Guy Vander Jagt v. Thomas P. O'neill, Jr.

699 F.2d 1166, 226 U.S. App. D.C. 14, 1982 U.S. App. LEXIS 23089

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 4, 1983
• Docket: 81-2150
• Status: Published

Opinions

JAMES F. GORDON, Senior District Judge:

Fourteen Republican Members of the House of Representatives have sued the House Democratic leadership, the Democratic Steering and Policy Committee, and the Democratic Caucus.¹ The Republicans contend that the Democrats systematically discriminated against them by providing them with fewer seats on House committees and subcommittees than they are proportionally owed. The district court dismissed the complaint, Vander Jagt v. O’Neill, 524 F.Supp. 519 (D.D.C.1981), holding that the appellants’ suit was barred by the Speech or Debate Clause and by the provision of the Constitution which confers upon the House the power “to determine the Rules of its Proceedings.” Art. I, § 5, cl. 2. We affirm on somewhat different grounds.

Appellants claim that the Democrats diluted the power and influence of Republican House members, and thus the political rights of voters in Republican congressional districts as well. This happened after members of the Democratic Caucus met in the weeks before the opening of the 97th Congress and determined the number of committee seats to be allocated to Democrats and Republicans. That allocation took effeet when the House convened on January 5, 1981, and passed House Resolution 44 on a straight-party vote. Even though Republicans constituted 44.14% of the House and Democrats 55.86%, Republicans were given only 40% of the seats on the Budget Committee and the Appropriations Committee, only 34.29% of the Ways and Means Committee seats, and only 31.25% of the Rules Committee seats.

The Republicans say this arrangement deprived them of Fifth Amendment due process and equal protection rights, as well as First Amendment rights of association and free speech. Also the Republicans say that the Democrats violated Article I by adding the additional requirement of majority party membership to the qualifications for full House membership. Finally, the Republicans say that voters in congressional districts represented by Republicans were deprived of rights to due process and equal protection, rights to freedom of association, and rights to petition the government for redress of grievances.

In evaluating whether we have jurisdiction and also whether we should provide relief, a variety of doctrines have been presented that would lead to dismissal of this complaint. The district court held that jurisdiction was “ousted” by the Speech or Debate Clause and by the Article I provision allowing the House “to determine the Rules of its Proceedings.”² Alternatively, our distinguished colleague, Judge Bork, urges dismissal because the Republicans lack standing. Finally, we have considered whether this suit should be dismissed following the approach taken in Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C.Cir.1981). There a senator was challenging the constitutionality of certain procedures established by the Federal Reserve Act. Judge Robb, writing in Riegle for a unanimous panel, rejected the arguments that the senator lacked standing, or that the case should be dismissed as nonjusticiable under the political question or ripeness doctrines. Instead, the court simply declined to grant the senator relief because it found that judicial action would improvidently interfere with the legislative process. Riegle relied heavily on a recent article by former Chief Judge Carl McGowan, which analyzed suits brought by congressional plaintiffs and concluded “that the best way to translate those [separation-of-powers] concerns into principled decisionmaking is through the discretion of the federal court to grant or to withhold injunctive or declaratory relief.” ³

We hold that this case should be dismissed using Riegle’s approach of withholding relief where prudential and separation-of-powers concerns counsel us not to exercise our judicial power. We do not think that the Speech or Debate Clause immunities are necessarily applicable in this context, nor do we think that we lack jurisdiction because of Article I. We also find that appellants do have standing. Because Riegle involved facts that were different from those we face, the following sections extend Riegle’s analysis to these circumstances.

I. Standing

We turn first to the question of standing, and the suggestion that we cannot consider the Republicans’ challenge because they have not alleged an injury that is judicially cognizable. The Supreme Court has indicated that in ruling on a motion to dismiss for lack of standing, “both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). Here the Republicans have alleged that as legislators and as voters their political power has been diluted, and they have raised significant additional issues about First Amendment rights to free association and free speech. Further, they have raised a plausible claim that the Democrats have added the additional requirement of majority party membership to the qualifications for full House membership. We consider these allegations sufficient to withstand a motion to dismiss.

