Petition — Vander Jagt v. O'Neill

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JUN 8 1983

TEVAS,

CLER

er 1 CL

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

GUY VANDER JAGT, et al.,

Petitioners,

THOMAS P. O’NEILL, JR., et ai.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

JAMES F. SCHOENER *

ROBERT P. GRIFFIN

MILLER, CANFIELD, PADDOCK

AND STONE

Suite 300

2555 M Street, N.W.

Washington, D.C. 20037

(202) 822-9333

WILLIAM E. DANNEMEYER, M.C.

Attorneys for Petitioners

* Counsel of Record

June 8, 1983

siemens sealed ceeacceneineinniniameiaid

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

QUESTIONS PRESENTED

1. Do the Petitioners, in Each or Any of the Capacities

in Which They Sue, Have Standing to Seek Judicial Re-

dress in This Cause?

2. Does the Speech or Debate Clause of the United

States Constitution Preclude the Court’s Examination of

Deprivation of Petitioners’ Constitutional Rights as

Members of Congress, as Voters or as Representatives of

A Class of Constituents?

8. Does Article I, Section 5 of the U.S. Constitution,

Which Provides That Each House May Determine the

Rules of Its Proceedings, Preclude Judicial] Review of

Actions Purportedly Taken Pursuant to Such A Rule

Where Such Actions Are Alleged to Have Violated

Fundamental Constitutional Rights?

4. Do the Federal Courts Have An Obligation Under

the Circumstances of the Instant Case to Examine the

Merits of Colorable and Justiciable Claims That Allege

Abridgment of Fundamental Constitutional Rights?

(i)

LIST OF PARTIES

Guy VANDER JAGT, GEORGE HANSEN, ROBERT J. LAGO-

MARSINO, TOM HAGEDORN, THOMAS N. KINDNESS, W.

HENSON Moore, MICKEY EDWARDS, DAviID D. MARRI-

OTT, DANIEL B. CRANE, WILLIAM E. DANNEMEYER,

STAN PARRIS, OLYMPIA J. SNOWE, ALBERT LEE SMITH

and VIN WEBER, as individual Republican Members of

the House of Representatives, as individual Members

of certain Committees of the House of Representatives,

and as individual voters, and in their representative

capacity for all Republican Members of the House of

Representatives, for all Members of certain Commit-

tees of the House of Representatives, and for all voters

in all Congressional] districts represented by Repre-

sentatives affiliated with the Republican Party,

Petitioners,

vs.

THOMAS P, O’NEILL, JR., in his capacity as Chairman of

the Democratic Steering and Policy Committee of the

United States House of Representatives, in his capac-

ity as a member of the Democratic Caucus of the

United States House of Representatives;

JIM WRIGHT, in his capacity as lst Vice Chairman of the

Democratic Steering and Policy Committee of the

United States House of Representatives, in his capac-

ity as a member of the Democratic Caucus of the

United States House of Representatives;

GILLIS W. LONG, in his capacity as 2nd Vice Chairman

of the Democratic Steering and Policy Committee of

the United States House of Representatives, in his

capacity as Chairman of the Democratic Caucus of the

United States House of Representatives;

THE DEMOCRATIC STEERING AND POLICY COMMITTEE

of the United States House of Representatives;

THE DEMOCRATIC CAUCUS of the United States

House of Representatives,

Respondents.

TABLE OF CONTENTS

Questions Presented ..................csssseseeeeesnerneneneneneenannnnnnnes

Oe i oc ecaseencnnsisentinnconanenscembnamecpeconeamnonnn

i picccsicndseeeeiaesnensennnacenvenenerebios

Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia

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appendix

Gwrinions Below ................00:-..00s.--cssonsessserecesnasnecconseenesonses

ca cc biesseoeunnnldameanaanacuns

Constitutional Provisions .................:::sssseneeesereneneeney oe

Statement of the Case _................:cssccccsssesssensnnersenerenecennes

Reasons for Granting the Wit .................ccccccsseeeeenenees

TO io icicsesenieenenecamnnesiencneconenenstsseonnnsnennnnent

I. Do the Petitioners, in Each or Any of the Capaci-

ties in Which They Sue, Have Standing to Seek

Judicial Redress in This Cause? ...................6+

II. Does the Speech or Debate Clause of the United

States Constitution Preclude the Court’s Exami-

nation of Deprivation of Petitioners’ Constitu-

tional Rights as Members of Congress, as Voters,

or as Representatives of a Class of Consti-

SS SL SLA ES DL ERR a NEN PEE

III. Does Article I, Section 5 of the U.S. Constitution

Which Provides That Each House May Deter-

mine the Rules of its Proceedings Preclude Judi-

cial Review of Actions Purportedly Taken Pur-

suant to Such a Rule Where Such Actions Are

Alleged to Have Violated Fundamental Constitu-

tional Rights? ...................:c...sscecsserererssensesnsecesesesees

IV. Do the Federal Courts Have an Obligation Un-

der the Circumstances of the Instant Case to

Examine the Merits of Colorable and Justiciable

Claims That Allege Abridgment of Fundamen-

tal Constitutional Rights? ...............-.........ceseeeeenees

eens

on wS bw

S 8

TABLE OF CONTENTS-—Continued

Appendix A—Memorandum Opinion United States

District Court for the District of Colum-

bia, 524 F. Supp. 519 (D.D.C. 1981)......

Appendix B—Opinion of the United States Court of

Appeals for the District of Columbia

Circuit, 699 F.2d 1166 (D.C. Cir. 1983)..

Page

TABLE OF AUTHORITIES

CASES: Page

Association of Data Processing Organizations V.

coe, Gee te. see (ee. 9

Baker v. Carr, 369 U.S. 186 (1962) ............. 9, 21, 22, 29, 30

Benford v. American Broadcasting Companies, 502

Poe, 2 Cee eee =... 17

Bond v¥. Floyd, 886 U.S. 116 (1966) ......................... 27

Christoffel v. United States, 332 U.S. 84 (1949) ...... 21

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264

Oy SRSA Ra ERI GS po aa meen TE 22

Davis v. Passman, 442 U.S. 228 (1979) .................. 13n, 17

Doe v. McMillan, 412 U.S. 306 (1978) ............. 7, 18, 15, 16

Eastland v. United States Servicemen’s Fund, 421

Oe Oe I eres 13

Elrod v. Burns, 427 U.S. $47 (1976) ....................... 30

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)...... 26

Gojack v. United States, 384 U.S. 702 (1965) ........ 19

Gravel v. United States, 408 U.S. 606 (1972)........ 13, 14,

17, 19n

Harrington v. Bush, 553 F.2d 190 (D.C. Cir.

Bie ontintceesnedinerectenmicsinccons 9,10

Hutchinson v. Proxmire, 443 U.S. 111 (1979)........ 17

Kendall v. United States ex rel. Stokes, 37 US.

er oe Oe 22

Kilbourn vy, Thompson, 108 U.S. 377 (1880) _......... 19

Kucinich v. Forbes, 432 F.Supp. 1101 (1977)........ 30

Lampkin v. Connor, 360 F.2d 505 (D.C. Cir. 1966) .. 23

Marbury v. Madison, 5 U.S. (1 Cranch.) 137

Oe cc wwsbe, 26, BO

McCulloch Vv. Maryland, ‘17 US. (4 Wheat.) 316

oes oo ls 22

Powell v. McCormack, 395 US. “486° 1969) . oases _ 28, 29

Riegle v. Federal Open Market Committee, 656 F.2d

oe fo Cee eh) ET. tL BSS

Schecter Poultry v. United States, 295 U.S. 495

CRUD vicki al 20

Sierra Club v. Morton, “405 US. 127 (1972) . eed ene 8

Simon v. Eastern Kentucky Welfare Rights Organ-

eens, G56 US, Se Clore: -........... 9

TABLE OF AUTHORITIES—Continued

Page

Stockdale v. Hansard, 112 Eng. Rep. 112 (K. B.

a 19

Tenney V. Brandhove, 341 U.S. 367 (1951) -........... 13

United States v. Ballin, 144 U.S. 1 (1892) ................ 20, 21

United States v. Brewster, 408 U.S. 501 (1972).... 13,16

United States v. Johnson, 383 U.S. 169 (1955) ........ 14

United States v. Nixon, 418 U.S. 683 (1974) ............ 22

United States v. Smith, 286 U.S. 6 (1982) _.......... 20

Vander Jagt v. O’Neill, 699 F.2d 1166 (D.C. Cir.

1983), aff’g on other grounds, 524 F. Supp. 519

Se tay + TRISTE IS EAST Se apatpenen saver ee nODRAEN TV NE passim

Vander Jagt v. O'Neill, 524 F. Supp. 519 (D.D.C.

1981) aff'd on other grounds, 699 F.2d 1166

Oe aa eens passim

Warth v. Seldin, 422 U.S. 490 (1975) —.................. 10

Wesberry Vv. Sanders, 376 U.S. 1 (1964) ............... 26

White v. Weiser, 412 U.S. 783 (1978) .................... 11

Yellin v. United States, 374 U.S. 109 (1968)........ 20

CONSTITUTIONAL PROVISIONS:

i Si ‘sansa 5

I errr 5, 18, 20

Bee Oe Ff oa 5, 18, 14, 16

pS a SRST SSI rset elias nietane HPGEree AP OUSE Ons ERT passim

pS OS” ESAT SE SEP Ue OAC ae RON CUE ARCO NE SoSH passim

MISCELLANEOUS:

127 Cong. Rec. H5-20 (daily ed. Jan. 5, 1981) _...... 19

129 Cong. Rec. H10-22 (daily ed. Jan. 3, 1983) _..... 24

129 Cong. Rec. H66-69 (daily ed. Jan. 6, 1983)... 24

1 DESCHLER’S PRECEDENTS OF THE U.S. HOUSE OF

Rervasnrarives (1977)............................. 5, 19, 20

H. R. Res. 44, 97th Cong., Ist Sess., 127 Cong. Rec.

H225-2838 (daily ed., Jan. 28, 1981) .................0.. 24

McGowan, Congressmen in Court: The New Plain-

tiffs, 15 GA. LAW REv. 241 (Winter, 1981)........ 28

Reinstein and Silverglate, Legislative Privilege and

the Separation of Powers, 86 HARV. L. REv. 1113

RESETS ARSENE AWE CE Ne 14, 15, 17, 18

IN THE

Siytrenw Court of the United States

OCTOBER TERM, 1982

No.

GUY VANDER JAGT, et al.,

. Petitioners,

THOMAS P. O’NEILL, JR., et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Petitioners respectfully petition this Court for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the District of Columbia Circuit in

Vander Jagt v. O’Neill, 699 F.2d 1166 (D.C. Cir. 1983).

OPINIONS BELOW

The opinions of the United States District Court for

the District of Columbia and Court of Appeals for the

District of Columbia Circuit are set forth in Appendices

A and B, respectively. The District Court opinion is pub-

lished at 524 F. Supp. 519 (D.D.C. 1981). The Court of

Appeals’ opinion is published at 699 F.2d 1166 (D.C. Cir.

1983).

JURISDICTION

The opinion of the Court of Appeals was entered on

February 4, 1983; an order denying rehearing was en-

tered March 10, 1983. This petition for a writ of certi-

orari was filed within 90 days of the latter date. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS

The following provisions of the United States Constitu-

tion are relevant to the questions presented:

Article L, Section 1

All legislative Powers herein granted shall be vested

in a Congress of the United States, which shall con-

sist of a Senate and House of Representatives.

Article I, Section 5, Clause 2

Each House may determine the Rules of its Pro-

ceedings, punish its Members for disorderly Behav-

iour, and with the Concurrence of two thirds, expel

a Member.

Article I, Section 6, Clause 1

The Senators and Representatives shall receive a

Compensation for their Services to be ascertained by

Law, and paid out of the Treasury of the United

States. They shall in all Cases, except Treason,

Felony and Breach of the Peace, be privileged from

Arrest during their Attendance at the Session of

their respective Houses, and in going to and return-

ing from the same; and for any Speech or Debate

in either House, they shall not be questioned in any

other Place.

Amendment I

Congress shall make no law respecting an establish-

ment of religion or prohibiting free exercise thereof;

or abridging the freedom of speech, or of the press;

or of the right of the people peacefully to assemble,

and to petition the Government for a redress of

grievances.

Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in case aris-

ing in the land or naval forces, or in the Militia,

when in actual service in time of War or public

danger; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal] case to be a

witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor

shall private property be taken for public use, with-

out just compensation.

STATEMENT OF THE CASE

Fourteen Republican Members of the United States

House of Representatives, who were elected in November

1980 to serve in the 97th Congress, brought this action as

Plaintiffs, on behalf of themselves and certain classes,

against Thomas P. O’Neill, Jim Wright and Gillis Long

in their capacities as officers and members of the Demo-

cratic Steering and Policy Committee and the Democratic

Caucus.' Plaintiffs complained that the Democratic

Steering and Policy Committee, the Democratic Caucus,

and the individual defendants effected an allocation of

committee assignments in the House of Representatives

that systematically discriminated against those Members

of Congress who were associated with the Republican

Party. Plaintiffs alleged that the resulting underrepre-

sentation was based solely upon their political association

and thus violated First Amendment constitutional rights

of the Plaintiffs and others in the same class. Plaintiffs

also claimed that this underrepresentation unconstitu-

tionally abridged their fundamental rights as Members

of Congress, and discriminated against them and other

Members who represented districts where the voters had

elected Republican candidates to serve in Congress.

Plaintiffs also sued in a representative capacity on behalr

of their constituents as a class for deprivation of the

class’ right to proportionate representation in Congress.

1 The individual Defendants were not sued in their capacity as

officers or Members of the Congress. The defendants in the courts

below attempted to cloak themselves with immunity by use of the

label “Congressional defendants.” This should not mislead the

Court.

In the November 1980 general election, voters through-

out the United States gave all Republican candidates for

the House of Representatives 49.85% of the total vote

cast, while all Democratic candidates received 49.15% of

that vote. However, for a variety of reasons not at issue

here, Republican candidates in those elections won only

44.14% of the 435 seats in the House while Democratic

candidates captured 55.86% of the seats.

Thereafter, the Democratic candidates who were

elected in November 1980, convened in Washington, D.C.

as the Democratic Caucus on December 9, 1980, well in

advance of January 5, 1981, when all who were elected

to the 97th Congress were sworn in. At the meeting on

December 9, 1980, the Democratic Caucus decided the

number of seats on each of the various House committees

in the 97th Congress and how such seats would be allo-

cated as to the number of Democratic Members and

Republican Members on each committee. This determi-

nation by the Democratic Caucus was communicated to

Republican leaders; they protested the unfairness and

lack of equity occasioned by the gross underrepresenta-

tion of Republican Members well in advance of the open-

ing of the 97th Congress, but to no avail.

Even though they were elected to 44.14% of the House

seats in the 97th Congress, Republicans were allocated,

by decision of the Democratic Caucus, only 34.29% of the

seats on the Ways and Means Committee and only

31.25% of the seats on the Rules Committee. Republi-

cans were similarly underrepresented on each of the sub-

committees of those committees. The allocation by the

Democratic Caucus of seats on the other committees,

with the exception of one committee, was similar in

terms of party ratio, resulting in an overall shortage for

Republican Members of 30 committee positions and 37

subcommittee positions in the 97th Congress.

On the first day of the 97th Congress, Republican

members tried, without success, to correct the discrimi-

natory action taken by the Defendant Democratic Caucus.

They moved that committee seats be allocated on a pro-

portional basis; however, the effort was rejected on a

straight party-line vote. After this attempt failed, the

House of Representatives then proceeded to legislative

business. See I DESCHLER’S PRECEDENTS of the U.S.

HOUSE OF REPRESENTATIVES § 11 (1977).

Seeking redress, Plaintiffs brought this action on be-

half of themselves, other Republican party Representa-

tives similarly situated, and on behalf of voters in con-

gressional districts whose Representatives were subjected

to such discriminatory denial of equitable participation in

the Congress to which they were elected. Jurisdiction in

the District Court was claimed under 28 U.S.C. § 1843

and the United States Constitution.

Plaintiffs maintained that such discriminatory action

amounted to: 1) a denial of equal protection, both to

minority party Representatives so affected and to the

voters of the districts represented; 2) interference with

the right of free political association so as to constitute

an unconstitutional abridgment of that right; 3) impair-

ment of the ability of voters in districts represented by

Republicans to obtain their constitutional right to peti-

tion the government for redress of grievances; 4) viola-

tion of Fifth Amendment due process requirements by

taking away rights which accrue to Members of Congress

upon election; 5) violation of Fifth Amendment due

process requirements by denying equal protection of

rights and privileges of the Members of the minority

party; 6) deprivation of constitutional rights of minority

party Members of Congress, based solely upon their polit-

ical association and their exercise of the First Amend-

ment right of free political association; 7) deprivation of

the rights of minority party Members of Congress in vio-

lation of the First Amendment because of their exercise

of free speech; and, 8) impermissibly adding to the con-

stitutionally established qualifications of a Member of

Congress by requiring membership in or affiliation with

the majority party as a prerequisite to full participation

in the proceedings of the committees of the House of

Representatives.

