member of Congress about the conduct of his subordinates with whom the complainer has had official dealings constitute speech protected by the First Amendment. (2) Because a Member of the House is empowered under 2 U.S.C. $ 92 to appoint, supervise, and terminate employees with or without cause, neither the threat of suspension or discharge nor the actual suspension or discharge of an employee by that Member can be described as unlawful conduct. [This case is on appeal in the U.S. Court of Appeals for the 2d Circuit.] Bodenmiller v. Stanchfield (S.C. Suffolk County, N.Y.)

Issue raised.- Are a Member of Congress and his staff aide absolutely immune from liability for common law torts such as slander as long as they are acting within the scope of their official duties? [This case is pending in the State Supreme Court in Suffolk County, N.Y.] Brown v. American Broadcasting Companies, Inc. (Not Reported)

(E.D. Va. 1981) Counts of a complaint charging Congressional committee staff members and others with violations of the Federal eavesdropping statute, invasion of privacy, and defamation (arising out of their actions during a committee investigation) will be dismissed if not brought within the applicable statute of limitations. [This case is pending in the U.S. Court of Appeals for the 4th Circuit.] Chadha v. Immigration and Naturalization Service, 634 F.2d 408

(9th Cir. 1980), cert. granted, 454 U.S. 812 (1981) The legislative veto provision of section 244(c)(2) of the Immigration and Nationality Act, which allows either house of Congress to override decisions of the Attorney General to grant suspension of deportation, usurps essential functions of the Executive and Judicial branches and is therefore unconstitutional under the separation of powers doctrine. [This case is pending in the U.S. Supreme Court.) Common Cause v. Bolger (formerly Bailar, formerly Klassen) (Not

reported) (D.D.C. 1982) The Congressional franking statute is not unconstitutional under the First or Fifth Amendment to the U.S. Constitution or under

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the General Welfare Clause of Article I, Section 8 despite the fact
that it authorizes the distribution of partisan political literature by
incumbent Members of Congress at public expense. [The U.S. Su-
preme Court has been asked to review this case.)
Common Cause v. Bolger (formerly Bailar, formerly Klassen), 512

F. Supp. 26 (D.D.C. 1980)
(1) "Prudential considerations” will not bar an action challenging
the administration of the Congressional franking statute on consti-
tutional and statutory grounds where the case does not involve
major, discretionary policy decisions but rather involves decisions
by the Postmaster General and Secretary of the Treasury to imple-
ment specific statutory language. (2) In such a suit, the Speech or
Debate Clause does not preclude discovery of Congressional docu-
ments and testimony relating to the use of the franking privilege
for political purposes.
Consumer Energy Council of America v. Federal Energy Regulatory

Commission, 673 F.2d 425 (D.C. Cir. 1982) The legislative veto provision of section 202 of the Natural Gas Policy Act of 1978, which allows incremental pricing rules of the Federal Energy Regulatory Commission to take effect only if neither house of Congress adopts a resolution disapproving such rules, violates Article I, Section 7 of the Constitution by preventing the President from exercising his veto power and by permitting legislative action by only one house of Congress. Section 202 also violates the separation of powers doctrine by usurping essential functions of the Executive and Judicial branches. [The U.S. Supreme Court has been asked to review this case.] Consumers Union v. Federal Trade Commission, 691 F.2d 575 (D.C.

Cir. 1982) The legislative veto provision of section 21(a) of the Federal Trade Commission Improvements Act of 1980 (15 U.S.C. $ 57a-1(a)) which allows Congress, by means of a concurrent resolution, to nullify proposed rules issued by the Federal Trade Commission violates the separation of powers doctrine and the procedures established by Article I for the exercise of legislative powers. [The U.S. Supreme Court has been asked to review this case.) Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982)

