On October 20, 1980, the Senate filed a memorandum in support of the motion of the Commission to dismiss the complaint. In the memorandum, the Senate raised several new jurisdictional and prudential considerations.

First, with regard to the plaintiffs' objections about the content of franked mail, the Senate asserted that the complaint was not "ripe", that it presented an "abstract and hypothetical case", and that it called on the court "to render constitutional judgments in advance of the clear necessity to do so." [Memorandum of the United States Senate as Amicus Curiae in Support of Motion to Dismiss, October 20, 1980, at 10] Additionally, the Senate noted that a possible remedy for the plaintiffs was afforded by the Senate Ethics Committee or the Commission, preliminary forums which might reduce uncertainty or narrow the franking statute's reach. This was significant to the question of ripeness, the Senate contended, "for there is no certainty that the cor stitutionality of the content provisions of the franking law need. be adjudicated until it is clear that the content of a disputed mailing is authorized by the statute and the regulations which define and implement it." [Id. at 14 (footnote omitted)]

Second, the Senate asserted that the plaintiff's challenge to mailing printed with political campaign contributions was moot because of the subsequent adoption of House and Senate rules prohibiting the use of campaign funds in the preparation of franked materials.

Third, the Senate asserted that the plaintiffs lacked standing to challenge mass mailings by Senators outside their home states. The plaintiffs' interests in the electoral process as voters, supporters, contributors, or candidates, it declared, were "not endangered when the Senator sends mailings to residents of other states." [Id. at 17] Further, it noted, the plaintiffs' "implicit suggestion that Senators should communicate only with their constituents ignores the fact that Senators sit in a national legislature with responsibilities for treaties and appointments, as well as for legislation with a national impact." [Id. at 18]

Finally, the Senate asserted, as had the defendants' filings, that "prudential considerations" required the dismissal of the plaintiffs' claim that mass mailings should be prohibited after a Member becomes a candidate for reelection. It argued that the plaintiffs' claim would require the court "to redefine a coordinate branch's definition of its basic functions and interests." [Id. at 19] It contended that "to strike a new balance between incumbents and challengers will require the court to weigh the imponderables of electoral politics and political events". [Id. at 24] It maintained that the court should not sustain the plaintiffs' claim because of Congress' subsequent establishment of "a new regime to govern the frank." [Id. at 27] In conclusion, it insisted that the plaintiffs would not suffer any tangible injury in the absence of a decision on the merits at that time. [Id. at 29]

Also on October 20, 1980, the plaintiffs filed their memorandum opposing the motion to dismiss. In general they contended that the arguments of the various parties supporting the motion were "premised on a misunderstanding of the nature of plaintiffs' claims, and upon a misreading of recent cases involving standing to sue." [Plaintiffs' Memorandum in Opposition to Intervening Defendant's Motion to

Dismiss, October 20, 1980, at 2] Further, they claimed that the issues of concrete injury, causation and standing raised by the intervening defendant were all considered and rejected by the court in its two prior rulings (of June 26, 1974 and February 10, 1975) on motions to

dismiss.

With respect to the nature of its claim, the plaintiffs explained:

Clearly, then, from the very face of the Complaint, plaintiffs do not claim that their injury arises from electoral results-whether or not challengers or incumbents win an election-but rather that their injury lies in the fact that the political process in which they participate is tainted and rendered unfair by the political use of the frank authorized by the current statute. Plaintiffs are not alleging any right to a specific electoral outcome, but are claiming an interest as challengers and their supporters in an electoral process which does not invidiously discriminate against them. This distinction between an outcome oriented claim and a process oriented claim is of fundamental importance.

