whose function it is to enforce and defend the laws. On June 8, 1981, Judge Lucas heard arguments on the question of jurisdiction and took the matter under advisement. He granted the motion of the Senate to withdraw from the case. On June 18, 1981, Judge Lucas issued an order vacating his March 11, 1980 order dismissing the action. He found that there were now adverse parties to the case since the Justice Department and the FCC had decided to defend and enforce section 399(a) and the case was ripe for adjudication since the Executive branch's decision to enforce the statute had eliminated any uncertainty about the existence of an actual case or controversy and had subjected plaintiff Pacifica to a realistic threat of severe administative and criminal penalties should it violate the statute. On June 26, 1981, the plaintiffs filed a motion in the Court of Appeals for the Ninth Circuit asking the court to dismiss their earlier appeal without prejudice. The plaintiffs noted in their motion that since Judge Lucas had now held that the case was justiciable there was no need to pursue the appeal. On July 14, 1981, the circuit court granted the plaintiffs' unopposed motion and dismissed the appeal. On July 13, 1981, the plaintiffs filed a supplemental memorandum of points and authorities in support of their motion for summary judgment on the merits in the district court. (The plaintiffs' motion for summary judgment was originally filed on September 24, 1979 but was taken off the court's calendar shortly after the Senate entered the case as amicus and moved to dismiss the action. For a discussion of the original motion and accompanying memorandum of the plaintiffs, see page 333, supra.) The new memorandum reiterated the arguments initially raised by the plaintiffs two years earlier and asserted that subsequent decisions by the Supreme Court had underscored the "importance of the First Amendment rights at stake in this case and the exacting scrutiny to which content-based restrictions of speech are subject." [Supplemental Memorandum of Points and Authorities in Support of Motion for Summary Judgment, July 13, 1981, at 2] The plaintiffs also elaborated on their contention that section 399(a) violated the equal protection guarantee of the Due Process Clause of the Fifth Amendment, arguing that there was "no principled basis for distinguishing between commercial and noncommercial broadcasters" since "[a]ll broadcasters, commercial and noncommercial alike, face similar dangers of improper political pressures." [Id. at 7] On July 22, 1981, the Justice Department, on behalf of the defendant FCC, filed a memorandum in opposition to the plaintiffs' motion for summary judgment. The memorandum argued, inter alia, that: (1) section 399(a) was not unconstitutionally overbroad since it could, consistent with the will of Congress, be construed so that its reach was "clearly and precisely" limited to conduct Congress was permitted to regulate; (2) section 399(a) could be construed, in line with Congressional intent (as revealed in the relevant legislative history), to apply to government funded noncommercial educational broadcasters such as plaintiff Pacifica, even if it was determined that the section could not be constitutionally applied to noncommercial educational broadcasters who did not receive government funding; (3) review of the regulation of broadcasting involved the application of "special" First Amendment standards reflecting the special characteristics of the broadcasting medium as opposed to other media (i.e., limited number of frequencies available, the pervasive presence of the broadcast medium in the lives of Americans, the medium's accessibility to children, etc.); (4) section 399(a) served a compelling government interest that noncommercial educational broadcasters receiving government funding not be coerced because of that funding to broadcast editorials favorable to the government and that the funding not interfere with the balanced presentation of opinion on those stations; and (5) section 399(a)'s limited application to noncommercial educational broadcasters receiving federal funds did not violate the equal protection mandate of the Fifth Amendment because it was carefully tailored to the compelling government interest being served. On July 27, 1981, the plaintiffs filed a reply memorandum in support of their motion for summary judgment. In their view, a court could not construe section 399(a) in any fashion so that it did not violate the First Amendment. According to the plaintiffs, the defendant's proposed narrowing of the statute to reach only government funded stations ignored the plain meaning of section 399(a), and would, in any event, itself be unconstitutionally vague and dependent on a case-by-case interpretation. There were, said the