Robert H. Michel, et al., Apellants
K. Anderson, et al., Appellees
STATES COURT OF APPEALS
THE DISTRICT OF COLUMBIA CIRCUIT
U.S. App. D.C. 325
October 22, 1993
January 25, 1994
Appeal from the United States District
Court for the District of Columbia (93cv0039).
Dennis M. Black argued the cause for
appellants. With him on the brief
Charles Tiefer, Acting General Counsel,
United States House of Representatives, argued the cause and filed the
brief for appellees.
Edwin E. Huddleson, III, James P. Mercurio,
Wayne H. Matelski, John H.
Pickering, James Robertson, Amy Farr
Robertson, Roderic Von Oesen Boggs, and Myles V. Lynk were on the brief
for amici curiae, American Civil Liberties Union of the National Capital
Area, et al. Arthur Barry Spitzer entered an appearance.
Before: SILBERMAN and RANDOLPH, Circuit
Judges, FRANK M. COFFIN,
Senior Circuit Judge, United States Court
of Appeals for the First Circuit.
Opinion for the Court filed by Circuit
SILBERMAN, Circuit Judge:
A number of congressmen
and individual voters appeal from the judgment of the District court
rejecting their challenge to a House rule granting delegates from he
territories and the District of Columbia the right to vote in the
Committee of the Whole. We hold that the provision does not violate
Article I of he Constitution and therefore affirm.
Between 1900 and 1974,
Congress created the offices of five delegates to the Hose of
Representatives, representing Puerto Rico, Guam, the Virgin Islands,
American Samoa, and the District of Columbia. The rules of the House--at
least between 1900 and 1970--permitted the delegates to debate, but did
not allow them to vote in any setting. In 1970, those rules were
changed, and the delegate from Puerto Rico was given the additional
right to vote in standing committees.
1 On January 5, 1993, the
House granted all five delegates the right to vote in the Committee of
the Whole, a committee composed of all members of the House through
which all public bills affecting revenue and spending proceed, and which
shapes, to a very great extent, the final form of bills that pass the
House. The new House Rule XII, cl. 2, provides that:
In addition, the House amended its
Rule XXIII, to provide:
House Rule XXIII, cl. 2(d).
Robert H. Michel, the
House Minority Leader, and 11 other members of the House, filed suit
against the Clerk of the House and the territorial delegates, seeking a
declaration that the House rules were unconstitutional, and an
injunction preventing the delegates from attempting to vote in the
Committee of the Whole and the Clerk from tallying such votes.
The complaint was subsequently amended to
add three private voter plaintiffs: one
represented by appellant Congressman Michel from Illinois, one by
appellant Congressman Castle from Delaware, and one by appellant
Congressman Thomas from Wyoming.
The district court denied
the appellants' application for a preliminary injunction and dismissed
the case. After disposing of a number of jurisdictional issues, the
court determined that "for most practical purposes" the
"Committee of the Whole is the House of Representatives," and
that accordingly a rule that would permit delegates to vote in that
committee without qualification, would "invest them with
legislative power in violation of Article I of the Constitution."
Michel v. Anderson, 817 F. Supp. 126, 141 (D.D.C. 1993). The court
concluded that the rules are constitutional, however, because the
"revote" provision left Rule XII with "no effect, or only
at most an unproven, remote, and speculative effect, as far as voting or
the exercise of legislative power is concerned." 817 F. Supp. at
145. This appeal followed.
Appellees and amici
assert various jurisdictional defects in the case. Amici challenge the
standing of the individual voters and also assert that the political
question doctrine makes appellants' claims nonjusticiable. Ordinarily,
we would not entertain an amicus ' argument if not presented by a party,
but as these questions go to our jurisdiction, we are obliged to
consider them on our own and therefore welcome amici 's presentation.
Appellees argue that under our Circuit's remedial discretion doctrine,
we lack jurisdiction to provide relief to the appellants.
