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 sug-
gests, the Supreme Court does not believe that the stand-
ing doctrine is capable of reflecting the prudential con-
cerns 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).

II. THE SPEECH OR DEBATE CLAUSE 6 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.” 1

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

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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.

6 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

Continued 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).

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

III. JUDICIAL REVIEW OF CONGRESSIONAL RULES OF PROCEDURE The rules of the House limit committee membership to nominees of 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

9 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).

io 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 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 con-
sideration. With the courts the question is only one of
power. The Constitution empowers each house to deter-
mine 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 de-
termination of the house, and it is no impeachment of the
rule to say that some other way would be better, more ac-

curate 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 sig. nificant 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, e.g., 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


[2] In fact, however, this authorization of power to Congress is not analytically different from many other constitutionally enumerated powers. So it is not evident why we must treat congressional rules with "special care," or with more than the customary deference we show other legislative enactments. 17 Because of the position taken in Ballin, which apparently was adopted by Justice Brandeis writing for the Supreme Court in United States v. Smith, 286 U.S. 6, 33, 52 S.Ct. 475, 477-478, 76 L.Ed. 954 (1932), 18 we conclude that Art. I simply means that neither we nor the Executive Branch may tell Congress what rules it must adopt. Article I does not alter our judicial responsibility to say what rules Congress may not adopt because of constitutional infirmity.

We recognize that this raises some doubt about the intelligibility of the "textually committed” aspect of the political question doctrine. Yet our approach is hardly novel. 19 Indeed, though the political question (1174) doctrine itself is useful as a checklist of separation-of-powers concerns, see Consumer Energy Council of America v. FERC, 673 F. 2d 425, 452-53 (D.C.Cir. 1982), from the doctrine's very inception the Supreme Court noted the need to avoid reliance on it as a talismanic "label.Baker v. Carr, 369 U.S. at 210-11, 82 S.Ct., at 706-707. Rather the Court emphasized the continued importance of “case-by-case inquiry.Id. In the years since, the doctrine has, as former Chief Judge McGowan of this Court has written,20 been the subject of "withering academic attack” which has "succeeded in analyzing the doctrine essentially out of existence." 21 While reports of the doctrine's death may be exaggerated,

to follow its own precedure." In the end, the Metzenbaum court dismissed that suit largely for the same "prudential considerations” that we ultimately rely on. Compare 675 F.2d at 1287-88, with note 24 and accompanying text infra. 17 See Henkin, Is There A "Political Question" Doctrine? 85 Yale L.J. 597,605 n. 27 (1976):

Judging from the cases, even the “textually demonstrable commitment” of an issue to the political branches apparently does not necessarily mean exclusive and final commitment to the political branches without judicial review, but only the kind of commitment found, say, in the grants to Congress in Article I, § 8; the courts consider daily whether the political branches exercise power textually committed to them with due respect for

constitutional limitations or prohibitions. (citations omitted).

18 See also Yellin v. United States, 374 U.S. 109, 143-44, 83 S.Ct. 1828, 1847-1848, 10 L.Ed.2d 778 (1963) (White, J., dissenting); Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed. 1826 (1949). 19 See Henkin, supra note 17, at 604:

Although the Constitution provides that "Each House shall be the Judge of the Qualifications of its own Members," the Court held reviewable, and reversed, a judgment by the House that elected-Representative Adam Clayton Powell was not qualified. Athough the same clause provides that each House "shall be the Judge of the Elections (and) Returns . . . of its own Members.” the Court in Roudebush v. Hartke (405 U.S. 15. 92 S.Ct. 804, 31 L. Ed 2d 1 (1972)) reviewed and upheld a state procedure providing for a recount in an election for the United States Senate.

The Supreme Cout has not recently held any issue to be textually committed by the Constitution to the other branches and therefore not justiciable-a "political question.” And the Court's failure to require judicial abstention in those instances where scri ure can most plausibly be read to require it leaves a strong sense that the present justices

are not disposed to find many-or any-issues in fact so textually committed. (citations omitted). But see Goldwater v. Carter, 444 U.S. 996, 1002, 100 S.Ct. 533, 536, 62 L.Ed.2d 428 (1979) (Rehnquist, J., Concurring).

20 McGowan, supra note 3, at 257, referring particularly to Henkin, supra note 17. 21 Professor Henkin summarizes:

The political question doctrine saw its heyday in the New Deal Court, and received its highest measure of devotion from Justice Frankfurter, perhaps its boldest articulation by Justice Black in Colegrove (Coleman) v. Miller (307 U.S. 433, 548-59 (448-59] 59 S.Ct. 972, 979-984, 83 L.Ed. 1385 (1939)). It was perhaps an expression of a wider, deeper


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