It is also a distinction which intervening defendant refuses to recognize. In failing to do so, the House Commission not only distorts plaintiffs' claim and abuses the relevant precedent, it also assert (s) as virtually dispositive a case that is simply not relevant here. In Winpisinger v. Watson, No. 80-1160 (D.C. Cir. April 10, 1980), cert. denied 48 U.S.L.W. 3694 (April 29, 1980), the plaintiffs relied upon precisely the kinds of outcome oriented claims that plaintiffs here do not make. The fact that those claims were insufficient for standing in Winpisinger is neither surprising nor, in the context of this case, important. [Id. at 15]

With respect to the intervening Commission's assertion that recent court decisions had changed the law of standing, the plaintiffs noted: Obviously the courts have continued to apply the standing doctrine to new facts in the last five years. But this does not mean that the doctrine itself has changed. The recent cases that defendants cite are simply applications of legal doctrines which pre-date this Court's prior rulings. Perhaps in recognition of this fact, intervening defendant assiduously avoids any reference to pre-1975 cases applying the doctrines which it alleges to be "new" law. See, e.g., Linda R.S. v. Richard D., 410 U.S. 614 (1973). Contrary to what the House Commission would have this Court believe, each of the standing claims raised in this renewed motion to dismiss in fact rely on doctrines which pre-date this Court's prior ruling properly upholding plaintiffs' standing to bring this case. [Id. at 6]

Finally, the plaintiffs labeled as "patently erroneous" the Commission's arguments that there were no judicially manageable standards for adjudicating the challenge to the franking statute and such an adjudication would violate principles of separation of powers. It was, said the plaintiffs, "one of the most important roles of the courts in our democracy to protect citizens from individious discrimination in the political process." [Id.] The Plaintiffs noted:

Defendants attempt to conjure up nightmarish scenarios of what might result if plaintiffs prevail in this action. Thus, the federal defendants envision "an army of Executive Branch censors read [ing] every piece of correspondence mailed out of the Capitol under the frank," Federal Defendants' Memorandum at 3, while the Senate fears the Court functioning "as a Council of Revision," Senate Memorandum at 9, or, according to the House, as a "Judicial Commission on Congressional Mailing Standards." House Memorandum at 24. This is simple nonsense. Plaintiffs here attack the political use of the frank in mass mailings, i.e., in mailings of 500 pieces or more. Should the Court declare the current statute unconstitutional, it could fashion its injunctive relief to prohibit mass mailings, perhaps even staying this relief until the Congress has had a reasonable chance to enact a new statute. Under such an injunction, the only decision to be made by federal defendants would be whether a given mailing involved 50 pieces or more. This would be a matter of simple arithmetic, not a question of discretionary incursions into the subject matter of congressional mailings. [Id. at 33] The plaintiffs concluded by declaring that the court had a special responsibility to adjudicate this case because the authors of the challenged statute were its beneficiaries, "[D]eference to legislative decisions cannot be justified in the face of a plain conflict of interest, the plaintiffs contended. [Id. at 36]

On November 18, 1980, Judge Pratt denied the Commission's July motion to stay discovery until the motion to dismiss had been ruled upon, and directed that discovery proceed without delay. Various procedural and scheduling filings were made by the parties over the next month.

On December 11, 1980, the three-judge court (Judges Wilkey, Pratt, and Hart) filed its order denying with prejudice the motions to dismiss the action for lack of standing. In a memorandum opinion filed with the order, the judges rejected the arguments of the defendants, the intervenor and the amicus curiae that the plaintiffs lacked standing, that the action was unripe and moot, and that the court should dismiss the case on "prudential grounds."

Turning first to the standing question, the court reviewed each of the classes of members of Common Cause on whose behalf the organization was suing. It found that as "candidates for elective office", as "contributors and campaign participants", as "users of the mails as a means of participating in the political process", as "registered voters", and as "taxpayers", the organization had standing. On this point the memorandum concluded:

This dispute over standing boils down to a dispute over the role of congressional elections in our political system. If the purpose of campaigns is only to elect candidates, then defendants' and intervenor's arguments concerning causation and resultant lack of standing might have some weight. Congressional campaigns, however, serve other purposes besides electing particular candidates to office. They are also used to

educate the public, to advance unpopular ideas, and to protest
the political order, even if the particular candidate has little
hope of election. The First Amendment most certainly pro-
tects political advocacy of this type, and infringements of
these rights can occur regardless of the success or failure of
a particular candidate at the polls. Thus, the causation
requirement is satisfied here, for the asserted harm, and its
remedy, are not dependent upon electoral outcome, but on
the existence of the franking statute and the conduct per-
mitted under its aegis. [Memorandum Opinion, December 10,
1980, at 10]

