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.


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 plain

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,
impoundment, and certain acts of the executive not subject
to direct legislative redress or private party challenge (e.g.

the pocket veto in Kennedy v. Sampson, supra) would be
subject to judicial review in a congressional plaintiff case.
These circumstances (which are not intended to exhaust
the possibilities) represent situations where absent con-
gressional plaintiff actions, it is possible that non-frivolous
claims of unconstitutional action would go unreviewed by

a court. 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
this case raises separation-of-powers concerns similar to
Riegle's, and the remedial discretion approach-which this
circuit has used before-provides a more candid and coher-
ent way of addressing those concerns.

Our regard for candor and coherence may seem anoma-
lous, because a doctrine of remedial discretion suggests the
sort of rudderless adjudication that courts strive to avoid.
But Riegle makes explicit what we also seek to emphasize:
this is not an area fit for inflexible doctrines or brightline

tests. 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. If the legislators here have standing, it is difficult to see why voters whose influence in Congress has been allegedly unconstitutionally diminished would not also have standing. Řiegle states that such plaintiffs could (1184) not be dismissed under a doctrine of circumscribed equitable discretion:

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



While we discourage congressional plaintiffs in such cir-
cumstances (availability of legislative redress and private
plaintiffs), it is probable that a private plaintiff could ac-
quire standing to raise the issue of unconstitutionality
before a court. Because such a private plaintiff's suit
would not raise separation-of-powers concerns, the court

would be obliged to reach the merits of the claim. 656 F.2d at 881.

While, as discussed above, I think a private plaintiff's suit raises identical separation-of-powers concerns because those concerns are about the relationship of the courts to Congress, it is clear that, whatever the majority proposes, it is not that we hold to Riegle.

This becomes even clearer when my colleagues offer their rationale for dismissing this suit: giving orders to the Speaker of the House of Representatives is a "startingly unattractive” idea. Supra at 1176. It is, but the law deserves and is susceptible of greater definition than that. Even Riegle provides more, and the standing rule enunciated by this court in Goldwater provides much more. “[R]udderless adjudication” is not a necessity,

My colleagues' reliance upon the rationale of Davids v. Akers, 549 F.2d 120 (9th Cir. 1977), does not help matters. That case is nearly identical to this, and the Davids court, in a passage the majority quotes, indicates the difficulty courts would have in framing rules to deal with the subject, 549 F.2d at 125. Indeed, the Davids opinion, though it had held that the political question doctrine posed no bar, concluded its recitation of problems by saying that "a judicially discoverable and manageable standard cannot be found,” id., though that is one of the categories of nonjusticiable political questions set out in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962). It is clear that many of the difficulties recited relate to defining the rights of legislators, not to the fashioning of relief. This suggests to me that Davids and the majority are actually applying the political question doctrine, here under the name of remedial discretion. The shift in terminology is not insignificant. Political question, like standing, is a doctrine that raises a jurisdictional bar to judicial power, while remedial discretion, as described in Judge Gordon's opinion for the majority, raises no bar and grants the judiciary unfettered discretion to hear a case or not, depending on the attractiveness of the idea.

My colleagues' disinclination to rest this case upon a jurisdictional ground-whether that of standing or political question-rests squarely upon the erroneous notion, expressed in Riegle and reiterated today, that there must be judicial power in all cases and that doctrines must not be adopted which might frustrate that power. 4 Thus, the majority argues:

Second, the nullification-of-vote standard is wholly consistent with the malapportionment cases. A Democratic Senator would have standing under that standard to challenge a rule that counted his vote as one-third of a Republican's just as much as he would have standing to challenge a rule that counted it not at all. Just such a mathematically calculable reduction of the vote (as opposed to a reduction of generalized influence) is the harm

in malapportionment cases; this is a necessary result of the application of the Equal Protection Clause and the one-man one vote rule.

Thus while there are compelling prudential reasons why
we should not interfere in the House's distribution of com-
mittee 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 (1185) could be
manipulated beyond reason, we should not abandon our
constitutional obligation-our province-“to say what the
law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 [2
L.Ed. 60] (1803); United States v. Nixon, 418 U.S. 683 [94

S.Ct. 3090, 41 L.Ed.2d 1039] (1974). Supra at 1170. Of course, when a court finds a jurisdictional bar to its exercise of power, it does state what the law is. When, on the other hand, a court claims a discretion, whose contours are not suggested, to decide or not to decide, the court refuses to say what the law is.5 Moreover, the assertion that to find a lack of jurisdiction is an abandonment of a constitutional duty to pronounce upon the merits of any issue offered the court can only mean that all limitations on the jurisdiction of Article III courts, including those derived from Article III itself, are unconstitutional. That proposition may fairly be described as novel. The Supreme Court does not subscribe to it. Very recently, in Valley Forge, a decision that appears to be particularly inconvenient for the standing determination by the majority, the Court repeated its rejection of a similar contention: “But "[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.' Schlesinger v. Reservists Committee to Stop the War, 418 U.S., at 227 (94 S.Ct. at 2935).” 454 U.S. at 489, 102 S.Ct. at 489.

4 My colleagues note that courts sometimes review arguably internal acts of legislatures. Supra at 1170-1171. These cases stand for the proposition that some such actions create standing; in no way do they suggest that legislative actions producing "diminution of influence,” as opposed to the nullification of a vote, create an injury in fact. Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), the most important of these cases, involved Powell's exclusion from the House. The Supreme Court did not address standing. In assuming that standing existed, Powell is consistent with the rule of Goldwater; denied his seat, Powell was denied his vote, and had standing to sue. Similarly, Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966), which did not discuss standing, involved an exclusion from the Georgia legislature. United States v. Ballin, 144 U.S. 1, 5, 6, 12 S.Ct. 507, 509, 36 L.Ed. 321 (1892), which upheld a congressional rule, also without a discussion of standing, merely suggested in dicta that such rules are sometimes reviewable. None of these cases suggests that diminution of influence is a judicially cognizable injury; none of them even addresses the question.

5 The same reluctance to relinquish the possibility of power in future cases seems to underlie my colleagues' refusal to decide the issue raised under the Speech or Debate Clause: "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.” Supra at 1171-1172 (footnote omitted).

It is, moreover, a dubious practice to decide the question of remedy without deciding the Speech or Debate Clause issue. The district court regarded the Speech or Debate Clause as jurisdictional. 524 F.Supp. at 521. The majority does not explicitly state whether it regards the Clause as jurisdictional. Its theory, however, rests implicitly on the proposition that the Clause is non-jurisdictional. It is true, as the opinion says, that it does not decide the merits of the case; rather, it skips over them (as opposed to stopping short) to decide the case on the grounds of the remedy-a question that properly comes after the merits. At the least, this departs from 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, 236, 99 S.Ct. 2264, 2272, 60 L.Ed.2d 846 n. 11 (1979) (explaining departure from usual priority rule). One of the dissents in Davis argues that prior determination of Speech or Debate Clause issues is a near-absolute, not merely a general, requirement. 442 U.S. at 251, 99 S.Ct. at 2280 (Stewart, J., dissenting).


In short, I find nothing in Riegle or in the majority's opinion that adequately explains the conclusion that plaintiffs have standing. Nor do I find anything that justifies the assumption of an unconfined judicial power to decide or not to decide; just such a power, of course, inheres in the version of remedial discretion offered today. Since my view of standing requires affirmance of the district court, I do not reach the issues presented by the Speech or Debate Clause and the political question doctrine.

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