Voting is a fundamental right. "Competition in ideas and governmental policies is at the core of our electoral process and of First Amendment freedoms." Williams v. Rhodes, 393 U.S. 23, 32 (1968). When government regulation has a "real and appreciable impact” on the electoral rights of one class of candidates, parties, or citizens, that regulation "must be closely scrutinized'. . .Bullock v. Carter, 405 U.S. 134, 144 (1971). See also Williams v. Rhodes, supra; Kramer v. Union Free School District, 395 U.S. 621, 629 (1969); Storer v. Brown, 415 U.S. 724 (1974); Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979). The same strict scrutiny is applicable to laws that afford substantial assistance to one candidate or party in competition with others because “any system that funds only some candidates on the ballot places their competitors at a clear disadvantage. . .(Development in the Law-Elections, 88 Harv. L. Rev. 1111, 1268 (1975). (Id.

at 9 (footnote omitted)] Additionally, the plaintiffs noted, strict scrutiny was all the more important in this case, "where the classification made by the lawmakers operates to preserve their own political power." [Id. at 10)

The plaintiffs also argued that their inability to demonstrate that the franking privilege actually affected the outcome of specific election campaigns was irrelevant. "The constitutional wrong is the government's granting to incumbent candidates a substantial financial subsidy to assist them in prevailing over opposing candidate(s) and voters," the plaintiffs insisted, and contended that the court had "repeatedly struck down laws interfering with access to the ballot or with proper candidate expenditures without inquiring into whether the complaining candidate would have won the election." [Id. at 11]

While conceding that franked mail might serve some public function-such as allowing a Member of Congress to communicate with his constituents—the plaintiffs attacked what they characterized as the lower court finding that the presence of "some degree of public purpose merely on the face” of franked mail was sufficient to bar adjudication of the unconstitutionality of the political abuses of the statute.

The reasoning contains its own destruction. Generalized, it would sanction other massive government intervention in support of incumbents' reelection campaigns under the pretense of enabling the incumbents to keep constituents informed about government. The reasoning would sustain legislation requiring broadcast licensees to provide Senators and Representatives with free time, even during the election campaigns, in which to keep in touch with constituents about pending legislation and other congressional

activities. (Id. at 13] Finally, the plaintiffs maintained that the district court could have fashioned a workable judicial decree in the case by simply entering a declaratory judgment that the franking statute was unconstitutional and leaving it to Congress to write new, more limited legislation. Alternatively, if the defendants continued their present practices, the plaintiffs suggested that the court could have enjoined, pending new legislation, the use of the frank by any incumbent Member of Congress who had become a candidate for reelection. The plaintiffs also suggested several approaches for remedial legislation in an effort to show that judicial invalidation of the franking statute would not create insoluble legislative difficulties.

StatusThe case is pending in the U.S. Supreme Court. The Court has extended the time to file responses to the plaintiffs'-appellants' jurisdictional statement until April 8, 1983.

The complete text of the February 10, 1975 memorandum and order of the three-judge court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, April 15, 1975.

The complete text of the July 30, 1975 memorandum and order of the three-judge court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, April 15, 1976.

The complete text of the December 11, 1980 memorandum opinion of the three-judge 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 September 2, 1982 memorandum opinion of the three-judge court is printed in the “Decisions” section of this report at page 597. Laxalt v. Kimmitt

Nos. 78-1437 and 78-1438 (D.C. Cir.) On July 14, 1977, Senators Paul Laxalt, Barry Goldwater, Carl Curtis, S. I. Hayakawa and Lowell Weicker filed suit in the U.S. District Court for the District of Columbia seeking to have Rule XLIV of the Senate Ethics Code, and, if necessary, the entire Ethics Code declared null and void as violative of the Constitution. The Senators, who asked that a three-judge court be convened to hear the case, were joined in the suit by the Committee for the Survival of a Free Congress (“CSFC"), an unincorporated political committee which contributes to campaigns of candidates for public office.