Amici do not question the
congressmen's standing to assert that their voting power has been diluted. Vander Jagt v. O'Neill, 226
U.S. App. D.C. 14, 699 F.2d 1166 (D.C. Cir. 1982), cert. denied, 464
U.S. 823, 78 L. Ed. 2d 98, 104 S. Ct. 91 (1983), establishes that
congressmen asserting such a claim have suffered an Article III injury.
See 699 F.2d at 1168-71 (holding that congressmen have standing to
challenge method by which House committee
seats are allocated). Amici rely instead on
the remedial discretion doctrine raised by appellees to blunt the
congressmen's claim. But the remedial discretion doctrine, if it
applies, bars the congressmen's suit, not the individual voters', see
infra, so, understandably, amici attack the private voters' standing. As
we understand amici 's argument, private voters who are in districts
represented by the appellant congressmen lack a distinct or palpable
injury because their supposed injury--the dilution of the voting power
of their congressmen--is suffered by every American voter who resides in
any state. As such, the voters are raising only a generalized, abstract
grievance which, as has been said repeatedly, is not an injury for
Article III purposes. See Frothingham v. Mellon, 262 U.S. 447, 488,
67 L. Ed. 1078, 43 S. Ct. 597 (1923); Schlesinger v. Reservists
Committee to Stop the War, 418 U.S. 208, 227, 41 L. Ed. 2d 706, 94 S.
Ct. 2925 (1974).
That an injury is widespread, however, does
not mean that it cannot form the basis for a case in federal court so
long as each person can be said to have suffered a distinct and concrete
harm. See Public Citizen v. United States Dep't of Justice, 491 U.S.
440, 449-50, 105 L. Ed. 2d 377, 109 S. Ct. 2558 (1989) ("The fact
that other citizens or groups of citizens might make the same complaint
... does not lessen appellants' asserted injury...."). The Supreme
Court has repeatedly held that voters have standing to challenge
practices that are claimed to dilute their vote, such as being placed in
a voting district that is significantly more populous than others. See
Wesberry v. Sanders, 376 U.S. 1, 5-6, 11 L. Ed. 2d 481, 84 S. Ct. 526
(1964); Franklin v. Massachusetts, 120 L. Ed. 2d 636, 112 S. Ct. 2767,
2776-77 (1992). To be sure, in this case the alleged dilution occurs
after the voters' representative is elected, and so amici argue that the
voters' claim is "derivative." But we do not understand
why that should be of significance. It could not be argued
seriously that voters would not have an injury if their congressman was
not permitted to vote at all on the House floor.
That all voters in the
states suffer this injury, along with the appellants, does not make it
an "abstract" one. Suppose, for sake of analysis, the House
were to prevent all congressmen from the State of Georgia from voting in
the House. It is obvious that Georgia voters would have suffered an
injury. The same would be so if every state but Georgia were given an
extra vote in the House. In the case at bar, the voters in every state
are in the same legal position as Georgia voters in the hypotheticals.
The difference is one of degree rather than kind. As a practical matter,
it is not surprising that only voters in the plaintiff congressmen's
districts have appeared as appellants. Amongst all voters, they may have
the greatest political incentive to sue.
Amici are correct in
contending that the degree of voter dilution in this case is
theoretically the same no matter in which state a voter resides. But
that would be equally true if the House purported to add as members the
mayors of the 100 largest cities. All voters (except the mayors) in
congressional districts would have their vote diluted and thus any of
those voters could claim an injury. If, as has been repeatedly held,
voters have standing to raise a vote-dilution claim based on the size of
their districts-- e.g., that their district contains 548,000 people
while the neighboring district contains "only" 535,000--it is
difficult to understand why voters would not have standing to raise a
claim that their vote was diluted because previously they had a right to
elect a representative who cast one of 435 votes, whereas now their vote
elects a representative whose vote is worth only one in 440.
Amici 's alternative
jurisdictional argument is that the case raises a "political
question" and is thus nonjusticiable. Such
a question is nonjusticiable when there is "a textually
demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and
manageable standards for resolving it...." Baker v. Carr, 369 U.S.