Defendants filed a motion in the District Court to dis-

miss on jurisdictional and standing grounds. Judge

Louis F. Oberdorfer found that Plaintiffs had standing,

and that under the circumstances, a legislative remedy

could not be regarded as a viable alternative to judicial

relief. The Court concluded, however, that the Speech or

Debate clause—and possibly the separation of powers

doctrine—precluded judicial review of Defendants’ actions.

The Court of Appeals for the District of Columbia

affirmed the District Court but on different grounds.

One member of the Court of Appeals panel, Judge Bork,

took the view that Plaintiffs lacked standing. The panel

majority, consisting of Senior District Judge Gordon and

Senior Circuit Judge Robb, disagreed and determined

that Plaintiffs had standing. Further, the panel majority

(1) expressly declined to affirm the District Court’s in-

vocation of the Speech or Debate Clause, 699 F.2d at

1168; (2) concluded that there is a “judicial responsi-

bility to say what rules Congress may not adopt because

of constitutional infirmity,” id. at 1173; (3) determined

that an appropriate remedy could be fashioned, id. at

1176 & n.27; (4) declared it to be “critical that we do

not deny . . . jurisdiction over the claims in this case,”

id. at 1170; and then proceeded to affirm the District

Court’s dismissal because “we simply believe it would

be... a ‘startlingly unattractive’ idea . . .” to grant

relief in this case, id. at 1176.

As rationalization for this holding, the panel majority

pointed to Riegle v. Federal Open Market Committee,

656 F.2d 873 (D.C. Cir. 1981) wherein that circuit pro-

claimed its doctrine of “circumscribed equitable discre-

tion” as a new and novel basis for dismissing suits

brought by congressional plaintiffs. Since the funda-

mental rights of private citizens are involved here, as

well as the rights of congressional plaintiffs, the panel

majority was compelled to recognize that the instant

ease “does not fit neatly into Riegle’s analysis,” id. at

1175 n.24. Nevertheless, after stretching and twisting

this doctrine to encompass private plaintiffs, the panel

majority, relabeling the doctrine “remedial discretion,”

applied it as the basis for affirming dismissal. Thus, the

panel majority dismissed the case, not on any jurisdic-

tional or constitutional grounds, but solely on the merits

—and without. affording Plaintiffs any opportunity to

present facts to quantify the extent to which they, and

the classes they represent, have been injured by Defend-

ants’ actions.

REASONS FOR GRANTING THE WRIT

This case involves an important question of federal

law which has not been, but should be, settled by this

Court, and deals with unique issues of the most fun-

damental nature. To condone the challenged activities of

Defendants would seriously undermine our system of

representative government by denying minority party

Congressmen and their constituents fair and proportion-

ate representation in the essential processes of the Con-

gress. As Justice Rehnquist has observed,

[a] committee of Congress—in the legislative scheme

of things, is for all practical purposes Congress it-

self.

Doe v. McMillan, 412 U.S. 306, 334 (1973) (Rehnquist,

J., concurring in part and dissenting in part).

If the Court of Appeals were allowed to simultaneously

declare its jurisdiction and yet refuse to exercise it in

this case—where claims admitted by that court to be non-

frivolous and justiciable are involved—then this Court

would countenance the exercise of “I know it when I see

it” jurisprudence in the determination of fundamental

constitutional issues.

“Unattractiveness” of an issue involving rights that go

to the heart of representative government should not be

the basis for avoiding judicial construction of the Con-

stitution. This Court’s willingness to consider the merits

of other difficult cases, such as voting rights and appor-

tionment, should guide its decision in this case.

ARGUMENT

I. Do the Petitioners, in Each or Any of the Capacities in

Which They Sue, Have Standing to Seek Judicial Re-

dress in This Cause?

Petitioners say “Yes.” ?

Petitioners submit that they, and the classes they

represent, satisfy traditional standing requirements.

Petitioners seek judicial redress, inter alia, as individual

Republican Members of the House of Representatives, as

representatives of all Republican Members of the House

of Representatives and as representatives of all voters in

congressional] districts represented by Republican Mem-

bers of the House of Representatives.

It has become axiomatic that litigants must have

“standing” to pursue their claims in a federal court. As

this Court explained in its landmark standing decision in

Sierra Club v. Morton, 405 U.S. 727 (1972):

Whether a party has a sufficient stake in an other-

wise justiciable controversy to obtain judicial reso-

lution of that controversy is what has traditionally

been referred to as the question of standing to sue.

Where the party does not rely on any specific statute

authorizing invocation of the judicial process, the

question of standing depends upon whether the party

has alleged such a “personal stake in the outcome of

the controversy,” as to ensure that “the dispute

? Although a majority of the Court of Appeals panel expressly

held that Petitioners did have standing and the District Court indi-

cated that the requisite tests for standing were satisfied, the issue

of standing is addressed at this point because of the views ex-

pressed in the concurring opinion of Judge Bork.

sought to be adjudicated will be presented in an ad-

versary context and in a form historically viewed as

capable of judicial resolution.”

Id. at 731-32 (citations omitted).

The courts have developed standards to determine the

degree to which concrete adversity actually exists be-

tween the parties. Under these standards, the court

focuses upon the status of the litigant and the claim he is

asserting. In Baker v. Carr, 369 U.S. 186 (1962), this

Court, in determining that individual voters had stand-

ing to challenge a claimed diminution of their voting

rights as a result of malapportionment of the state legis-

lature, enunciated the standing requirement as follows:

Have the appellants alleged such a personal stake

in the outcome of the controversy as to assure that

concrete adverseness which sharpens the presenta-

tion of issues upon which the court so largely de-

pends for the illumination of difficult constitutionai

questions? This is the gist of the question of stand-

ing.

Id. at 204.

Since the Baker v. Carr decision, the “personal stake”

test has developed into a four-fold inquiry which requires

the plaintiff to establish (1) that he has suffered injury

in fact, economic or otherwise; (2) that the interest

sought to be protected is arguably within the zone of in-

terests intended to be protected by the constitutional

guarantee in question, Association of Data Processing

Organizations v. Camp, 397 U.S. 150, 152-53 (1970) ;

(3) that the injury is fairly traceable to the challenged

action of the Defendants, and not some independent ac-

tion of a third party; and (4) that the injury is one

likely to be redressed by a favorable decision. Simon V.

Eastern Kentucky Welfare Rights Organizations, 426

U.S. 26, 38, 41-42 (1976). Congressional plaintiffs must

meet these same standards. Harrington v. Bush, 553

F.2d 190, 204 (D.C. Cir. 1977).

For purposes of determining whether the complaint of

Petitioners should be dismissed for lack of standing it is

well-settled law under Rule 12(b)(1) of the Federal

Rules of Civil Procedure that for purposes of ruling on a

motion to dismiss for want of standing, “both the trial

and the reviewing courts must accept as true all material

allegations of the complaint in favor of the complaining

party”. Warth v. Seldin, 422 U.S. 490, 501 (1975) ; ac-

cord, Harrington, 553 F.2d at 197. Thus, this Court

should assume that (1) Defendants have unfairly misal-

located committee and subcommittee positions, (2) that

this misallocation has deprived Petitioners, and the legis-

lator classes they represent, of their rightful quantum of

influence over congressional activity, and (3) that this

deprivation has diluted representational] influence and de-

based the vote of the constituent classes represented by

Petitioners. “These assumptions [, however,] as to ille-

gality do not in and of themselves confer standing on

anyone to challenge illegality. Rather, the proper inquiry

is whether the illegality does injury to an interest of the

complaining party.” Harrington, 553 F.2d at 197.

Therefore, in the context of the instant case, the proper

inquiry is: taking the Petitioners’ allegations as true—do

the Petitioners, and the classes they represent, assert suf-

ficient particularized interests and injuries to allow them

to challenge the actions complained of in their complaint?

Petitioners have alleged facts whict establish the req-

uisite “inquiry in fact” to Petitioners and each of the

classes they represent, which injuries are unquestionably

traceable to the challenged actions of Defendants. For

example, in their capacities as individual] legislators and

as representatives of all minority party Congressmen,

Petitioners have alleged, inter alia, that Defendants’ ac-

tions have denied Petitioners their full quantum of power

and influence as Members of the House of Representa-

tives in contravention of various constitutional rights of

Petitioners. That injury is a sufficient “injury in fact”

for standing purposes under applicable authority. Riegle

v. Federal Open Market Committee, 656 F.2d 873 (D.C.

Cir. 1981). In their capacities as voters and representa-

tives of voters in congressional districts represented by

Republican Congressmen, Petitioners have alleged that

the actions of Defendants have diluted and debased the

power of their vote in congressional elections. That in-

jury is sufficient to constitute an “injury in fact” for

standing purposes. White v. Weiser, 412 U.S. 783

(1973).

As to whether Petitioners’ interest is within the zone

of interests arguably protected by the constitutional pro-

visions relied upon, there can be no doubt that Peti-

tioner’s interests—the right of voters to influence govern-

ment action through their votes and the right of each

Member of the House to fully participate in and influence

activities in the House—are among those rights intended

to be protected by the constitutional guarantees upon

which they rely.

Finally, it is clear that a decision favorable to Peti-

tioners would redress the injury of which they complain.

The Court of Appeals expressly noted that = suitable

remedy could be fashioned. Vander Jagt v. O’Neili, 699

F.2d 1166, 1176 (D.C. Cir. 1983). Petitioners have thus

surmounted all of the hurdles to satisfy traditional stand-

ing requirements.

As noted earlier, a majority of the panel of the Court

of Appeals agreed with Petitioners’ assertion of standing

and expressly held that Petitioners have standing, id. at

1168, while Judge Bork, in his concurring opinion, ex-

pressed the view that Petitioners lacked standing, id. at

1177. Judge Bork’s reasoning was premised upon two

propositions with which the majority appropriately took

issue. The first is that a legislator’s vote must be “nulli-

fied”, rather than “diluted”, before the legislator will have

suffered an “injury in fact” for standing purposes. The

second proposition is that the doctrine of standing in-

cludes separation-of-powers policy concerns.

With respect to the first of these propositions, the ma-

jority points out that Judge Bork “revives a legal dis-

tinction discarded in Riegle . . . between allegations that

a legislator’s vote has been ‘nullified’ and allegations that

the legislator’s influence has merely been ‘diminished’ ” and

noted that “a unanimous panel of [the Court of Appeals]

repudiated that distinction in Riegle....” Id. at 1168.

Moreover, Judge Bork ignores the fact that Petitioners

sue as voters and representatives of all voters represented

by Republican legislators, each of whom suffers a dilution

of his vote in congressional elections. As the panel ma-

jority states “appellants would seem to have strengthened

their arguments for judicial review by including private

plaintiffs’ in their suit.... [T]here can be no doubt that

the voting right cases established that “complete nullifica-

tion” of voting power is not necessary for citizens chal-

lenging congressional elections to acquire standing”. Jd.

at 1169 n.4 (citations omitted).

The majority also rejected the view of Judge Bork that

the “injury in fact’? component of the doctrine of stand-

ing includes separation-of-powers policy concerns. They

point out that this Court “addressed and explicitly re-

jected the notion that ‘in terms of Article III limitations

on federal court jurisdiction, the question of standing’

intersects ‘separation of power’ problems... .” Jd. at

1169 (citations omitted).

Petitioners submit to this Court that, based upon the

foregoing authorities and analysis, the holding of the

District Court and the holding of the majority of the

Court of Appeals, that Petitioners do have standing is

correct.

II. Does the Speech or Debate Clause of the United States

Constitution Preclude the Court’s Examination of Dep-

rivation of Petitioners’ Constitutional Rights as Mem-

bers of Congress, as Voters, or as Representatives of a

Class of Constituents?

Petitioners say “No”’.*

The Speech or Debate Clause, Art. I, § 6, of the Con-

stitution provides that:

for any Speech or Debate in either House, they

[Senators and Representatives] shall not be ques-

tioned in any other Place.

This Court has consistently held that immunity flowing

from the Speech or Debate Clause shields Members of

Congress for acts taken within “the sphere of legitimate

legislative activity,” Eastland v. United States Service-

men’s Fund, 421 U.S. 491 (1975); Doe v. McMillan, 412

U.S. 306 (1973) ; Gravel v. United States, 408 U.S. 606

(1972) ; United States v. Brewster, 408 U.S. 501 (1972) ;

Tenney V. Brandhove, 341 U.S. 367 (1951). Contrary to

the holding of the District Court, Vander Jagt, 524 F.

Supp. at 521, the challenged conduct of Defendants did

not consist of legislative activity undertaken by Members

of Congress within the realm of the Speech or Debate

Clause for the following reasons: (i) the relevant actions

were taken prior to convening of the 97th Congress and

thus could not have included legislative action of the

House of Representatives and, at least with respect to

certain Defendants, were taken by persons who were not

then “Representatives”; (ii) the relevant actions were

purely partisan political activities rather than “legisla-

tive activities” as defined in and explained by authority

construing the Speech or Debate Clause and (iii) even if

3 The Speech or Debate Clause is discussed because the District

Court based its dismissal on that ground, Vander Jagt v. O'Neill,

524 F.Supp. 519, 521 (D.D.C. 1981), aff'd on other grounds, 699

F.2d 1166 (D.C. Cir. 1983), and because it is a threshold issue,

Davis v. Passman, 442 U.S. 228, 236 n.11 (1979).

such activities were “legislative” in nature and were

undertaken by “Representatives”, they were not “legiti-

mate” activities entitled to be shielded from judicial re-

view by the Speech or Debate Clause because the activities

(as alleged and taken as true) infringe upon Petitioners’

fundamental constitutional rights.

The Speech or Debate Clause specifically applies to

“Senators or Representatives”. The action which deter-

mined the allocation of committee seats was taken by the

Defendant Democratic Caucus before the 97th Congress

convened and before the participants in that caucus were

sworn in as Members of the 97th Congress; indeed, al-

though the leaders (the three individually-named Defend-

ants) and others were Members of the 96th Congress,

some of the participants in the Defendant Democratic

Caucus were merely private citizens and would not be-

come Members of Congress until January 5, 1981. To

extend the immunity of this Clause of the Constitution to

a partisan political caucus and to persons not yet Mem-

bers of Congress would be an extension far beyond its

original intent.

Even if the meaning of the word “Representative” were

stretched to include the participants in the challenged ac-

tion, this interpretation does not cloak their actions with

immunity under the Speech or Debate Clause. The de-

lineation of the parameters of Speech or Debate Clause

protection stems from the historic antecedents of the

Clause as viewed by this Court. Gravel v. United States,

408 U.S. 606 (1972) ; United States v. Johnson, 383 U.S.

169 (1965). The immunity established by the Clause has

as its genesis the “history of conflict between the Com-

mons and the Tudor and Stuart monarchs during which

successive monarchs utilized the criminal and civil law to

suppress and intimidate critical legislators.” United

States v. Johnson, 383 U.S. 169, 178 (1965); see Rein-

stein and Silverglate, Legislative Privilege and the Sepa-

ration of Powers, 86 Harv. L. REv. 1113 (1978) [herein-

after cited as 86 Harv. L. Rev.]. Likewise, the central

role of the Clause, as interpreted by this Court in light

of the American experience, is to prevent intimidation of

legislators by the executive branch and accountability of

legislators before a possibly hostile judiciary. Doe v. Mc-

Millan, 412 U.S. 306, 311 (1972). As has been noted by

commentators:

The history of the speech or debate clause reveals

that the privilege was not meant to apply broadly to

suits brought by citizens to protect their civil rights

from invasion by Congressmen or Congressional com-

mittees.

86 Harv. L. REv. at 1119.

Accordingly, those commentators reason that in de-

fining the scope of the speech or debate privilege in

“emerging cases”, the reason for and necessity of the

privilege must be the guide. Jd. at 1144.

First, Congress should not be able to collectively

circumscribe the constitutional rights of its individ-

ual members.

Second, the rules of each house . . . do not define or

set bounds upon the legislature’s functions.

Id. at 1166 (emphasis added).

Conversely, the mere imprimatur of a committee or

of the full house should not give protection to an

otherwise unprivileged act. As with all other consti-

tutional provisions, the contours of the speech or

debate clause are ultimately established by judicial

decision and not by legislative fiat. If an act by a

congressman is ab initio unrelated to the proper

functioning of the legislative process, a simple ap-

proval by the house should not magically transform

it into a legislative act.

Id. at 1167 (emphasis added).

For these reasons, in setting the parameters of the

“sphere of legitimate legislative activity” which is pro-

tected by the Speech or Debate Clause, this Court has

emphatically stated that a Member’s conduct is not pro-

tected merely because it is related to the legislative

process.

In no case has this Court ever treated the clause as

protecting all conduct relating to the legislative proc-

ess. In every case thus far before this Court, the

Speech or Debate Clause has been limited to an act

which was clearly a part of the legislative process—

the due functioning of the process.