Judge Bork, however, makes two interrelated arguments in challenging the justiciability of the allegations that the Republicans’ political power has been diluted. He suggests that the harms that the Republican legislators have allegedly suffered are insufficient to support standing, and he further contends that because those harms implicate general separation-of-powers concerns, we have additional reason to deny standing.

The initial argument revives a legal distinction discarded in Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C.Cir. 1981), between allegations that a legislator’s vote has been “nullified” and allegations that the legislator’s influence has merely been diminished. Judge Bork contends that only where there has been nullification of a legislator’s vote can there be a sufficient injury to support standing; he relies in particular on Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir.1974), Harrington v. Bush, 553 F.2d 190 (D.C.Cir.1977), and Goldwater v. Carter, 617 F.2d 697 (D.C.Cir.), judgment vacated on other grounds, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979). Without further discussion, we simply note that a unanimous panel of this circuit repudiated that distinction in Riegle after expressly considering the “doctrinal difficulties presented by an attempt to reconcile our denial of congressional standing in the Public Citizen v. Sampson, 379 F.Supp. 662 (D.D.C.1974), aff’d mem., 515 F.2d 1018 (D.C.Cir.1975); Harrington, and Reuss v. Bailes, 584 F.2d 461 (D.C.Cir.), cert. denied, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978) cases, on the one hand, with our conferral of legislator standing in the Kennedy and Goldwater cases, on the other.”⁴

Judge Bork’s second argument was also, we think, answered in Riegle, but he suggests that Riegle’s analysis was implicitly rejected by the Supreme Court in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). There the Court provided its most recent formulation of the standing requirement in stating that:

at an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1608, 60 L.Ed.2d 66] (1979), and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976).

454 U.S. at 472, 102 S.Ct. at 758. Immediately following this summary, the Court explained the standing doctrine’s function: “In this manner does Art. Ill limit the federal judicial power ‘to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.’ Flast v. Cohen, [392 U.S. 83 (1968)] at 97 [88 S.Ct. 1942 at 1951, 20 L.Ed.2d 947].” Id. (emphasis added).

Judge Bork contends that the Court’s use of the phrase “separated powers,” taken together with language from other opinions over the past decade, signals that we should consider separation-of-powers issues as part of our determination whether appellants have standing. But we decline to place as much weight on the Supreme Court’s language as Judge Bork does. If the Court had meant to expand its standing doctrines to make room for a whole set of analytically-unrelated theories about the roles of the separate branches of government, it could have said so. Instead, we should continue to rely on previous expressions by the Supreme Court that it does not mean to have separation-of-powers controversies resolved under the rubric of standing. As Judge Bork acknowledges, infra at 1179, in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), the Court explicitly addressed and explicitly rejected the notion that “in terms of Article III limitations on federal court jurisdiction, the question of standing” intersects “separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government.” 392 U.S. at 100-01, 88 S.Ct. at 1952-1953.

It is true that in the years following Flast, this circuit itself relied several times on standing principles to dismiss separation-of-powers controversies. But in the aftermath of Riegle, it surely is now settled law in this circuit that standing doctrines will not be manipulated to resolve separation-of-powers problems.

Riegle followed Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979) (mem.), where the Supreme Court vacated this circuit’s en banc decision, 617 F.2d 697, which had used standing to resolve a separation-of-powers challenge. Judge Robb summarized in Riegle the Goldwater lesson:

The Court ignored the standing concept altogether and, in separate opinions by Justices Powell and Rehnquist, neither of which gained a majority of the Court, relied upon the doctrines of ripeness and political question, respectively (citation omitted.)

If, as the ultimate disposition of Goldwater v. Carter suggests, the Supreme Court does not believe that the standing doctrine is capable of reflecting the prudential concerns raised by congressional plaintiff suits, this court ought not persist in the attempt to make it do so.

656 F.2d at 880 (emphasis added).

Yet Judge Bork continues to argue that “Riegle’s reasoning proceeded from a false premise about the Supreme Court’s view of standing.” Infra at 1182. His insistence that we lack the power to act in this case and in other separation-of-powers disputes has considerable practical significance.