186, 217, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962). It is argued that
Article I, § 5 of the Constitution,
"Each House may determine the Rules of its Proceedings,
..." bestows on the House and only the House the authority
to decide whether delegates may vote in the Committee
of the Whole. Amici point to Nixon v. United States, decided last
term, in which the Supreme Court held that the constitutional grant to
the Senate of the "sole power to try impeachments" rendered
nonjusticiable the question of whether the Senate could delegate to a
committee of senators the function of gathering evidence and hearing
testimony. See 122 L. Ed. 2d 1, 113 S. Ct. 732, 739-40 (1993).
Earlier, however, the
Court had held that despite the language in Article I, § 5, "Each
House shall be the Judge of the ... Qualifications of its own Members
...," the House could not refuse to seat Adam Clayton Powell, Jr.
because another provision, Article I, § 2, set forth the qualifications
of membership and the House could not add to those qualifications. See
Powell v. McCormack, 395 U.S. 486, 550, 23 L. Ed. 2d 491, 89 S. Ct. 1944
(1969). In Nixon, Powell was both distinguished and reaffirmed. The
Appellants analogize this
case to Powell and distinguish Nixon, pointing to constitutional text
which limits the rulemaking grant: "The
House of Representatives shall be composed of Members chosen every
Second Year by the People of the Several States...." Art. I, § 2.
As House counsel concedes, were the House to create members not
"chosen every second year by the People of the several
states," and bestow upon them full voting privileges, such an
action, whether or not pursuant to House rules, would be blatantly
unconstitutional. Therefore, the question presented in this
case--whether granting delegates the power to vote in the Committee of
the Whole bestows a status equivalent to membership on the
delegates--cannot be thought to have been delegated by the Constitution
to the House to decide. There are limitations to the House's rulemaking
power, and Art. I, § 2 is such a limit.
Appellees (in effect, the
House of Representatives) bypass standing and justiciability and rely
instead on our line of cases which elaborated the "remedial
discretion doctrine." [HN10]
That concept precludes this court from granting equitable relief--either
declaratory or injunctive--if it interferes with the internal operation
of the House or Senate. Most recently, in Humphrey v. Baker, 270 U.S.
App. D.C. 154, 848 F.2d 211 (D.C. Cir.), cert. denied, 488 U.S. 966, 102
L. Ed. 2d 528, 109 S. Ct. 491 (1988), a suit brought by a number of
congressmen challenging the constitutionality of the Federal Salary Act
of 1967 because it allegedly deprived them of their right to vote on
legislation, we explained that "under the doctrine of equitable
discretion, the availability of an internally available remedy to
Members of Congress means that it would be an abuse of discretion for
the judiciary to entertain the action." Id. at 214.
As was true in Humphrey,
Congressman Michel and his colleagues could just as easily seek relief
from their fellow House members. Appellants, therefore, would have us
narrow Humphrey 's categorical language to conform to earlier
formulations of the doctrine
that suggest that it is a rule of discretion whose primary focus is on
the intrusiveness vel non of the remedy sought. See, e.g., Riegle v.
Federal Open Market Comm., 211 U.S. App. D.C. 284, 656 F.2d 873, 881
(D.C. Cir.), cert. denied, 454 U.S. 1082, 70 L. Ed. 2d 616, 102 S. Ct.
636 (1981); Vander Jagt v. O'Neill, 226 U.S. App. D.C. 14, 699 F.2d
1166, 1176-77 (D.C. Cir. 1982), cert. denied, 464 U.S. 823, 78 L. Ed. 2d
98, 104 S. Ct. 91 (1983). They claim that here we need not concern
ourselves with an intrusive remedy or subsequent congressional
compliance with our decision, because all that is needed is a
declaration that the House rule is unconstitutional, which would restore
the status quo ante. It appears to us, however, that it is unnecessary
to struggle with the
doctrine since, however construed, it has no applicability to private
voters. See Gregg v. Barrett, 248 U.S. App. D.C. 347, 771 F.2d
539, 546 (1985).