Named as defendants were the Chairman of the Senate Select Committee on Ethics, Senator Adlai E. Stevenson III, and the Secretary of the Senate, J. S. Kimmitt, who, as the chief administrative officer of the Senate, the plaintiffs asserted, caused "the Ethics Code and all reports, resolutions, and other actions of the Select Committee on Ethics to be disseminated to Senators and elsewhere." (Complaint, July 14, 1977, at 6] Additionally, the plaintiffs alleged that Senator Stevenson and Mr. Kimmitt were "responsible for and exercise ministerial jurisdiction over the enforcement of the Ethics Code by said Committee and by the Senate." [Id. at 7]

In particular, the plaintiffs attacked the limit on outside earned income prescribed by Rule XLIV. That Rule, which was due to become effective in 1979, would have limited the amount of outside income a Senator could n in a year to 15 percent of the aggregate amount of base salary paid to Senators and disbursed by the Secretary of the Senate.

The plaintiffs first alleged that this limitation in fact constituted a qualification for membership in the Senate in addition to, and therefore in violation of, Article 1, Section 3, clause 3 of the Constitution, which reads in full:

No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall

be chosen. The Senate plaintiffs also asserted that by limiting the compensation Senators could receive for speaking and by putting them in jeopardy of "political ruin and personal vilification" if they violated Rule XLIV, the Rule would deprive them of their right to freedom of speech under the First Amendment. They also asserted that their First Amendment associational rights would be denied by the Rule because they would be precluded from supporting, without similar risk, candidates for the Senate "who have earned, earn, or may earn in excess of the outside earned income limit prescribed by the Rule."

The CSFC also claimed that the Rule would deprive it of its First Amendment right to support senatorial candidates "who have earned, earn, or may earn such prescribed sums." [Id. at 8]

As a third count, the Senate plaintiffs asserted that the Rule's limitation on outside earned income would violate the Fifth Amendment in that by prohibiting them from receiving such income it would deprive them of liberty and property without due process of law.

In the fourth count of their complaint, the Senate plaintiffs alleged that Rule XLIV would deny their Ninth Amendment rights to earn income over the Rule's limit and to support candidates for the Senate "who have earned, earn, or may earn in excess of said limitation." [Id. at 9] Additionally, they asserted that the Rule constituted an unjustified intrusion into their privacy in violation of the Fifth and Ninth Amendments. The CSFC also asserted that the Rule violated its Ninth Amendment right to support candidates for the Senate who earned in excess of the outside earned income limitation.

As a final count, the Senate plaintiffs contended that the Rule would invidiously discriminate against them and deny them the equal protection of the laws in that the Rule limited outside earned income, but placed no limitation on inherited income, "unearned" income, the income of a spouse, or income from a trust fund. They further stated that the limitation was “an improper classification' because it "bears no reasonable relation to the purported purpose of the Senate Ethics Code." [Id. at 10)

The CSFC also asserted that it would be invidiously discriminated against and denied the equal protection of the laws in that Rule XLIV would effectively preclude it from supporting Senate candidates whose outside earned income was in excess of the Rule's limitations.

On August 11, 1977, Common Cause, David Cohen, President of Common Cause and Nan Waterman, Chairwoman of Common Cause, citing Common Cause's “history of involvement in the enactment of ethics rules" including the Rule complained of by the plaintiffs, filed a motion to intervene as defendants in the action. On September 2, 1977, the motion to intervene was granted.

On December 21, 1977, the intervening defendants moved to dismiss the action.

On December 23, 1977, the plaintiffs filed an amended complaint in which they deleted their prayer for convocation of a three-judge district court.

On January 9, 1978, the Congressional defendants moved to dismiss the amended complaint. This motion was heard and granted on March 3, 1978.

On March 13, 1978, an order dismissing the action was filed. (Laxalt v. Kimmitt, No. 77-1230 (D.D.C. March 13, 1978)] The court found that Rule XLIV would not add to the constitutional qualifications for Senate membership nor would it deprive the plaintiffs of their freedom of speech. Additionally, the order stated that the Rule's differentiation between earned and unearned income did not constitute unlawful discrimination. Therefore, the court concluded, the complaint failed to state a claim upon which relief could be granted and did not allege a justiciable case or controversy.

Finally, the court declared that its disposition of the previous issues made it unnecessary to address the question of standing.

The plaintiffs filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit on March 24, 1978.