For the essence of this lawsuit is that the Democratic House leadership has successfully diluted the political power of Republican representatives, their voters, and residents of their districts. This dilution has occurred because the Democrats have disproportionately limited the Republicans’ representation on congressional committees, and “a committee of Congress — in the legislative scheme of things, is for all practical purposes Congress itself.” Doe v. McMillan, 412 U.S. 306, 344, 93 S.Ct. 2018, 2040, 36 L.Ed.2d 912 (1973) (Rehnquist, J., concurring in part and dissenting in part). We readily acknowledge that the constitutional claims raised in this suit are different from those raised in Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927) and its progeny (the White Primary cases), or Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) and its progeny. But the significance of those cases is a lesson we cannot ignore: for many years, our nation — with surprising consensus — has relied on the judiciary to remedy longstanding flaws in the political system which impede equal participation in the governmental process.

Thus while there are compelling prudential reasons why we should not interfere in the House’s distribution of committee seats, it is nevertheless critical that we do not deny our jurisdiction over the claims in this case. As long as it is conceivable that the committee system could be manipulated beyond reason, we should not abandon our constitutional obligation — our duty and not simply our province — “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803); United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 3106, 41 L.Ed.2d 1039 (1974).

Courts and commentators⁵ have long recognized that it is crucial to distinguish questions about whether judicial power exists, from questions about whether judicial power should be exercised. Our decision today simply recognizes that if Congress should adopt internal procedures which “ignore constitutional restraints or violate fundamental rights,” it is clear that we must provide remedial action. United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321 (1892). Cf. Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966) (Georgia House of Representatives acted unconstitutionally when it excluded Julian Bond because of his statement criticizing the federal government’s policy in Vietnam); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (U.S. House of Representatives acted unconstitutionally when it effectively expelled Adam Clayton Powell by a majority vote because of charges that Powell had misappropriated public funds and abused the process of the New York courts); Kucinich v. Forbes, 432 F.Supp. 1101 (N.D.Ohio 1977) (Cleveland City Council acted unconstitutionally when it suspended Gary Kucinich for possibly suggesting that the council president had accepted money for passage of certain legislation).

II. The Speech or Debate Clause ⁶

The district court dismissed appellants’ challenge in part because it concluded that “the actions complained of, even though they might affect plaintiffs’ constitutional rights as voters and Members, are beyond the reach of this Court by virtue of the Speech and Debate Clause.” 524 F.Supp. at 521 (citations omitted). The district court reasoned “that actions taken by House Members belonging to one party pursuant to decisions made by them in a caucus of that party are actions performed within the ‘legitimate legislative sphere.’ See East-land v. United States Servicemen’s Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975).” Id. (additional citations omitted).

Appellants argue, however, that the Clause should not be interpreted to shield the Democrats’ method of allocating committee seats. The Republicans point out that the Democrats acted before the 97th Congress was sworn in, and they argue that partisan political decisions are not within the “legitimate legislative sphere.” “To extend the immunities of the Constitution to a partisan political caucus and to persons not yet Members is to extend a concept far beyond its original intent.”⁷

We are reluctant to define the constitutional boundaries of immunized congressional conduct if we are not compelled to do so.⁸ Both the history and the Supreme Court’s interpretation of the Clause indicate that it should be used to shield actions of individual legislators or their staffs who otherwise might fear civil or criminal attacks. That does not necessarily mean that legislative activities like those in this controversy should be shielded.⁹ In addition, we are concerned to avoid unnecessary constitutional adjudication, especially when the essential issue here whether these “activities are casually or incidentally related to legislative affairs but [are] not a part of the legislative process itself,” is extremely slippery.¹⁰ Because our remedial discretion provides sufficient foundation for our dismissal of this suit, we decline to affirm the district court’s invocation of the Speech or Debate Clause, which again might hamstring us in the future.¹¹

III. Judicial Review of Congressional Rules of Procedure

The rules of the House limit committee membership to nominees of each party’s caucus.¹² Thus, when the Republicans challenge the allocation of committee seats for being disproportionately unbalanced, they are actually challenging the system of rules the House has adopted under Art. I, § 5, cl. 2. Because “the Constitution confers upon the House the power ‘to determine the Rules of its Proceedings,’ ” the district court found that “[t]his textual commitment of the issue to the House would oust the Court’s jurisdiction, even if such jurisdiction were not more explicitly foreclosed by the Speech and Debate Clause.” 524 F.Supp. at 521 (citations omitted).