4 Appellees suggest that to permit a private
voter to bring an action challenging a House practice, which a House
member could not, results in an undermining of the remedial discretion
doctrine. That seems something of a bootstrap argument since the
doctrine--a prudential self-imposed limitation on our remedial
discretion--is premised on a congressman's ability to take care of his
own interests by persuading his colleagues, and a private voter lacks
that capacity. The remedial discretion doctrine, therefore, cannot be
employed to bar a private citizen's claim over which we have
Turning to the merits, we
first consider whether the rule is contrary to the legislation which
created the delegates. The parties agree that
the office of a delegate representing a territory (or the
District of Columbia) could not be created other than through
legislation, which, of course, requires the concurrence of the Senate
and normally the President. The offices of each of the five delegates
were created by statute, see 48 U.S.C. § 891 (1988) (Puerto Rico); 48
U.S.C. § 1711 (1988) (Guam and the Virgin Islands); 48 U.S.C. § 1731
(1988) (American Samoa); 2 U.S.C. § 25a (1988) (District of Columbia),
and the delegates are paid, and their offices staffed, out of the public
treasury. See, e.g., 48 U.S.C. §§ 1715, 1735 (1988). If, as appellants
claim, these offices were created on the condition that the delegates
would not be permitted to vote in the Committee of the Whole, then that
condition would trump any authority of the House to change its rules
unilaterally to grant that power. A statute, enacted into law by
bicameral passage and presidential approval (or upon an override of a
presidential veto), cannot be amended by one chamber unilaterally. INS v.
Chadha, 462 U.S. 919, 952, 77 L. Ed. 2d 317, 103 S. Ct. 2764 (1983). For
this reason, appellees concede that if the statutes creating the
delegate offices specifically provided that the delegates would not vote
in the Committee of the Whole, the House's rule providing that vote
would be invalid.
Appellants' argument that
the legislation precludes the rule is not insubstantial but, at bottom,
it is dependent on one remark by then-Congressman Foley during the
debate over the extension to the Resident Commissioner from Puerto Rico
of the right to vote in standing committees. With the exception of the
statute creating the office of the delegate from the District of
Columbia, the acts creating the other delegates all tie explicitly those
delegates' privileges to those of the Resident Commissioner for Puerto
Rico. The legislation
creating the delegates from Guam and the Virgin Islands specifies that
they "shall be entitled to whatever privileges and immunities are,
or hereinafter may be, granted to the Resident Commissioner for Puerto
Rico: Provided, That the right to vote in committee shall be as provided
by the Rules of the House of Representatives." 48 U.S.C. § 1715
(1988). The delegate from American Samoa, in turn, is granted
"whatever privileges and immunities that are, or hereinafter may
be, granted to the nonvoting Delegate from the Territory of
Guam." 48 U.S.C. § 1735 (1988).
Although the statute
creating the Office of the Delegate from the District of Columbia in
1970 did not specifically refer to the powers of the Puerto Rican
delegate and provided that the delegate shall have a seat "with the
right of debate, but not of voting," see Pub. L. 91-405, § 202, 84
Stat. 848 (1970), codified at 2 U.S.C. § 25(a) (1988), it is not argued
that the District's delegate was intended any less or more authority
than that granted the other delegates, so it is undisputed that Congress
also authorized the District delegate to vote "in committee."
The key question, then,
is the scope of the powers to be exercised in the House by the Resident Commissioner from
Puerto Rico. The office of
Resident Commissioner was established by an Act of Congress in 1900, see
Act of Apr. 12, 1900, ch. 191, 31 Stat. 86 (Apr. 12, 1900), but the Act
is entirelysilent as to the Commissioner's function
and privileges. See 48 U.S.C. § 891 (1988). Those privileges
were clarified somewhat when Congress enacted the Legislative
Reorganization Act of 1970. That Act, passed by both Chambers and signed
into law by the President, adopted, inter alia, certain rules for the
two Houses. One such provision specified that the Commissioner
"shall be elected to serve on standing committees in the same
manner as Members of the House and shall possess in such committees the
same powers and privileges as the other Members." Pub. L. No.
91-150, § 129(b), 84 Stat. 1161. Thus, the rule enacted by statute
provided that the commissioner would vote in the standing committees.