United States v. Brewster, 408 U.S. 501, 515-16 (1972).

Indeed, the Brewster Court took great pains to identify

immunized acts as “only acts generally done in the course

of the process of enacting legislation,” id. at 514, and

“act[s] generally done in Congress in relation to the busi-

ness before it,” id. at 512 (emphasis added). In Doe v.

McMillan, 412 U.S. 306 (1973), the Court distinguished

legislative acts such as voting, speaking on the floor or in

committee and issuing reports (all of which are within

the protection of the Clause) from other acts which enjoy

no protection.

Actions taken by the Democratic Caucus and the Demo-

cratic Steering and Policy Committee, while arguably “re-

lated to the legislative process” are clearly not “acts gen-

erally done in the course of the process of enacting legis-

lation”, or “acts generally done in Congress in relation to

the business before it”. The Defendant entities are pat-

ently partisan political bodies with no legislative or over-

sight responsibility. The activities of these Defendants

bear none of the hallmarks of legislative activities. Here-

tofore, it has never been seriously contended that partisan

matters addressed by these Defendant entities, however

appropriate, have the protection afforded by the Speech

or Debate Clause. See United States v. Brewster, 408

U.S. 501, 512 (1972). Thus, while Members of Congress

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.

Moreover, this Court has clearly held that the fact that

individual Defendants occupy legislative positions does

not protect them from questioning on their outside activi-

ties. Hutchinson v. Proxmire, 443 U.S. 111 (1979);

Davis v. Passman, 442 U.S. 228 (1979).

The gloss going beyond a strict literal reading of the

clause has not, however, departed from the objective

-.0f protecting only legislative activities. In Thomas

Jefferson’s view: “[{The privilege] is restrained to

things done in the House in a Parliamentary course

. . For [the Member] is not to have privilege

contra morem parliamentarium, to exceed the bounds

and limits of his place and duty.

443 U.S. at 125.

Finally, even if the actions of Defendants are regarded as

“legislative”, it is critical to note that this Court has

taken “a decidedly jaundiced view towards extending the

Clause so as to privilege illegal or unconstitutional con-

duct beyond that essential to foreclose executive control

of legislative speech or debate and associated matters such

as voting and committee reports and proceedings.” Gravel

v. United States, 408 U.S. 606, 620 (1972); Benford v.

American Broadcasting Companies, 502 F. Supp. 1148,

1145 (D.Md. 1980). In this case, the immunity afforded

by the Clause should not be held to extend to actions

which infringe upon the fundamental constitutional rights

of Petitioners. As a minimum, a case involving the com-

peting constitutional interests of fair representation and

Speech or Debate immunity should not be decided in a

summary manner. As Professors Reinstein and Silver-

glate have observed,

[i]t would be a supreme irony if the speech or de-

bate privilege, which was designed to protect against

executive intimidation and was placed in a Consti-

tution under which Courts protect individual rights,

were construed so that courts lend their assistance

to the executive in breaching the wall of separation

but deny relief for violation of individual rights.

86 Harv. L. REv. at 1177.

III. Does Article I, Section 5 of the U.S. Constitution Which

Provides that Each House May Determine the Rules

of Its Proceedings Preclude Judicial Review of Actions

Purportedly Taken Pursuant to Such a Rule Where

Such Actions Are Alleged to Have Violated Funda-

mental Constitutional Rights?

Petitioners say “No.” *

Section 5, Clause 2 of Article I of the U.S. Constitution

(hereinafter the Rules Clause] provides as follows:

Each House may determine the Rules of its Proceed-

ings, punish its Members for disorderly Behaviour,

and, with the Concurrence of two-thirds, expel a

Member.

Rule X, Clause 6(a) (1) of the House of Representa-

tives [hereinafter the Rule] has at all pertinent times

provided as follows:

The standing committees specified in clause 1 shall

be elected by the House at the commencement of

each Congress from nominations submitted by re-

spective party caucuses.

Petitioners respectfully submit that the Rules Clause

does not preclude a federal court from reaching the merits

of Petitioners’ complaint for three reasons: (i) the chal-

lenged actions of the Defendants could not have been

taken pursuant to the Rule because the Rule was not in

effect at the time such actions were taken, (ii) even if

* This clause is discussed because the District Court held that

its jurisdiction was ousted by this clause and Judge Bork of the

Court of Appeals, in his concurring opinion, discussed closely re-

lated issues of “separation of powers”, albeit under the rubric of

“standing”.

the Rule were in effect at such time, it affords no protec-

tion for Defendants’ actions because the Rule is itself

constitutionally defective in that it provides for an un-

constitutional delegation of legislative function and (iii)

even if the Rule were valid and in effect at the time of

Defendants’ actions, federal courts continue to have the

power and duty to determine whether the Rule and ac-

tions taken pursuant to the Rule impugn fundamental

constitutional rights of Petitioners.

The rules of the 97th Congress, including the Rule,

were not in effect at the time of the actions of the De-

fendants. As this Court noted in Gojack v. United States,

384 U.S. 702 (1965), “[nJeither the House of Represent-

atives nor its committees are continuning bodies... It

is the practice of the House to adopt its Rules ... at the

beginning of each Congress.” Jd. at 706-07 n.4. The

force of the rules of the House of Representatives (and

the Rule, ipso facto) ends at the conclusion of a partic-

ular Congress. | DESCHLER’S PRECEDENTS OF THE U.S.

HOUSE OF REPRESENTATIVES 64 (1977). The acts of De-

fendants that were the basis for the complaint occurred

on and after December 9, 1980, but prior to the adoption

of the Rules of the House of Representatives for the 97th

Congress on January 5, 1981. 127 Cong. Rec. H5-20

(daily ed. Jan. 5, 1981). Defendants’ acts, purportedly

taken pursuant to a Rule not yet enacted, were, in fact,

wholly unsupported and unprotected by any grant of con-

stitutional authority.

Any claim that subseqeunt passage of a House Resolu-

tion can “ratify” the illegal and unconstitutional acts of

Defendants should not be countenanced by this Court.

Kilbourn v. Thompson, 103 U.S. 377 (1880); see Stock-

dale v. Hansard, 112 Eng. Rep. 1112 (K.B. 1839).° Al-

lowing any sort of ratification is tantamount to letting an

interested majority propose a measure to further consoli-

date its power, and then letting it vote that position into

reality. While it is clear that lex majoris partis is the

® Followed in Gravel v. United States, 408 U.S. 606 (1972).

law of Congress, this will of the majority must be prop-

erly and fairly ascertained with due protection of the

miuority. See I DESCHLER’S PRECEDENTS OF THE U.S.

HOUSE OF REPRESENTATIVES viii (1977) (Comparative

Rights). The decisions concerning the committee seat al-

locations were made by Defendants in a closed meeting

from which 44% of the Members of the House were ex-

cluded; and they were excluded because of the exercise of

their First Amendment right of political association.

Even if the Rule is regarded as having been in effect at

relevant times, Petitioners further submit that to the ex-

tent the Rule delegates the allocation of committee and

subcommittee positions (albeit under the euphemism of

“nominations”) to the Defendant Democratic Caucus, it

is both an improper and unconstitutional delegation of

legislative function. Schechter Poultry v. United States,

295 U.S. 495 (19385). The power to create committees

and subcommittees, and to designate the numbers of per-

mitted members from each party as such, can be viewed

as a legislative power. Since such power has been dele-

gated to the Congress and particularly to each of the

houses of Congress, the assignment of that power to an

unsworn assembly of partisans without standards or

guidelines is a totally improper delegation and should be

so declared by this Court.

Even assuming that the Rule was in effect, the courts

continue to have the right and duty to consider the va-

lidity of congressional] rules in relation to other constitu-

tional provisions. In United States v. Ballin, 144 U.S. 1,

5 (1892) the Court held that,

[t]he Constitution empowers each house to deter-

mine its rules of proceedings. It may not by its rules

ignore constitutional restraints or violate fundamen-

tal rights.

United States v. Smith, 286 U.S. 6 (1932); see also

Yellin v. United States, 374 U.S. 109, 148-44 (1963)

(White, J., dissenting) ; Christoffel v. United States, 338

U.S. 84 (1949).

Applicable authority makes clear that federal courts

have the power and duty to balance conflicting constitu-

tionally-based claims. For example, in the case of Baker

v. Carr, 369 U.S. 186 (1962), the Court stated:

Deciding whether a matter has in any measure been

committed by the Constitution to another branch of

government, or whether the action of that branch

exceeds whatever authority has been committed, is

itself a delicate exercise in constitutional interpreta-

tion, and is the responsibility of this court as ulti-

mate interpreter of the Constitution.

Id. at 211.

The Court of Appeals accepted the language of the Su-

preme Court in Ballin, saying that,

[t]he Supreme Court in United States v. Ballin, 144

U.S. 1, 12 S.Ct. 507, 36 L.Ed 321 (1892), made

plain that our scope of review is broader than the

district court believed. The Court expressly weighed

the constitutional “validity” of a House rule involv-

ing when a sufficient quorum was present. In doing

so, the Court indicated that our review of congres-

sional rules is to be equally deferential, but no more

so, than our review of most other legislative ac-

tons. ...

699 F.2d at 1172 (emphasis added). The panel majority

concluded its discussion of this issue as follows:

[Wje conclude that Art. I simply means that neither

we nor the Executive Branch may tell Congress

what rules it must adopt. Article I does not alter

our judicial responsibility to say what rules Con-

gress may not adopt because of constitutional in-

firmity.

Id. at 1173 (emphasis added). Thus, the power given

each House to determine its own rules does not preclude

the power of the judiciary to test the Rule for constitu-

tional compliance.

IV. Do the Federal Courts Have an Obligation Under the

Circumstances of the Instant Case to Examine the

Merits of Colorable and Justiciable Claims That

Allege Abridgement of Fundamental Constitutional

Rights?

Petitioners say “Yes”.

It is the responsibility of the Supreme Court of the

United States, as ultimate interpreter of the Constitution,

to decide whether a matter has in any measure been com-

mitted by the Constitution to another branch of govern-

ment, or whether the action of that branch exceeds its

authority. Marbury v. Madison, 5 U.S. (1 Cranch.) 137

(1803); McCulloch v. Maryland, 71 U.S. (4 Wheat.) 316

(1819); Baker v. Carr, 369 U.S. 186 (1962); see Ken-

dall v. United States ex rel. Stokes, 37 U.S. (12 Pet.)

524 (1938). Mere assertion of “intrabranch” dispute

does not defeat federal jurisdiction. United States V.

Nixon, 418 U.S. 683, 6938 (1974). The thrust of these

teachings is that the duty to decide the merits of non-

frivolous and justiciable claims of debasement of constitu-

tional rights should not be avoided merely because the

prospect of consideration of the merits is unattractive,

controversial or requires delicate judgments.

In a landmark case from the early history of this

Court, Chief Justice John Marshall described the nature

of this obligation imposed upon the judiciary. While he

was referring to the appellate jurisdiction of this Court,

he correctly described the judiciary’s obligation in general

when, in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264

(1821), he spoke for the Court as follows:

It is most true that this Court will not take juris-

diction if it should not; but it is equally true, that

it must take jurisdiction if it should. The judiciary

cannot, as the legislature may, avoid a measure be-

cause it approaches the confines of the constitution.

We cannot pass it by because it is doubtful. With

whatever doubts, with whatever difficulties, a case

may be attended, we must decide it, if it be brought

before us. We have no more right to decline the

exercise of jurisdiction which is given, than to usurp

that which is not given. The one or the other would

be treason to the constitution. Questions may occur

which we would gladly avoid; but we cannot avoid

them. All we can do is, to exercise our best judg-

ment, and conscientiously to perform our duty.

Id. at 404.

While this duty to decide is not an absolute, the heavy

judicial responsibility described by Chief Justice Mar-

shall requires that federal courts voluntarily decline to

exercise their jurisdiction in non-frivolous and justiciable

constitutional cases only in the most compelling circum-

stances. Even then, federal courts have generally de-

clined to consider the merits of such claims only where

redress outside of the judiciary was realistically avail-

able or where the action could be better maintained by a

different plaintiff. For example, in Lampkin v. Connor,

360 F.2d 505 (D.C. Cir. 1966), cited by the Court of Ap-

peals as an instance where that court declined to exercise

its jurisdiction in a case involving “constitutional claims

as significant and thorny as those in this case”, 699 F.2d

at 1175 n.25, the Court of Appeals itself, in its explana-

tion of the Lampkin rationale, stated that,

[t]he unanimous court in Lampkin declined to adopt

the lower courts denial of standing, or the alterna-

tive suggestion that the case was nonjusticiable un-

der the political question doctrine. Instead, the court

exercised its discretion to withhold declaratory re-

lief, and explained that especially because the re-

cently passed Voting Rights Act offered significant

hope for remedying the plaintiffs’ complaints judicial

action at that time would be unwise.

Id. at 1175 n.25 (emphasis added).

Consistent with its earlier view in Lampkin, that

Court of Appeals only recently laid down standards for

determining when jurisdiction should be declined over

justiciable constitutional claims brought by congressional

plaintiffs announcing e doctrine of “circumscribed equi-

table discretion”. In that case that Court of Appeals de-

scribed that doctrine thusly,:

In short, our standard would counsel dismissal of

congressional plaintiff actions only in cases in which

(i) the plaintiff lacks standing under the traditional

terms or (ii) the plaintiff has standing hut could

get legislative redress and a similar action could be

brought by a private plaintiff.

Riegle v. Federal Open Market Committee, 656 F.2d 8738,

882 (D.C. Cir. 1981).

Petitioners brought this case seeking judicial redress

in accordance with these standards laid down relating to

the assertion of judicial power and submit that they have

satisfied the standards fully. As Petitioners have noted

herein, they have met the traditional tests of standing,

and both the District Court and the Court of Appeals

have concurred in that view. Moreover, it is clear that

Petitioners have no realistic hope for internal legislative

redress. As the District Court specifically found, “the

prospect of a significant change in the division of House

committee assignments effected by the House majority is

significantly remote that the Court cannot assume that a

legislative remedy is a viable alternative to judicial re-

lief... .” 524 F. Supp. at 521. Time has proved the

wisdom of Judge Oberdorfer’s assessment; in the 98th

Congress, the Defendants repeated the underrepresenta-

tion of Petitioners and all minority party members in the

allocation of committee and subcommittee assignments.

See 129 Cong. Rec. H10-22 (daily ed. Jan. 3, 1983) ; 129

Cong. Rec. H66-69 (daily ed. Jan. 6, 1983).

With respect to the claims brought by Petitioners as

legislators, it is obvious that similar actions could not be

brought by private plaintiffs. The damages alleged by

Petitioners, as legislators, are damages to their rights as

legislators qua legislators, and no private plaintiff could

bring such claims. Thus, Petitioners (to the extent that

their claims are pressed as legislators) submit that they

have met the standards laid down in Riegle.

Petitioners further submit with respect to those claims

which they make as representatives of individuals and

private voters, that they have standing and that the

Riegle standards, by their very terms, are inapplicable,

and thus, do not serve in any respect to justify the Court

of Appeals in its refusal to exercise its jurisdiction.

Moreover, the Court of Appeals explicitly recognized

that Petitioners have standing which is not foreclosed by

its Riegle doctrine of “circumscribed equitable discre-

tion”. However, that Court then candidly, albeit without

authority or coherent explanation, proceeded to broaden

and extend its doctrine as justification for declining juris-

diction with respect to Petitioners in their capacies as

legislators and as private plaintiff-voters. 699 F.2d at

1168. No standards whatever were provided by the Court

of Appeals to indicate when it will, or will not, exercise

its jurisdiction. Presumably, the Court of Appeals will

proceed to assert or decline jurisdiction in such cases on

the basis of “we know it when we see it”. Even Judge

Bork, (who thinks Riegle was wrong) recognized that

Riegle at least provided firm guidelines for the exercise

of judicial power, a situation he found markedly prefer-

able to the “rudderless adjudication” that the panel ma-

jority has delivered to Petitioners. 699 F.2d at 1184.

The fact that a particular case is “unattractive” should

not stay the exercise of judicial power where competent

jurisdiction exists and non-frivolous claims of deprivation

of fundamental constitutional rights are involved. Un-

doubtedly, the voting rights and apportionment cases were

“startlingly unattractive” for judicial intervention at the

time they arose. They are hailed now as landmarks of

freedom. They demonstrate that this Court has, and will,

accept its responsibility to “say what the law is” in situa-

tions such as the instant case involving, inter alia, non-

frivolous and justiciable claims that the weight of a citi-

zen’s vote has been debased.

The judicial obligation to “remedy long-standing flaws

in the political system which impede equal participation

in the governmental process”, 699 F.2d at 1170, was pro-

claimed by Justice Black speaking for the majority in

Wesberry v. Sanders, 376 U.S. 1 (1964) as follows:

Mr. Justice Frankfurter’s Colegrove opinion con-

tended that Art. 1, §4, of the Constitution had

given Congress “exclusive authority” to protect the

right of citizens to vote for Congressmen, but we

made it clear in Baker that nothing in the language

of that article gives support to a construction that

would immunize state congressional apportionment

laws which debase a citizen’s right to vote from the

power of courts to protect the constitutional rights

of individuals from legislative destruction, a power

recognized at least since our decision in Marbury Vv.

