418 U.S. at 188, 94 S.Ct. at 2952 (footnote omitted). The majority does not believe Valley Forge will bear the reading I give it. In view of that opinion's own language and the language it quotes, however, I do not see how Valley Forge can bear any other construction. Whether the requirement is rooted in Article III or in judicial prudence, I conclude, therefore, that the Supreme Court continues to regard the standing concept as informed by considerations of separation of powers. We should so apply the requirement here. Since we must accept the complaints' allegations as true, we can permit ourselves no doubt that a failure to achieve a share of committee and subcommittee assignments in proportion to their numbers in the legislative body results in a diminution of a political party's influence and effectiveness in forwarding or opposing legislation. In consequence, appellants' influence and effectiveness are diminished. If the constitutional standards that appellants urge upon us mandate proportional representation, an issue that neither the majority nor I reach, then it is clear that appellants have, in fact, suffered an injury. The question to be answered, however, is whether that fact of injury is what the law means by injury in fact, I think not. Prior to the Riegle decision in 1981, this circuit had worked out a fairly definite formula to relate separation-of-powers concerns to the problem of legislator standing. In light of Valley Forge, I regard this formula as the law of this circuit, and would apply it without now inquiring as to whether a less permissive rule might be preferable. In Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir. 1974), a decision I think this court should reexamine under more appropriate circumstances, we found that a senator had standing to challenge the legality of the President's pocket veto of an enacted bill because the effect was to make a complete nullity of the senator's vote. In Harrington v. Bush, 553 F.2d 190 (D.C.Čir. 1977), on the other hand, a member of the House of Representatives complained that the secrecy of some Central Intelligence Agency activities under statutory concealment provisions impaired his effectiveness as a legislator. We found that an inadequate basis for injury in fact. This distinction between diminution of a legislator's influence and nullification of his vote was adopted by the en banc court in Goldwater v. Carter, 617 F.2d 697 (D.C.Cir.) Judgment vacated on other grounds, 444 U.S. 96, 100 S.Ct. 533 62 L.Ed.2d 428 (1979). The per curiam opinion, joined by Judges McGowan, Robinson, Wilkey, and Wald, found the plaintiff legislators had standing, but only because they met a very demanding test: To be cognizable for standing purposes the alleged diminution in congressional influence must amount to a disenfranchisement, a complete nullification or withdrawal of a voting opportunity; and the plaintiff must point to an objective standard in the Constitution, statutes or congressional house rules, by which disenfranchisement can be shown. Goldwater v. Carter, 617 F.2d at 702.1 The Supreme Court vacated the judgment of this court in Goldwater because [1181] various Justices thought that either the doctrine of ripeness or that of political question should have prevented us from reaching the merits. None of the Justices who so concluded mentioned the question of standing. This led the Riegle court to conclude that the standing concept was no longer viewed by the Supreme Court as a proper vehicle for separation-of-powers concerns; accordingly, the Riegle opinion shifted those considerations into a "doctrine of circumscribed equitable discretion." 656 F.2d at 881. The evidence for the conclusion that the Supreme Court had silently rejected Warth v. Seldin in Goldwater was very thin. Justices who found the case nonjusticiable on grounds of ripeness or political question had no occasion to discuss standing. The Valley Forge decision, which came after Riegle, demonstrates-conclusively, I believe that the concept of standing continues to incorporate separation-of-powers considerations. The premise on which Riegle rested, therefore, is no longer valid. There are compelling reasons rooted in the concept of separation of powers, and in particular in the proper role of courts in relation to the political branches, for us to adopt again the position we took in Goldwater, and to hold that appellants lack standing here. Appellants' complaint invites federal courts to participate extensively in the internal processes of Congress. We should decline the invitation because of the consequences of accepting it. If an allegation of a diminution of influence on the legislative process were sufficient to confer standing, federal courts doubtless would be invited to rule upon the ways in which committee and subcommittee members are chosen, since, party lines aside, it is clear that those chosen for committees on the budget or foreign affairs or rules generally have more influence than those