Appellants argue that under the principle of inclusio unius est exclusio
alterius the commissioner was not authorized to vote in the Committee of
the Whole. The question is more complicated, however, because of
section 101of the Act, which specifies:
Pub. L. No. 91-510, § 101, 84 Stat. 1143
While it is fair to
conclude that in 1970 Congress did not contemplate that the delegates
would vote in the Committee of the Whole, section 101 of the Act,
on its face, appears to delegate to the House the power to alter that
situation by rule. Appellants claim that could not be so, however,
because the Congress, in 1970, did not believe it would be
constitutional for the House to provide, by rule, that the delegate
should vote in the Committee of the Whole. They rely on legislative
history. Apparently in response to a prearranged question from
Congressman Sisk, who, troubled by the constitutionality of the
provision granting the commissioner (and by statutory implication now,
the other delegates) the vote in the standing committees, asked whether
section 129 could be construed to grant such a vote in the Committee of
the Whole as well, then-Congressman Foley responded:
116 CONG. REC. 31,849 (1970).
If it could be said that
the whole House meant section 101 to be limited by that constitutional
restriction, appellants would have a compelling argument. But we do not
see how we can ascribe Congressman Foley's views to the whole House.
Nothing in the legislation reflects that understanding. As we have
recently noted, we have an obligation
to construe statutes to avoid serious constitutional questions,
see Association of Am. Physicians & Surgeons, Inc. v. Clinton,
302 U.S. App. D.C. 208, 997 F.2d 898, 910 (D.C. Cir. 1993), but we think
appellants' claimed interpretation relies too heavily on the remarks of
only one congressman (fated, albeit, to be the Speaker) to defeat the
plain language of section 101. Moreover, since appellants' claimed
construction of the statute depends on
the 1970 Congress entertaining the same view of the Constitution
appellants assert in this case, by relying on that proposition we would
come very close to endorsing that view of the Constitution--which
undermines the purpose of the rule of statutory construction. We have,
therefore, no alternative but to pass on to the constitutional issue.
The question before us is
shaped by the parties' arguments and, even more, their concessions. The
appellants do not challenge the constitutionality of the practice of permitting delegates to vote on
standing committees, although, recognizing the difficulty in drawing a
constitutional line between the Committee of the Whole and the standing
committees, they do not concede the constitutionality of the prior House
rule permitting delegates to vote in the latter. The appellees, for
their part, forthrightly concede that the House could not permit persons
other than the traditional territorial delegates to perform the role
currently played by the delegates. It would, thus, not be open to the
House to authorize by rule, say, the mayors of the 100 largest cities to
serve and vote on House committees. Nor could the House, appellees
agree, deprive any member of the right to vote in the
Committee of the Whole (or in a standing committee). Finally, despite
the House's reliance on the revote mechanism to reduce the impact of the
rule permitting delegates to vote in the Committee of the Whole,
appellees concede that it would be unconstitutional to permit anyone but
members of the House to vote in the full House under any circumstances.
In other words, delegates could not be authorized to vote in proceedings
of the full House subject to a revote. So the issue is narrowed to the
question: May the House authorize territorial delegates to vote in the
House 's committees, particularly the Committee of the Whole?
The district court, it
will be recalled, thought the House rule would have violated Article I
if it had not been qualified by the revote provision, because it would
have "invested the delegates with legislative power."
Appellants reiterate that proposition, but claim that since the
qualification is not complete--some voting power is passed to the
delegates notwithstanding the revote provision--Rule XII violates
Article I. As amici point out, however, and appellants ultimately
concede, Article I, § 1, grants the legislative powers to the Congress,
which in turn consists of the Senate and House of Representatives. No
one congressman or senator exercises Article I "legislative
power." Therefore, it is not meaningful to claim that the delegates
are improperly exercising Article I legislative authority. The crucial
constitutional language implicated by appellants' claim (which
appellants point out) is, instead, Article
I, § 2: "The House of Representatives shall be composed of
Members...." That language precludes the House from bestowing the
characteristics of membership on someone other than those "chosen
every second Year by the People of the several States."
