EXPLANATORY NOTE

The following summaries represent an attempt to highlight the most important—and relevant-principles of law involved in each case. They are not intended to be exhaustive of all issues raised or decided during the litigation. It is important to note that many of these cases are pending or are on appeal, and therefore that the holding of the court may be reversed or modified in the future. If the case has not been closed, its status is shown in brackets following the summary. In instances where the court has not yet rendered a decision, the most significant issues raised in the litigation have been indicated.

Allen v. Department of Defense [Not Reported] (D.D.C. 1981)

There is no authority or necessity for retaining the Clerk of the House of Representatives as a party defendant in a Freedom of Information Act suit seeking agency documents relating to a House Committee investigation. Remaining issue raised.-Do copies of correspondence or records of communications between the Department of Defense and the CIA and the House Select Committee on Assassinations relating to the Select Committee's investigation into the assassination of President Kennedy, or other Department of Defense or CIA documents pertaining to the Committee's investigation, constitute Congressional-and therefore nondisclosable-records under the Freedom of Information Act? [This case is pending in U.S. District Court.]

Allen v. Federal Bureau of Investigation (D.D.C.)

Issues raised.-(1) Do copies of correspondence or records of communication between the Federal Bureau of Investigation and the House Select Committee on Assassinations relating to the Select Committee's investigation into the assassination of President Kennedy, or other FBI documents pertaining to the Committee's investigation, constitute Congressional-and therefore nondisclosablerecords under the Freedom of Information Act? (2) Is the release of such records and documents barred by the Speech or Debate Clause and/or the Publications Clause of the U.S. Constitution? [This case is pending in U.S. District Court.]

American Family Life Assurance of Columbus v. American Broadcasting Companies, Inc. (S.C. N.Y. County, N.Y.)

Issues raised.-(1) Are Congressional committee staff members liable under a conspiracy theory in a defamation suit arising out of their actions during a committee investigation? (2) What constitutes proper service of process on Congressional defendants in a suit in state court in New York? [This case is pending in the State Supreme Court in New York County, N.Y.]

Benford v. American Broadcasting Companies, Inc. [Not Reported] (4th Cir. 1981), cert. denied, 102 S. Ct. 612 (1981)

(1) The surreptitious taping of a meeting between Congressional committee staff investigators and an individual under investigation, and the subsequent broadcast of portions of the taped meeting on national network news are not absolutely protected by the Speech or Debate Clause of the U.S. Constitution since they are not an integral part of the deliberative and communicative processes of the committee. (2) The "informing function" of Congress cannot be used as a justification for protecting the publication of materials injurious to private individuals. [This case is pending in U.S. District Court, although these holdings are final.]

Bodenmiller v. Stanchfield (S.C. Suffolk County, N.Y.)

Issue raised.-Are a Member of Congress and his staff aide absolutely immune from liability for common law torts such as slander as long as they are acting within the scope of their authority? [This case is pending in the State Supreme Court in Suffolk County, N.Y.]

Bonior v. Stockman [Not Reported] (D.D.C. 1982)

A complaint filed by Members of Congress and others will be dismissed as moot when the challenged Executive branch actions have ceased being implemented, no damages are sought, and there is no reasonable expectation that the actions in question will be repeated. [This case is pending in U.S. District Court.]

Brown v. American Broadcasting Companies, Inc. [Not Reported] (E.D. Va. 1981)

Counts of a complaint charging Congressional committee staff members and others with violations of the Federal eavesdropping statute, invasion of privacy, and defamation (arising out of their actions during a committee investigation) will be dismissed if not brought within the applicable statute of limitations. [This case is pending in the U.S. Court of Appeals for the 4th Circuit.]

