Originally filed on October 5, 1973, 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. 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. 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, on July 8, 1974, 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 exhaustion does not apply where the administrative process is inadequate to dispose of the constitutional claim. Aircraft & 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 defendants' dismissal motion, the plaintiffs lacked standing to bring the action. The memorandum claimed that the "law of standing has been substantially reformulated in that five-year period and, as a result, plaintiffs are required to meet more demanding standards. These new standards oblige plaintiffs to show that defendants have inflicted upon them specific, tangible injury of the kind that the judicial process is able to remedy. Plaintiffs cannot meet these new tests." [Memorandum of Points and Authorities in Support of Intervening Defendant's Motion to Dismiss, June 25, 1980, at 1-2 (footnote omitted)] More specifically, the Commission contended that the U.S. Supreme Court and other courts had formulated a three-pronged test to determine whether a party has standing. It explained: First, as to injury, a plaintiff must now present a claim of specific objective harm and ". . . [i]t is the injury which must be specific, not merely the interest on which the injury has been inflicted." Metcalf v. National Petroleum Council, 553 F.2d 176, 188 (D.C. Cir. 1977). Moreover, the injury must be personal to the party seeking to invoke a court's jurisdiction-a party must allege "a distinct and palpable injury to himself. . ." Warth v. Seldin, 422 U.S. 490, 501 (1975) (emphasis added). Second, since this Court's 1975 order, the Supreme Court has stressed that the injury required to confer standing must be an "injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42 (1976). Accordingly, to survive a motion to dismiss, "the facts alleged" in a complaint must clearly and unequivocally "support an actionable causal relationship" between the practice challenged and the "asserted injury." Warth v. Seldin, supra, 422 U.S. at 507. Third, a plaintiff's right to invoke the judicial process now depends also on his ability to demonstrate that a decision in his favor would have a "substantial likelihood" of redressing his alleged injuries. See, e.g., Duke Power Co. v. Carolina Environmental Study Group, Inc., 435 U.S. 59, 75, n.20 (1978). To have standing, a complainant "himself must perceptibly win or lose depending on the outcome" of his litigation. Harrington v. Bush, 553 F.2d 190, 209 (D.C. Cir. 1977). The mere possibility that a complainant will As to the first test, the Commission asserted that based on the recent decision in Winpisinger v. Watson, 628 F.2d 133 (D.C. Cir. 1980), cert. denied, 446 U.S. 929 (1980), the injury forming the basis of the complaint in this case was "not judicially cognizable because it does not constitute a palpable and distinct harm to the plaintiffs." [Id. at 6]1 The Commission claimed that the alleged injuries on which this complaint was based were "indistinguishable" from those relied on and found insufficient in Winpisinger. "Here, as there, plaintiffs do not allege measurable constraints imposed on their votes, contribu tions, and other political efforts but, rather, supposed dilution of the effectiveness of those activities. In Winpisinger, this Court ruled that such injuries were not judicially cognizable." [Id. at 9] Turning to the second test, the Commission asserted that "plaintiffs cannot satisfy the requirement of an adequate causal relation ship between the franking privilege and the alleged dilution of the effectiveness of their political efforts." [Id. at 14] It noted: Whether the franked material complained of here is a critical factor in a voter's decision-making process is highly speculative. Assuming that a recipient of franked material votes at all, and further assuming that the recipient reads the material, one cannot know whether that material more often than not causes him to vote for, rather than against, the Member of Congress who transmitted it to him. Moreover, here, as in Winpisinger, there are many factors, other than franked material-such as party affiliation, the positions of the candidates on sensitive issues, or a particular candidate's personal characteristics-that more readily explain the vagaries of the political process. [Id. at 18 (footnote omitted)] As to the third test, the Commission argued that the plaintiffs claimed injury would not likely be redressed by a favorable deci sion in the case. "At best," the Commission contended, "plaintiffs can assert only the speculative possibility that if Members of Con gress could not communicate with their constituents under the present version of the franking statute rather than another some challengers might be more successful or at least suffer defeat by a smaller margin. But speculation does not suffice. Redress of the claimed injury must be 'likely.' Plainly it is not." [Id. at 21] Finally, the Commisson asserted that even apart from the stand ing question, the court should dismiss the case for "prudential con siderations," noting that the relief sought would require an "un seemly intrusion by both the Executive and Judicial branches int 1 1 In Winpisinger, supporters of the presidential candidacy of Senator Edward Kennedy allege that the use of Federal resources, including franked mail, by supporters of President Čarter promote his renomination was unconstitutional. The court of appeals upheld the lower court dismissal of the complaint for lack of standing. 1 |