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 earn 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 I, 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 consituted 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

venors.

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.

Status-The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit.

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 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 (D.D.C.)] The tencount 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 under-represent Republicans on committees in relation to the votes received by all Republican candidates for the House in the 1980 elections.

The complaint stated that Republican candidates for the House received 49.48 percent of the total vote cast (as opposed to 49.15 percent for Democratic candidates) and Republican Members of the House held 44.14 of the seats of the voting members of the House (as opposed to 55.86 percent for Democratic Members) [Id., is 30: and 31] Despite this, the complaint asserted, the House, on a virtual straight-party vote, refused to provide for committee and subcommittee assignments which would accurately reflect the ratio of

1 The plaintiffs were Representatives Guy Vander Jagt, George Hansen, Robert Lagomarsino, Tom Hagedorn, Thomas Kindness, W. Hensen 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 cer- | tain 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."

majority party Members to minority party Members. The complaint pointed specifically to the Ways and Means, Rules, Appropriations, and Budget Committees, all of which were composed of at least 60 percent Democratic Members. According to the complaint, this under-representation in the House "resulted in the deprivation of 30 committee positions and 37 subcommittee positions to Members of the Republican Party." [Id., ¶ 43]

There existed, the complaint averred, "no colorable legal theory under which Defendants can deprive Republican Representatives of their committee and subcommittee positions and their right to vote on such committees and subcommittees. The only possible rationale for such deprivation is partisan political advantage." [Id., ¶ 34] Further, the complaint asserted, the disproportionate representation was "contrary to the long-standing prior practice in the House .., where committee composition has historically reflected the proportionate composition of the . . . House." [Id., ¶ 44]

As a result of this under-representation, the plaintiffs claimed they and the voters they represented were deprived of a series of constitutional rights.

Count I alleged that voters in Congressional districts represented by Republicans were denied equal protection of the laws in contravention of the Fifth Amendment to the U.S. Constitution because the systematic under-representation deprived them of "their rightful quantum of influence over Congressional activity and has substantially eroded the power of their vote." [Id., ¶ 54]

Count II asserted that the purported underrepresentation deprived the plaintiff voters of their First Amendment right to associate freely with minority party candidates, since they would be "discouraged from voting for and associating with candidates of a party likely to be a minority party in the House . . . if the influence of that voter through the instrumentality of his elected Representative and the power of that citizen's vote would be impaired by the systematic under-representation." [Id., ¶ 57]

Count III averred that by impairing the influence of Republicans, the defendants had "impermissibly impaired the means for voters in Congressional districts represented by Republican Representatives for petitioning the government for a redress of grievances" [Id., ¶ 62], in contravention of the First Amendment.

Count IV alleged that the defendants, by discriminatorily "diluting" the influence of Republican representatives on the legislative process, "confiscated" the Members' fundamental right to vote and the "rights of the class of voters represented by those Members" [Id., 167], in violation of the due process component of the Fifth Amendment.

Count V asserted that, by denying the plaintiffs the committees membership positions to which they were entitled, the defendants had deprived them of "certain rights and privileges and access to the means for influencing the legislative activity of the House" Id., 170], in contravention of the equal protection requirement of the Fifth Amendment.

Count VI averred that the defendants had deprived the plaintiffs of due process under the Fifth Amendment by diluting their representational influence and potential impact on the legislative proc

ess, "strictly on the basis of discrimination by party affiliation." [Id., ¶ 76]

Count VII asserted that, by denying the plaintiffs "their full quantum of rights as Members of the House because of their association with the Republican Party" [Id., ¶ 78], the defendants had "substantially impaired the fundamental right of free political association of the Plaintiff[s] in violation of the First Amendment to the. . . Constitution." [Id., ¶ 80]

Count VIII alleged that the defendants had denied the plaintiffs their right to express political views not in accord with those of the defendants, in contravention of the First Amendment.

Count IX averred that the defendants, by reducing committee participation for the plaintiffs, had impermissibly added majority party membership as an additional qualification for "full participation" as a Member of Congress, in violation of Article I of the Constitution.

As relief, the plaintiffs sought: (1) a declaratory judgment that the disproportionate committee assignments established by House resolution were unconstitutional; (2) a directive that positions on all committees and subcommittees be allocated in proportion to the actual distribution of seats between the majority and minority parties in the House; and (3) a permanent injunction against an allocation of committee assignments that "in any manner that unfairly discriminates against a Member because of his party affiliation.' [Id., 155c] Finally, in Count X, the plaintiffs sought a writ of mandamus to compel the defendants "to assign seats on committees and subcommittees of the House in accordance with the Rules of Procedure of the House." [Id., ¶ 89]

On September 21, 1981, the Congressional defendants filed a motion to dismiss the complaint on the grounds that: (1) they were immune from liability under the Speech or Debate Clause of the U.S. Constitution; 2 (2) the case was nonjusticiable in that it involved determinations "textually committed" to the legislature and not reviewable by the courts; and (3) the court did not have jurisdiction to entertain the action because the plaintiffs lacked standing.

În a memorandum accompanying their motion, the Congressional defendants argued that:

Plaintiffs seek to carry on a battle waged and lost in the House of Representatives in committee, in caucus and finally on the floor, in the federal courts. Based upon only the vaguest and most suppositious allegations concerning ethereal claims of "diluted" and diminished "influence,' the "rightful quantum" of participation, "affects [on] their ability to carry out Constitutional duties" and "confiscations of the Member's fundamental right" plaintiffs seek expansive, unprecedented judicial intrusion into an area textually committed to another branch, all without the requisite standing. The specific acts allegedly committed by Congressional defendants in furtherance of the purport

2 The speech or Debate Clause of the United States Constitution provides that "for any Speech or Debate in either House [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1.]