Madison, 1 Cranch. 137, in 1803. Cf. Gibbons v. Og-

den, 9 Wheat. 1. The right to vote is too important

in our free society to be stripped of judicial protec-

tion by suck an interpretation of Article I. This

dismissal can no more be justified on the ground of

“want of equity” than on the ground of “nonjusti-

ciability.” We therefore hold that the District Court

erred in dismissing the complaint.

Id, at 6-7 (emphasis added). Justice Black then addressed

the merits of that case saying that,

[wle hold that, construed in its historical context,

the command of Art. I, § 2, that Representatives be

chosen “by the People of the several States” means

that as nearly as is practicable one man’s vote in a

congressional election is to be worth as much as an-

other’s.

Id. at 7-8. The same rationale that was expressed con-

cerning judicial power and the apportionment statute of

Georgia with regard to individuals must also apply to the

concept of equal weight of the legislative powers of Con-

gressmen elected from congressional districts made up as

nearly as possible, equal numbers of citizens. While the

courts have been zealously guarding apportionment to

hold variations in congressional districts to minute per-

centages above or below the ideal of 520,794 residents per

Congressman, Defendants in this case have been and are

diluting the power of many Congressmen from 7 to 15

percent by malapportioning committee and subcommittee

seats.

Moreover, the danger of oppression of a minority by

the majority in the Congress has been recognized from

the time of the Framers of the Constitution. In Bond v.

Floyd, 385 U.S. 116 (1966), the Supreme Court spoke

clearly to this issue:

Madison and Hamilton anticipated the oppressive

effect on freedom of expression which would result

if the legislative could utilize its power of judging

qualifications to pass judgment on a legislator’s po-

litical views. At the Constitutional Convention of

1787, Madison opposed a proposal to give to Congress

power to establish qualifications in general. The

Journal of the Federa] Convention of 1787 states:

Mr. Madison was opposed to the Section as vest-

ing an improper & dangerous power in the Leg-

islature. The qualifications of electors and

elected were fundamental articles in a Republi-

can Govt. and ought to be fixed by the Consti-

tution. If the Legislature could regulate those

of either, it can by degrees subvert the Consti-

tution. * * * Qualifications founded on artificial

distinctions may be devised, by the stronger in

order to keep out partizans of a weaker faction.

Mr. Madison observed that the British Par-

liamt. possessed the power of regulating the

qualifications both of the electors, and the

elected; and the abuse they had made of it was

a lesson worthy of our attention. They had

made the changes in both cases subservient to

their own views, or to the views of political or

Religious parties.

Hamilton agreed with Madison that:

The qualifications of the persons who may

choose or be chosen * * * are defined and fixed

in the constitution; and are unalterable by the

legislature.

Id. at 136 n.13 (citations omitted). In Powell v. Me-

Cormack, 395 U.S. 486 (1969) this Court conclusively es-

tablished that the qualifications listed in Article I, Section

2, Clause 2, were exclusive, and that Congress could not

add to them. Defendants have “by degrees” subverted

this constitutional restriction as outlined by Petitioners

in their complaint.

Both the Riegle Court and the Court of Appeals in the

instant case rely heavily upon an article authored by the

Honorable Carl McGowan, McGowan, Congressmen in

Court: The New Plaintiffs, 15 Ga. L. REv. 241 (1981),

where Judge McGowan advances a theory to counsel the

judiciary on when it should decline to exercise its juris-

diction with regard to legislator-plaintiffs. Petitioners

note again that the concepts in this article are designed

to deal only with problems raised by legislator-plaintiffs,

whereas the instant case involves private plaintiffs ex-

plicitly excepted from the analysis advanced by Judge

McGowan and the Riegle Court. Even Judge McGowan

recognizes there is a limit to his suggestion of restricting

relief to a Congressman in court. While he notes that the

courts’ reluctance to hear such claims on the merits in-

creases when the dispute is with fellow legislators rather

than with the executive, he also recognizes the argument

that “. . . the courts have both the title and the duty

when a case is properly before them to review the actions

of the other branches in light of Constitutional provi-

sions.” /d. at 251.

Ultimately, to borrow Professor Archibald Cox’ phrase

regarding Baker v. Carr, “refusal to act would have the

effect of legitimatizing the evil.” A refusal to decide this

case will amount to a decision that the Defendants may

lawfully debase the weight of a citizen’s vote and dilute

the right of representation. It matters little if a citizen

is accorded equal voting power in selecting his Congress-

man if, after election, the power of representation vested

in his Congressman is systematically diluted.

In Baker v. Carr, Justice Douglas said in concurrence

that,

[t]he whole thrust of today’s legal climate is to end

unconstitutional discrimination. It is ludicrous to

preclude judicial relief when a mainspring of repre-

sentative government is impaired. Legislators have

no immunity from the Constitution. The legislatures

of our land should be made as responsive to the

Constitution of the United States as are the citizens

who elect the legislators.

Id. at 249.

Finally, the narrowly drawn, discrete remedy requested

by Petitioners in this case would in no way be authority

for an expansion of judicial intervention of the variety

feared by the Court of Appeals. The relief requested

would not involve grappling with unmanageable stand-

ards in fixing conduct because the principle of equitable

and proportional! representation is easily arrived at and

requires no ongoing administration.

Notwithstanding the absence of prior cases on “all

fours”, a court, in its consideration of the merits, would

be guided by well-developed standards of analyses with

respect to the First, Fifth and Fourteenth Amendments—

standards which have been honed and developed by prior

application to related cases involving unconstitutional

diminution of voting power, political influence and First

Amendment rights in a political context. See, e.g., Powell

v. McCormack, 395 U.S. 486 (1969) ; Baker v. Carr, 369

U.S. 186 (1962) ; Kucinich v. Forbes, 432 F. Supp. 1101

(E.D. Ohio 1977) ; Elrod v. Burns, 427 U.S. 347 (1976).

Where basic constitutional rights are at stake federal

courts have a responsibility and duty to weigh and ex-

amine conflicting rights. To abdicate this duty, where

non-frivolous, justiciable claims exist would be to violate

the spirit, if not the letter, of a long line of judicial au-

thority stretching back to Marbury v. Madison.

CONCLUSION

Petitioners pray that this Court grant Petitioners’ re-

quest for a writ of certiorari.

Respectfully submitted,

JAMES F. SCHOENER *

ROBERT P. GRIFFIN

MILLER, CANFIELD, PADDOCK

AND STONE

Suite 300

2555 M Street, N.W.

Washington, D.C, 20037

(202) 822-9333

WILLIAM E. DANNEMEYER, M.C.

Attorneys for Petitioners

* Counsel of Record

June 8, 1983

APPENDICES

APPENDIX A

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

Civ. A. No. 81-1722

Guy VANDER JAGT, et al.,

“ Plaintiffs,

THOMAS P. O’NEILL, JR., et al.,

Defendants.

Oct. 8, 1981

James F. Schoener, Washington, D.C., for plaintiffs.

Stanley M. Brand, Washington, D.C., for defendants.

MEMORANDUM

OBERDORFER, District Judge.

Thirteen Republican Members of the House of Repre-

sentatives have sued the Speaker of the House of Repre-

sentatives and several of the Democratic leaders essen-

tially because the defendants have allegedly provided

plaintiffs with fewer seats on certain House committees

than they are legally entitled to, thereby diluting plain-

tiffs’ constitutional rights as voters and as Members of

Congress.

Defendants move to dismiss the complaint on jurisdic-

tional and standing grounds. They contend that 28 U.S.C.

§ 1831 is the only arguable basis for jurisdiction. They

urge that exercise of such jurisdiction by the Curt would

violate the Speech and Debate Clause, U.S. Const., art. I,

§ 6, cl. 1, involve the Court in a nonjusticiable political

question textually committed to Congress, require the

Court to attempt to make a decision for which there are

no discernable standards, and derogate the deference

owed by one coordinate branch of the federal govern-

ment to another branch. In addition, defendants chal-

lenge plaintiffs’ standing on the theory that they have

suffered no actual injury and that there is no causal con-

nection between their claimed injury and the actions al-

legedly taken by the defendants.

Plaintiffs oppose the motion principally on the ground

that their claim against the defendants relates only to

their role as officers and leaders of the Democratic Steer-

ing and Policy Committee. Therefore, plaintiffs contend,

defendants’ actions are unofficial and unprotected by the

Speech and Debate Clause. Plaintiffs further claim that

the question lacks essential characteristics of a nonjusti-

ciable political one. Finally, plaintiffs urge that their

injury is of a sort which is traditionally actionable, and

that the alternative remedies within Congress are ephem-

eral and inadequate to correct the wrong they claim to

have suffered.

Taking the principal issues in reverse order, the Court

is satisfied that constitutional deprivations and the loss

of voting power alleged would, all things being equal,

give plaintiffs standing to bring this action. Kennedy v.

Sampson, 167 U.S.App.D.C. 192, 511 F.2d 430 (1974).

The prospect of a significant change in the division of

House committee assignments effected by the House ma-

jority is sufficiently remote that the Court cannot assume

that a legislative remedy is a viable alternative to judi-

cial relief, justifying the Court to stand aside.

The Court concludes, however, that the plaintiffs have

not overcome the defendants’ challenge to this Court’s

jurisdiction by virtue of both the Speech and Debate

Clause and the corollary Separation of Powers doctrine.

The Court is persuaded that actions taken by House

Members belonging to one party pursuant to decisions

made by them in a caucus of that party are actions per-

formed within the “legitimate legislative sphere.” See

Eastland v. United States Servicemen’s Fund, 421 U.S.

491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Doe v. Mc-

Millan, 412 U.S. 306, 312-13, 93 S.Ct. 2018, 2024-25, 36

L.Ed.2d 912 (1973) ; United States v. Brewster, 408 U.S.

501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972); see also

Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18

L.Ed.2d 577 (1967). It is apparent from the face of the

complaint and reasonable inferences therefrom that de-

fendant Members determined in caucus somewhat un-

Officially how they, as a group of party members, would

vote on the floor of the House with respect to the compo-

sition of the Committees of the House. This caucus

action was in preparation for and in discharge of the

official duty of the Members qua Members to elect stand-

ing committees. The rules of the House limit the com-

mittees so elected to nominees of the party caucus. H.R.

Rule X, Cl. 6(a) (1), Rules of the House of Representa-

tives, reprinted in Jefferson’s Manual and Rules of the

House of Representatives, H.R. Doe. No. 95-403, 95th

Cong., 2d Sess. 384-85 (1979). Thus, the actions con-

tested by the plaintiffs were in performance of legislative

duties defined by the House’s own rules, which rules spe-

cifically contemplate a nominating role for the caucus.

Accordingly, the actions complained of, even though they

might affect plaintiffs’ constitutional rights as voters and

Members, are beyond the reach of this Court by virtue of

the Speech and Debate Clause. Cf. Powell v. McCormack,

395 U.S. 486, 508, 89 S.Ct. 1944, 1957, 23 L.Ed.2d 491

(1969) ; Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed.

377 (1881).

The actions of a caucus in the House are governed by

the House Rules. Art. I, $5, cl. 2 of the Constitution

confers upon the House the power “to determine the

Rules of its Proceedings.” This textual commitment of

the issue to the House would oust the Court’s jurisdic-

tion, even if such jurisdiction were not more explicitly

foreclosed by the Speech and Debate Clause. Baker v.

Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d

668 (1962); see also Winpisinger v. Watson, 202 U.S.

App.D.C. 133, 628 F.2d 133 (1980).

The obvious defects in the Court’s jurisdiction make

redundant exploration of other issues raised. Accord-

ingly, an accompanying order will dismiss the complaint

on jurisdictional grounds.

APPENDIX B

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

No. 81-2150

GuY VANDER JAGT, et ai.,

. Appellants,

THOMAS P. O’NEILL, JR., et al.

Appellees.

Argued March 19, 1982

Judgment Issued Dec. 23, 1982

Opinions Issued Feb. 4, 1983

Appeal from the Unied States District Court

for the District of Columbia

(D.C. Civil Action No. 81-01722)

William E. Dannemeyer, Fullerton, Cal., of the Bar of

the Supreme Court of California by special leave of the

Court pro hac vice and James F. Schoener, Birmingham,

Mich., for appellants.

Stanley M. Brand, Washington, D.C., Gen. Counsel to

the Clerk, U.S. House of Representatives with whom

Steven R. Ross, Washington, D.C., Asst. Counsel to the

Clerk, U.S. House of Representatives was on brief, for

appellees.

Before BORK, Circuit Judge, ROBB, Senior Cireuit

Judge and JAMES F. GORDON,” Senior District Judge

for the Western District of Kentucky.

* The Honorable James F. Gordon, United States District Court

for the Western District of Kentucky, sitting by designation pur-

suant to 28 U.S.C. § 294(d).

Opinion for the Court filed by Senior District Judge

JAMES F. GORDON.

Concurring opinion filed by Circuit Judge BORK.

JAMES F. GORDON, Senior District Judge:

Fourteen Republican Members of the House of Repre-

sentatives have sued the House Democratic leadership, the

Democratic Steering and Policy Committee, and the Dem-

ocratic Caucus.' The Republicans contend that the Demo-

crats systematically discriminated against them by pro-

viding them with fewer seats on House committees and

subcommittees than they are proportionally owed. The

district court dismissed the complaint, Vender Jagt v.

O’Neill, 524 F.Supp. 519 (D.D.C. 1981), holding that

the appellants’ suit was barred by the Speech or Debate

Clause and by the provision of the Constitution which

confers upon the House the power “to determine the

Rules of its Proceedings.” Art. I, $5, cl. 2. We affirm

on somewhat different grounds.

Appellants claim that the Democrats diluted the power

and influence of Republican House members, and thus

the political rights of voters in Republican congressional

districts as well. This happened after members of the

Democratic Caucus met in the weeks before the opening

of the 97th Congress and determined the number of com-

1 The Republicans sue as members of the House, as members of

various committees of the House, and as individual voters. They

also sue as representatives of three classes: (1) the class of all

Republican members of the House, (2) the class of all members of

certain committees of the House, and (3) the class of all voters

in congressional districts represented by Republican members.

Appellees are Thomas P. O'Neill, Jr.. the Speaker of the House;

Jim Wright, the Majority Leader; Gillis W. Long, Chairman of the

Democratic Caucus; the Democratic Steering and Policy Committee

of the House of Representatives; and, the Democratic Caucus, which

consists of all Democratic members of the House of Representatives.

Appellees O'Neill, Wright, and Long are sued in their various

capacities as House members and Democratic leaders.

mittee seats to be allocated to Democrats and Republi-

cans. That allocation took effect when the House con-

vened on January 5, 1981, and passed House Resolution

44 on a straight-party vote. Even though Republicans

constituted 44.14% of the House and Democrats 55.86%,

Republicans were given only 40% of the seats on the

Budget Committee and the Appropriations Committee,

only 34.29% of the Ways and Means Committee seats,

and only 31.25% of the Rules Committee seats.

The Republicans say this arrangement deprived them

of Fifth Amendment due process and equal protection

rights, as well as First Amendment rights of association

and free speech. Also the Republicans say that the Dem-

ocrats violated Article I by adding the additional re-

quirement of majority party membership to the qualifica-

tions for full House membership. Finally, the Republi-

cans say that voters in congressional districts repre-

sented by Republicans were deprived of rights to due

process and equal protection, rights to freedom of asso-

ciation, and rights to petition the government for re-

dress of grievances.

In evaluating whether we have jurisdiction and also

whether we should provide relief, a variety of doctrines

have been presented that would lead to dismissal of this

complaint. The district court held that jurisdiction was

“ousted” by the Speech or Debate Clause and by the

Article I provision allowing the House “to determine the

Rules of its Proceedings.” ? Alternatively, our distin-

guished colleague, Judge Bork, urges dismissal] because

the Republicans lack standing. Finally, we have con-

sidered whether this suit should be dismissed following

the approach taken in Riegle v. Federal Open Market

Committee, 656 F.2d 873 (D.C. Cir. 1981). There a sen-

7U.8. Const. art. I, §5, cl. 2 provides: “Each House may de-

termine the Rules of its Proceedings, punish its Members for dis-

orderly Behavior, and, with the Concurrence of two thirds, expel a

Member.”

ator was challenging the constitutionality of certain pro-

cedures established by the Federal Reserve Act. Judge

Robb, writing in Riegle for a unanimous panel, rejected

the arguments that the senator lacked standing, or that

the case should be dismissed as nonjusticiable under the

political question or ripeness doctrines. Instead, the court

simply declined to grant the senator relief because it

found that judicial action would improvidently interfere

with the legislative process. Riegle relied heavily on a re-

cent article by former Chief Judge Carl McGowan, which

analyzed suits brought by congressional plaintiffs and con-

cluded “that the best way to translate those [separation-

of-powers] concerns into principled decisionmaking is

through the discretion of the federal court to grant or to

withhold injunctive or declaratory relief.” *

We hold that this case should be dismissed using Riegle’s

approach of withholding relief where prudential and

separation-of-powers concerns counsel us not to exer-

cise our judicial power. We do not think tnat the Speech

or Debate Clause immunities are necessarily applicable in

this context, nor do we think that we lack jurisdiction

because of Article I. We also find that appellants do have

standing. Because Riegle involved facts that were dif-

ferent from those we face, the following sections extend

Riegle’s analysis to these circumstances.

