said to hold an office under the government' in United States The violation of this constitutional mandate in the case As to the issue of standing, the Senator maintained that his standing in the District of Columbia was not dependent on the existence or absence of a legislative remedy. The plaintiff cited Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974) in support of his argument that a legislator does not have to secure the passage of legislation to vindicate the effectiveness of a vote already cast. The Senator continued, alleging that “[a] fortiori this is the rule where, as here, the legislator las unconstitutionally been denied even the right to cast the first vote." [Id. at 15] The defendants submitted a motion to dismiss the complaint and in opposition to the plaintiff's motion for summary judgment on September 17, 1979. They alleged that Senator Riegle lacked standing and had failed to state a claim for which relief could be granted. The defendants argued that the plaintiff lacked standing because he did not claim that any action of the executive branch or of the defendants resulted in injury to him. Indeed, the argument continued, the plaintiff contended that he was injured by legislation adopted by the very Senate to which he belonged, and his right as a U.S. Senator to seek to amend the challenged statutory appointment procedures remained unimpaired. The defendants contended that the Senator's real dispute was with his legislative colleagues, not with the defendants. The defendants drew the court's attention to the statement by the court of appeals in Harrington v. Bush, 553 F.2d 190 at 210-211 (D.C. Cir. 1977), one of three cases on Congressional standing subsequent to Kennedy v. Sampson: In summary, the Kennedy case presented its effectiveness rationale in terms of objective injury to the legislators vote on a particular bill; the appellant in this case, however, asserts subjective injury to his overall effectiveness which flows from his lack of information concerning the CIA. [Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment and In Support of Defendant's Motion to Dismiss, September 17, 1979, at 26] Thus, "Harrington has specifically cautioned against extending Congressional standing beyond the circumstances preesnted in Kennedy, for to do so would permit an individual legislator 'to use the court to vindicate his own political values and preferences."" [Id.] The defendants argued that the plaintiff was attempting to usurp the legislative function by asking the court to grant him the relief which his colleagues had refused to grant. Even if Senator Riegle was held to have standing, said the defendants, the manner by which the Reserve Bank members of the Committee were appointed comported fully with the Appointments Clause. Furthermore, the defendants stated that, notwithstanding the fact that five Reserve Bank members of the Committee may be described as representatives of the private interests of those banks, Congress satisfied the provisions of the Appointments Clause by requiring Board approval of their selection. The Appointments Clause, it was argued, consisted of two classes of officers with respect to the appointments process. The first class-anbassadors, other public ministers and consuls and judges of the Supreme Court-requires Presidential appointment and Senate confirmation. The second class, however, consists of all other officers of the United States, and the Constitution permits Congress to provide by law for appointment by the President, the courts, or the heads of Departments. The Federal Reserve Board, said the defendants, should be considered a head of a department. On September 27, 1979, Senator Riegle filed a motion in opposition to the motion to dismiss. With respect to the issue of standing, Senator Riegle said: What the defendants' argument boils down to is a bald assertion that whereas other citizens may seek judicial redress for unconstitutional actions by which they are injured, irrespective of whether the actions complained of are authorized by statute, a member of Congress should be denied standing to sue for any injury for the infliction of which the defendants can make a colorable claim of statutory authorization. [Statement of Points and Authorities in Opposition to Defendants' Motion to Dismiss, September 27, 1979, at 4] On October 15, 1979, the defendants filed a reply to the plaintiff's opposition to their motion to dismiss. The defendants again asserted that all plaintiffs, whether or not members of Congress, must demonstrate that they have been injured by the party sued in order to establish standing: The application of this standard to members of Congress may yield results which differ from the application of the same standard to private parties simply because members of Congress may seek, solely by virtue of their legislative status, to amend or repeal statutes