plaintiffs, no "special characteristics" of the noncommercial broadcast medium which would justify banning protected First Amendment editorial speech, nor was there any "compelling government interest" which would be served by such a ban. Finally, the plaintiffs asserted again that section 399(a) violated equal protection requirements because it was a "content-based prohibition" grounded not on an individualized inquiry but on a presumption of noncommercial broadcasting vulnerability to government influence. On August 3, 1981, a hearing was held on the plaintiffs' motion for summary judgment. At that time a new briefing schedule was arranged to respond to the fact that section 399 had been amended by Congress three days earlier to read as follows: SEC. 399. No noncommercial educational broadcsting station which receives a grant from the Corporation [for Public Broadcasting] under subpart C of this part may engage in editorializing. No noncommercial educational broadcasting station may support or oppose any candidate for political office. [Omnibus Budget Reconciliation Act of 1981, Section 1229, as set forth in Conference Report, H. Rep. No. 97-208, 97th Cong., 1st Session 392 (1981)] On August 31, 1981, the plaintiffs filed a second memorandum in support of their motion for summary judgment, arguing that the new section was still unconstitutional on First and Fifth Amendment grounds. On September 15, 1981, the defendant FCC filed a supplemental memorandum addressing the recent Congressional amendment of section 399. The FCC contended, first, that the plaintiffs' action should be dismissed unless a supplemental complaint was filed ad dressing the change in circumstances created by the new amendment, since the original pleadings attacked a statute no longer in effect. Second, the FCC claimed that the plaintiffs' challenge to section 399's prohibition of support for, or opposition to, any candidate for political office should be dismissed because plaintiff Pacifica (and the other plaintiffs derivatively through Pacifica) had failed to plead that it actually wanted to support or oppose such candidates and would do so but for the provisions of secton 399. The FCC explained: Under new Section 399 only those non-commercial educa- Finally, the FCC argued that the new section did not violate the First or Fifth Amendments. The Commission reasoned that: (1) the legislative history of the section evidenced a compelling governmental interest to assure that noncommercial educational broadcasters receiving grants from the Corporation for Public Broadcasting not be coerced, by the fact of Federal funding, to broadcast editorials favorable to the government; (2) the concern that noncommercial educational broadcasters receiving Corporation funding not be coerced by the fact of Federal funding to adopt editorial positions favored by the administration and Congress constituted a compelling governmental interest justifying enactment of the statute; and (3) the section represented an "appropriate and narrowly tailored remedy" to the threat that sustained Federal funding of noncommercial broadcasters would have a coercive effect on their editorial policy. [Id. at 18] The FCC summarized its position as follows: The amendment to Section 399 to limit the prohibition against editorializing to those noncommercial educational radio and television stations that receive grants from the Corporation for Public Broadcasting mandates repleading of plaintiffs' amended complaint. In any event, Section 399's prohibition against editorializing continues to reflect a Congressional judgment that the nurturing of communication, education and debate through creation and sustenance of a comprehensive system of noncommercial educational radio and television requires concomitant safeguards to assure that the massive infusion of governmental funds neither coerces editorial positions nor skews debate in favor of the recipients of government funding. Such a determination constitutes a proper Congressional regulation of the unique medium of public broadcasting and does not violate the First or Fifth Amendments. [Id. at On September 23, 1981, the plaintiffs filed a second reply memorandum in support of their motion for summary judgment, arguing that: (1) an amended complaint was not necessary; (2) all the plaintiffs had standing to challenge section 399 in its entirety (since the section's language "directly and explicitly" suppressed Pacifica's freedom of speech and denied the League and Rep. Waxman access to opinions and editorials of noncommercial broadcasters); and (3) the new section violated the First and Fifth Amendments. On the last point the plaintiffs dismissed the Government's reasoning as without foundation: There are clearly several crucial links of faith in the chain of reasoning