On April 6, 1978, defendants Kimmitt and Stevenson filed a notice of cross-appeal from those portions of the final judgment of the district court which (1) held that the amended complaint sufficiently alleged the requisite jurisdictional amount, and (2) concluded that the disposition of other issues raised by the motions of the defendants made it unnecessary to dispose of the issues raised with respect to the standing of the CSFC and the Common Cause inter


On June 5, 1978, the appeal and the cross-appeal were consolidated by order of Circuit Judge Wright, sua sponte.

On December 8, 1978, the plaintiffs moved to add Senator Mike Gravel as a party appellant.

On March 8, 1979, the Senate passed Senate Resolution 93 which postponed the effective date of Rule XLIV from January 1, 1979 to January 1, 1983.

On March 20, 1979, Senator Laxalt and other appellants, at the oral direction of the court, filed a memorandum with respect to Senate Resolution 93, in which they moved for dismissal of the case without prejudice on the ground that the validity of rule XLIV was not ripe for adjudication.

Also on March 20, 1979, a brief was filed by Senator Stevenson and Mr. Kimmitt contesting the appellants' efforts to have the action dismissed as moot.

On March 27, 1979 the court issued a per curiam order deferring further action on the appeals pending stabilization of the situation and further order of the court to be issued not later than December 1, 1982.

On November 18, 1982, the clerk of the appeals court sent letters to all counsel asking that they inform the court of the present status of the case and, in particular, whether the case was likely to become moot at any time in the near future. Letters from all counsel were filed during the first week in December essentially stating the same facts: that while the challenged Senate Rule remained suspended, it was still scheduled to become effective on January 1, 1983 absent some further action by the Senate. All the letters noted, however, that the 97th Congress had not yet adjourned so it was possible the Senate would in fact act on the Rule.

On December 14, 1982, the Senate repealed the limit on outside earned income which formed the basis of the original Rule XLIV. (The Rule had subsequently been renumbered as XXXVI.) S. Res. 512, 97th Cong., 2nd Sess., 128 Cong. Rec. S14562 (daily ed. Dec. 14, 1982)

On January 14, 1983, the appeals court, citing the Senate's action, issued a per curiam order dismissing the pending appeal as moot and directing the district court to vacate its prior judgment and to enter a judgment dismissing the complaint as moot.

Status—The case is closed.

The complete text of the March 13, 1978 order of the district court is printed in the "Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, May 15, 1978. Vander Jagt v. O'Neill

No. 81-2150 (D.C. Cir.) On July 23, 1981, fourteen Republican Members of the U.S. House of Representatives 1 filed suit in the U.S. District Court for the District of Columbia against the Speaker of the House, Thomas P. O'Neill, Jr. (as Chairman of the Democratic Steering and Policy Committee of the House and a Member of the House Democratic Caucus); the Majority Leader of the House, Jim Wright (as First Vice Chairman of the Steering Committee and a Member of the Democratic Caucus); the Chairman of the Democratic Caucus, Gillis Long (as Second Vice Chairman of the Steering Committee and as Chairman of the Caucus); the Steering and Policy Committee itself, and the Caucus itself. (Civil Action No. 81-1722] The ten-count complaint alleged that the composition of certain committees and subcommittees of the House "unconstitutionally abridges fundamental rights of Plaintiffs in that certain Republican Representatives are entitled to membership positions on certain committees and subcommittees which they were denied by Defendants' action in causing a systematic underrepresentation of Republican Representatives on these committees and subcommittees.” [Complaint, July 23, 1981, | 1] In short, the complaint asserted that the defendants implemented a plan to underrepresent Republicans on com

1 The plaintiffs were Representatives Guy Vander Jagt, George Hansen, Robert Lagomarsino, Tom Hagedorn, Thomas Kindness, W. Henson Moore, Mickey Edwards, David Marriott, Daniel Crane, William Dannemeyer, Stan Parris, Olympia Snowe, Albert Lee Smith, and Vin Weber. They sued as "individual Republican Members of the House . as individual Members of certain Committees of the House . . . and as individual voters, and in their representative capacity for all Republican Members of House . . . and for all voters in all Congressional districts represented by Representatives affiliated with the Republican Party.”

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