I. STANDING

We turn first to the question of standing, and the sug-

gestion that we cannot consider the Republicans’ challenge

because they have not alleged an injury that is judicially

cognizable. The Supreme Court has indicated that in rul-

ing on a motion to dismiss for lack of standing, “both

the trial and reviewing courts must accept as true all

material allegations of the complaint, and must construe

the complaint in favor of the complaining party.” Warth

3 McGowan, Congressmen in Court: The New Plaintiffs, 15

Ga.L. Rev. 241, 262 (1981).

v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45

L.Ed.2d 343 (1975). Here the Republicans have alleged

that as legislators and as voters their political power has

been diluted, and they have raised significant additional

issues about First Amendment rights to free association

and free speech. Further, they have raised a plausible

claim that the Democrats have added the additional re-

quirement of majority party membership to the qualifica-

tions for full House membership. We consider these al-

legations sufficient to withstand a motion to dismiss.

Judge Bork, however, makes two interrelated arguments

in challenging the justiciability of the allegations that the

Republicans’ political power has been diluted. He sug-

gests that the harms that the Republican legislators have

allegedly suffered are insufficient to support standing, and

he further contends that because those harms implicate

general separation-of-powers concerns, we have additional

reason to deny standing.

The initial argument revives a legal distinction dis-

carded in Riegle v. Federal Open Market Committee, 656

F.2d 873 (D.C. Cir. 1981), between allegations that a

legislator’s vote has been “nullified” and allegations that

the legislator’s influence has merely been diminished.

Judge Bork contends that «ly where there has been

nullification of a legislator’s vote can there be a sufficient

injury to support standing; he relies in particular on

Kennedy v. Sampson, 511 F.2d 480 (D.C. Cir. 1974),

Harrington v. Bush, 553 F.2d 190 (D.C. Cir. 1977), and

Goldwater v. Carter, 617 F.2d 697 (D.C. Cir.), judgment

vacated on other grounds, 444 U.S. 996, 100 S.Ct. 533, 62

L.Ed.2d 428 (1979). Without further discussion, we sim-

ply note that a unanimous panel of the circuit repudiated

that distinction in Riegle after expressly considering the

“doctrinal difficulties presented by an attempt to reconcile

our denial of congressional standing in the Public Citizen

v. Sampson, 379 F.Supp. 662 (D.D.C. 1974), aff'd mem.,

515 F.2d 1018 (D.C. Cir. 1975); Harrington, and Reuss

10a

v. Balles, 584 F.2d 461 (D.C. Cir.), cert. denied, 439 U.S.

997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978) cases, on the

one hand, with our conferral of legislator standing in the

Kennedy and Goldwater cases, on the other.” *

Judge Bork’s second argument was also, we think,

answered in Riegle, but he suggests that Riegle’s analysis

was implicitly rejected by the Supreme Court in Valley

Forge Christian College v. Americans United for Separa-

tion of Church and State, 454 U..S 464, 102 S.Ct. 752, 70

L.Ed.2d 700 (1982). There the Court provided its most

recent formulation of the standing requirement in stating

that:

at an irreducible minimum, Art. III requires the

party who invokes the court’s authority to “show

that he personally has suffered some actual or

4656 F.2d at 880. It is important to recognize that even if we

return to Goldwater’s requirements for legislator standing, (and

even if we ignore appellants’ other constitutional claims, as Judge

Bork does), there is still another hurdle before we can dismiss this

case for lack of standing. That hurdle is that we are not only

dealing here with legislators suing as legislators, but also with

legislators suing as voters and as representatives of the classes of

all voters represented by Republicans. In that sense, appellants

would seem to have strengthened their argument for judicial re-

view by including “private plaintiffs” in their suit. See Riegle,

656 F.2d at 882; note 16 supra. For regardless of the requirements

for legislators’ standing, there can be no doubt that the voting

rights cases established that “complete nullification” of voting power

is not necessary for citizens challenging congressional elections to

acquire standing. White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37

L.Ed.2d 335 (1973).

Judge Bork resolves this problem by denying standing on the

grounds that “a private plaintiff's suit raises identical separation-

of-powers concerns because those concerns are about the relation-

ship of the courts to Congress,” infra at 1184. In the following

section, we discuss why we cannot accept his expansion of standing

doctrines to include separation-of-powers concerns. On the other

hand, simply because we grant standing does not mean that we

must reach the merits of this suit, as Riegle thought might be

necessary. See note 24 supra.

lla

threatened injury as a result of the putatively il-

legal conduct of the defendant,” Gladstone, Realtors

v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct.

1601, 1608, 60 L.Ed2d 66] (1979), and that the in-

jury “fairly can be traced to the challenged action”

and “is likely to be redressed by a favorable deci-

sion,” Simon v. Eastern Kentucky Welfare Rights

Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925,

48 L.Ed.2d 450] (1976).

454 U.S. at 472, 102 S.Ct. at 758. Immediately following

this summary, the Court explained the standing doctrine’s

function: “In this matter does Art. III limit the federal

judicial power ‘to those disputes which confine federal

courts to a role consistent with a system of separated

powers and which are traditionally thought to be capable

of resolution through the judicial process.’ Flast v. Cohen,

[392 U.S. 83 (1968)] at 97 [88 S.Ct. 1942 at 1951, 20

L.Ed.2d 947].” Id. (emphasis added).

Judge Bork contends that the Court’s use of the phrase

“separated powers,” taken together with language from

other opinions over the past decade, signals that we should

consider separation-of-powers issues as part of our de-

termination whether appellants have standing. But we

decline to place as much weight on the Supreme Court’s

language as Judge Bork does. If the Court had meant to

expand its standing doctrines to make room for a whole

set of analytically-unrelated theories about the roles of

the separate branches of government, it could have said

so. Instead, we should continue to rely on previous ex-

pressions by the Supreme Court that it does not mean to

have separation-of-powers controversies resolved under the

rubric of standing. As Judge Bork acknowledges, infra at

1179, in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20

L.Ed.2d 947 (1968), the Court explicitly addressed and

explicitly rejected the notion that “in terms of Article

III limitations on federal court jurisdiction, the question

of standing” intersects “separation of powers problems

eee ee

12a

related to improper judicial interference in areas com-

mitted to other branches of the Federal Government.”

392 U.S. at 100-01, 88 S.Ct. at 1952-1953.

It is true that in the years following Flast, this cir-

cuit itself relied several times on standing principles to

dismiss separation-of-powers controversies. But in the

aftermath of Riegle, it surely is now settled law in this

circuit that standing doctrines will not be manipulated

to resolve separation-of-powers problems.

Riegle followed Goldwater v. Carter, 444 U.S. 996,

100 S.Ct. 533, 62 L.Ed2d 428 (1979) (mem.), where the

Supreme Court vacated this circuit’s en banc decision,

617 F.2d 697, which had used standing to resolve a

separation-of-powers challenge. Judge Robb summarized

in Riegle the Goldwater lesson:

The Court ignored the standing concept altogether

and, in separate opinions by Justices Powell and

Rehnquist, neither of which gained a majority of the

Court, relied upon the doctrines of ripeness and po-

litical question, respectively (citation omitted.)

If, as the ultimate disposition of Goldwater v.

Carter suggests, the Supreme Court does not believe

that the standing doctrine is capable of reflecting the

prudential concerns raised by congressional plaintiff

suits, this court ought not persist in the attempt to

make it do so.

656 F.2d at 880 (emphasis added).

Yet Judge Bork continues to argue that “Riegle’s rea-

soning proceeded from a false premise about the Supreme

Court’s view of standing.” IJnfra at 1182. His insistence

that we lack the power to act in this case and in other

separation-of-powers disputes has considerable practical

significance.

For the essence of this lawsuit is that the Democratic

House leadership has successfully diluted the political

power of Republican representatives, their voters, and

13a

residents of their districts. This dilution has occurred be-

cause the Democrats have disproportionately limited the

Republicans’ representation on congressional committees,

and “a committee of Congress—in the legislative scheme

of things, is for all practical purposes Congress itself.”

Doe v. McMillan, 412 U.S. 306, 344, 93 S.Ct. 2018, 2040,

36 L.Ed.2d 912 (1973) (Rehnquist, J., concurring in part

and dissenting in part). We readily acknowledge that the

constitutional claims raised in this suit are different

from those raised in Nixon v. Herndon, 273 U.S. 536, 47

S.Ct. 446, 71 L.Ed. 759 (1927) and its progeny (the

White Primary cases), or Baker v. Carr, 369 U.S. 186,

82 S.Ct. 691, 7 L.Ed.2d 663 (1962) and its progeny. But

the significance of those cases is a lesson we cannot ignore:

for many years, our nation—with surprising consensus—

has relied on the judiciary to remedy longstanding flaws

in the political system which impede equal participation in

the governmental process.

Thus while there are compelling prudential reasons why

we should not interfere in the House’s distribution of

committee seats, it is nevertheless critical that we do not

deny our jurisdiction over the claims in this case. As

long as it is conceivable that the committee system could

be manipulated beyond reason, we should not abandon

our constitutional obligation—our duty and not simply

our province—“to say that the law is.” Marbury v.

Madison, 5 U.S. (1 Cranch) 187, 177, 2 L.Ed. 60

(1803); United States v. Nixon, 418 U.S. 688, 705, 94

S.Ct. 3090, 3106, 41 L.Ed.2d 1039 (1974).

Courts and commentators*® have long recognized that

it is crucial to distinguish questions about whether ju-

5 “As with many other areas of justiciability concern, in short, it

would be better to forgo resort to article III and supposed limits

on judicial power in favor of direct attention to the substantive

and remedial problems raised by the particular case.” 13 C. WRIGHT,

A. MILLER & E. Cooper, FEDERAL PRACTICE AND PROCEDURE, § 3531,

at 112 (Cum.Supp. 1980). See also note 27 infra.

l4a

dicial power exists, from questions about whether ju-

dicial power should be exercised. Our decision today

simply recognzes that if Congress should adopt internal

procedures which “ignore constitutional restraints or vio-

late fundamental rights,” it is clear that we must pro-

vide remedial action. United States v. Ballin, 144 US.

1, 12 S.Ct. 507, 36 L.Ed. 321 (1892). Cf. Bond v. Floyd,

385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966)

(Georgia House of Representatives acted unconstitution-

ally when it excluded Julian Bond because of his state-

ment criticizing the federal government’s policy in Viet-

nam) ; Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944,

“3 L.Ed.2d 491 (1969) (U.S. House of Representatives

acted unconstitutionally when it effectively expelled Adam

Clayton Powell by a majority vote because of charges

that Powell had misappropriated public funds and abused

the process of the New York courts) ; Kucinich v. Forbes,

432 F.Supp. 1101 (N.D.Ohio 1977) (Cleveland City

Council acted unconstitutionally when it suspended Gary

Kucinich for possibly suggesting that the council presi-

dent had accepted money for passage of certain

legislation).

II. THE SPEECH OR DEBATE CLAUSE *

The district court dismissed appellants’ challenge in

part because it concluded that “the actions complained of,

even though they might affect plaintiffs’ constitutional

rights as voters and Members, are beyond the reach of

this Court by virtue of the Speech and Debate Clause.”

524 F.Supp. at 521 (citations omitted). The district court

reasoned “that actions taken by House Members belonging

to one party pursuant to decisions made by them in a

caucus of that party are actions performed within the

‘legitimate legislative sphere.’ See Eastland v. United

6 U.S. Const. art. I, § 6, cl. 1 provides: “The Senators and Rep-

resentatives shall... and for any Speech or Debate in either House,

they shall not be questioned in any other Place.”

l5da

States Servicemen’s Fund, 421 U.S. 491, 95 S.Ct. 1818,

44 L.Ed.2d 324 (1975).” Id. (additional citations omitted).

Appellants argue, however, that the Clause should not

be interpreted to shield the Democrats’ method of allocat-

ing committee seats. The Republicans point out that the

Democrats acted before the 97th Congress was sworn in,

and they argue that partisan political decisions are not

within the “legitimate legislative sphere.” “To extend the

immunities of the Constitution to a partisan political

caucus and to persons not yet Members is to extend a

concept far beyond its original intent.” 7

We are reluctant to define the constitutional boundaries

of immunized congressional conduct if we are not com-

pelled to do so.* Both the history and the Supreme

Court’s interpretation of the Clause indicate that it should

be used to shield actions of individual legislators or their

staffs who otherwise might fear civil or criminal attacks.

That does not necessarily mean that legislative activities

7 Brief for Appellants at 4.

8 Judge Bork reminds us infra at 1185, note 5, of the “Supreme

Court’s recently announced principle that Speech or Debate Clause

issues are generally to be dealt with before the merits are reached.

Davis v. Passman, 442 U.S. 228, 235, n.11, 99 S.Ct. 2264, 2272 n.11,

60 L.Ed.2d 846 (1979).” That principle is designed to protect

legislators “not only from the consequences of litigation’s results

but also from the burden of defending themselves.” Davis, 442 U.S.

at 236 n.11, 99 S.Ct. at 2272, quoting Dombrowski v. Eastland, 387

U.S. 82, 85, 87 S.Ct. 1425, 1427-1428, 18 L.Ed.2d 577 (1967). Be-

cause we do not reach the merits of this case, but in fact affirm

the lower court’s dismissal, it seems likely that we are within the

spirit—if not the letter—of Davis. In addition, we are mindful

of the Supreme Court’s repeated admonitions not “ ‘to decide ques-

tions of a constitutional nature unless absolutely necessary to a

decision of the case.’ Burton v. United States, 196 U.S. 283, 295

[25 S.Ct. 243, 245, 49 L.Ed. 482].” Ashwander v. Tennessee Valley

Authority, 297 U.S. 288, 347 [56 S.Ct. 466, 483, 80 L.Ed. 688]

(1936) (Brandeis, J., concurring)

l6a

like those in this controversy should be shielded.* In

addition, we are concerned to avoid unnecessary consti-

tutional adjudication, especially when the essential issue

here whether these “activities are casually or incidentally

related to legislative affairs but [are] not a part of the

legislative process itself,” it extremely slippery."° Be

cause our remedial discretion provides sufficient founda-

tion for our dismissal of this suit, we decline to affirm the

district court’s invocation of the Speech or Debate Clause,

which again might hamstring us in the future.”

® The “Clause has been read ‘broadly to effectuate its purposes,’

... and includes within its protections anything ‘generally done in

a session of the House by one of its members in relation to the

business before it.’” Doe v. McMillan, 412 U.S. 306, 311, 93 S.Ct.

2018, 2024, 36 L.Ed.2d 912 (1973) (citations omitted.) Still, it is

at least debatable whether the partisan organizational actions of

the Democratic Caucus should be immunized as “an integral part

of the deliberative and communicative processes by which Members

participate in committee and House proceedings with respect to

the consideration and passage or rejection of proposed legislation

or with respect to other matters which the Constitution places with-

in the jurisdiction of either House.” Gravel v. United States, 408

U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972). See

Reinstein & Silverglate, Legislative Privilege and the Separation

of Powers, 86 HARV.L.REV. 113 (1973); The Supreme Court, 1974

Term, 89 HARV.L.REY. 131 (1975).

10 The standard is quoted from United States v. Brewster, 408

U.S. 501, 528, 92 S.Ct. 2531, 2545, 33 L.Ed.2d 507 (1972), itself

an example of awkward adjudication. Brewster held that a former

senator could be prosecuted for being bribed to perform a legislative

act, despite the immunities of the Speech or Debate Clause, because

“an inquiry into the purpose of a bribe ‘does not draw in question

the legislative acts of the defendant member of Congress or his

motives for performing them.’” 408 U.S. at 526, 92 S.Ct. at 2544

(citation omitted).

See also Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675,

61 L.Ed.2d 411 (1979).

11 See Eastland v. United States Servicemen’s Fund, 421 U.S.

491, 509-10, n.16, 95 S.Ct. 1813, 1824-1825, n.16, 44 L.Ed.2d 324

(1975) (discussing “the absolute nature of the speech or debate

protection.” )

17a

III. JUDICIAL REVIEW OF CONGRESSIONAL

RULES OF PROCEDURE

The rules of the House limit committee membership to

nominees of each party’s caucus.* Thus, when the Re-

publicans challenge the allocation of committee seats for

being disproportionately unbalanced, they are actually

challenging the system of rules the House has adopted

under Art. I, § 5, cl. 2. Because “the Constitution confers

upon the House the power ‘to determine the Rules of its

Proceedings,’” the district court found that “[t]his

textual commitment of the issue to the House would oust

the Court’s jurisdiction, even if such jurisdiction were not

more explicitly foreclosed by the Speech and Debate

Clause.” 524 F.Supp. at 521 (citations omitted).

