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's 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 91 Additionally, they asserted that the Rule constituted 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 indiviously 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 for the court 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 intervenors.

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 before the U.S. Court of Appeals for the District of Columbia Circuit.

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, Part 4, May 15, 1978.

Hammitt v. Guthrie (formerly Harding)

Civil Action No. C80-0458SW (N.D. Cal.)

On February 20, 1980, Don R. Hammitt filed a class action suit on behalf of himself and "all Federal United States Taxpayers" against the Sergeant at Arms of the U.S. House of Representatives (Kenneth R. Harding and subsequently Benjamin J. Guthrie); the Secretary of the U.S. Senate (J. S. Kimmitt); and the "Government of the United States of America." The complaint alleged that the defendants had failed to enforce section 6 of the 1856 Pay Act (2 U.S.C. § 39) which directs the Sergeant at Arms and the Secretary to deduct amounts from the monthly pay of Members for each day of absence from the House or Senate, unless the Member assigns as the reason for such absence his illness or that of some member of his family. To the extent that the defendants and their predecessors had made such deductions, the complaint alleged that enforcement had been "sporatic (sic) and unsystematic." Because of this. Mr. Hammitt claimed injury in that "tax money paid by the named plaintiff and the other class members and placed in the United States Treasury is being used to pay the salaries of the Members and Delegates of Congress in violation of Federal Law." [Complaint, February 20, 1980 at 3] As relief, the plaintiff sought a mandatory injunction compelling the defendants to make the deductions required by 2 U.S.C. § 39 and to "compute and repay the amount of illegally paid Congressional salaries (dating from the initial passage of this law) to plaintiff and the members of this class." [Id.]

On July 2, 1980, the General Counsel to the Clerk of the House, together with the Senate Legal Counsel, filed a motion to dismiss the complaint and a memorandum which outlined the arguments in support of the motion. The memorandum first asserted that Mr. Hammitt

Carr, 369 U.S. 186 (1962)] In addition, it is alleged that this practice invidiously discriminates in favor of incumbent members in violation of the due process clause of the Fifth Amendment. In short, as citizens with a particularized interest in the electoral process, plaintiffs claim standing to attack Section 3210 as violative of their constitutional rights.

From the foregoing brief discussion, it is clear to us that the plaintiffs have met the test laid down in Flast v. Cohen [392 U.S. 83 (1968)] and subsequent cases. They have asserted (1) an injury in fact, not a generalized complaint common to all citizens and taxpayers, and they have demonstrated (2) a nexus between the injuries suffered and the constitutional infringements alleged. [Id. at 3-4]

Beginning in September 1974, the plaintiffs had attempted to depose and serve subpoenas duces tecum on numerous current and former Congressional employees. When this was resisted, on February 21, 1975, the plaintiffs filed a motion to compel the giving of testimony by several House and Senate employees. The motion also requested that these employees be ordered to produce various Congressional documents.

The motion by the plaintiffs to compel testimony and the production of documents was argued on July 16, 1975. On July 30, 1975, the court issued a memorandum and order which stated that:

Objections to this attempted discovery are phrased in terms of (1) irrelevance, (2) burdensomeness, and (3) constitutional immunity under Article 1, Section 6 (The Speech and Debate clause) or Article 1, Section 5 (power of each body of Congress to enact its own rules).

The claim of lack of relevance is predicated on the narrow theory that, irrespective of the relevance of the requested materials in other frames of reference, they are simply irrelevant in a case where the gravamen of the complaint is that the statute complained of is alleged to be unconstitutional on its face. Aside from plaintiffs' continuing burden of maintaining standing, it is clear to us that a proper resolution of the issues raised by the complaint calls for a complete record consisting of the type of documentary materials sought to be discovered. For this reason, we hold these materials to be relevant and necessary.

Likewise, the claims of constitutional immunity are without weight. The Brewster case [United States v. Brewster, 408 U.S. 501 (1972)] and others clearly demonstrate that Congressional immunity is limited to legislative activities and the claimed use of the franking privilege for political activities is not covered even by a most expansive definition of the Speech and Debate clause. That the use of the franking privilege is not within the language of Article 1, Section 5, requires no discussion. [Common Cause v. Bailar, Civil Action No. 187773 (D.D.C. July 30, 1975), Memorandum at 3–4]

The court granted the plaintiffs' motion to compel discovery from the Senate and House employees, it being understood that the exact

nature and bulk of the materials to be produced would be left to further negotiation between counsel for the respective parties. Subseqently, the House and Senate passed resolutions (H. Res. 1082, S. Res. 411) authorizing certain material to be furnished in the case.

On July 1, 1976, the House of Representatives passed H. Res. 1382 authorizing the House Commission on Congressional Mailing Standards ("Commission") to seek to intervene in the case. The motion to intervene was filed on August 6, and on September 9 an order was filed granting the Commission's motion.

From mid-July 1975 through 1977 this case was marked by frequent disputes regarding discovery. Docketed activity in the case substantially diminished from 1978 through the first half of 1980

On June 25, 1980, the intervening Commission moved to dismiss the complaint for want of jurisdiction. In a memorandum accompanying the motion to dismiss, the Commission argued that under cases decided in the five years since the court denied the original defendants' dismissal motion, the plaintiffs lacked standing to bring the action. The memorandum claimed that the "law of standing has been substantially reformulated in that five-year period and, as a result, plaintiffs are required to meet more demanding standards. These new standards oblige plaintiffs to show that defendants have inflicted upon them specific, tangible injury of the kind that the judicial process is able to remedy. Plaintiffs cannot meet these new tests." [Memorandum of Points and Authorities in Support of Intervening Defendant's Motion to Dismiss, June 25, 1980, at 1-2 (footnote omitted)]

More specifically, the Commission contended that the U.S. Supreme Court and other courts had formulated a three-pronged test to determine whether a party had standing. It explained:

First, as to injury, a plaintiff must now present a claim of specific objective harm and ". . . [i]t is the injury which must be specific, not merely the interest on which the injury has been inflicted." Metcalf v. National Petroleum Council, 553 F.2d 176, 188 (D.C. Cir. 1977). Moreover, the injury must be personal to the party seeking to invoke a court's jurisdiction-a party must allege "a distinct and palpable injury to himself .. Warth v. Seldin, 422 U.S. 490, 501 (1975) (emphasis added).

Second, since this Court's 1975 order, the Supreme Court has stressed that the injury required to confer standing must be an "injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third partv." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42 (1976). Accordingly, to survive a motion to dismiss, "the facts alleged" in a complaint must clearly and unequivocally "support an actionable causal relationship" between the practice challenged and the "asserted injury." Warth v. Seldin, supra, 422 U.S. at 507.

Third, a plaintiff's right to invoke the judicial process now depends also on his ability to demonstrate that a decision in his favor would have a "substantial likelihood" of redressing his alleged injuries. See, e.g., Duke Power Co. v. Carolina