they believe to be unconstitutional. The Court of Appeals for this circuit has, consequently, held that in such situations the real dispute is between the Congressional plaintiff and his legislative colleagues, thus depriving the plaintiff of standing. See, e.g., Reuss v. Balles, 587 F. 2d 461, 468 (D.C. Cir. 1978). [Defendants' Reply to Plaintiff's Opposition to Motion to Dismiss, October 15, 1979, at 2-3] The defendants continued to assert that the procedures set forth by Congress for selection of the Committee Members were fully consistent with the alternative method of appointment prescribed by Section 2 of Article II, stating: "Such officers may be deemed inferior under the Appointments Clause only because Congress has not seen fit to provide for their appointment by the President with the confirmation of the Senate." [Id. at 3] On October 26, 1979, Judge Gerhard Gesell denied the plaintiff's motion for summary judgment and granted the defendants' motion for dismissal, concluding that the plaintiff lacked standing to maintain the action. The court said: Plaintiff has failed to satisfy this standard. Unlike the injured party in Kennedy v. Sampson, Senator Riegle's alleged injury does not stem from Executive action that frustrates an otherwise effective congressional enactment, nor does it impair his powers as a legislator in any manner that is not redressable by Congress. The legislative process continue to operate in unimpeded fashion; Congress' power to require additional FOMC membership criteria remains clearly undiminished. See Reus v. Balles, 584 F.2d 461, 467-68 (D.C., Cir.), cert. denied, 439 U.S. 997 (1978); Harrington v. Bush, supra, 553 F.2d at 199-200 n. 41. Congress enacted the relevant statutory provision over 40 years ago, it has had numerous opportunities to amend the statute since that time, and it retains the option to modify the statute today. Under these circumstances, it appears that Senator Riegle's injury is of a political nature, deriving solely from the acts or omissions of his colleagues and not in any way from the actions of the named defendants. Reuss v. Balles, supra 584 F.2d at 468. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976). Plaintiff's attempt to distinguish Reuss v. Balles by relying on the Senate's powers under the Appointments Clause is unavailing. The distinction plaintiff would have this Court draw wrongly focuses attention on the question of which chamber is the possessor of a given constitutional authority. What the Court must decide is whether or not a Congressman from either chamber has standing to challenge the constitutionality of a statutory provision on which he has failed to persuade his colleagues in the past and remains free to attempt persuasion in the future. The Court concludes that to confer standing upon such a Congressman without more would improperly interfere with the legislative process. [Riegle v. Federal Open Market Committee, Civil Action No. 79-1703 (D.D.C. October 26, 1979), Order at 2] On January 15, 1980, Senator Riegle filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit. In his appellate brief, Senator Riegle noted that section 12A (a) of the Federal Reserve Act (12 U.S.C. § 263 (a)) was silent with respect to voting rights of members of the Committee. He thus urged the court to permit the Reserve Bank representatives to continue to be selected as provided therein, but to limit voting rights to those Committee members who were appointed as officers of the United States, i.e., the members of the Board of Governors of the Federal Reserve System. The Senator's appeal elaborated on the standing arguments discussed in his "Statement of Points and Authorities in Opposition to Defendants' Motion to Dismiss". He contended that referring to the availability of a mere legislative remedy is insufficient and essentially contrary to the principle in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), "that when the constitutionality of a statute is drawn into question, and the Court finds it to be in contravention of the Constitution, then the statutory enactment is simply held to be void." [Brief for the Plaintiff-Appellant, April 1, 1980, at 15] In reply, the defendants reasserted their prior contention that "this controversy can and should be resolved through the legislative process without the need for judicial intervention." [Appellees' Brief, June 13, 1980, at 32, n. 22] The plaintiff, however, in his reply brief filed July 2, 1980, stressed a right to standing whenever a constitutional injury is identified: The case which forces the defendants to take the position that they do is Kennedy v. Sampson, 167 U.S. App. D.C. 192, 511 F.2d 430 (1974). That case squarely holds that a member of Congress does not need the authorization of Congress, or even of the House of which he is a member, in order to sue for redress of a derivative injury to him in his