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ed plan to underrepresent them are either beyond judicial
scrutiny as within the legitimate legislative sphere, or not
susceptible to discernible judicial standards for resolution.
Where, as here, the plaintiffs seek "to accomplish in this
court what they are unable to persuade their colleagues to
do,Reigle v. Federal Open Market Committee, Slip Opin-
ion, at 8, the court should decline to entertain the action
and remand the plaintiffs to the proper forum-the House
of Representatives. (Memorandum of Points and Authori-
ties in Support of Congressional Defendants Motion to Dis-

miss, September 21, 1981, at 18] More specifically, the defendants first asserted that because the complaint was "grounded explicitly” (Id. at 5) in the performance of legislative acts, the Speech or Debate Clause barred the suit. Citing Gravel v. United States, 408 U.S. 606, 625 (1972), the defendants contended that, in defining the “legitimate legislative sphere" for purposes of determining the applicability of the Clause, the Supreme Court had extended its reach to include not only all matters that form "an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation,” but also "other matters which the Constitution places within the jurisdiction of either House." Noting that under Article I, section 5, clause 2 of the Constitution the House is given the power to “determine the Rules of its Proceedings," and pursuant to this power the House has provided under Rule X, clause 6(a)(1) that the standing committees are to be elected “from nominations submitted by the respective caucuses,” the defendants concluded that “the actions allegedly taken by the Congressional defendants in committee or in Caucus prior thereto are within the 'legitimate legislative sphere.'(Id. at 6 (footnote omitted)

Moreover, according to the defendants there was further evidence that the caucus meetings of both parties were within the legitimate legislative sphere in that “transportation to and from the caucuses . . . , as well as per diem expenses, are provided by law, 2 U.S.C. § 29a(b)(1)(A), as are expenses for travel during regular sessions. In addition, permanent staffs are provided to both caucuses,

and under the rules they may use the Chamber to meet.” (Id. at 6, n. 4] Finally, they asserted, the Democratic Steering Committee also came within the Clause as “a duly established Committee of the House . . . , like all other committees, provided with staff, office space and all other support services.” [Id. at 7, n. 5)

Turning next to the justiciability arguments, the Congressional defendants maintained that the case represented the "quintessential 'political question'” (Id. at 9] involving determinations committed to Congress and not reviewable by the courts. They analogized the action to Winpisinger v. Watson, 628 F. 2d 133 (D.C. Cir. 1980), in which supporters of Senator Edward M. Kennedy's candidacy for the presidency sued President Carter's administration and reelection committee alleging that the defendants misused their public authority and expended Federal funds to promote the President's candidacy in violation of the plaintiffs' constitutional rights:

Likewise here, exercise of judicial power to review Plaintiffs' claim would involve consideration of myriad and interlocking judgments exercised by legislative branch officers in determining committee assignments and would open the floodgates of judicial review to virtually every "other discretionary decision made by the Congress) acting through these high [legislative branch] officials.” The Winpisinger court declined to enter this political thicket and determined that “[p]rudential barriers upon courts clearly preclude judicial interference in the daily responsibilities of these defendants and the resultant shift of decision making from the Executive to the Judicial Branch.Id. at 141. This principle applies with equal, if

not greater, vigor to the Legislative Branch. (Id. at 10-11) Finally, the defendants argued that the plaintiffs lacked standing to challenge the internal legislative decision making process under either traditional concepts of standing or the theory of circumscribed equitable discretion. With respect to the former, the defendants contended that the plaintiffs had not established the necessary injury in fact because the alleged harm was neither "distinct nor palpable.” Instead, according to the defendants, the plaintiffs complained about “their degree of 'influence', or their frightful quantum' of influence in the legislative process, and not any directly identifiable deprivation.” [Id. at 13] Beyond that, said the de fendants, the plaintiffs could not “point to a single 'nullification' of a vote or denial of an 'opportunity to vote,' or to any action which has resulted in disenfranchisement of any right or privilege accorded Members of the House by the Constitution.” (Id. (footnote omitted)]

According to the defendants, the plaintiffs also could not meet the second traditional requirement of standing-a causal connection between the alleged actions of the Congressional defendants and the injury the plaintiffs claimed.

