CASE SUMMARIES

EXPLANATORY NOTE

These case summaries represent an attempt to highlight the most significant principles of law enumerated in each case. They are not intended to be exhaustive of all issues raised or decided during the litigation. In instances where the significant issues have not yet been adjudicated we have merely stated the most prominent issues raised.

I. CONSTITUTIONAL IMMUNITY OF MEMBERS OF CONGRESS UNDER THE SPEECH OR Debate CLAUSE

The Speech or Debate Clause-"for any Speech or Debate in either House, [U.S. Senators and Representatives] shall not be questioned in any other Place." Article I, Section 6 of the Constitution of the United States.

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

The Speech or Debate Clause of the United States Constitution does not protect Members of Congress from liability for defamatory statements contained in their press releases and newsletters.

Rusack v. Harsha 470 F. Supp. 285 (M.D. Pa. 1978)

(1) Under the Speech or Debate Clause, defamatory statements contained in a letter from a Member of Congress to an executive agency official will not give rise to a cause of action for defamation if the letter was designed to elicit information needed for the performance of legislative duties. (2) A Member has a constitutionally protected right to inform federal officials of possible violations of federal law.

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

A cause of action and damages remedy can be implied under the Constitution whenever the Due Process Clause of the Fifth Amendment is violated. Accordingly, unless it is subsequently determined by the courts that the employment practices of Members of Congress constitute legislative acts and therefore may not be questioned under the Speech or Debate Clause, a former congressional staff member who was allegedly fired because of her sex, may bring a suit for damages in federal court against the Member of Congress who employed her.

Boland v. Blakey

Issue raised.-Do the hiring and firing practices of a congressional committee fall within the purview of activities protected by the Speech or Debate Clause?

United States v. Helstoski 442 U.S. 477 (1979)

(1) In a criminal action against a Member of Congress on charges of bribery, the Speech or Debate Clause of the Constitution does not permit the Goverment to introduce into evidence correspondence and discussions which, while not themselves legislative acts, make reference to legislative acts. (2) Asssuming that a Member can waive Speech or Debate Clause protection, a waiver can occur only after an explicit and unequivocal renunciation of the protection has been made. (3) Assuming that Congress can waive its Members Speech or Debate Clause protection, there is no evidence of such waiver in the language or legislative history of 18 U.S.C. § 201 (Bribery of Public Officials).

Helstoski v. Meanor 442 U.S. 500 (1979)

Appeal, not mandamus, is the appropriate means of challenging the validity of an indictment of a Member of Congress on the grounds that it violates the Speech or Debate Clause of the Constitution.

Chase v. Kennedy (Not Reported)

Whatever action a Member of Congress decides to take with respect to a constituent's petition is absolutely within the Member's discretion and is not a proper subject of judicial inquiry. Clancey v. Albert (Not Reported)

(1) Under The Speech or Debate Clause a Congressman cannot be sued for enforcing an allegedly unconstitutional House Rule. (2) The doctrine of Sovereign Immunity bars suits against The U.S. House of Representatives. (3) An action by a constituent, which challenges the constitutionality of a House Rule that prohibits Members convicted of certain crimes from voting in The House of Representatives, becomes moot when the constituent's convicted Representative is not re-elected to Congress.

Littlejohn v. Talmadge (Not Reported)

The Speech or Debate Clause requires the dismissal of a complaint which alleges that the defendant U.S. Senator supported certain legislation for unlawful reasons.

United States v. Eilberg 465 F. Supp. 1076 (E.D. Pa. 1979)

(1) The giving of testimony by a Member of Congress before the House Committee on Standards of Official Conduct is a legitimate legislative activity and therefore such testimony may not be used against the Member, either as substantive evidence or for impeachment purposes, without violating the Speech or Debate Clause of the Constitution. (2) The Speech or Debate Clause does not prohibit the introduction into evidence of testimony pertaining to a Mem

ber's efforts vis a vis an executive branch agency to effectuate the release of federal grant funds to a consituent.

The Speech or Debate Clause does not immunize a Member from liability for defamatory statements made to members of the press. Common Cause v. Bolger (formerly Bailar, formerly Klassen) (Not Reported)

(1) It is not inconsistent with the Speech or Debate Clause for a Member to be made to answer allegations that he has used the franking privilege for political purposes. (2) Remaining Issue: Does Section 3210 of the 1973 Franking Act violate the limitations upon the taxing and spending power of Congress under Article I, Section 8, and contravene the First and Fifth Amendments to the Constitution by specifically authorizing the distribution of partisan political literature at the taxpayers' expense?

