Judge Bork's second argument was also, we think, answered in Riegle, but he suggests that Riegle's analysis was implicitly rejected by the Supreme Court in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). There the Court provided its most recent formulation of the standing requirement in stating that:

at an irreducible minimum, Art. III requires the party who
invokes the court's authority to "show that he personally
has suffered some actual or threatened injury as a result
of the putatively illegal conduct of the defendant," Glad-
stone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99
S.Ct. 1601, 1608, 60 L.Ed.2d 66] (1979), and that the injury
"fairly can be traced to the challenged action" and "is
likely to be redressed by a favorable decision," Simon v.
Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41
[96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976).

454 U.S. at 472, 102 S.Ct. at 758. Immediately following this summary, the Court explained the standing doctrine's function: "In this manner does Art. III limit the federal judicial power 'to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.' Flast v. Cohen, [392, U.S. 83 (1968)] at 97 [88 S.Ct. 1942 at 1951, 20 L.Ed.2d 947]." Id. (emphasis added).

Judge Bork contends that the Court's use of the phrase "separated powers," taken together with language from other opinions over the past decade, signals that we should consider separation-ofpowers issues as part of our determination whether appellants have standing. But we decline to place as much weight on the Supreme Court's language as Judge Bork does. If the Court had meant to expand its standing doctrines to make room for a whole set of analytically-unrelated theories about the roles of the separate branches of government, it could have said so. Instead, we should continue to rely on previous expressions by the Supreme Court that it does not mean to have separation-of-powers controversies resolved under the rubric of standing. As Judge bork acknowledges, infra at 1179, in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), the Court explicitly addressed and explicitly rejected the notion that "in terms of Article III limitations on federal court jurisdiction, the question of standing" intersects "separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government." 392 U.S. at 100-01, 88 S.Ct. at 1952-1953.

for judicial review by including "private plaintiffs" in their suit. See Riegle, 656 F.2d at 882; note 16 supra. For regardless of the requirements for legislators' standing, there can be no doubt that the voting rights cases established that "complete nullification" of voting power is not necessary for citizens challenging congressional elections to acquire standing. White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973).

Judge Bork resolves this problem by denying standing on the gounds that "a private plaintiff's suit raises identical separation-of-powers concerns because those concerns are about the relationship of the courts to Congress," infra at 1184. In the following section, we discuss why we cannot accept his expansion of standing doctrines to include separation-of-powers concerns. On the other hand, simply because we grant standing does not mean that we must reach the merits of this suit, as Riegle thought might be necessary. See note 24 supra.

It is true that in the years following Flast, this circuit itself relied several times on standing principles to dismiss separation[1170]-of-powers controversies. But in the aftermath of Riegle, it surely is now settled law in this circuit that standing doctrines will not be manipulated to resolve separation-of-powers problems.

Riegle followed Goldwater v. Carter, 444 U.S. 996, 100 S.Ct., 533, 62 L.Ed.2d 428 (1979) (mem.), where the Supreme Court vacated this circuit's en banc decision, 617 F.2d 697, which had used standing to resolve a sparation-of-powers challenge. Judge Robb summarized in Riegle the Goldwater lesson:

The Court ignored the standing concept altogether and, in
separate opinions by Justices Powell and Rehnquist, nei-
ther of which gained a majority of the Court, relied upon
the doctrines of ripensess and political question, respec-
tively (citation omitted.)

If, as the ultimate disposition of Goldwater v. Carter suggests, the Supreme Court does not believe that the standing doctrine is capable of reflecting the prudential concerns raised by congressional plaintiff suits, this court ought not persist in the attempt to make it do so.

656 F.2d at 880 (emphasis added).

Yet Judge Bork continues to argue that "Riegle's reasoning proceeded from a false premise about the Supreme Court's view of standing." Infra at 1182. His insistance that we lack the power to act in this case and in other separation-of-powers disputes has considerable practical significance.

For the essence of this lawsuit is that the Democratic House leadership has successfully diluted the political power of Republican representatives, their voters, and residents of their districts. This dilution has occurred because the Democrats have disproportionately limited the Republicans' representation on congressional committees, and "a committee of Congress-in the legislative scheme of things, is for all practical purposes Congress itself." Doe v. McMillan, 412 U.S. 306, 344, 93 S.Ct. 2018, 2040, 36 L.Ed.2d 912 (1973) (Rehnquist, J., concurring in part and dissenting in part). We readily acknowledge that the constitutional claims raised in this suit are different from those raised in Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927) and its progeny (the White Primary cases), or Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) and its progeny. But the significance of those cases is a lesson we cannot ignore: for many years, our nationwith surprising consensus-has relied on the judiciary to remedy longstanding flaws in the political system which impede equal participation in the governmental process.