Even were the committee proportions about which Plain-
tiffs complain to be changed to that which Plaintiffs assert
is appropriate, it is not clear that these Plaintiffs would be
assigned to the major standing committees specified in the
Complaint. It is mere speculation to assume that any addi-
tional “Republican” committee seats would be assigned to
any of the Plaintiffs. Furthermore, it is speculation to
assume that what Plaintiffs claim is the appropriate level
of Republican membership on committees would necessar-
ily increase in order to achieve the Democratic Republican
proportion sought by the Complaint. [Id. at 14 (footnote

omitted)] Third, the defendants asserted that the plaintiffs' claimed injury was not to an interest arguably within the zone of interests to be protected by the constitutional guarantees in question, "principally because these guarantees are so broadly drawn, it is difficult to ascertain how these plaintiffs present an interest distinct' from the generalized interest of all citizens in constitutional governance.

Schlesinger v. Reservists To Stop The War, 418 U.S. 208, 217 (1973)." (Id. at 15-16]

In addition to arguing that the plaintiffs had failed to establish standing under the traditional three-part test, the defendants maintained that they also should be denied standing under the concept of circumscribed equitable discretion articulated in Reigle v. Federal Open Market Committee, 656 F.2d 873 (D.C.Cir. 1981). (See page 157 of this report for a discussion of that case.)

While Reigle concerned a case brought by a congressional plaintiff against executive branch officials and not fellow legislators, the decision inexorably points to the guiding principle dispositive of this case:

Judges are presented not with a chance to medi-
ate between two political branches but rather
with the possibility of thwarting Congress' will by
allowing a plaintiff to circumvent the process of
democratic decisionmaking. "This meddling with
the internal decisionmaking process of one of the
political branches extends judicial power beyond
the limits inherent in the constitutional scheme
for dividing federal power.'
Slip Opinion at 16-17, quoting Hon. Carl
McGowan, "Congressmen in Court: The New

Plaintiffs”, 15 Ga.L.Rev. 241, 251 (1981)
Contrary to Plaintiffs assertion that they have “exhaust-
ed all remedies," they still have the opportunity, which
the House has not foreclosed, to vote on a resolution in-
creasing the number of minority party members on com-
mittees and subcommittees, and in fact, there is precedent
for the House doing so.

On February 19, 1939 the House approved a resolution increasing the number of "Representatives from the minority political party" to the Special Committee on Wildlife Conservation. H.R. Res. 90, 76th Cong., 1st Sess.; 84 Cong. Rec. 1333 (1939). This avenue remains indefinitely

open. (Id. at 17] On September 25, 1981, the plaintiffs filed a motion to amend their complaint to add as party defendants S. Ariel Weiss and Alvin From, the "chief administrators" of the defendant Democratic Caucus and Democratic Steering and Policy Committee.

On October 5, 1981, the plaintiffs filed a memorandum in opposition to the defendants' motion to dismiss, which attempted to answer the Speech or Debate Clause, politicial question, and standing arguments raised by the defendants.

Initially addressing the Speech or Debate issue, the plaintiffs asserted that the scope of the immunity afforded by the Clause did not extend to the defendants' actions in this case. In the plaintiffs' view, the Democratic Caucus and the Steering and Policy Committee were not legislative committees and no actions by or within them were within the sphere of legitimate legislative activity. They argued:

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Mere existence within the Legislative Branch, generic references, funding and staffing are hardly determinative of legislative responsibility or a place in the sphere of legitimate legislative activity. The seminal case of Kilbourn V. Thompson, 103 U.S. 377 (1880) dealt with a similarly funded, staffed and integral part of the House, viz, Ser. geant at Arms of the House, but the Speech or Debate Clause did not protect him. The Defendant entities are patently partisan political bodies with no legislative or oversight responsibility. Defendants can point to no legislation referred to either, no legislation initiated by either, no bipartisan participation in either, nor any hearings held by either. To term these entities “legislative commmittees” is a Procrustean feat which tortures the concept of legislative activity. In short, the activities of these Defendants bear none of the hallmarks of legislative activities. Although the activities these entities engage in may be "entirely legitimate activities, they are political in nature rather than legislative in the sense that term has been used by the Supreme Court in prior cases. But it has never been seriously contended that these partisan matters, however appropriate, have the protection afforded by the Speech or Debate Clause." United States v. Brewster, 408 U.S. 501, 512 (1972). Thus, while Members who vote, report or debate in the course of deliberations of a committee within the legitimate legislative sphere are immune from suit, id. at 526, the political activities of Defendants are not similarly insulated. Id. at 512. Nor does the fact that individual Defendants occupy legislative positions protect them from questioning on their outside activities Hutchinson v. Proxmire, 443 U.S. 111 (1979) and Davis v. Passsman, 442 U.S. 228 (1979). (Plaintiffs' Memorandum of Points and Authorities in Opposition to Defendants'

