Also on June 12, 1981, the Executive branch defendants and the intervening House Commission filed their oppositions to the motion of the plaintiffs for summary judgment. These memoranda reiterated the legal arguments the parties had made previously and asserted as well that many of the "facts" on which the plaintiffs based their motion were neither material nor undisputed.

The House Commission in particular took pains in its memorandum to try to demonstrate that the factual record did not support the plaintiffs' constitutional claims. The Commission argued that: (1) a Member's use of the frank to communicate with constituents on official business was not improper simply because it might also have improved his chances of re-election; (2) the use of "special mailing lists" to send "targeted" franked mail raised no material issue of fact; (3) the plaintiffs at most had identified only two percent of the total House mailings over a six-year period to which they objected on content grounds; (4) the two per-cent of mailings specifically objected to were too trivial to form the basis for declaring the franking statute unconstitutional and in any event often involved the official duties of the Members; and (5) there was no showing whatsoever that any of the mailings had the slightest impact on either the electoral results or the electoral process even though more franked mail may have been sent in election years. In its brief discussion of the legal issues, the Commission again asserted that the plaintiffs' attack was in essence nothing more than an attack on incumbency and should be rejected just as the challenges to the constitutionality of public financing of elections had been rejected. The Commission also revived its argument that the plaintiffs lacked standing because they had suffered no injury in fact, but had only "vague, contradictory, and self-serving if not self-delusive . grievances." [Memorandum of Intervening Defendant in Opposition To Plaintiffs' Motion for Summary Judgment, June 12, 1981, at 22] Finally, the Commission insisted again that the franking privilege did not violate any right guaranteed by the First Amendment nor did it deny the plaintiffs equal protection.

On June 19, 1981, the plaintiffs moved to strike from the record certain exhibits (purportedly showing how Senators had used the frank since the adoption of the Senate Code of Official Conduct) and a declaration of an employee of the Senate Computer Center (addressing the plaintiffs' assertions dealing with the volume of franked mail) filed by the Senate. In the plaintiffs' view, these filings were inappropriate under Federal Rule 56(c), which establishes what constitutes the record for purposes of a ruling on a motion for summary judgment. In memoranda filed on June 29, 1981, the Senate and the defendants and intervening defendant opposed this motion. In a one-sentence order filed on July 6, 1981, Judge Pratt denied the motion.

On July 24, 1981, the plaintiffs filed a memorandum in opposition to the motions of the Federal defendants and the intervening House Commission for summary judgment. Charging that the intervening Commission in particular had mischaracterized the lawsuit and ignored the extensive record in the case, the plaintiffs argued that: (1) the franking statute in fact authorized the use of the frank by incumbents for re-election purposes as well as for offi

cial business (by permitting mailings of newsletters, questionnaires, condolences, voter registration information, etc.); (2) the statute was not justified by any compelling state interest, including communication between a Member and his constituents (which could have justified only a more circumscribed franking privilege); and (3) the franking statute infringed on rights protected by the First and Fifth Amendments because it provided a substantial financial advantage in the electoral process to incumbents, which had a concomitant substantial impact on challengers' campaigns. The plaintiffs also argued that the court should reject the various justiciability arguments which had been raised by the defendants, since the court had already held that the Federal defendants were proper parties, that the action was subject to judicially manageable relief, and that the plaintiffs had standing.

On September 25, 1981, the various parties and intervenors submitted their proposed findings of fact and conclusions of law, and on September 30, the cross-motions for summary judgment were argued before the three-judge court and taken under advisement. Status-The case is pending before a three-judge court in the U.S. District Court for the District of Columbia. There has been no docketed activity since the proceedings of September 30, 1981; the court has not yet issued its decision on the summary judgment mo

tions.

The complete text of the February 10, 1975 memorandum and order of the three-judge court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, April 15, 1975.

The complete text of the July 30, 1975 memorandum and order of the three-judge court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, April 15, 1976.

The complete text of the December 11, 1980 memorandum opinion of the three-judge court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981.

Laxalt v. Kimmitt

Nos. 78-1437 and 78-1438 (D.C. Cir.)