Thus while there are compelling prudential reasons why we should not interere in the House's distribution of committee seats, it is nevertheless critical that we do not deny our jurisdiction over the claims in this case. As long as it is conceivable that the committee system could be manipulatd beyond reason, we should not abandon our constitutional obligation-our duty and not simply our province-"to say what the law is." Marbury v. Madison, 5 U.Š. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803); United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 3106, 41 L.Ed.2d 1039 (1974).

Courts and commentators 5 have long recognized that it is crucial to distinguish questions about whether judicial power exists from questions about whether judicial power should be exercised. Our decision today simply recognizes that if Congress should adopt internal procedures which "ignore constitutional restraints or violate fundamental rights," it is clear that we must provide remedial action. United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321 (1892). Cf. Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966) (Georgia House of Representatives acted unconstitutionally when it excluded Julian Bond because of his statement criticizing the feder[1171]al government's policy in Vietnam); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (U.S. House of Representatives acted unconstitutionally when it effectively expelled Adam Clayton Powell by a majority vote because of charges that Powell had misappropriated public funds and abused the process of the New York courts); Kucinich v. Forbes, 432 F.Supp. 1101 (N.D. Ohio 1977) (Cleveland City Council acted unconstitutionally when it suspended Gary Kucinich for possibly suggesting that the council president had accepted money for passage of certain legislation).


The district court dismissed appellants' challenge in part because it concluded that "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." 524 F.Supp. at 521 (citations omitted). The district court reasoned "that action taken by House Members 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, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975)." Id. (additional citations omitted)

Appellants argue, however, that the Clause should not be interpreted to shield the Democrats' method of allocating committee seats. The Republicans point out that the Democrats acted before the 97th Congress was sworn in, and they argue that partisan political decisions are not within the "legitimate legislative sphere." "To extend the immunities of the Constitution to a partisan political caucus and to persons not yet Members is to extend a concept far beyond its original intent.'


We are reluctant to define the constitutional boundaries of immunized congressional conduct if we are not compelled to do so.8

5 "As with many other areas of justiciability concern, in short, it would be better to forgo resort to article III and supposed limits on judicial power in favor of direct attention to the substantive and remedial problems raised by the particular case." 13 C. WRIGHT, A. MILLER E. COOPER, FEDERAL PRACTICE AND PROGRESS § 3531, at 112 (Cum. Supp. 1980). See also note 27 infra.

U.S. CONST. art 1, § 6, cl. 1 provides: "The Senators and Representatives shall . . . and for any speech or debate in either House, they shall not be questioned in any other place.”

Brief for Appellants at 4.

8 Judge Bork reminds us infra at 1185, note 5, of the "Supreme Court's recently announced principle that Speech or Debate Clause issues are generally to be dealt with before the merits are reached. Davis v. Passman, 442 U.S. 228, 235, n. 11, 99 S.Ct. 2264, 2272 n. 11, 60 L.Ed.2d 846 (1979)." That principle is designed to protect legislators "not only from the consequences of liti


[merged small][ocr errors][ocr errors][ocr errors][ocr errors]

Both the history and the Supreme Court's interpretation of the Clause indicate that it should be used to shield actions of individual legislators or their staffs who otherwise might fear civil or criminal attacks. That does not necessarily mean that legislative activities like those in this controversy should be shielded. In addition, we are concerned to avoid unnecessary constitutional adjudication, especially when the [1172] essential issue here whether these "activities are casually or incidentally related to legislative affairs but [are] not a part of the legislative process itself," is extremely slippery. 10 Because our remedial discretion provides sufficient foundation for our dismissal of this suit, we decline to affirm the district court's invocation of the Speech or Debate Clause, which again. might hamstring us in the future.11


The rules of the House limit committee membership to nominees of each party's caucus. 12 Thus, when the Republicans challenge the allocation of committee seats for being disproportionately unbalanced, they are actually challenging the system of rules the House has adopted under Art. I, §5, cl. 2. Because "the Constitution confers upon the House the power 'to determine the Rules of its Proceedings,'" the district court found that "[t]his textual commitment of the issue to the House would oust the Court's jurisdiction, even if such jurisdiction were not more explicitly foreclosed by the Speech and Debate Clause." 524 F.Supp. at 521 (citations omitted).

The appellants argue, however, that "the Courts have the right and duty to consider the validity of [a procedural] rule in relation to other Constitutional provisions." 13 That is to say, while the dis

gation's results but also from the burden of defending themselves." Davis, 442 U.S. at 236 n. 11, 99 S.Ct. at 2272, quoting Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 1427-1428, 18 L.Ed.2d 577 (1967). Because we do not reach the merits of this case, but in fact affirm the lower court's dismissal, it seems likely that we are within the spirit-if not the letter-of Davis. In addition, we are mindful of the Supreme Court's repeated admonitions not "to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.' Burton v. United States, 196 U.S. 283, 295 [25 S.Ct. 243, 245, 49 L.Ed. 482]." Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 [56 S.Ct. 466, 483, 80 L.Ed. 688] (1936) (Brandeis, J., concurring).