But what are the aspects
of membership other than the ability to contribute to a quorum of
members under Article I, § 5, to vote in the full House, and to be
recorded as one of the Yeas or Nays if one-fifth of the members so
desire? The Constitution, it must be said, is silent on what other
characteristics of membership are reserved to members. Although it seems
obvious that the Framers contemplated the creation of legislative
committees--the Constitutional Convention itself, see SUPPLEMENT TO MAX
FARRAND'S THE RECORDS OF THE FEDERAL CONVENTION
OF 1787, at 370-71 (James H. Hutson, ed., 1987) (index) (listing
the numerous committees used by convention during drafting of
Constitution), as well as the Continental Congress, see JENNINGS B.
SANDERS, EVOLUTION OF EXECUTIVE DEPARTMENTS OF THE CONTINENTAL CONGRESS:
1774-1789, at 4,
look to the practice of the early congresses relating to territorial
delegates as an interpretative aid. Although the actions of the early
congresses are not a perfect indicator of the Framers' intent, those
actions provide some indication of the views held by the Framers, given
the propinquity of the congresses and the framing and the presence of a
number of Framers in those congresses. Cf.
Marsh v. Chambers, 463 U.S. 783, 788-791, 77 L. Ed. 2d 1019, 103
S. Ct. 3330 (1983). The first territorial delegate, representing the
Northwest Territories, was created by statute during the first Congress.
See 1 Stat. 50, 52 (1789). William Henry Harrison, who occupied that
office, was granted considerable privileges in Congress, including the
power of making motions, see 6 ANNALS OF CONGRESS 197-98 (1799), and of
serving as chairman of a committee. See 6 ANNALS OF CONGRESS 527 (1800).
"Harrison's Committee on Public Lands not only procured the passage
of the Land Act of 1800, but also served as a clearing house for all
petitions and special measures relating to lands in the Northwest."
DOROTHY BURNE GOEBEL, WILLIAM HENRY HARRISON: A POLITICAL BIOGRAPHY 46
The practice of permitting delegates to serve on and to chair standing committees continued into the nineteenth century. See II ASHER C. HINDS, HINDS' PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 1299, at 865 (1907). Those delegates may even have been granted the right to vote in the standing committees. According to a report on the qualifications of David Levy to serve as Delegate from Florida, prepared by the House Committee on Elections in 1841,
H.R. REP. NO. 10, 27th Cong., 1st Sess., at
5 (1841). This report, although indicative of the House's practice
around 1840, admittedly provides no direct documentary proof that
delegates were permitted to vote in the standing committees in the first
congresses as well. Be that as it may, the territorial delegates were
certainly accorded a unique status by the first congresses. At the
earliest times, Congress viewed the territorial delegates as occupying a
unique middle position between that of a full representative and that of
a private citizen who presumably could not serve on or chair House
delegates, representing those persons in geographical areas not admitted
as states, then, always have been perceived as would-be congressmen who
could be authorized to take part in the internal affairs of the House
without being thought to encroach on the privileges of membership.
Appellants, not disputing
the main line of appellees' historical presentation, but without
conceding the legitimacy of the practice, assert that the rule in
question is a qualitatively different matter. Whatever the legitimacy of
permitting delegates' participation--even full participation--in the
work of standing committees, the Committee of the Whole is so close to
the full House that permitting the delegates to vote there is
functionally equivalent to granting them membership in the House.
Appellants claim, for
instance, that provisions removed by the committee cannot be resurrected
on the floor of the House, and that by longstanding practice, enforced
by rules of procedure attached to successive bills, the House cannot
amend bills that reach the floor but rather must vote up or down on the
bills in toto. 5
As appellees point
out, appellants' description of the power of the committee is
somewhat exaggerated, but, in any event, appellants' argument, even if
true, proves too much. Any number of procedures sharply limit the range
of options among which the House can choose when bills reach the floor.