not so chosen. Perhaps we could be called upon to rule on filibusters, since those who filibuster may have disproportionate influence over legislative outcomes. Courts might be asked to control the order in which legislation is brought to the floor, debated, and voted on. Surely we would be requested to remedy disproportionate assignments of staff as between committee majorities and minorities, for those assignments affect influence on the legislative process. Examples of this sort could be multiplied, but perhaps enough has been said to indicate why federal courts should firmly refuse to enter upon the wholly inappropriate task of ensuring absolute equity in Congress's legislative proce 1 Significantly, two other members of this court, applying a standard still more strict, would have denied the legislators standing. Chief Judge Wright, writing for himself and Judge Tamm, stated: [W]here a legislator alleges Executive impairment of the effectiveness of his vote, his injury can only be derivative. He cannot suffer injury in fact unless Congres has suffered injury in fact. Congress suffers no injury unless the Executive has thwarted its will; and there is no such will to thwart unless a majority of Congress has spoken unequivocally. Unless Congress has taken all final action in its power to exercise its constitutional prerogative, any injury an individual legislator suffers may find its source not in the President, but in his colleagues in Congress. Where Congress itself, and not the Executive, renders an individual legislator's vote ineffective, the courts have no role. 617 F.2d at 712 (footnotes omitted). dures. It is absurd to think that courts should purge the political branches of politics.2 The function appellants would have us perform would be extraordinarily instrusive, involving frequent, "repeated and essentially head-on confrontations" between Congress and the federal courts. Appellants would, for example, have the district court order appellees O'Neill, Wright, Long, the Democratic Steering Committee, and the Democratic Caucus to allocate additional committee and subcommittee seats to Republicans so that Republican assignments will be in proportion to their strength in the House. This injunction or mandamus would be enforced by the court's power to hold appellees in contempt should they fail to reconstitute the House's committees and subcommittees as desired. Merely to state what is sought is to make plain that appellants propose nothing less than a revolution in the judiciary's relationship to the political branches. How extraordinarily intrusive such a judicial function would be may be seen by imagining reciprocal cases. For courts to reassign congressional committee seats would be no less intrusive than for Congress to enact a law forbidding the members of this court from conferring on [1182] the decision of cases or forbidding specified judges from sitting on cases of a particular type. If the courts would not accept such invasions of their sphere, they ought not attempt the invasion of Congress's sphere sought by appellants. But there are more than considerations of comity and respect here, more than historical tradition and the constitutional need to retain limits on judicial power. There is the very real problem of a lack of judicial competence to arrange complex, organic, political processes within a legislature so that they work better. The caution the late Alexander M. Bickel addressed to political reformers may profitably be heeded by judges as well: James I spoke of the mystery of the King's power. The in- A. Bickel, Reform and continuity 2 (1971) (revised and expanded version of A. Bickel, The New Age of Political Reform (1968). Courts do not understand-indeed, probably not all legislators understand how the various rules, customs and practices of the legislature interact and how changing one aspect could produce the most unexpected distortions of the legislative process elsewhere. Nor can I imagine that extensive trials would educate courts to become experts on legislative processes so that they could improve those processes. The task, if there is a task that needs doing, is one 2 As the concurring judges said of the plaintiff senators in Goldwater: "Any harm they have suffered can be 'fairly traced' to their minority position in the legislature, and to the vagaries of politics. Surely courts cannot be expected to manage the calendar of the United States Senate." 