(1) A cause of action under the War Powers Resolution (50 U.S.C. $$ 1541, et seq.) challenging the provision of U.S. military aid to El Salvador is non-justiciable because of the nature of the fact finding which would be required for a court to determine whether U.S. forces have been introduced into hostilities or imminent hostilities in that country; Congreessional, rather than judicial, fact finding is required in such a case. (2) Such an action does not, however, present a political question involving potential judicial interference with Executive branch discretion in the foreign affairs field as long as the Members of Congress filing the suit are seeking to enforce existing law concerning the procedures for decision making. (3) The legislative scheme does not contemplate court-ordered withdrawal of U.S. forces when no report has been filed by the President under

the War Powers Resolution, but rather leaves open the possibility for a court to order that a report be filed, or, alternatively, withdrawal 60 days after a report was filed or required to be filed by a court or Congress. (4) A suit by Members of Congress under section 502B of the Foreign Assistance Act of 1961 (22 U.S.C. § 2304) challenging the provision of U.S. military aid to El Salvador is barred by the court's equitable discretion doctrine because the Members' dispute is primarily with their fellow legislators who have authorized aid to that country. [This case is pending in the U.S. Court of Appeals for the District of Columbia Circuit.] Food Service Dynamics v. Holtzman (E.D.N.Y.)

Issue raised.- Is a Member of Congress immune from a defamation action as long as the actions complained of were committed within the scope of her Congressional office and in furtherance of her duties to: (1) investigate and speak out on matters of public interest; and (2) examine and report on the implementation of legislation? [This case is pending in U.S. District Court.] Fremont Energy Corporation v. Seattle Post-Intelligencer, 688 F. 2d

1285 (9th Cir. 1982) A Member of Congress cannot be held in contempt of court for refusing to answer specific questions at a deposition in the absence of a court order compelling answers to the specific questions posed. Fremont Energy Corporation v. Seattle Post-Intelligencer [Not Re

ported) (E.D. Cal 1981) The Speech or Debate Clause does not bar testimony by a former Member of Congress at a deposition in a civil proceeding in which he is not a party regarding remarks made by the Member to a reporter after he relinquished his seat in Congress. Gaylor v. Reagan, 553 F. Supp. 356 (W.D. Wisc. 1982)

The head of a national organization dedicated to the principle of the separation of church and state has standing to sue the President and Congress challenging the constitutionality of a Joint Resolution authorizing the President to proclaim 1983 as the “Year of the Bible," although the plaintiff is not entitled to a preliminary injunction to prevent such a proclamation. (This case is pending in U.S. District Court.] Holy Spirit Association for the Unification of World Christianity v.

Central Intelligence Agency, 558 F. Supp. 41 (D.D.C. 1983) Documents consisting of communications from Congressional committees to the Central Intelligence Agency and purely internal Congressional working papers which somehow reached the CIA are not protected by the Speech or Debate Clause of the U.S. Constitution from disclosure under the Freedom of Information Act if no Member of Congress or appropriate representative comes forward to affirmatively raise the speech or debate issue, even if the release of the documents would constitute a threat to legislative independence and would create a precedent that would impair the deliberative and communicative function of the legislative process. (This case is pending in U.S. District Court.)

Holy Spirit Association for the Unification of World Christianity v.

Central Intelligence Agency, 636 F.2d 838 (D.C. Cir. 1980) (1) A document created by Congress and subsequently sent to a Federal agency will not be exempt from public disclosure under the Freedom of Information Act as a Congressional record if neither the circumstances surrounding the document's creation nor the conditions under which it was sent to the agency clearly reflect a Congressional intent to retain control over the document or to preserve the document's secrecy. (2) Regardless of whether a document created by an agency pursuant to a specific Congressional request and subsequently transferred to Congress can become a Congressional record and therefore exempt from public disclosure under the Freedom of Information Act, no Congressional record exemption will be found if neither the circumstances surrounding that document's creation nor the conditions under which Congress sent it back to the agency clearly reflect a Congressional intent to retain control over the document or to preserve the document's secrecy. (3) A letter from the Clerk of the House of Representatives to a Federal agency, which expresses the Clerk's belief that a document in the agency's possession is a Congressional record and therefore should not be publicly disclosed, will not constitute sufficient evidence of Congressional intent to retain control over the document if the letter was sent to the agency after a Freedom of Information Act request for the document was made and long after Congress transmitted the document to the agency. [This case is pending in U.S. District Court, although these holdings are final.] Holy Spirit Association for the Unification of World Christianity v.