The appellants argue, however, that “the Courts have

the right and duty to consider the validity of [a pro-

cedural] rule in relation to other Constitutional pro-

visions.” ** That is to say, while the district court con-

cluded that we lack jurisdiction, the Republicans say first

that we do have jurisdiction, and then argue that the

congressional structure should be held unconstitutional.

The Supreme Court in United States v. Ballin, 144 U.S.

1, 12 8.Ct. 507, 36 L.Ed. 321 (1892), made plain that our

scope of review is broader than the district court believed.

The Court expressly weighed the constitutional “validity”

of a House rule involving when a sufficient quorum was

present. In doing so, the Court indicated that our re

view of congressional rules is to be equally deferenti..,

12 H.R. Rule X, cl. 6(a) (1), Rules of the House of Representa-

tives, § 70la, reprinted in Jefferson’s Manual and Rules of the

House of Representatives, H.R.Doc. No. 96-398, 96th Cong., 2d

Sess. 387 (1981), provides: “The standing committees specified in

clause 1 shall be elected by the House at the commencement of each

Congress, from nominations submitted by the respective party

caucuses.”

18 Brief for Appellants at 13.

18a

>ut no more so, than our review of most other legislative

actions:

Neither do the advantages or disadvantages, the

wisdom or folly, of such a rule present any matters

for judicial consideration. With the courts the ques-

tion is only one of power. The Constitution empowers

each house to determine its rules of proceedings. It

may not by its rules ignore constitutional restraints

or violate fundamental rights, and there should be

a reasonable relation between the mode or method

of proceeding established by the rule and the re

sult which is sought to be attained. But within

these limitations all matters of method are open to

the determination of the house, and it is no im-

peachment of the rule to say that some other way

would be better, more accurate or even more just.

144 U.S. at 5, 12 S.Ct. at 509.

This circuit has previously expressed its reluctance to

review congressional operating rules,“ though it has

never denied its power to do so. The discomfort has been

rooted in the doctrine of nonjusticiable political questions,

as set forth in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691,

7 L.Ed.2d 663 (1962). There the Supreme Court declared

that “{p]rominent on the surface of any case held to in-

volve a political question” were such separation-of-powers

concerns as whether there was “a textually demonstrable

constitutional commitment of the issue to a coordinate

political department.” 369 U.S. at 217, 82 S.Ct. at 710.

This circuit has drawn on that doctrine to reach the con-

clusion that Art. I, § 5, cl. 2 creates a “specific constitu-

tional base” which requires us to “take special care to

avoid intruding into a constitutionally delineated pre-

14 See, e.g., Metzenbaum v. FERC, 675 F.2d 1282, 1287 (D.C.

Cir. 1982) ; Exxon Corp. v. FTC, 589 F.2d 582, 590 (D.C.Cir. 1978),

cert. denied, 441 U.S. 943, 99 S.Ct. 2160, 60 L.Ed.2d 1044 (1979) ;

Consumers Union of United States v. Periodical Correspondents’

Ass'n, 515 F.2d 1341, 1347-48, 1351 (D.C.Cir. 1975).

19a

rogative of the Legislative Branch.” ™ Unfortunately, no

court has ever explained what it might mean to “take

special care.” But it is significant that no court has ever

followed Baker v. Carr to the extent of holding that this

textual commitment alone makes these cases non-

justiciable.’*

In fact, however, this authorization of power to Con-

gress is not analytically different from many other con-

stitutionally enumerated powers. So it is not evident

why we must treat congressional rules with “special

care,” or with more than the customary deference we

show other legislative enactments.’* Because of the posi-

tion taken in Ballin, which apparently was adopted by

Justice Brandeis writing for the Supreme Court in United

S Harrington v. Bush, 553 F.2d 190, 214 (D.C.Cir. 1977). Har-

rington and Exxon, supra note 14, do not explicitly refer to Baker

v. Carr’s political question analysis, but Consumers Union and

Metzenbaum, supra note 14, do.

16 At most, the court in Metzenbaum, supra note 14, held non-

justiciable a challenge by legislators asserting only that the House’s

own operating rules had been violated. Not only were no constitu-

tional claims at issue, but in addition the court noted that “judicial

intervention may be appropriate where rights of persons other

than members of Congress are jeopardized by failure to follow

its own procedure.” In the end, the Metzenbaum court dismissed

that suit largely for the same “prudential considerations” that we

ultimately rely on. Compare 675 F.2d at 1287-88, with note 24 and

accompanying text infra.

17 See Henkin, Js There A “Political Question” Doctrine? 8&5

YALE L.J. 597, 605 n.27 (1976):

Judging from the cases, even the “textually demonstrable com-

mitment” of an issue to the political branches apparently does

not necessarily mean exclusive and final commitment to the

political branches without judicial review, but only the kind of

commitment found, say, in the grants to Congress in Article I,

§ 8; the courts consider daily whether the political branches

exercise power textually committed to them with due respect

for constitutional limitations or prohibitions.

(citations omitted).

20a

States v. Smith, 286 U.S. 6, 33, 52 S.Ct. 475, 477-478, 76

L.Ed. 954 (1932),'* we conclude that Art. I simply means

that neither we nor the Executive Branch may tell Con-

gress what rules it must adopt. Article I does not alter

our judicial responsibility to say what rules Congress may

not adopt because of constitutional infirmity.

We recognize that this raises some doubt about the in-

telligibility of the “textually committed” aspect of the

political question doctrine. Yet our approach is hardly

novel.’ Indeed, though the political question doctrine it-

self is useful as a checklist of separation-of-powers con-

cerns, see Consumer Energy Council of America v. FERC,

673 F.2d 425, 452-53 (D.C. Cir. 1982), from the doctrine’s

very inception the Supreme Court noted the need to avoid

18 See also Yellin v. United States, 374 U.S. 109, 143-44, 83 S.Ct.

1828, 1847-1848, 10 L.Ed.2d 778 (1963) (White, J., dissenting) ;

Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed.

1826 (1949).

19 See Henkin, supra note 17, at 604:

Although the Constitution provides that “Each House shall be

the Judge of the . . . Qualifications of its own Members,” the

Court held reviewable, and reversed, a judgment by the House

that elected-Representative Adam Clayton Powell was not

qualified. Although the same clause provides that each House

“shall be the Judge of the Elections (and) Returns... of its

own Members,” the Court in Roudebush v. Hartke [405 U.S. 15,

92 S.Ct. 804, 31 L.Ed.2d 1 (1972)] reviewed and upheld a

state procedure providing for a recount in an election for the

United States Senate.

The Supreme Court has not recently held any issue to be

textually committed by the Constitution to the other branches

and therefore not justiciable—a “political question.” And the

Court’s failure to require judicial abstention in those instances

where scripture can most plausibly be read to require it leaves

a strong sense that the present justices are not disposed to find

many—or any—issues in fact so textually committed.

(citations omitted). But see Goldwater v. Carter, 444 U.S. 996,

1002, 100 S.Ct. 533, 536, 62 L.Ed.2d 428 (1979) (Rehnquist, J.,

concurring ).

2la

reliance on it as a talismanic “label.” Baker v. Carr, 369

U.S. at 210-11, 82 S.Ct. at 706-707. Rather the Court em-

phasized the continued importance of “case-by-case in-

quiry.” Jd. In the years since, the doctrine has, as former

Chief Judge McGowan of this Court has written,” been

the subject of “withering academic attack” which has

“succeeded in analyzing the doctrine essentially out of

existence.” *! While reports of the doctrine’s death may be

20 McGowan, supra note 3, at 257, referring particularly to Hen-

kin, supra note 17.

21 Professor Henkin summarizes:

The political question doctrine saw its heyday in the New

Deal Court, and received its highest measure of devotion from

Justice Frankfurter, perhaps its boldest articulation by Justice

Black in Colegrove [Coleman] v. Miller [307 U.S. 433, 548-59

[448-59] 59 S.Ct. 972, 979-984, 83 L.Ed. 1385 (1939) ]. It was

perhaps an expression of a wider, deeper mood by Justices

appointed to restore judicial self-restraint and allow the elected

governors to govern. ...

Since Frankfurter and Black wrote, judicial review has had

a new birth, its character and content reformed, and its place

established as a hallmark of American political life, even a

birthright of every inhabitant. I see no place in it for an

exemption for uncertain “political questions.” Would not the

part of the courts in our system, the institution of judicial

review, and their public and intellectual acceptance, fare better

if we broke open that package, assigned its authentic com-

ponents elsewhere, and threw the package away?

85 YALE L.J. at 625 (citations omitted). In stating the argument

generally adopted by this opinion, Professor Henkin notes that

while there may be no basis for finding an issue nonjusticiable,

there are traditional reasons why a court might refuse a

remedy. The difference is not only or principally conceptual

or academic. To deny a remedy on equitable grounds does not

carve an exception to Marbury v. Madison for which there is

no basis in constitutional text or in anything else relevant to

constitutional interpretation. The traditional grounds for deny-

ing an equitable remedy are few and narrow and not fre-

quently present.

Id., at 621-22.

22a

exaggerated, we agree that it is far more useful to ex-

amine “case-by-case” whether we would be unwise to

intrude in “political” controversies.

For as Judge McGowan also commented in discussing

lawsuits resembling the one, we face here, “[{a]lthough

the existing methods that courts have used to forbear de-

ciding these cases have proven unsatisfactory in varying

degree, the judges who employed them were surely moti-

vated by a proper respect for the political branches and

a disinclination to intervene unnecessarily in their dis-

putes.” 2. Judge McGowan’s solution, which as noted

earlier was adopted in Riegle v. Federal Open Market

Committee, 656 F.2d 873 (D.C. Cir. 1981), was “that the

best way to translate those concerns into principled

decisionmaking is through the discretion of the federal

court to grant or to withhold injunctive or declaratory

relief.” **

Riegle was styled as a suit by a legislator against the

executive branch, but like our case was essentially a suit

22 McGowan, supra note 3, at 262.

23 Jd. In Riegle, the court stated:

The most satisfactory means of translating our separation-

of-powers concerns into principled decisionmaking is through

a doctrine of circumscribed equitable discretion. Where a con-

gressional plaintiff could obtain substantial relief from his

fellow legislators through the enactment, repeal, or amendment

of a statute, this court should exercise its equitable discretion

to dismiss the legislator’s action. . . . The standard would

counsel the courts to refrain from having cases which repre-

sent the most obvious intrusion by the judiciary into the legis-

lative arena challenges concerning congressional action or in-

action regarding legislation. Yet this standard would assure

that nonfrivolous claims of unconstitutional action which could

only be brought by members of Congress will be reviewed on

the merits.

656 F.2d at 881.

23a

by some members of Congress against others.* We invoke

our remedial discretion in this setting because this case

raises separation-of-powers concerns similar to Riegle’s,

and the remedial discretion approach—which this circuit

has used before—provides a more candid and coherent

way of addressing those concerns.”®

**In Riegle, standing was granted because the court assumed,

for purposes of the motion to dismiss, that the challenged statute

“results in a deprivation of Senator Riegle’s constitutional right to

advise and consent regarding the appointment of the defendant

officers of the executive branch.” 656 F.2d at 877. The court ulti-

mately dismissed the suit because the senator’s fellow legislators

were “capable of affording him substantial relief.” 656 F.2d at 882.

The court further noted, however, that a private plaintiff chal-

lenging the same statute might well be able to resist dismissal. “Be-

cause such a private plaintiff’s suit would not raise separation-of-

powers concerns, the court would be obliged to reach the merits of

the claim.” 656 F.2d at 881.

Today’s case, however, does not fit neatly into Riegle’s analysis.

This is not simply a suit between opposing sides within one branch

of government, nor is it simply a suit by interested private plaintiffs

against the internal operations of a governmental branch. It is

some of both. It still involves Riegle’s concerns about intrusion into

another branch’s internal battles, while it also—as Rielgle and

Metzenbaum, supra note 16, foreshadowed—presents a compelling

claim for judicial involvement because private plaintiffs’ rights are

at stake.

What cannot be seriously disputed is that we have broad dis-

cretion in deciding whether to issue equitable or declaratory relief.

See Weinberger v. Romero-Barcelo, ——~ U.S. at , 102

S.Ct. 1798 at 1802-03, 72 L.Ed.2d 91 (1982); note 25 infra. It is

perhaps fair for Judge Bork to want us to define the boundaries of

our discretion, in the hope that it will not be abused in the future.

For today, however, we have simply tried to defend the reasonable-

ness of why we have exercised our discretion the way we have.

25 Our shift from the phrase “equitable discretion” to “remedial

discretion” indicates only that our appellants sought both injunctive

and declaratory relief, unlike Riegle’s, 656 F.2d at 877. “It is axio-

matic that the request for declaratory relief is discretionary with

the court, and that the request should be denied where ‘it will not

24a

Our regard for candor and coherence may seem

anomalous, because a doctrine of remedial discretion sug-

gests the sort of rudderless adjudication that courts strive

to avoid. But Riegle makes explicit what we also seek

to emphasize: this is not an area fit for inflexible doc-

trines or bright-line tests. The Speech or Debate Clause

possibly offers complete immunity within whatever bound-

aries courts may set around the “legitimate legislative

sphere.” Yet even those limits may be strained by egre-

gious circumstances. Otherwise, we must necessarily

move carefully, faithful to our obligation to use our power

where justice and the Constitution so require, but cautious

when we do so.

Turning to this particular case, one can readily see the

wisdom of not interfering with the House’s method of al-

locating committee seats. In fact, this case is nearly iden-

tical to a suit the Ninth Circuit dismissed several years

ago after Democratic representatives in Arizona chal-

terminate the controversy or serve a useful purpose.’” Winpisinger

v. Watson, 628 F.2d 133, 141 (D.C.Cir. 1980).

There have been many cases where courts have refused to grant

declaratory or injunctive relief for prudential reasons not even

remotely related to neutral principles of law. One from this circuit

that involved constitutional claims as significant and thorny as

those in this case was Lampkin v. Connor, 360 F.2d 505 (D.C.Cir.

1966). There plaintiffs from various states who opposed discrim-

inatory voting practices like literacy tests and poll taxes sought

to have census officials implement the provisions of Section 2 of the

Fourteenth Amendment. That provision seemingly requires a re-

duction in the basis of a state’s representation in Congress when

that state denies or abridges the right to vote. The unanimous

court in Lampkin declined to adopt the lower court’s denial of

standing, or the alternative suggestion that the case was non-

justiciable under the political question doctrine. Instead, the court

exercised its discretion to withhold declaratory relief, and explained

that especially because the recently-passed Voting Rights Act offered

significant hope for remedying the plaintiffs’ complaints, judicial

action at that time would be unwise.

%* See note 10 supra.

25a

lenged the Republican legislative leadership. Davids v.

Akers, 549 F.2d 120 (9th Cir. 1977).

Unlike us, the Davids court reached the merits: it held

that neither voters nor their representatives were de-

prived of equal protection or First Amendment rights

when minority party legislators were disproportionately

underrepresented on legislative committees. Judge Duni-

way quoted from an English history text and noted that

“(t]he principle that such procedures are for the House

itself to decide is as old as the British Parliament.” 549

F.2d at 123. And in an extensive discussion (that gives

new meaning to the phrase “parade of horribles”) , Davids

spelled out how disastrously intrusive it would be if we

were to accept appellants’ invitation to restructure con-

gressional committees. To quote only a few of the Ninth

Circuit’s objections:

Unless Arizona voters differ markedly from those

of other states, it is almost certain that every member

of Arizona’s House was put there by a mixture of

voters—Republican, Democratic, and Independent,

with perhaps a few members of splinter parties

thrown in. It is nonsense to say that every member

who ran on the Democratic ticket represents only

Democrats .. . [D]id those who voted for the winners

by some similar sort of osmosis, acquire the right to

assert and transmit to the winning candidates not

only their own Fourteenth Amendment rights but also

those of all of the voters of their district who voted

for the loser? ... [Or m]ust we next, in the name

of equal protection, weigh the vote of each member

in the House in proportion to the vote that he re-

ceived out of the total vote in his district? . . .

What if one member of the House runs as a

socialist or a conservative and wins? He will be

1.66% of the membership. It he entitled, to a seat

on a committee? Which one? Whom is he to dis-

26a

place—a Democrat or a Republican? In either case,

wayt...

Particular items of legislation frequently produce

large scale crossing of party lines. Are committee

appointments to be juggled and rejuggled depend-

ing upon which measure is coming before a commit-

tee? ... If so, are the adjustments to be based

upon the supposed views of each member, or those

of his constituents, or what?

549 F.2d at 124-25.

These objections provide more than enough reason to

conclude that we should not adjudicate this controversy.

It is not that we think a remedy could not be fashioned.”’

