pose of the expenditure that was the criterion for determining whether it was appropriately characterized as an exercise of Congress' power to spend for the general welfare. In this case, the plaintiffs asserted, "the size and geographic disbursement of the expenditures at issue . . . are simply a function of the funded institution itself, a national chaplaincy serving a representative legislature that meets in one location, and do not in any way detract from the obvious relationship of the expenditures to the nation's welfare." [Reply Brief for the Appellants on Rehearing En Banc, October 6, 1982, at 8]

The plaintiffs also rejected the theory that the expenditures at issue were not an exercise of Congress' express Article I, section 8 spending power because Congress had the implied power to compensate the chaplains. There was no need to look to such implied authority, the plaintiffs contended, since express constitutional authority existed under the Spending Clause, and "courts . . . will only look to implied authority if it is clear that there is no express authority given." [Id. at 10] Further, the plaintiffs continued:

If this Court accepts the appellees' argument that an im-
plied power should take precedence over an express power,
then Flast will, in effect, have been overruled. Given the
fairly broad scope of Congress' implied power, it will
always be possible for a government defendant to argue
that a federal expenditure of public funds challenged on
Establishment Clause grounds is made pursuant to some
implied power, rather than Congress' express power under
Art. I, §8, cl. 1. The Flast Court plainly did not intend to
have its holding rendered meaningless by a government
defendant's mechanical invocation of Congress' implied
powers. [Id. at 13]

Moreover, the plaintiffs maintained, their Establishment Clause
claim, involving a challenge to a practice of national significance,
was precisely the sort of taxpayer challenge anticipated and sanc-
tioned by Flast. The plaintiffs dismissed out of hand the Executive
branch defendants' argument that they would not have standing if
the expenditures at issue were viewed as an exercise of Congress'
Spending Clause power "to pay the Debts... of the United
States." Citing Flast, the plaintiffs noted that it was clear that
under the case taxpayers had standing "to challenge any exercise
'of congressional power under the taxing and spending clause of
Art. I, §8, of the Constitution.'" [Id. at 15 (emphasis in original)]
The plaintiffs similarly dismissed the Executive branch arguments
on the requirement of a "federal spending program" and a "sub-
stantial" expenditure of funds.

Finally, the plaintiffs once again asserted that their claim for relief did not present a nonjusticiable political question. They rejected the Senate defendants' historical arguments as irrelevant or inaccurate, noting in particular that what the Senate had failed to explain was "why these [historical] facts are supposed to foreclose consideration of the merits of appellants' claim when the Court in Brown v. Board of Education, 347 U.S. 483 (1954) did not allow similar facts, evidencing congressional and state approval of segregated public schools at the time of the adoption of the fourteenth

amendment, to block its consideration of the constitutionality of this practice." [Id. at 27]

Similarly, the plaintiffs dismissed the appellees' responses to the question of whether a nonjusticiable political question would be presented if Congress declared that the chaplains' offices could be filled only by persons of a designated race or religion. The plaintiffs pointed out that the House and Senate had provided different answers to this question and asserted that "the ultimate proof of the speciousness of appellees' argument [is] that the . . . House and Senate cannot agree on the meaning of this supposedly unquestionable constitutional commitment." [Id. at 35]

On October 27, 1982, the case was argued before the en banc court of appeals and taken under advisement. (In addition to the briefs submitted by the parties on rehearing, all previous briefs filed with the circuit court panel were also resubmitted for the full court's consideration.)

On November 2, 1982, a letter was filed with the appeals court by counsel for the Executive branch defendants. The letter advised the court that the Supreme Court had granted a petition for a writ of certiorari in a related case, Chambers v. Marsh, 675 F.2d 228 (8th Cir. 1982), cert. granted sub nom., Marsh v. Chambers, No. 82-23 (November 1, 1982).5

Status-The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit. As of March 1, 1983, the full court had not handed down its decision.

The complete text of the January 2, 1981 memoradum of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981. The complete text of the March 9, 1982 opinion of the appeals court panel, which was subsequently vacated by the en banc court, is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1982.