Chadha v. Immigration and Naturalization Service, 634 F.2d 408 (9th Cir. 1980), cert. granted, 102 S.Ct. 87 (1981)

The legislative veto provision of section 244(c)(2) of the Immigration and Nationality Act, which allows either house of Congress to override decisions of the Attorney General to grant suspension of deportation, usurps essential functions of the executive and judicial branches and is therefore unconstitutional under the separation of powers doctrine. [This case is pending in the U.S. Supreme Court.] Common Cause v. Bolger (formerly Bailar, formerly Klassen), 512 F. Supp. 26 (D.D.Č. 1980)

(1) "Prudential considerations" will not bar an action challenging the administration of the Congressional franking statute on constitutional and statutory grounds where the case does not involve major, discretionary policy decisions but rather involves decisions by the Postmaster General and Secretary of the Treasury to implement specific statutory language. (2) In such a suit, the Speech or

Debate Clause does not preclude discovery of Congressional documents and testimony relating to the use of the franking privilege for political purposes. Remaining issue raised.-Does section 3210 of the 1973 Franking Act violate the limitations upon the taxing and spending power of Congress under Article I, Section 8, and contravene the First and Fifth Amendments to the U.S. Constitution by specifically authorizing the distribution of partisan political literature at the taxpayers' expense? [This case is pending before a three-judge court in U.S. District Court.]

Consumer Energy Council of America v. Federal Energy Regulatory Commission, 673 F.2d 425 (1982)

The legislative veto provision of section 202 of the Natural Gas Policy Act of 1978, which allows incremental pricing rules of the Federal Energy Regulatory Commission to take effect only if neither house of Congress adopts a resolution disapproving such rules, violates Article I, Section 7, of the Constitution by preventing the President from exercising his veto power and by permitting legislative action by only one house of Congress. Section 202 also violates the separation of powers doctrine by usurping essential functions of the Executive and Judicial branches. [This case is on appeal in the U.S. Supreme Court.]

Crockett v. Reagan (D.D.C.)

Issues raised.-(1) Do the War Powers Clause of the U.S. Constitution (art, I, § 8, cl. 11) (which gives Congress the power to declare war), the War Powers Resolution (50 U.S.C. §§ 1541, et seq.) (which restricts the sending of American troops overseas to engage in military activites without Congressional approval) and section 502B of the Foreign Assistance Act of 1961 (22 U.S.C. § 2304) (which prohibits the providing of military aid to governments engaged in a consistent pattern of gross violations of internationally recognized human rights) bar the provision of U.S. military aid to El Salvador? (2) Does the case present a non-justiciable political question because it bears directly on the President's conduct of foreign relations and his role as Commander-in-Chief of the armed forces? (3) Do Members of Congress have standing to bring a suit for declaratory and injunctive relief, if legislative remedies are available to resolve the matters they seek to raise in court? [This case is pending in U.S. District Court].

Food Service Dynamics v. Holtzman (E.D.N.Y.)

Issue raised.-Is a Member of Congress immune from a defamation action as long as the actions complained of were committed within the scope of her Congressional office and in furtherance of her duties to investigate and speak out on matters of public interest and to examine and report on the implementation of legislation? [This case is pending in U.S. District Court.]

Fremont Energy Corporation v. Seattle Post-Intelligencer [Not Reported] (E.D. Cal 1981)

The Speech or Debate Clause does not bar testimony by a former Member of Congress at a deposition in a civil proceeding in which he is not a party regarding remarks made by the Member to a re

porter after he relinquished his seat in Congress. Remaining issue raised.-Can a former Member of Congress be found in civil contempt for refusing to answer questions at a deposition in the absence of a court order compelling answers to the specific questions posed, particularly since, without such specificity, the House, under its own rules, may not be able to authorize the Member's testimony? [The case, as it relates to the remaining issue, is pending in the U.S. Court of Appeals for the 9th Circuit.]

Holy Spirit Association for the Unification of World Christianity v. Central Intelligence Agency, 636 F.2d 838 (D.C. Cir. 1980)