27The Ninth Circuit declared, apparently in dictum, that a

“judicially discoverable and manageable standard cannot be fourd”

for resolving the dilemmas it had identified in the Davids suit.

While that phrase originated in Baker v. Carr’s discussion of non-

justiciable political questions, the Ninth Circuit expressly did not

find the Davids suit to be nonjusticiable because of the political

question doctrine.

Elsewhere, this circuit has said that such “prudential considera-

tions . . . are inextricably linked to the question of standing.”

Winpisinger v. Watson, 628 F.2d 133, 139-40 & n.31 (D.C.Cir. 1980).

See also Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S.

26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976) (where the

Supreme Court incorporated in its standing analysis an inquiry

into whether an alleged injury “is likely to be redressed by a

favorable decision”); Greater Tampa Chamber of Commerce v.

Goldschmidt, 627 F.2d 258 (D.C.Cir. 1980) (standing denied be-

cause plaintiffs, who were challenging an air-travel agreement

alleged to have been improperly implemented by the Secretary of

State without Senate ratification, could not show that court in-

validation would enable them to obtain more amendable [sic] terms

than those of the current agreement).

We do not deny standing to appellants on the grounds that we

could not administer relief. Use of the standing doctrine would be

appropriate if ordering a change in the committee structure would

fail to remedy appellants’ complaints. See id. But while the Ninth

Circuit may be right that it would be difficult to develop a thorough

remedy, we probably could fashion a mathematically administrable

27a

Rather, we simply believe it would be, to quote the

Davids court again, a “startling unattractive” idea, given

our respect for a coequal branch of government, for us

“to tell the Speaker of the . . . House of Representatives

how many Democrats, and perhaps even which Demo-

crats, he is to appoint to the standing committees, and

perhaps to each such committee.” 549 F.2d at 128.

Our discretion to withhold equitable and declaratory

relief supplies us with ample foundation upon which

to base our decision. Thus we affirm the district court’s

dismissal, though not because of barriers presented by

the Speech or Debate Clause, or the political question

doctrine.

BORK, Circuit Judge, concurring:

Appellants complain that the Democratic majority in

the House of Representatives has assigned Republicans

a proportion of committee and subcommittee seats sub-

stantially lower than the proportion of Republicans in

the House as a whole. Appellants sue in their capacities

as Republican members of the House and as voters and

also purport to represent classes of Republican Repre-

sentatives and voters represented by Republicans. The

gravamen of their complaint is that the Democrats’ action

has unconstitutionally diminished the influence of appel-

lants and those they would represent in this case in the

legislative processes of the House. We affirm the district

court’s dismissal of the complaint. The majority reaches

this result under a doctrine of remedial discretion which

is a variant of the doctrine announced in Riegle v. Federal

Open Market Committee, 656 F.2d 873 (D.C. Cir.), cert.

denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 616

remedy—even if it proved as awkward as the Supreme Court's

remedies in the voting rights cases. See Dixon, Reapportionment

in the Supreme Court and Congress: Constitutional Struggle for

Fair Representation, 63 Micu.L.Rev. 209 (1964). Once again, we

treat our prudential reservations as part of our consideration of

whether to provide relief, not as part of our inquiry into our

Article III powers.

28a

(1981). My colleagues find that plaintiffs have standing

to maintain this action.

In my view, jurisdiction is absent because the plain-

tiffs lack standing. I concur in the judgment for that

reason. A brief review of the concept of standing, par-

ticularly the standing of legislator plaintiffs as it has de-

veloped in this circuit, will demonstrate why I think that

my colleagues’ position is unsupportable.

The concept of standing relates to the fitness of a par-

ticular party to litigate a particular issue. To be a fit

litigant the party must have “a personal stake in the

outcome of the controversy” so “as to assure that concrete

adverseness which sharpens the presentation of issues.”

Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7

L.Ed.2d 663 (1962). There is, however, more to the

concept of standing than that. The standing requirement

contains so many variables that the Supreme Court once

felt impelled to say that “[g]eneralizations about standing

to sue are largely worthless as such,” though one valid

generalization is that the question is to be “considered in

the framework of Article III, which restricts judicial

power to ‘cases’ and ‘controversies.’ ”’ Association of Data

Processing Service Organizations v. Camp, 397 U.S. 150,

151, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). This court

recently summarized the elements of standing in Riegle,

656 F.2d at 878: “the maximum burden which a plaintiff

must bear to attain standing [consists of the] estab-

lishment of (i) injury-in-fact (ii) to an interest pro-

tected by the relevant law (iii) where the injury is

caused by defendants’ actions or capable of judicial re

dress.” The element of “injury-in-fact” upon which the

present case turns, is sometimes stated as “judicially cog-

nizable injury.” Metealf v. National Petroleum Council,

553 F.2d 176, 187 (D.C. Cir. 1977).

29a

The term “judicially cognizable injury” brings to the

surface what should be obvious in any event: injury in

fact, far from being a simple, descriptive term, is a con-

cept freighted with policies that limit the kinds of injury

courts may consider. One might suppose that any per-

son who feels strongly that he has been hurt by arcther’s

act possesses “that concrete adverseness which sharpens

the presentation of issues.” But the law does not view

the matter that simply. Courts may take cognizance only

of injuries of certain types, and the limitations are

often defined less by the reality of the litigant’s “ad-

verseness” than by the courts’ view of the legitimate

boundaries of their own power. “In essence the question

of standing is whether the litigant is entitled to have

the court decide the merits of the dispute or of particular

issues. This inquiry involves both constitutional limita-

tions on federal court jurisdiction and prudential] limita-

tions on its exercise. In both dimensions it is founded in

concern about the proper—and properly limited—role of

the court in a democratic society.” Warth v. Seldin, 422

U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975)

(citation omitted).

This theme is apparent in many Supreme Court de-

cisions. In Schlesinger v. Reservists Committee to Stop

the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706

(1974), for example, plaintiffs sued in their capacities as

both taxpayers and citizens to require the Secretary of

Defense to remove members of Congress from membership

in the military reserve. The suit alleged that such mem-

bership violated the “Incompatibility Clause” of Art. I,

§ 6, cl. 2: “no Person holding any Office under the United

States, shall be a Member of either House during his

Continuance in Office.” The Supreme Court held that

plaintiffs lacked standing to sue because, in essence,

plaintiffs alleged an injury that was common to all citi-

zens and taxpayers and so asserted only “generalized

grievances.” See Reservists, 418 U.S. at 217, 94 S.Ct.

at 2930 (citing Flast v. Cohen, 392 U.S. 83, 106, 88 S.Ct.

30a

1942, 1955-1956, 20 L.Ed.2d 947 (1968)). Such griev-

ances are not that direct, palpable harm that injury in

fact requires. See United States v. Richardson, 418 U.S.

166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); Laird v.

Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) ;

Ex parte Levitt, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493

(1937). It did not matter that plaintiffs in Reservists,

Richardson, Tatum, and Levitt \.. re motivated to litigate

quite as much as any other plai tiffs, for, as the Chief

Justice stated in Reservists:

We have no doubt about the sincerity of respondents’

stated objectives and the depth of their commit-

ment to them. But the essence of standing

“is not a question of motivation but of posses-

sion of the requisite . . . interest that is, or is

threatened to be, injured by the unconstitutional

conduct.” Doremus v. Board of Education, 342

U.S. 429, 435, [72 S.Ct. 394, 397, 96 L.Ed. 475]

(1952).

418 U.S. at 225-26, 94 S.Ct. at 2934. Similarly, in refus-

ing to accept as judicially cognizable a taxpayer organiza-

tion’s complaint that the conveyance of government-owned

property to an educational institution supervised by a

religious order violated the Establishment Clause of the

First Amendment, the Court stated:

Although [plaintiffs] claim that the Constitution has

been violated, they claim nothing else. They fail

to identify any personal injury suffered by the

plaintiffs as a consequence of the alleged constitu-

tional error, other than the psychological consequences

presumably produced by observation of conduct with

which one disagrees. This is not an injury sufficient

to confer standing under Art. III, even though the

disagreement is phrased in constitutional terms.

Valley Forge Christian College v. Americans United for

Separation of Church and State, 454 U.S. 464, 485-86, 102

3la

S.Ct. 752, 765, 70 L.Ed.2d 700 (1982) (emphasis in

original).

The law, of course, often takes account of psychological

consequences. The Supreme Court’s refusal to do so

when a plaintiff makes the serious assertion that the

harm is created by the unconstitutional conduct of the

government can only mean that the Court perceives that

to confer standing in such cases would impermissibly

alter its function. To make judicially cognizable all in-

juries that persons actually feel and can articulate would

widen immeasurably, perhaps, illimitably, the authority of

the federal courts to govern the life of the society. ‘“Re-

laxation of standing requirements is directly related to

the expansion of judicial power.” Richardson, 418 U.S.

at 188, 94 S.Ct. at 2952 (Powell, J., concurring). Con-

versely, by refusing to expand standing, by attempting to

confine jurisdiction so far as possible to cases of a “form

historically viewed as capable of judicial resolution,”

Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20

L.Ed.2d 947 (1968), courts can at least attempt to keep

their scope of authority constant over time and so leave

the resolution of a wide variety of problems to other

institutions, both public and private. All of the doctrines

that cluster about Article II1I—not only standing but

mootness, ripeness, political question, and the like—re-

late in part, and in different though overlapping ways, to

an idea, which is more than an intuition but less than a

rigorous and explicit theory, about the constitutional and

prudential limits to the powers of an unelected, unrepre-

sentative judiciary in our kind of government.

It is clear, then, that standing doctrine incorporates

concerns about the role-proper to the federal judiciary.

This case presents the further questions whether among

those concerns is the issue of separation of powers and

whether separation-of-powers considerations are relevant

to a request that a court order the reallocation of com-

mittee assignments in Congress. It is on these questions

82a

that I differ from my colleagues. It is true that the

Supreme Court once indicated that separation of powers is

no part of the Article III component of standing:

The question whether a particular person is a proper

party to maintain the action does not by its own force

raise separation of powers problems related to im-

proper judicial interference in areas committed to

other branches of the Federal Government. Such

problems arise, if at all, only from the substantive

issues the individual seeks to have adjudicated. Thus,

in terms of Article III limitations on federa] court

jurisdiction, the question of standing is related only

to whether the dispute sought to be adjudicated will

be presented in an adversary context and in a form

historically viewed as capable of judicial resolution.

Flast v. Cohen, 392 U.S. at 100-101, 88 S.Ct. at 1953.

Subsequently, however, the Court suggested that

separation-of-powers considerations properly find a place

in the judge-made prudential aspects of standing:

{T]he Court has held that when the asserted harm is

a “generalized grievance” shared in substantially

equal measure by all or a large class of citizens, that

harm alone normally does not warrant exercise of

jurisdiction. E.g., Schlesinger v. Reservists to Stop

the War, supra; United States v. Richardson, supra;

Ex parte Levitt, 302 U.S. 633, 634 [58 S.Ct. 1,

1, 82 L.Ed. 498) (1987) ... . Without such

limitations—closely related to Art. III concerns

but essentially matters of judicial self-governance—

the courts would be called upon to decide abstract

questions of wide public significance even though

other governmenta] institutions may be more com-

petent to address the questions...

Warth v. Seldin, 422 U.S. at 499-500, 95 S.Ct. at 2205-

2206. That alone would be enough to demonstrate that

the standing concept incorporates concerns about the

powers appropriate to each branch of the federal gov-

83a

ernment and that we must take those concerns into ac-

count here. The Court’s 1982 decision in Valley Forge,

however, goes farther and reads separation-of-powers con-

cepts back into that part of the standing requirement

which rests upon a constitutional, rather than a pru-

dential, foundation. Discussing the requirement of injury,

Justice Rehnquist’s opinion for the majority states:

In this manner does Art. III limit the federal ju-

dicial power “to those disputes which confine federal

courts to a role consistent with a system of separated

powers and which are traditionally thought to be

capable of resolution through the judicial process.”

Flast v. Cohen, supra, (392 U.S.] at 97 [88 S.Ct. at

1951].

Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758. After

noting that “[t]he exercise of the judicial power also

affects relationships between the co-equal arms of the

national government,” id., the opinion goes on to quote

with approval from Justice Powell’s concurring opinion

in Richardson:

“{Rjepeated and essentially head-on confrontations

between the life-tenured branch and the representa-

tive branches of government will not, in the long run,

be beneficial to either. The public confidence essen-

tial to the former and the vitality critical to the

latter may well erode if we do not exercise self-

restraint in the utilization of our power to negative

the actions of other branches.”

454 U.S. at 474, 102 S.Ct. at 759 (citation omitted).

Immediately after this passage quoted in Valley Forge,

Justice Powell’s concurrence in Richardson continues:

We should be ever mindful of the contradictions that

would arise if a democracy were to permit general

oversight of the elected branches of government by

a non-representative, and in large measure insulated,

judicial branch.

34a

418 U.S. at 188, 94 S.Ct. at 2952 (footnote omitted). The

majority does not believe Valley Forge will bear the read-

ing I give it. In view of that opinion’s own language and

the language it quotes, however, I do not see how Valley

Forge can bear any other construction. Whether the re-

quirement is rooted in Article III or in judicial prudence,

I conclude, therefore, that the Supreme Court continues

to regard the standing concept as informed by considera-

tions of separation of powers. We should so apply the

requirement here.

Since we must accept the complaints’ allegations as true,

we can permit ourselves no doubt that a failure to achieve

a share of committee and subcommittee assignments in

proportion to their numbers in the legislative body results

in a diminution of a political party’s influence and ef-

fectiveness in forwarding or opposing legislation. In con-

sequence, appellants’ influence and effectiveness are di-

minished. If the constitutional standards that appellants

urge upon us mandate proportional] representation, an

issue that neither the majority nor I reach, then it is

clear that appellants have, in fact, suffered an injury. The

question to be answered, however, is whether that fact of

injury is what the law means by injury in fact. I think

not.

Prior to the Riegle decision in 1981, this circuit had

worked out a fairly definite formula to relate separation-

of-powers concerns to the problem of legislator standing.

In light of Valley Forge, I regard this formula as the law

of this circuit, and would apply it without now inquiring

as to whether a less permissive rule might be preferable.

In Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974),

a decision I think this court should reexamine under more

appropriate circumstances, we found that a senator had

standing to challenge the legality of the President’s pocket

veto of an enacted bill because the effect was to make a

complete nullity of the senator’s vote. In Harrington v.

Bush, 553 F.2d 190 (D.C. Cir. 1977), on the other hand,

35a

a member of the House of Representatives complained

that the secrecy of some Central Intelligence Agency ac-

tivities under statutory concealment provisions impaired

his effectiveness as a legislator. We found that an inade-

quate basis for injury in fact. This distinction between

diminution of a legislator’s influence and nullification of

his vote was adopted by the en banc court in Goldwater v.

Carter, 617 F.2d 697 (D.C. Cir.), judgment vacated on

other grounds, 444 U.S. 996, 100 S.Ct. 5838, 62 L.Ed.2d

428 (1979). The per curiam opinion, joined by Judges

McGowan, Robinson, Wilkey, and Wald, found the plain-

tiff legislators had standing, but only because they met

a very demanding test:

To be cognizable for standing purposes, the alleged

diminution in congressional influence must amount

to a disenfranchisement, a complete nullification or

withdrawal of a voting opportunity; and the plaintiff

must point to an objective standard in the Consti-

tution, statutes or congressional house rules, by which

disenfranchisement can be shown.

Goldwater v. Carter, 617 F.2d at 702.

' Significantly, two other members of this court, applying a

standard still more strict, would have denied the legislators stand-

ing. Chief Judge Wright, writing for himself and Judge Tamm,

stated :

[W |here a legislator alleges Executive impairment of the effec-

tiveness of his vote, his injury can only be derivative. He can-

not suffer injury in fact unless Congress has suffered injury in

fact. Congress suffers no injury unless the Executive has

thwarted its will; and there is no such will to thwart unless

a majority of Congress has spoken unequivocally. Unless Con-

gress has taken all final action in its power to exercise its

constitutional prerogative, any injury an individual legislator

suffers may find its source not in the President, but in his

colleagues in Congress. Where Congress itself, and not the

Executive, renders an individual legislator’s vote ineffective,

the courts have no role.

617 F.2d at 712 (footnotes omitted).

36a

The Supreme Court vacated the judgment of this court

in Goldwater because various Justices thought that either

the doctrine of ripeness or that of political question should

have prevented us from reaching the merits. None of the

Justices who so concluded mentioned the question of stand-

ing. This led the Riegle court to conclude that the stand-

ing concept was no longer viewed by the Supreme Court

as a proper vehicle for separation-of-powers concerns;

accordingly, the Riegle opinion shifted those considera-

tions into a “doctrine of circumscribed equitable discre-

tion.” 656 F.2d at 881. The evidence for the conclusion

that the Supreme Court had silently rejected Warth v.

Seldin in Goldwater was very thin. Justices who found

the case nonjusticiable on grounds of ripeness or political

question had no occasion to discuss standing. The Valley

Forge decision, which came after Riegle, demonstrates—

conclusively, I believe—that the concept of standing con-

tinues to incorporate separation-of-powers considerations.