Motion to Dismiss, October 5, 1981, at 3-4] Moreover, according to the plaintiffs, the defendants' claim that they were acting pursuant to a rule of the House was false because the acts complained of occurred prior to the adoption of the rules for the 97th Congress. Any assertion to the contrary, the plaintiffs maintained, raised questions of unconstitutional delegation of legislative function.

Finally, the plaintiffs contended, the defendants' actions did not come within the ambit of the Speech or Debate Clause as it had been interpreted by the Supreme Court in light of its historic purpose:

The importance of this committee control has been underscored by Justice Rehnquist in Doe v. McMillan, 412 U.S. 306 (1972) where he commented that "a committee of Congress, in the legislative scheme of things, is for all practical purposes Congress itself." Id. at 394. T]o allow Defendants to twist the Speech or Debate Clause into a vehicle for protecting the political overreaching attacked by Plaintiffs' Complaint is to make a mockery of the Clause by inhibiting the free and fair function of that which it is

designed to protect. This Court should hold that the behav-
ior Defendants seek to protect is without the ambit of the
Speech or Debate Clause. In effect, the majority is given
the right to intimidate and harrass legislators-a role
heretofore conceded by political theorists to the Executive
in discussion of the historic antecedents of the Speech or

Debate Clause. (Id. at 7 (footnote omitted)] Turning next to the political question issue, the plaintiffs argued that the defendants' view of the doctrine was “based upon the inaccurate doctrinal premise that a case which involves political rights and political actors necessarily presents a political question." (Id. at 12] In the instant case, the plaintiffs asserted that their claim was not a political question but "a question of constitutional construction, possibly involving the determination of the boundaries of the grant of authority contained in Article I, § 5, cl. 2 of the Constitution, and certainly involving questions of fundamental constitutional rights.” (Id. at 14] The case could be distinguished from the Winpisinger case relied on by the defendants, the plaintiffs said, because the requested relief would not interject the court into the activities of another branch of government. “On the contrary, if plaintiffs were granted the relief they have requested, no additional role or oversight would be required of this court." [Id. at 15)

On the last issue-that of standing-the plaintiffs contended that they and the classes they represented did have standing to challenge the allocation of committee positions. With respect to the traditional test for standing, the plaintiffs summarized their argument as follows:

Plaintiffs and the classes they represent clearly meet the current standards applied by the Courts to determine standing to sue. Plaintiffs have suffered actual injury by the deprivation by Defendants of Plaintiffs' rightful House Committee positions and the resultant diminution of influence that deprivation has engendered. Plaintiffs' injury was directly caused by Defendants' improper actions. The interest which Plaintiffs seek to protect by this action are clearly within the zone of interests intended to be protected by the Constitutional guarantees upon which they rely. And, a favorable decision would redress the injuries Plain

tiffs have suffered. (Id. at viii] With respect to the doctrine of circumscribed equitable discretion, the plaintiffs argued that it would be inappropriate for a court to apply it since there was no realistic likelihood that they could obtain redress through legislative action and a similar case could not be maintained by private litigants. The Riegle case cited by the defendants, the plaintiffs asserted, was distinguishable because in that action “there was no doubt that Senator Riegle's objective could be accomplished through legislative redress." [Id. at 26]

On October 8, 1981, U.S. District Judge Louis F. Oberdorfer issued a memorandum and order granting the defendants's motion to dismiss the complaint. (Vander Jagt v. O'Neill, 524 F.Supp. 519 (D.D.C. October 8, 1981)] Although Judge Oberdorfer held that he was satisfied that "constitutional deprivations and the loss of

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