The "Clause has been read 'broadly to effectuate its purposes,' . . . and includes within its protections anything 'generally done in a session of the House by one of its members in relation to the business before it.' Doe v. McMillan, 412 U.S. 306, 311, 93 S.Ct. 2018, 2024, 36 L.Ed.2d 912 (1973) (citations omitted.) Still, it is at least debatable whether the partisan organizational actions of the Democratic Caucus should be immunized as "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 or with respect to other matters which the Constitution places within the jurisdiction of either House." Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972). See Reinstein & Silverglate, Legislative Privilege and the Separation of Powers, 86 Harv.L.Rev. 113 (1973); The Supreme Court, 1974 Term, 89 Harv.L. Rev. 131 (1975).

To The standard is quoted from United States v. Brewster, 408 U.S. 501, 528, 92 S.Ct. 2531, 2545, 33 L.Ed.2d 507 (1972), itself an example of awkward adjudication. Brewster held that a former senator could be prosecuted for being bribed to perform a legislative act, despite the immunities of the Speech or Debate Clause, because "an inquiry into the purpose of a bribe 'does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them.' " 408 U.S. at 526, 92 S.Ct. at 2544 (citation omitted).

See also Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979).

11 See Eastland v. United States Servicemen's Fund, 421 U.S. 491, 509-10, n. 16, 95 S.Ct. 1813, 1824-1825, n. 16, 44 L.Ed.2d 324 (1975) (discussing "the absolute nature of the speech or debate protection.")

12 H.R. Rule X, cl. 6(a)(1), Rules of the House of Representatives, $701a, reprinted in Jefferson's Manual and Rules of the House of Representatives, H.R. Doc. No. 96-398, 96th Cong., 2d Sess. 387 (1981), provides: "The standing committees specified in clause 1 shall be elected by the House at the commencement of each Congress, from nominations submitted by the respective party caucuses."

13 Brief for Appellants at 13.

trict court concluded that we lack jurisdiction, the Republicans say first that we do have jurisdiction, and then argue that the congressional structure should be held unconstitutional.

The Supreme Court in United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321 (1892), made plain that our scope of review is broader than the district court believed. The Court expressly weighed the constitutional "validity" of a House rule involving when a sufficient quorum was present. In doing so, the Court indicated that our review of congressional rules is to be equally deferential, but no more so, than our review of most other legislative actions:

Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate or even more just.

144 U.S. at 5, 12 S.Ct. at 509.

This circuit has previously expressed its reluctance to review congressional operating rules, 14 though it has never denied its [1173] power to do so. The discomfort has been rooted in the doctrine of nonjusticiable political questions, as set forth in Baker_v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). There the Supreme Court declared that "[p]rominent on the surface of any case held to involve a political question" were such separation-of-powers concerns as whether there was "a textually demonstrable constitutional commitment of the issue to a coordinate political department." 369 U.S. at 217, 82 S.Ct. at 710. This circuit has drawn on that doctrine to reach the conclusion that Art. I, § 5, cl. 2 creates a "specific constitutional base" which requires us to "take special care to avoid intruding into a constitutionally delineated prerogative of the Legislative Branch." 15 Unfortunately, no court has ever explained what it might mean to "take special care." But it is significant that no court has ever followed Baker v. Carr to the extent of holding that this textual commitment alone makes these cases nonjusticiable. 16

14 See, eg, Metzenbaum v. FERC,675 F.2d 1282, 1287 (D.C.Cir. 1982); Exxon Corp. v. FTC, 589 F.2d 582, 590 (D.C.Cir. 1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2160, 60 L.Ed.2d 1044 (1979); Consumers Union of United States v. Periodical Correspondents' Ass'n, 515 F.2d 1341, 1347-48, 1351 (D.C.Cir. 1975).

15 Harrington v. Bush, 553 F.2d 190, 214 (D.C.Cir. 1977). Harrington and Exxon, supra note 14, do not explicitly refer to Baker v. Carr's political question analysis, but Consumers Union and Metzenbaum, supra note 14, do.

16 At most, the court in Metzenbaum, supra note 14, held nonjusticiable a challenge by legislators asserting only that the House's own operating rules had been violated. Not only were no constitutional claims at issue; but in addition the court noted that "judicial intervention may be appropriate where rights of persons other than members of Congress are jeopardized by failure


[ocr errors][ocr errors]
« ForrigeFortsett »