On July 14, 1977, Senators Paul Laxalt, Barry Goldwater, Carl Curtis, S. I. Hayakawa and Lowell Weicker filed suit in the U.S. District Court for the District of Columbia seeking to have Rule XLIV of the Senate Ethics Code, and, if necessary, the entire Ethics Code declared null and void as violative of the Constitution. The Senators, who asked that a three-judge court be convened to hear the case, were joined in the suit by the Committee for the Survival of a Free Congress (“CSFC"), an unincorporated political committee which contributes to campaigns of candidates for public office.

Named as defendants were the Chairman of the Senate Select Committee on Ethics, Senator Adlai E. Stevenson III, and the Secretary of the Senate, J. S. Kimmitt, who, as the chief administrative officer of the Senate, the plaintiffs asserted, caused "the Ethics Code and all reports, resolutions, and other actions of the Select

Committee on Ethics to be disseminated to Senators and elsewhere." [Complaint, July 14, 1977, at 6] Additionally, the plaintiffs alleged that Senator Stevenson and Mr. Kimmitt were "responsible for and exercise ministerial jurisdiction over the enforcement of the Ethics Code by said Committee and by the Senate." [Id. at 7] In particular, the plaintiffs attacked the limit on outside earned income prescribed by Rule XLIV. That Rule, which was due to become effective in 1979, would have limited the amount of outside income a Senator could earn in a year to 15 percent of the aggregate amount of base salary paid to Senators and disbursed by the Secretary of the Senate.

The plaintiffs first alleged that this limitation in fact constituted a qualification for membership in the Senate in addition to, and therefore in violation of, Article I, Section 3, clause 3 of the Constitution, which reads in full:

No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Senate plaintiffs also asserted that by limiting the compensation Senators could receive for speaking and by putting them in jeopardy of "political ruin and personal vilification" if they violated Rule XLIV, the Rule would deprive them of their right to freedom of speech under the First Amendment. They also asserted that their First Amendment associational rights would be denied by the Rule because they would be precluded from supporting, without similar risk, candidates for the Senate "who have earned, earn, or may earn in excess of the outside earned income limit prescribed by the Rule."

The CSFC also claimed that the Rule would deprive it of its First Amendment right to support senatorial candidates "who have earned, earn, or may earn such prescribed sums." [Id. at 8]

As a third count, the Senate plaintiffs asserted that the Rule's limitation on outside earned income would violate the Fifth Amendment in that by prohibiting them from receiving such income it would deprive them of liberty and property without due process of law.

In the fourth count of their complaint, the Senate plaintiffs alleged that Rule XLIV would deny their Ninth Amendment rights to earn income over the Rule's limit and to support candidates for the Senate "who have earned, earn, or may earn in excess of said limitation." [Id. at 9] Additionally, they asserted that the Rule consituted an unjustified intrusion into their privacy in violation of the Fifth and Ninth Amendments. The CSFC also asserted that the Rule violated its Ninth Amendment right to support candidates for the Senate who earned in excess of the outside earned income limitation.

As a final count, the Senate plaintiffs contended that the Rule would invidiously discriminate against them and deny them the equal protection of the laws in that the Rule limited outside earned income, but placed no limitation on inherited income, "unearned" income, the income of a spouse, or income from a trust fund. They

further stated that the limitation was "an improper classification" because it "bears no reasonable relation to the purported purpose of the Senate Ethics Code." [Id. at 10]

The CSFC also asserted that it would be invidiously discriminated against and denied the equal protection of the laws in that Rule XLIV would effectively preclude it from supporting Senate candidates whose outside earned income was in excess of the Rule's limitations.

On August 11, 1977, Common Cause, David Cohen, President of Common Cause and Nan Waterman, Chairwoman of Common Cause, citing Common Cause's "history of involvement in the enactment of ethics rules" including the Rule complained of by the plaintiffs, filed a motion to intervene as defendants in the action. On September 2, 1977, the motion to intervene was granted.

On December 21, 1977, the intervening defendants moved to dismiss the action.

On December 23, 1977, the plaintiffs filed an amended complaint in which they deleted their prayer for convocation of a three-judge district court.