The premise on which Riegle rested, therefore, is no

longer valid.

There are compelling reasons rooted in the concept of

separation of powers, and in particular in the proper

role of courts in relation to the political branches, for us

to adopt again the position we took in Goldwater, and to

hold that appellants lack standing here. Appellants’ com-

plaint invites federal courts to participate extensively in

the internal processes of Congress. We should decline the

invitation because of the consequences of accepting it. If

an allegation of a diminution of influence on the legisla-

tive process were sufficient to confer standing, federal

courts doubtless would be invited to rule upon the ways

in which committee and subscommittee members are

chosen, since, party lines aside, it is clear that those

chosen for committees on the budget or foreign affairs or

rules generally have more influence than those not so

chosen. Perhaps we could be called upon to rule on fili-

busters, since those who filibuster may have disproportion-

37a

ate influence over legislative outcomes. Courts might be

asked to control the order in which legislation is brought

to the floor, debated, and voted on. Surely we would be

requested to remedy disproportionate assignments of staff

as between committee majorities and minorities, for

those assignments affect influence on the legislative proc-

ess. Examples of this sort could be multiplied, but per-

haps enough has been said to indicate why federal courts

should firmly refuse to enter upon the wholly inappropri-

ate task of ensuring absolute equity in Congress’s legis-

lative procedures. It is absurd to think that courts should

purge the political branches of politics.”

The function appellants would have us perform would

be extraordinarily intrusive, involving frequent, “re-

peated and essentially head-on confrontations” between

Congress and the federal courts. Appellants would, for

example, have the district court order appellees O’Neill,

Wright, Long, the Democratic Steering Committee, and

the Democratic Caucus to allocate additional committee

and subcommittee seats to Republicants so that Republi-

can assignments will be in proportion to their strength in

the House. This injunction or mandamus would be en-

forced by the court’s power to hold appellees in contempt

should they fail to reconstitute the House’s committees

and subcommittes as desired. Merely to state what is

sought is to make plain that appellants propose nothing

less than a revolution in the judiciary’s relationship to the

political branches. How extraordinarily intrusive such a

judicial function would be may be seen by imagining re-

ciprocal cases. For courts to reassign congressional com-

mittee seats would be no less intrusive than for Congress

to enact a law forbidding the members of this court from

2 As the concurring judges said of the plaintiff senators in

Goldwater: “Any harm they have suffered can be ‘fairly traced’

to their minority position in the legislature, and to the vagaries

of politics. Surely courts cannot be expected to manage the calendar

of the United States Senate.” 617 F.2d at 714.

38a

conferring on the decision of cases or forbidding specified

judges from sitting on cases of a particular type. If the

courts would not accept such invasions of their sphere,

they ought not attempt the invasion of Congress’s sphere

sought by appellants.

But there are more than considerations of comity and

respect here, more than historical tradition and the

constitutional need to retain limits on judicial power.

There is the very real problem of a lack of judicial com-

petence to arrange complex, organic, political processes

within a legislature so that they work better. The caution

the late Alexander M. Bickel addressed to political re-

formers may profitably be heeded by judges as well:

James I spoke of the mystery of the King’s power.

The institutions of a secular, democratic government

do not generally advertise themselves as mysteries.

But they are. What they do, how they do it, or why

it is necessary to do what they do is not always out-

wardly apparent. Their actual operation must be

assessed, often in sheer wonder, before they are

tinkered with, lest great expectations be not only de-

feated, but mocked by the achievement of their very

antithesis.

A. Bickel, Reform and Continuity 2 (1971) (revised and

expanded version of A. Bickel, The New Age of Political

Reform (1968)). Courts do not understand—indeed,

probably not all legislators understand—how the various

rules, customs, and practices of the legislature interact

and how changing one aspect could produce the most unex-

pected distortions of the legislative process elsewhere. Nor

can I imagine that extensive trials would educate courts

to become experts on legislative processes so that they

could improve those processes. The task, if there is a

task that needs doing, is one for political reform by those

intimately familiar with the complex arrangements and

interactions involved.

39a

By contrast, the rule of Kennedy v. Sampson and Gold-

water, requiring a nullification of a legislator’s vote for

legislator standing entails few of the problems that would

flow from standing in a case like this one. The occasions

of judicial] intervention will be few and limited. Accord-

ing standing in such a case does not adopt a principle that

requires courts to judge the propriety of all the mani-

fold ways in which a legislator’s influence may be di-

minished. If providing a judicial remedy in such a case

might have a degree of intrusiveness about it, our con-

cern should be lessened by the fact that the vote denied

is a structural feature of our government, clearly as-

sumed in Article I of the Constitution, as equal legisla-

tive influence or committee membership is not. More-

over, no question of judicial competence to rearrange com-

plex political processes arises.

It follows from this discussion that there can be no

injury in fact unless there has occurred a nullification of

a legislator’s vote. This conclusion would bar stand-

ing for both legislators and voters where only diminution

of influence is alleged because the harm claimed and the

separation-of-powers principles, which prevent the court

from interfering in this fashion with the political

branches, are the same in both cases. I would hold, there-

fore, that appellants have not alleged a judicially cog-

nizable injury and so have no standing to maintain this

action.

IT.

The majority argues that plaintiffs have standing to

maintain this action but that their suit should be dis-

missed through an exercise of the court’s “remedial dis-

cretion.” It seems necessary to say a word about my col-

leagues’ rationale, because the difference between their

position and my own rests on more than a reading of

precedent. It reflects a disagreement about the role of the

federal courts in our government.

40a

At the level of case law interpietation, I have sufficiently

expressed my belief that even at the time it was decided,

Riegle’s reasoning proceeded from a false premise about

the Supreme Court’s view of standing and that the in-

validity of that premise was once more demonstrated by

the Supreme Court’s Valley Forge decision. My colleagues

nevertheless maintain that Riegle is still correct. They

find that standing exists when a legislator plaintiff alleges

a diminution of his influence in Congress. The majority’s

approach, however, transforms the law enunciated in

Riegle.

Riegle at least laid down firm guidelines for the

application of its doctrine of “circumscribed equitable

discretion” :

In short, our standard would counsel dismissal] of

congressiona] plaintiff actions only in cases in which

(i) the plaintiff lacks standing under the traditional

tests, or (ii) the plaintiff has standing but could get

legislative redress and a similar action could be

brought by a private plaintiff.

656 F.2d at 882. These guidelines themselves were a re-

markable assertion of judicial power, for, as the court

had previously noted:

Thus, such actions as impeachment, expulsion pro-

ceedings, impoundment, and certain acts of the ex-

ecutive not subject to direct legislative redress or

private party challenge (e.g., the pocket veto in

Kennedy v. Sampson, supra) would be subject to

judicial review in a congressional plaintiff case.

These circumstances (which are not intended to ex-

haust the possibilities) represent situations where

absent congressional plaintiff actions, it is possible

that non-frivolous claims of unconstitutional action

would go unreviewed by a court.

Id. Yet it is of course precisely the function of the Ar-

ticle III limitations on jurisdiction, through such doc-

4la

trines as standing and political question, to ensure that

non-frivolous claims of unconstitutional action will go

unreviewed by a court. That is what the Supreme Court

held was required in cases such as Richardson, Reserv-

ists, and Valley Forge.

Now, however, the majority suggests that we relax

still further the requirements of Riegle:

We invoke our remedial discretion in this setting

because this case raises separation-of-powers con-

cerns similar to Riegel’s, and the remedial discretion

approach—-which this circuit has used before—pro-

vides a more candid and coherent way of addressing

those concerns.

Our regard for candor and coherence may seem

anomalous, because a doctrine of remedial discre-

tion suggests the sort of rudderless adjudication that

courts strive to avoid. But Riegle makes explicit

what we also seek to emphasize: this is not an

area fit for inflexible doctrines or bright-line tests.

Supra at 1174-1175 (footnote omitted).

If they were applying Riegle, my colleagues would dis-

miss the action by plaintiffs in their capacities as legis-

lators because legislative redress is available and a simi-

lar action could be brought by a private plaintiff. But

they could not dismiss the entire action since there are

private plaintiffs before us: the congressmen also sued

in their capacities as voters and as representatives of the

classes of all voters represented in the House by Repub-

licans.* If the legislators here have standing, it is dif-

* The district court found that it lacked jurisdiction over appel-

lants’ claims “as voters and as Members of Congress.” Vander

Jagt v. O'Neill, 524 F.Supp. 519, 520 (D.D.C. 1981). Nowhere does

the majority suggest that appellants’ nonlegislator claims are not

properly before us. As far as I am able to determine, there are

private individuals in this lawsuit. My colleagues acknowledge this,

supra at 1169, note 4, and are willing to extend Riegle beyond its

terms to private suits. Indeed, my collegaues contend that the

42a

ficult to see why voters whose influence in Congress has

been allegedly unconstitutionally diminished would not

also have standing. Riegle states that such plaintiffs

could not be dismissed under a doctrine of circumscribed

equitable discretion:

While we discourage congressional] plaintiffs in such

circumstances [availability of legislative redress and

private plaintiffs], it is probable that a private plain-

tiff could acquire standing to raise the issue of un-

constitutionality before a court. Because such a pri-

vate plaintiff’s suit would not raise separation-of-

powers concerns, the court would be obliged to reach

the merits of the claim.

656 F.2d at 881.

While, as discussed above, I think a private plaintiff's

suit raises identical separation-of-powers concerns be-

cause those concerns are about the relationship of the

presence of private parties creates difficulties for my application of

the separation-of-powers component of standing. /d.

This contention misapprehends my position in two ways. First,

separation-of-powers considerations do not, strictly speaking, oper-

ate here on the basis of the plaintiffs’ status as legislators. Rather,

in keeping with the standing doctrine, my concern is with the

separation-of-powers implications of the harm alleged: “diminution

of influence” in the legislative process. Appellants complain of this

single harm in both of their capacities. Yet counting this as a

harm sufficient to create standing would bring the courts into the

internal affairs of Congress whether the plaintiff was a legislator

or a voter. The separation-of-powers concerns are the same in

either case.

Second, the nullification-of-vote standard is wholly consistent

with the malapportionment cases. A Democratic Senator would

have standing under that standard to challenge a rule that counted

his vote as one-third of a Republican's just as much as he would

have standing to challenge a rule that counted it not at all. Just

such a mathematically calculable reduction of the vote (as opposed

to a reduction of generalized influence) is the harm in malapportion-

ment cases; this is a necessary result of the application of the Equal

Protection Clause and the one-man one-vote rule.

43a

courts to Congress, it is clear that, whatever the ma-

jority proposes, it is not that we hold to Riegle.

This becomes even clearer when my colleagues offer

their rationale for dismissing this suit: giving orders to

the Speaker of the House of Representatives is a “star-

tlingly unattractive” idea. Supra at 1176. It is, but the

law deserves and is susceptible of greater definition than

that. Even Riegle provides more, and the standing rule

enunciated by this court in Goldwater provides much

more. “[{R]udderless adjudication” is not a necessity.

My colleagues’ reliance upon the rationale of Davids

v. Akers, 549 F.2d 120 (9th Cir. 1977), does not help

matters. That case is nearly identical to this, and the

Davids court, in a passage the majority quotes, indicates

the difficulty courts would have in framing rules to deal

with the subject. 549 F.2d at 125. Indeed, the Davids

opinion, though it had held that the political question

doctrine posed no bar, concluded its recitation of prob-

lems by saying that “a judicially discoverable and man-

ageable standard cannot be found,” id., though that is

one of the categories of nonjusticiable political questions

set out in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691,

710, 7 L.Ed.2d 663 (1962). It is clear that many of the

difficulties recited relate to defining the rights of legis-

lators, not to the fashioning of relief. This suggests to

me that Davids and the majority are actually applying

the political question doctrine, here under the name of

remedial discretion. The shift in terminology is not in-

significant. Political question, like standing, is a doctrine

that raises a jurisdictional bar to judicial power, while

remedial discretion, as described in Judge Gordon’s opin-

ion for the majority, raises no bar and grants the ju-

diciary unfettered discretion to hear a case or not, de-

pending on the attractiveness of the idea.

My colleagues’ disinclination to rest the case upon a

jurisdictional ground—whether that of standing or po-

litical question—rests squarely upon the erroneous notion,

44a

expressed in Riegle and reiterated today, that there must

be judicial power in all cases and that doctrines must not

be adopted which might frustrate that power.‘ Thus,

the majority argues:

Thus while there are compelling prudential rea-

sons why we should not interfere in the House’s dis-

tribution of committee seats, it is nevertheless criti-

cal that we do not deny our jurisdiction over the

claims in this case. As long as it is conceivable that

the committee system could be manipulated beyond

reason, we should not abandon our constitutional ob-

ligation—our duty and not simply our province—“to

say what the law is.” Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 177 [2 L.Ed. 60] (1803) ; United

States v. Nixon, 418 U.S. 683 [94 S.Ct. 3090, 41

L.Ed.2d 1039] (1974).

Supra at 1170. Of course, when a court finds a jurisdic-

tional bar to its exercise of power, it does state what the

law is. When, on the other hand, a court claims a dis-

cretion, whose contours are not suggested, to decide or

4 My colleagues note that courts sometimes review arguably in-

ternal acts of legislatures. Supra at 1170-1171. These cases stand

for the proposition that some such actions create standing; in no

way do they suggest that legislative actions producing “diminution

of influence,” as opposed to the nullification of a vote, create an

injury in fact. Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23

L.E.2d 43 (1969), the most important of these cases involved

Powell’s exclusion from the House. The Supreme Court did not

address standing. In assuming that standing existed, Powell's con-

sistent with the rule of Goldwater: denied his seat, Powell was

denied his vote, and his standing to sue. Similarly, Bond v. Floyd,

865 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966) which did not

discuss standing, involved his exclusion from the Georgia legislature.

United States v. Ballin, 144 U.S. 1, 5, 6, 12 S.Ct. 507, 509, 36 L.Ed.

821 (1892), which upheld congressional rule, also with a discussion

standing, merely suggested in dicta that such rules are sometimes

reviewable. None of these cases suggests that diminution of influ-

ence is a judicially cognizable injury; none of them even addresses

the question.

45a

not to decide, the court refuses to say what the law is.°

Moreover, the assertion that to find a lack of jurisdic-

tion is an abandonment of a constitutional duty to pro-

nounce upon the merits of any issue offered the court can

only mean that all limitations on the jurisdiction of Ar-

ticle III courts, including those derived from Article III

itself, are unconstitutional. That proposition may fairly

be described as novel. The Supreme Court does not sub-

scribe to it. Very recently, in Valley Forge, a decision

that appears to be particularly inconvenient for the

standing determination by the majority, the Court re-

peated its rejection of a similar contention: “But ‘[t]he

assumption that if respondents have no standing to sue,

no one would have standing, is not a reason to find stand-

ing.’ Schlesinger v. Reservists Committee to Stop the

6 The same reluctance to relinquish the possibility of power in

future cases seems to underlie my colleagues’ refusal to decide the

issue raised under the Speech or Debate Clause: “Because our

remedial discretion provides sufficient foundation for our dismissal

of this suit, we decline to affirm the district court’s invocation of

the Speech or Debate Clause, which again might hamstring us in

the future.” Supra at 1171-1172 (footnote omitted).

It is, moreover, a dubious practice to decide the question of

remedy without deciding the Speech or Debate Clause issue. The

district court regarded the Speech or Debate Clause as juris-

dictional. 524 F.Supp. at 521. The majority does not explicitly state

whether it regards the Clause as jurisdictional. Its theory, how-

ever, rests implicitly on the proposition that the Clause is non-

jurisdictional. It is true, as the opinion says, that it does not decide

the merits of the case; rather, it skips over them (as opposed to

stopping short) to decide the case on the grounds of the remedy—

a question that properly comes after the merits. At the least, this

departs from the Supreme Court’s recently announced principle

that Speech or Debate Clause issues are generally to be dealt with

before the merits are reached. Davis v. Passman, 442 U.S. 228,

236, 99 S.Ct. 2264, 2272, 60 L.Ed.2d 846 n.11 (1979) (explaining

departure from usual priority rule). One of the dissents in Davis

argues that prior determination of Speech or Debate Clause issues

is a near-absolute, not merely a general, requirement. 442 U.S.

at 251, 99 S.Ct. at 2280 (Stewart, J., dissenting).

46a

Wey, 418 U.S., at 227 [94 S.Ct. at 2935].” 454 U.S.

at 489, 102 S.Ct. at 489.

In short, I find nothing in Riegle or in the majority’s

opinion that adequately explains the conclusion that plain-

tiffs have standing. Nor do I find anything that jus-

tifies the assumption of an unconfined judicial power to

decide or not to decide; just such a power, of course,

inheres in the version of remedial discretion offered to-

day. Since my view of standing requires affirmance of

the district court, I do not reach the issues presented by

the Speech or Debate Clause and the political question

doctrine.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.