Common Cause v. Bolger (formerly Bailar, formerly Klassen)

No. 82-1141 (U.S. Supreme Court)

Originally filed on October 5, 1973 in the U.S. District Court for the District of Columbia, this action sought declaratory and injunctive relief against the Postmaster General and the Secretary of the Treasury for actions they allegedly performed or failed to perform in the course of their official duties relating to the Congressional franking privilege. In sum, the plaintiffs, Common Cause and John W. Gardner, its chairman, sought to have the Postmaster General enjoined from carrying franked mail and the Secretary of Treasury enjoined from paying for franked mail on the ground that the franking statute was unconstitutional. [Civil Action No. 1887-73] The plaintiffs amended their original complaint on March 12, 1974, following the enactment on December 18, 1973, of the Franking Act of 1973 (Pub. L. 93-191), to incorporate references to the new statutory language.

5 The Solicitor General's brief in the Supreme Court on behalf of the United States as amicus curiae in this case is reprinted in the "Related Materials" section of this report at p. 797.

The plaintiffs argued that the use of the frank for newsletters and news releases by Members of Congress who were candidates for nomination or election or engaged in fundraising for a candidacy, and the use of the frank on mail such as condolences, biographies, pictures, or complimentary writings by a Member: (1) abridged the plaintiffs' First Amendment rights; (2) denied their Fifth Amendment rights; (3) was an unlawful appropriation of public funds for nonpublic purposes; (4) violated the Postmaster General's statutory duty; and (5) was an unlawful disbursement of public funds contrary to the statutory duties of the Secretary of the Treasury. (See 39 U.S.C. § 3210)

On May 31, 1974, the defendants filed a motion to dismiss, together with a supporting memorandum, asserting as grounds that:

[T]he court lacks jurisdiction over the subject matter of
this action in that neither of the above-named defendants
are proper parties to this proceeding, the plaintiffs have
failed to exhaust the administrative remedies available to
them, the plaintiffs lack standing to maintain this action,
and *
* the complaint fails to state a claim upon which
relief may be granted. [Defendant's Motion to Dismiss,
May 31, 1974]

*

On June 14, 1974, the plaintiffs filed a memorandum in opposition to the defendants' motion to dismiss as well as an application to convene a three-judge district court. On June 26, 1974, U.S. District Judge John H. Pratt denied, without opinion, the defendants' motion to dismiss. On July 1, 1974, Judge Pratt signed an order convening the three-judge district court requested by the plaintiffs. A week later, the defendants filed their answer to the amended complaint.

On January 27, 1975, oral argument was held on a renewed motion to dismiss which had been submitted by the defendants. This motion raised the same arguments that had been made in defendants' first motion to dismiss, and made the additional assertion that the plaintiffs had failed to join an indispensable party-the Congress as required by Rule 19 of the Federal Rules of Civil Procedure.

By a memorandum and order of February 10, 1975, the court denied the defendants' renewed motion to dismiss. In rejecting the defendants' argument that the plaintiffs had failed to exhaust their administrative remedies, the court wrote:

The claim that plaintiffs have not exhausted their administrative remedies in failing to file complaints concerning violations of the statute with the House Commission on Congressional Mailing Standards or the Select Committee on Standards and Conduct of the Senate has no merit. Plaintiffs make no contention that there have been abuses or violations of the statute, consideration of which are in the sole jurisdiction of the House Commission or the Senate Committee, but rather that the statute on its face is unconstitutional, a matter beyond the jurisdiction of such bodies. Obviously, the House Commission and Senate Committee have no power to declare an act of Congress

unconstitutional. It is well settled that the doctrine of ex-
haustion does not apply where the administrative process
is inadequate to dispose of the constitutional claim. Air-
craft & Diesel Corp. v. Hirsch, 331, U.S. 752 (1947).
[Common Cause v. Klassen, Civil Action No. 1887-73
(D.D.C., February 10, 1975), Memorandum at 2]

In addition, the court said, neither Congress nor the membership of Congress was an indispensable party, and though the defendants' third allegation-that the plaintiffs lacked standing to suewas more serious and required further exploration, it, too, was without merit:

Plaintiffs sue as taxpayers with a taxable income of over $6 billion annually and federal tax liability in excess of $1 billion each year. They assert that federal funds appropriated under the franking privilege are being used to finance the distribution of partisan political literature specifically authorized by section 3210 and that such expenditures of federal funds violate the limitations upon the taxing and spending power of Congress under Article I, section 8, and contravene the First and Fifth Amendments of the Constitution.