The appellants argue, however, that “the Courts have the right and duty to consider the validity of [a procedural) rule in relation to other Constitutional provisions.”¹³ That is to say, while the district court concluded that we lack jurisdiction, the Republicans say first that we do have jurisdiction, and then argue that the congressional structure should be held unconstitutional.

The Supreme Court in United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321 (1892), made plain that our scope of review is broader than the district court believed. The Court expressly weighed the constitutional “validity” of a House rule involving when a sufficient quorum was present. In doing so, the Court indicated that our review of congressional rules is to be equally deferential, but no more so, than our review of most other legislative actions:

Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate or even more just.

144 U.S. at 5, 12 S.Ct. at 509.

This circuit has previously expressed its reluctance to review congressional operating rules,¹⁴ though it has never denied its power to do so. The discomfort has been rooted in the doctrine of nonjusticiable political questions, as set forth in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). There the Supreme Court declared that “[pjrominent on the surface of any case held to involve a political question” were such separation-of-powers concerns as whether there was “a textually demonstrable constitutional commitment of the issue to a coordinate political department.” 369 U.S. at 217, 82 S.Ct. at 710. This circuit has drawn on that doctrine to reach the conclusion that Art. I, § 5, cl. 2 creates a “specific constitutional base” which requires us to “take special care to avoid intruding into a constitutionally delineated prerogative of the Legislative Branch.”¹⁵ Unfortunately, no court has ever explained what it might mean to “take special care.” But it is significant that no court has ever followed Baker v. Carr to the extent of holding that this textual commitment alone makes these cases nonjusticiable.¹⁶

In fact, however, this authorization of power to Congress is not analytically different from many other constitutionally enumerated powers. So it is not evident why we must treat congressional rules with “special care,” or with more than the customary deference we show other legislative enactments.¹⁷ Because of the position taken in Ballin, which apparently was adopted by Justice Brandeis writing for the Supreme Court in United States v. Smith, 286 U.S. 6, 33, 52 S.Ct. 475, 477-478, 76 L.Ed. 954 (1932),¹⁸ we conclude that Art. I simply means that neither we nor the Executive Branch may tell Congress what rules it must adopt. Article I does not alter our judicial responsibility to say what rules Congress may not adopt because of constitutional infirmity.

We recognize that this raises some doubt about the intelligibility of the “textually committed” aspect of the political question doctrine. Yet our approach is hardly novel.¹⁹ Indeed, though the political question doctrine itself is useful as a checklist of separation-of-powers concerns, see Consumer Energy Council of America v. FERC, 673 F.2d 425, 452-53 (D.C.Cir.1982), from the doctrine’s very inception the Supreme Court noted the need to avoid reliance on it as a talismanic “label.” Baker v. Carr, 369 U.S. at 210-11, 82 S.Ct. at 706-707. Rather the Court emphasized the continued importance of “case-by-case inquiry.” Id. In the years since, the doctrine has, as former Chief Judge McGowan of this Court has written,²⁰ been the subject of “withering academic attack” which has “succeeded in analyzing the doctrine essentially out of existence.”²¹ While reports of the doctrine’s death may be exaggerated, we agree that it is far more useful to examine “case-by-case” whether we would be unwise to intrude in “political” controversies.

For as Judge McGowan also commented in discussing lawsuits resembling the one we face here, “[ajlthough the existing methods that courts have used to forbear deciding these cases have proven unsatisfactory in varying degree, the judges who employed them were surely motivated by a proper respect for the political branches and a disinclination to intervene unnecessarily in their disputes.”²² Judge McGowan’s solution, which as noted earlier was adopted in Riegle v. Federal Open Market Commit-tee, 656 F.2d 873 (D.C.Cir.1981), was “that the best way to translate those concerns into principled decisionmaking is through the discretion of the federal court to grant or to withhold injunctive or declaratory relief.”²³

Riegle was styled as a suit by a legislator against the executive branch, but like our case was essentially a suit by some members of Congress against others.²⁴ We invoke our remedial discretion in this setting because this case raises separation-of-powers concerns similar to Riegle’s, and the remedial discretion approach — which this circuit has used before — provides a more candid and coherent way of addressing those concerns.²⁵

Our regard for candor and coherence may seem anomalous, because a doctrine of remedial discretion suggests the sort of rudderless adjudication that courts strive to avoid. But Riegle makes explicit what we also seek to emphasize: this is not an area fit for inflexible doctrines or bright-line tests. The Speech or Debate Clause possibly offers complete immunity within whatever boundaries courts may set around the “legitimate legislative sphere.” Yet even those limits may be strained by egregious circumstances.²⁶ Otherwise, we must necessarily move carefully, faithful to our obligation to use our power where justice and the Constitution so require, but cautious when we do so.