The House rules could give any standing committee, as it does conference
committees, the authority to put bills to the House floor without the
possibility of amendment. Indeed, under the "fast track"
legislation, see 19 U.S.C. § 2903(d) (1988 & Supp. 1991), a
procedural device passed by each House as an exercise
of rulemaking power, the President may submit various treaties to
the two Houses for ratification on a take-it-or-leave-it basis. That
device surely does not make the President the functional equivalent of
the full House. In any event, whatever authority the Committee of the
Whole exercises, it does so only at the sufferance of the full House
which can alter the Committee of the Whole's function at any time.
Nevertheless, it would
blink reality to deny the close operational connection between the
Committee of the Whole and the full House. The House itself recognized
how perilously close the rule change came to granting delegates a vote
in the House. That is why the House sought to ameliorate the impact of
the change through the revote provision. That has led the parties to
dispute vigorously the degree to which, notwithstanding the revote
provision, the granting of a vote to the delegates in the Committee
causes a change in the dynamics of the behavior of the House. Appellees
are put in the awkward position of claiming that the revote provision
causes the grant of voting authority to the delegates to be only
symbolic. It is not necessary to explore and analyze all the scenarios
about which the parties conjecture. 6 Suffice it to say that we think that insofar as the rule change bestowed additional authority on the
delegates, that additional authority is largely symbolic and is not
significantly greater than that which they enjoyed serving and voting on
the standing committees. Since we do not believe that the ancient
practice of delegates serving on standing committees of the House can be
successfully challenged as bestowing "membership" on the
delegates, we do not think this minor addition to the office of delegates has
Accordingly, the district court's judgment
Fn2. For the sake of convenience, we will occasionally refer to the appellees as "the House." This is not, however, intended to imply that a suit naming the House itself as a defendant would be proper.
Fn4. Appellees seek to distinguish Gregg on the ground that the private voters there had suffered an injury separate from that suffered by the congressmen. We are unpersuaded by that distinction. Gregg involved a challenge to the allegedly inaccurate procedures used in compiling the Congressional Record. The congressional plaintiffs claimed an injury to their alleged First Amendment right to have their views transmitted accurately, while the voters asserted the corollary right to receive those views accurately. See 771 F.2d at 540. Here, the congressmen allege that their voting power in Congress has been diluted, whereas the voters complain of a dilution in their representational rights. That injury is at least as distinct from the congressmen's as the harm alleged in Gregg.
Fn5. Appellants concede that
members may introduce in the full House a motion to recommit a bill to the
standing committees for amendment, but understandably argue that the
existence of this time-consuming and cumbersome procedure does
Fn6. Under one such scenario advanced by appellants, the five delegates would each agree to trade their votes on a certain bill with three members in exchange for the members' support of the delegates' pet bill. That pet bill, then, might pass by a margin of 15 votes--too great a number to trigger the revote mechanism but nevertheless a margin that might not have existed were it not for the ability of the delegates to trade their newly granted votes in the Committee. The implicit underlying assumption is that a member would be willing to trade his vote for a delegate's at par, even though in a close vote (presumably the only vote where such a trade would matter) the delegate's own vote could not have a decisive effect because of the revote mechanism. Of course, the membership of delegates on standing committees already endowed them with considerable vote-trading possibilities. Appellants raise as a second scenario the possibility that by casting a decisive vote, a delegate could "force" a revote, and that the "power" to force a second vote might itself be sufficient to alter the result. Appellants point to a number of instances (unrelated to delegate voting) in which two successive votes were taken on a bill, with the result of the second differing from that of the first. See 139 CONG. REC. 4,184 (daily ed. June 29, 1993); 139 CONG. REC. 4,788 (daily ed. July 20, 1993). The power to force a second vote is not, however, all that different from the power to resubmit a bill for consideration by the House, a power that the delegates historically have enjoyed.
Finally, appellants point out that House Rule XXIII only provides for a revote on recorded votes, and that the delegates might cast decisive votes when such votes are unrecorded. While this is theoretically true, it is unclear how often, if ever, an unrecorded vote on a controversial matter would be decisive, given that it takes only 25 members to force a recorded vote. See House Rule XXIII, cl. 2(b).