(1) A document created by Congress and subsequently sent to a Federal agency will not be exempt from public disclosure under the Freedom of Information Act as a Congressional record if neither the circumstances surrounding the document's creation nor the conditions under which it was sent to the agency clearly reflect a Congressional intent to retain control over the document or to preserve the document's secrecy. (2) Regardless of whether a document created by an agency pursuant to a specific Congressional request and subsequently transferred to Congress can become a Congressional record and therefore exempt from public disclosure under the Freedom of Information Act, no Congressional record exemption will be found if neither the circumstances surrounding that document's creation nor the conditions under which Congress sent it back to the agency clearly reflect a Congressional intent to retain control over the document or to preserve the document's secrecy. (3) A letter from the Clerk of the House of Representatives to a Federal agency, which expresses the Clerk's belief that a document in the agency's possession is a Congressional record and therefore should not be publicly disclosed, will not constitute sufficient evidence of Congressional intent to retain control over the document if the letter was sent to the agency after a Freedom of Information Act request for the document was made and long after Congress transmitted the document to the agency. [Although this case is pending in the U.S. Supreme Court with respect to certain national security exemption claims, these holding are final.]

Holy Spirit Association for the Unification of World Christianity v. Fraser (D.D.C.)

Issue raised.-Are a Member of Congress and his committee staff aides absolutely immune from a suit alleging constitutional violations and defamation under the Speech or Debate Clause of the U.S. Constitution? [This case is pending in U.S. District Court.] Idaho v. Freeman (formerly Goulding), 529 F. Supp. 1107 (D. Idaho 1981), cert. granted (district court judgement stayed), 102 S. Ct. 1272 (1982)

(1) A state has the power and right to rescind a prior ratification of a proposed consititutional amendment at any time prior to the unrescinded ratification by three-fourths of the states properly certified to the General Services Adminstration. (2) While Congress can act at the time it proposes an amendment to set a period within which states' ratifications will be valid, or, if it so chooses, set no time period at all, Congress cannot extend a time period pre

viously fixed. (3) The setting of a time period for ratification-like the proposal of a constitutional amendment itself-must be done by a two-thirds vote of both Houses of Congress and not by a simple majority. [This case is pending in the U.S. Supreme Court, the judgment of the district court having been stayed by order of the Court.]

In Re: IBP Confidential Business Documents Litigation [Not Reported] (N.D. Iowa 1981)

(1) The protection of the Speech or Debate Clause can be invoked by Congressional staff members as well as Members of Congress, and, for the purpose of construing the privilege under the Clause, a Member and his aide are to be treated as one, hence things done by the aide are privileged to the extent that they would have been privileged if done personally by the Member. (2) The Speech or Debate Clause is applicable to a motion to quash a subpoena (seeking documents and testimony from Congressional staff aides) in a civil action in which no Member of Congress is a party. (3) Judicial inquiry about the preparation of witnesses testifying before a Congressional committee, statements by witnesses to the committee, information obtained for a hearing, or conclusions drawn by the committee is barred by the Speech or Debate Clause. (4) News releases and summaries of testimony which are "intricately intertwined" with a Congressional hearing, which are not widely distributed, and the use of which is limited to the hearing itself are also protected from judicial scrutiny by the Speech or Debate Clause. (5) The Speech or Debate Clause does not bar questioning about staff contacts with Federal agencies seeking to influence those agencies' actions regarding an outside corporation. [This case is pending in U.S. District Court.]

Jenrette v. Abdul Enterprises, Ltd. [Not Reported] (D.D.C. 1980)

A Member of Congress who is being investigated by a Federal grand jury and who alleges that Federal prosecutors presented illegally obtained evidence to the grand jury, cannot, in a civil action against the United States, enjoin the criminal proceedings against him if resolution of the criminal case would likely moot, clarify, or, otherwise affect the various contentions made in the civil case. [This case is pending in U.S. District Court, although this holding is final.]

Laxalt v. Kimmitt [Not Reported] (D.D.C. 1978)

Rule XLIV of the Senate Code of Ethics, which places a limit on the amount of outside earned income a U.S. Senator may receive, does not violate Article I, Section 3, Clause 3 of the U.S. Constitution by imposing an additional qualification for membership in the Senate; nor does the rule abridge freedom of speech or equal protection rights guaranteed by the Constitution. [This case is pending in the U.S. Court of Appeals for the District of Columbia Circuit.] League of Women Voters of California v. Federal Communications Commission, 489 F. Supp. 517 (C.D. Cal. 1980)

(1) A challenge to a statute which forbids noncommercial broadcast licensees to editorialize, or endorse, or oppose candidates for