Fraser (D.D.C.) Issue raised. —Are a Member of Congress and his committee staff aides absolutely immune from a suit alleging constitutional violations and defamation under the Speech or Debate Clause of the U.S. Constitution? [This case is pending in U.S. District Court.] Idaho v. Freeman (formerly Goulding), 529 F. Supp. 1107 (D. Idaho

1981), cert. granted (district court judgment stayed), 455 U.S. 918 (1982), vacated (district court instructed to dismiss com

plaints as moot), 103 S. Ct. 22 (1982) (1) A state has the power and right to rescind a prior ratification of a proposed constitutional amendment at any time prior to the unrescinded ratification by three-fourths of the states properly certified to the General Services Administration. (2) While Congress can act at the time it proposes an amendment to set a period within which states' ratifications will be valid, or, if it so chooses, set no time period at all, Congress cannot extend a time period previously fixed. (3) The setting of a time period for ratification-like the proposal of a constitutional amendment itself-must be done by a two-thirds vote of both Houses of Congress and not by a simple majority. [These district court holdings were vacated by the U.S. Supreme Court, which remanded the case to the lower court with instructions to dismiss the complaints as moot.]

In Re: IBP Confidential Business Documents Litigation (Not Re

ported] (N.D. Iowa 1981) (1) The protection of the Speech or Debate Clause of the U.S. Constitution can be invoked by Congressional staff members as well as Members of Congress, and, for the purpose of construing the privilege under the Clause, a Member and his aide are to be treated as one, hence things done by the aide are privileged to the extent that they would have been privileged if done personally by the Member. (2) The Speech or Debate Clause is applicable to a motion to quash a subpoena (seeking documents and testimony from Congressional staff aides) in a civil action in which no Member of Congress is a party. (3) Judicial inquiry about the preparation of witnesses testifying before a Congressional committee, statements by witnesses to the committee, information obtained for a hearing, or conclusions drawn by the committee is barred by the Speech or Debate Clause. (4) News releases and summaries of testimony which are “intricately intertwined" with a Congressional hearing, which are not widely distributed, and the use of which is limited to the hearing itself are also protected from judicial scrutiny by the Speech or Debate Clause. (5) The Speech or Debate Clause does not bar questioning about staff contacts with Federal agencies seeking to influence those agencies' actions regarding an outside corporation. Jenrette v. Abdul Enterprises, Ltd. [Not Reported) (D.D.C. 1980)

A Member of Congress who is being investigated by a Federal grand jury and who alleges that Federal prosecutors presented illegally obtained evidence to the grand jury, cannot, in a civil action against the United States, enjoin the criminal proceedings against him if resolution of the criminal case would likely moot, clarify, or, otherwise affect the various contentions made in the civil case. [This case is pending in U.S. District Court, although this holding is final.] Jones v. Guthrie (D.D.C.)

Issues raised.-(1) Is a civil suit filed by an employee of the U.S. Capitol Police against the Sergeant at Arms of the House of Representatives and the Capitol Police barred by the doctrine of sovereign immunity? (2) In such a suit, are the defendants protected from liability by the doctrine of qualified official immunity if they acted in good faith and in reasonable belief that the challenged actions were lawful? [This case was dismissed at the plaintiff's request after argument but prior to the district court rendering a decision.] Laralt v. Kimmitt (Not Reported) (D.D.C. 1978)

Former Rule XLIV (subsequently renumbered Rule XXXVI) of the Senate Code of Ethics, which placed a limit on the amount of outside earned income a U.S. Senator could receive, did not violate Article I, Section 3, clause 3 of the U.S. Constitution by imposing an additional qualification for membership in the Senate; nor did the rule abridge freedom of speech or equal protection rights guaranteed by the U.S. Constitution. [This judgment was vacated by the

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