underlying this purported justification for § 399. In order to accept the government's argument, one must assume: (1) that noncommercial broadcasting stations are so dependent on CPB appropriations that they would do nothing that could possibly jeopardize CPB funding; (2) that noncommercial licensees believe that Congress would retaliate against editorials that are critical of government policies by reducing or eliminating funding to all CPB broadcasters; and (3) that noncommercial stations would react to this perceived fear of Congressional revenge by continuously taking editorial positions in favor of the government. Yet defendant makes no showing (nor was there any demonstration made before Congress at the time of § 399's enactment) that any of these assumptions are founded upon "the practical empirical evidence of prior practice" that defendant itself acknowledges is required by Supreme Court precedent. See Defendant's Supplemental Memorandum, at 13. Given the diverse and pluralistic nature of the hundreds of broadcasting stations receiving CPB funds, as well as the shortcomings and bluntness of using the CPB appropriation as either a "carrot" or a "stick" in influencing individual licensee's editorial decisions, the government's asserted interest not only is far from "compelling, but passes from "speculative" to "improbable." [Plaintiffs' Second Reply Memorandum . . September 23, 1981, at 10-12 (footnotes omitted)] On October 2, 1981, the plaintiffs filed a second amended complaint seeking to invalidate, and enjoin enforcement of, the prohibition against editorializing contained in the new section 399, again on First and Fifth Amendment grounds. The complaint specifically alleged that plaintiff Pacifica "would broadcast its views on various important public issues, and would clearly label those views as being editorials broadcast on behalf of Pacifica managment" were it not for section 399. [Second Amended Complaint For Declaratory and Injunctive Relief, October 2, 1981, 16] The other plaintiffs were also alleged to have suffered specific injury because of section 399. [Id., ¶s 4,5] On October 13, 1981, the defendant FCC filed a memorandum in support of dismissal of the second amended complaint, asserting identical grounds to those contained in the opposition to the plaintiffs' motion for summary judgment. Accordingly, the FCC merely referenced the defendant's previous memoranda of July 22, 1981 (see supra, page 342), and September 15, 1981 (see supra, page 343). On October 26, 1981, the plaintiffs filed a memorandum in opposition to the defendant's motion to dismiss, which was premised on grounds identical to those submitted in support of their motion for summary judgment. Accordingly, the plaintiffs relied on their previous memoranda of August 28, 1981 (see supra, page 343), and September 23, 1981 (see supra, page 344). On November 9, 1981, oral argument was held on the defendant's motion to dismiss the second amended complaint and the plaintiffs' motion for summary judgment. Judge Lucas took both motions under submission. Status-The case is pending in the U.S. District Court for the Central District of California, although the Senate's participation has been concluded. As of March 1, 1982, Judge Lucas had not handed down a decision on the pending cross-motions. The complete text of the March 11, 1980 order of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981. The complete text of the June 18, 1981 order of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981. IX. Attempts To Obtain Congressional Documents and Testimony Through Use of the Subpoena 1. Civil Proceedings: United States v. Eilberg [See page 129.] In Re: IBP Confidential Business Documents Litigation M.D.L. No. 428 (N.D. Iowa) On December 4, 1980, Nicholas Wultich, a staff investigator for the Committee on Small Business of the U.S. House of Representatives; Charles Chatman, former counsel to the Subcommittee on Oversight of the Committee on Interstate and Foreign Commerce of the House; and John M. Fitzgibbons, former Special Counsel to the Small Business Committee on Interstate and Foreign Commerce were each served with nearly identical subpoenas duces tecum issued by the U.S. District Court for the District of Columbia. The subpoenas called for the staff members to appear and testify at a deposition and to bring with them all documents in their possession or custody relating in any manner to Iowa Beef Processors, Inc. ("IBP") or Hughes A. Bagley.1 The subpoenas were issued upon the application of counsel for IBP and called for the appearance of the deponents at a Washington, D.C. law office on Decem 1 Mr. Bagley was a former vice-president of IBP who allegedly transferred confidential documents belonging to IBP to Congressional investigators in 1975. 97-581 0 - 82 - 23 |