In Re Grand Jury 587 F. 2d 598 (3rd Cir. 1978)

(1) Despite the fact that records of telephone calls made by a Member do not disclose the contents of any conversation, those portions of the telephone records which record the occurence of a legislative act may not be introduced into evidence under the Speech or Debate Clause. (2) A Member of Congress who believes that a grand jury subpoena directed to a third party may result in the disclosure of records of his which are privileged under the Clause, may intervene to oppose the subpoena. (3) A Member has no standing to oppose a grand jury subpoena directed to the Clerk of the House on the grounds that the subpoena is not sufficiently specific.

McSurely v. McAdams (formerly McClellan) 535 F. 2d 1277 (D.C. Cir. 1976)

(1) A Member of Congress and his aides are not immune under the Speech or Debate Clause, from liability in a private suit for damages in which the plaintiff alleges that documents illegally taken from the plaintiff's home by state officials and transported to Washington by a senate investigator were disseminated outside the halls of Congress. (2) Even though material comes to a congressional committee by means that are unlawful or otherwise subject to judicial inquiry, the subsequent use of that material by the committee in the course of official business is privileged legislative activity.

II. CONSTITUTIONAL POWERS OF CONGRESS

Idaho v. Freeman (formerly Goulding)

Issues raised.—(1) May a State which has ratified an amendment to the Constitution of the United States rescind its ratification prior to ratification by the requisite three-fourths of the states? (2) Does Article V of the Constitution, which states that any resolution proposing a Constitutional amendment must be passed by a twothirds vote of Congress, prohibit Congress from extending the ratification period for such resolution by simple majority vote? (3) Can Congress extend the period during which a state may ratify a

proposed amendment despite objections by a state that its prior ratification of the proposed amendment was made with the express understanding that if by the end of the ratification period the proposed amendment had not become law, the State's ratification would become void?

Laxalt v. Kimmit (Not Reported)

Rule XLIV of the Senate Code of Ethics, which places a limit on the amount of outside earned income a U.S. Senator may recieve, does not violate Article I, Section 3, Clause 3 of The United States Constitution by imposing an additional qualification for membership in the Senate. Nor does it abridge freedom of speech and equal protection rights ensured by the Constitution.

Chadha v. Immigration and Naturalization Service

Issue raised.-Is the one-House legislative veto provision of 8 USC §244 constitutional? (a) Does it violate the separation of powers doctrine by usurping essential executive branch functions? (b) Does it deprive the President of a constitutional right to veto congresional actions having the effect of law? (c) Did the Framers of the Constitution intend that every power of the legislative branch not expressly granted to a single House would be exercised by both concurrently?

Schwartz v. United States Department of Justice 435 F. Supp. 1203 (D.D.C. 1977)

(1) In the District of Columbia an individual has a common law right to inspect congressional documents that meet the common law definition of "public records." (2) Congress has the power to abolish that right.

Goland v. Central Intelligence Agency 607 F. 2d 339 (D.C. Cir. 1978)

(1) A congressionally generated document becomes an agency record and therefore, absent an exemption, subject to public disclosure under the Freedom of Information Act, when under all the facts of the case the document has passed from the control of Congress and has become subject to the free disposition of the agency with which it resides. (2) The fact that Congress has stamped a document "Secret" evidences a Congressional intent to maintain control over the document's confidentiality.

Exxon Corp. v. Federal Trade Commission

Kerr-McGee Corp. v. Federal Trade Commission

and,

Union Carbide Corp. v. Federal Trade Commission 589 F. 2d 582 (D.C. Cir. 1978)

(1) 15 U.S.C. § 46(f), which prohibits the Federal Trade Commission from releasing the trade secrets of a company to the public, is not violated when the Commission transmits such information to a congressional committee. (2) If, in fact, a Member or congressional staff member improperly leaks confidential data obtained from the FTC, the injured parties have recourse against that individual directly and the possibility of such action will serve to deter unjustified disclosure of trade secrets. (3) Absent a showing that it is evident that Congress intends to make trade secrets divulged to it