Just as importantly, plaintiffs claim status as registered voters, representatives of registered voters, candidates for Congressional office, and supporters of candidates. It is alleged that over fifty members of Common Cause challenged incumbent members of Congress in the last election and many of its members supported challengers to incumbents. They assert that the present franking privilege confers substantial political benefits upon incumbents, while nonincumbent challengers and their supporters do not have the same advantage. As a result, the rights of challengers and their supporters to freely associate for political purposes are impaired, and the value of their votes is diluted and diminished, all in violation of the First Amendment. [Baker v. Carr, 369 U.S. 186 (1962)] In addition, it is alleged that this practice invidiously discriminates in favor of incumbent members in violation of the due process clause of the Fifth Amendment. In short, as citizens with a particularized interest in the electoral process, plaintiffs claim standing to attack Section 3210 as violative of their constitutional rights.

From the foregoing brief discussion, it is clear to us that the plaintiffs have met the test laid down in Flast v. Cohen [392 U.S. 83 (1968)] and subsequent cases. They have asserted (1) an injury in fact, not a generalized complaint common to all citizens and taxpayers, and they have demonstrated (2) a nexus between the injuries suffered and the constitutional infringements alleged. [Id. at 3–4]

Beginning in September 1974, the plaintiffs attempted to depose and serve subpoenas duces tecum on numerous current and former Congressional employees. When this was resisted, on February 21, 1975, the plaintiffs filed a motion to compel the giving of testimony

by several House and Senate employees. The motion also requested that these employees be ordered to produce various Congressional documents.

The motion by the plaintiffs to compel testimony and the production of documents was argued on July 16, 1975. On July 30, 1975, the court issued a memorandum and order which stated:

Objections to this attempted discovery are phrased in terms of (1) irrelevance, (2) burdensomeness, and (3) constitutional immunity under Article 1, Section 6 (The Speech and Debate clause) or Article 1, Section 5 (power of each body of Congress to enact its own rules).

The claim of lack of relevance is predicated on the narrow theory that, irrespective of the relevance of the requested materials in other frames of reference, they are simply irrelevant in a case where the gravamen of the complaint is that the statute complained of is alleged to be unconstitutional on its face. Aside from plaintiffs' continuing burden of maintaining standing, it is clear to us that a proper resolution of the issues raised by the complaint calls for a complete record consisting of the type of documentary materials sought to be discovered. For this reason, we hold these materials to be relevant and necessary.

Likewise, the claims of constitutional immunity are without weight. The Brewster case [United States v. Brewster, 408 U.S. 501 (1972)] and others clearly demonstrate that Congressional immunity is limited to legislative activities and the claimed use of the franking privilege for political activities is not covered even by a most expansive definition of the Speech and Debate clause. That the use of the franking privilege is not within the language of Article 1, Section 5, requires no discussion. [Common Cause v. Bailar, Civil Action No. 1877-73 (D.D.C. July 30, 1975), Memorandum at 3-4]

The court granted the plaintiffs' motion to compel discovery from the Senate and House employees, it being understood that the exact nature and bulk of the materials to be produced would be left to further negotiation between counsel for the respective parties. Subsequently, the House and Senate passed resolutions (H. Res. 1082, S. Res. 411) authorizing certain material to be furnished in the case.

On July 1, 1976, the House of Representatives passed H. Res. 1382 authorizing the House Commission on Congressional Mailing Standards ("Commission") to seek to intervene in the case. The motion to intervene was filed on August 6, and on September 9 an order was filed granting the Commission's motion.

From mid-July 1975 through 1977 this case was marked by frequent disputes regarding discovery. Docketed activity in the case substantially diminished from 1978 through the first half of 1980.

On June 25, 1980, the intervening Commission moved to dismiss the complaint for want of jurisdiction. In a memorandum accompanying the motion to dismiss, the Commission argued that under cases decided in the five years since the court denied the original