617 F.2d at 714. for political reform by those intimately familiar with the complex arrangements and interactions involved. By contrast, the rule of Kennedy v. Sampson and Goldwater, requiring a nullification of a legislator's vote for legislator standing entails few of the problems that would flow from standing in a case like this one. The occasions of judicial intervention will be few and limited. According standing in such a case does not adopt a principle that requires courts to judge the propriety of all the manifold ways in which a legislator's influence may be diminished. If providing a judicial remedy in such a case might have a degree of intrusiveness about it, our concern should be lessened by the fact that the vote denied is a structural feature of our government, clearly assumed in Article I of the Constitution, as equal legislative influence or committee membership is not. Moreover, no question of judicial competence to rearrange complex political processes arises. It follows from this discussion that there can be no injury in fact unless there has occurred a nullification of a legislator's vote. This conclusion would bar standing for both legislators and voters where only diminution of influence is alleged because the harm claimed and the separation-of-powers principles, which prevent the court from interfering in this fashion with the political branches, are the same in both cases. I would hold, therefore, that appellants have not alleged a judicially cognizable injury and so have no standing to maintain this action. II. The majority argues that plaintiffs have standing to maintain this action but that their suit should be dismissed through an exercise of the court's "remedial discretion." It seems necessary to say a word about my colleagues' rationale, because the difference between their position and my own rests on more than a reading of precedent. It reflects a disagreement about the role of the federal courts in our government. At the level of case law interpretation, I have sufficiently expressed my belief that, even at the time it was decided, Riegle's reasoning proceeded from a false premise about the Supreme Court's view of standing and that the invalidity of that premise was once more demonstrated by the Supreme Court's Valley Forge decision. My colleagues nevertheless maintain that Riegle is still correct. They find that standing exists when a legislator plaintiff alleges a diminu- [1183] tion of his influence in Congress. The majority's approach, however, transforms the law enunciated in Riegle. Riegle at least laid down firm guidelines for the application of its doctrine of "circumscribed equitable discretion": In short, our standard would counsel dismissal of congressional plaintiff actions only in cases in which (i) the plaintiff lacks standing under the traditional tests, or (ii) the plaintiff has standing but could get legislative redress and a similar action could be brought by a private plaintiff. 656 F.2d at 882. These guidelines themselves were a remarkable assertion of judicial power, for, as the court had previously noted: Thus, such actions as impeachment, expulsion proceedings, Id. Yet it is of course precisely the function of the Article III limitations on jurisdiction, through such doctrines as standing and political question, to ensure that nonfrivolous claims of unconstitutional action will go unreviewed by a court. That is what the Supreme Court held was required in cases such as Richardson, Reservists, and Valley Forge. Now, however, the majority suggests that we relax still further the requirements of Riegle: We invoke our remedial discretion in this setting because Our regard for candor and coherence may seem anoma- Supra at 1174-1175 (footnote omitted). If they were applying Riegle, my colleagues would dismiss the action by plaintiffs in their capacities as legislators because legislative redress is available and a similar action could be brought by a private plaintiff. But they could not dismiss the entire action since there are private plaintiffs before us: the congressmen also sued in their capacities as voters and as representatives of the classes of all voters represented in the House by Republicans.3 If the legislators 3 The district court found that it lacked jurisdiction over appellants' claims "as voters and as Member of Congress." Vander Jagt v. O'Neill, 524 F.Supp. 519, 520 (D.D.C. 1981). Nowhere does the majority suggest that appellants' nonlegislator claims are not properly before us. As far as I am able to determine, there are private individuals in this lawsuit. My colleagues acknowledge this, supra at 1169, note 4, and are willing to extend Riegle beyond its terms to private suits. Indeed, my colleagues contend that the presence of private parties creates difficulties for my application of the separation-of-powers component of standing. Id. This contention misapprehends my position in two ways. First, separation-of-powers considerations do not, strictly speaking, operate here on the basis of the plaintiffs' status as legislators. Rather, in keeping with the standing doctrine, my concern is with the separation-of-powers implications of the harm alleged: "diminution of influence" in the legislative process. Appellants complain of this single harm in both of their capacities. Yet counting this as a harm sufficient to create standing would bring the courts into the internal affairs of Congress whether the plaintiff was a legislator or a voter. The separation-of-powers concerns are the same in either case. Continued |