Turning next to the "prudential considerations", the court rejected the argument that there were no judicially manageable standards by which to decide the issue and the contention that the requested relief would lock the three branches of government into a continuing confrontation over the implementation of the injunction and over what constituted official business of a Member of Congress. The court first pointed out that the complaint squarely presented several legal issues for decision "regardless of the content of the mailed matter." The judges' examination of the complaint convinced them they should reach the merits.

Our examination of plaintiffs' complaint shows that this is not a case where prudential considerations should bar us from reaching the merits. This case does not involve major, discretionary policy decisions such as recognition of a foreign government. See Goldwater v. Carter, 444 U.S. 996 (1979). Neither does it involve a host of discretionary decisions by numerous political appointees of a particular administration. See Winpisinger v. Watson, supra. Instead, this case involves arguably discretionary decisions by Postmaster General Bolger and Secretary of the Treasury Miller to implement explicit statutory language requiring them to honor and pay for certain classes of franked mail, and further involves the routine, ministerial decisions by postal and treasury employees in carrying and paying for this mail. This is a dispute which is in a form fit for judicial resolution. The Constitution, caselaw, and the affected statutes provide adequate judicial standards for decision of these claims, just as they have in the context of other challenges involving Congress, elections, and constitutional right. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976). [Id. at 12-13]

On the issue of confrontation, the court claimed that "(m)ost or all of the horrors conjured up by defendants could be avoided by carefully tailoring any injunction." [Id. at 14] Further, the judges continued:

Examination of the full relief sought by plaintiffs shows that the potential inter-branch controversies imagined in the motion to dismiss are illusory...

If this court decides in favor of plaintiffs on the merits, entry of a declaratory judgment as to the statute's illegality will provide a clear standard for Members of Congress to

follow in using the frank. We will not lightly assume, as de-
fendants and intervenor seem to in their briefs, that high
elected officials would deliberately violate such an order.
Entry of such an order alone would probably go far toward
securing compliance, and reduce inspection problems.

If this court should decide to enjoin the operation of the
franking statute, there are a number of ways to minimize
any problems created by such an order. To begin with, this
court might stay its order while Congress enacted a new stat-
ute or while the decision was appealed to the Supreme Court.
The court might also phase in such relief in order to give
Members adequate time to familiarize themselves with the
decision and its requirements. [Id. at 14-15]

Finally, the court dispensed with the two additional grounds for dismissal raised in the Senate's amicus memorandum: lack of ripeness and mootness. It rejected the argument that the plaintiffs must exhaust their remedies with appropriate Congressional committees before bringing the action because those committees had no power to grant the relief sought: i.e. a declaration that a statute was unconstitutional. Further, since the plaintiffs asserted that the operation of the statute violated their First Amendment rights on a recurring basis, the court found that their claims were ripe for adjudication.

The court also found "utterly devoid of merit" the Senate's contention that the cause of action was moot because of a subsequent change in the Senate rules forbidding the use of the frank for campaign literature. "[I]t is axiomatic that a Senate rule does not amend a statute, and that the Senate may change its rules anytime it chooses." [Id. at 16]

Subsequent to the court's order, and up to the present time, various procedural orders were entered and discovery continued. The majority of the docketed entries involved pleadings on the plaintiffs' request

for admissions.

Status-The case is pending before a three-judge court in the U.S. District Court for the District of Columbia.

The complete text of the February 10, 1975 memorandum and order of the district court printed in the "Decisions" section of the report 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 district court is printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, April 15, 1976.

The complete text of the three-judge court's memorandum opinion of December 11, 1980 is printed in the "Decisions" section of this report at page 360.

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