capacity as a member. Both this Court and the Supreme Court have had opportunities, most notably and recently in Goldwater v. Carter, [444 U.S. 996 (1979)] to overrule or disapprove the doctrine of Kennedy v. Sampson, and neither has done so. In effect, the defendants are asking this Court to overrule Kennedy, because the theory on which they seek to distinguish Kennedy is inconsistent with Marbury v. Madison. The distinction which the defendants would draw between Kennedy and the case at bar does not make sense. The defendants concede that Kennedy stands for the proposition that judicial intervention is appropriate where the inaction of government officials has deprived a Senator of the effectiveness of his vote, yet they argue that the courts are powerless when the affirmative action of government officials absolutely deprives a Senator of any opportunity whatsoever to cast a vote on a transaction on which he has a constitutional right to vote. Their position is thus in conflict with the decisions of both this Court and the Supreme Court. [Reply Brief for the Plaintiff-Appellant, July 2, 1980, at 2-3 (footnote omitted)] Status.-The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit. The complete text of the October 26, 1979 opinion of the district court is printed in the "Decisions" section of this report at p. 523. Hutchinson v. Proxmire No. 78-680 (U.S. Supreme Court) On April 18, 1975, U.S. Senator William Proxmire of Wisconsin, chairman of a subcommittee of the Senate Appropriations Committee having jurisdiction over funds for the National Science Foundation, the National Aeronautics and Space Administration, and the Office of Naval Research, made a statement on the floor of the Senate relating to certain research contracts awarded by those agencies to Dr. Ronald R. Hutchinson, a Michigan research scientist. A press re lease which consisted almost entirely of quotations from the Senator's floor statement was authorized by Senator Proxmire's office and issued by the Senate Service Department. At about the same time, Morton Schwartz, an aide to Senator Proxmire, allegedly telephoned various Federal agencies in an attempt to persuade them to terminate grants or contracts for research being performed by Dr. Hutchinson. Senator Proxmire appeared seven months later on a nationally syndicated television show. During that appearance, Senator Proxmire made statements regarding the expenditure of Federal funds to study the behavior of monkeys, rats, and human beings. (Although this was Dr. Hutchinson's project, he was not mentioned by name during Senator Proxmire's appearance.) On April 16, 1976, Dr. Hutchinson filed a $6 million slander and libel action in the U.S. District Court for the Western District of Wisconsin against Senator Proxmire and Mr. Schwartz, alleging that they "maliciously and with knowledge of the consequences of their conduct interfered with the numerous valid contractual relationships that the plaintiff had with the supporters of his research." Dr. Hutchinson's complaint sought relief based on the statements made in the press release, on the television show, and by Mr. Schwartz over the telephone to the various Federal agencies. On July 9, 1976, Senator Proxmire filed a motion to dismiss or, alternatively, for summary judgment. In it he claimed: (1) that the alleged misconduct was legitimate legislative activity and, accordingly, absolutely privileged; (2) that his statements and inquiries about the use of public funds were privileged; and (3) that there was no factual basis which would support a finding for the plaintiff. On December 23, 1976, the court granted Senator Proxmire's motion for summary judgment. [Hutchinson v. Proxmire, 431 F. Supp. 1311 (W.D. Wisc. 1977)] In an opinion issued on April 22, 1977, the court concluded that in order to determine whether Senator Proxmire should be granted summary judgment three issues had to be resolved: (1) Whether the investigative activities of a Senator in connection with the duties as a Member of Senate subcommittees were privileged. (2) Whether a press release issued by the United States Senate Service Department and containing the substance of a Senate floor speech by the United States Senator was privileged under the Speech or Debate clause of the United States Constitution; (3) Whether the statements made by the United States Senator to his constituents and in a television appearance were libelous or defamatory. [431 F. Supp. at 1316] While noting that "considerable confusion exists as to what constitutes legitimate legislative activity," the court concluded that the investigations conducted by Senator Proxmire and his staff were protected: In this case, Senator Proxmire serves on several subcommittees of the Senate Committee on Appropriations. These subcommittees review the budgets of the various agencies with which Dr. Hutchinson has contracted. As a member |