On January 9, 1978, the Congressional defendants moved to dismiss the amended complaint. This motion was heard and granted on March 3, 1978.

On March 13, 1978, an order dismissing the action was filed. [Laxalt v. Kimmitt, No. 77-1230 (D.D.C. March 13, 1978)] The court found that Rule XLIV would not add to the constitutional qualifications for Senate membership nor would it deprive the plaintiffs of their freedom of speech. Additionally, the order stated that the Rule's differentiation between earned and unearned income did not constitute unlawful discrimination. Therefore, the court concluded, the complaint failed to state a claim upon which relief could be granted and did not allege a justiciable case or controversy.

Finally, the court declared that its disposition of the previous issues made it unnecessary to address the question of standing. The plaintiffs filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit on March 24, 1978.

On April 6, 1978, defendants Kimmitt and Stevenson filed a notice of cross-appeal from those portions of the final judgment of the district court which (1) held that the amended complaint sufficiently alleged the requisite jurisdictional amount, and (2) concluded that the disposition of other issues raised by the motions of the defendants made it unnecessary to dispose of the issues raised with respect to the standing of the CSFC and the Common Cause inter

venors.

On June 5, 1978, the appeal and the cross-appeal were consolidated by order of Circuit Judge Wright, sua sponte.

On December 8, 1978, the plaintiffs moved to add Senator Mike Gravel as a party appellant.

On March 8, 1979, the Senate passed Senate Resolution 93 which postponed the effective date of Rule XLIV from January 1, 1979 to January 1, 1983.

On March 20, 1979, Senator Laxalt and other appellants, at the oral direction of the court, filed a memorandum with respect to Senate Resolution 93, in which they moved for dismissal of the case

without prejudice on the ground that the validity of rule XLIV was not ripe for adjudication.

Also on March 20, 1979, a brief was filed by Senator Stevenson and Mr. Kimmitt contesting the appellants' efforts to have the action dismissed as moot.

On March 27, 1979 the court issued a per curiam order deferring further action on the appeals pending stabilization of the situation and further order of the court to be issued not later than December 1, 1982.

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

The complete text of the March 13, 1978 order of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, May 15, 1978.

Vander Jagt v. O'Neill

No. 81-2150 (D.C.Cir.)

On July 23, 1981, fourteen Republican Members of the U.S. House of Representatives filed suit in the U.S. District Court for the District of Columbia against the Speaker of the House, Thomas P. O'Neill, Jr. (as Chairman of the Democratic Steering and Policy Committee of the House and a Member of the House Democratic Caucus); the Majority Leader of the House, Jim Wright (as First Vice Chairman of the Steering Committee and a Member of the Democratic Caucus); the Chairman of the Democratic Caucus, Gillis Long (as Second Vice Chairman of the Steering Committee and as Chairman of the Caucus); the Steering and Policy Committee itself, and the Caucus itself. [Civil Action No. 81-1722 (D.D.C.)] The tencount complaint alleged that the composition of certain committees and subcommittees of the House "unconstitutionally abridges fundamental rights of Plaintiffs in that certain Republican Representatives are entitled to membership positions on certain committees and subcommittees which they were denied by Defendants' action in causing a systematic underrepresentation of Republican Representatives on these committees and subcommittees." [Complaint, July 23, 1981, ¶ 1] In short, the complaint asserted that the defendants implemented a plan to under-represent Republicans on committees in relation to the votes received by all Republican candidates for the House in the 1980 elections.

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

1 The plaintiffs were Representatives Guy Vander Jagt, George Hansen, Robert Lagomarsino, Tom Hagedorn, Thomas Kindness, W. Hensen Moore, Mickey Edwards, David Marriott, Daniel Crane, William Dannemeyer, Stan Parris, Olympia Snowe, Albert Lee Smith, and Vin Weber. They sued as "individual Republican Members of the House . . as individual Members of certain Committees of the House . . . and as individual voters, and in their representative capacity for all Republican Members of House . . . I and for all voters in all Congressional districts represented by Representatives affiliated with the Republican Party."