Turning to this particular case, one can readily see the wisdom of not interfering with the House’s method of allocating committee seats. In fact, this case is nearly identical to a suit the Ninth Circuit dismissed several years ago after Democratic representatives in Arizona challenged the Republican legislative leadership. Davids v. Akers, 549 F.2d 120 (9th Cir.1977).

Unlike us, the Davids court reached the merits: it held that neither voters nor their representatives were deprived of equal protection or First Amendment rights when minority party legislators were disproportionately underrepresented on legislative committees. Judge Duniway quoted from an English history text and noted that “[t]he principle that such procedures are for the House itself to decide is as old as the British Parliament.” 549 F.2d at 123. And in an extensive discussion (that gives new meaning to the phrase “parade of horribles”), Davids spelled out how disastrously intrusive it would be if we were to accept appellants’ invitation to restructure congressional committees. To quote only a few of the Ninth Circuit’s objections:

Unless Arizona voters differ markedly from those of other states, it is almost certain that every member of Arizona’s House was put there by a mixture of voters — Republican, Democratic, and Independent, with perhaps a few members of splinter parties thrown in. It is nonsense to say that every member who ran on the Democratic ticket represents only Democrats... [D]id those who voted for the winners by some similar sort of osmosis, acquire the right to assert and transmit to the winning candidates not only their own Fourteenth Amendment rights but also those of all of the voters of their district who voted for the loser?... [Or m]ust we next, in the name of equal protection, weight the vote of each member in the House in proportion to the vote that he received out of the total vote in his district? ...

What if one member of the House runs as a socialist or a conservative and wins? He will be 1.66% of the membership. Is he entitled to a seat on a committee? Which one? Whom is he to displace — a Democrat or a Republican? In either case, why? ...

Particular items of legislation frequently produce large scale crossing of party lines. Are committee appointments to be juggled and rejuggled depending upon which measure is coming before a committee? ... If so, are the adjustments to be based upon the supposed views of each member, or those of his constituents, or what?

549 F.2d at 124r-25.

These objections provide more than enough reason to conclude that we should not adjudicate this controversy. It is not that we think a remedy could not be fashioned.²⁷ Rather, we simply believe it would be, to quote the Davids court again, a “startlingly unattractive” idea, given our respect for a coequal branch of government, for us “to tell the Speaker of the ... House of Representatives how many Democrats, and perhaps even which Democrats, he is to appoint to the standing committees, and perhaps to each such committee.” 549 F.2d . Our discretion to withhold equitable and declaratory relief supplies us with ample foundation upon which to base our decision. Thus we affirm the district court’s dismissal, though not because of barriers presented by the Speech or Debate Clause, or the political question doctrine.

1 . The Republicans sue as members of the House, as members of various committees of the House, and as individual voters. They also sue as representatives of three classes: (1) the class of all Republican members of the House, (2) the class of all members of certain committees of the House, and (3) the class of all voters in congressional districts represented by Republican members. Appellees are Thomas P. O’Neill, Jr., the Speaker of the House; Jim Wright, the Majority Leader; Gillis W. Long, Chairman of the Democratic Caucus; the Democratic Steering and Policy Committee of the House of Representatives; and, the Democratic Caucus, which consists of all Democratic members of the House of Representatives. Appellees O’Neill, Wright, and Long are sued in their various capacities as House members and Democratic leaders.

2 . U.S. Const, art. I, § 5, cl. 2 provides: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.”

3 . McGowan, Congressmen in Court: The New Plaintiffs, 15 Ga.L.Rev. 241, 262 (1981).

4 . 656 F.2d at 880. It is important to recognize that even if we return to Goldwater’s requirements for legislator standing, (and even if we ignore appellants’ other constitutional claims, as Judge Bork does), there is still another hurdle before we can dismiss this case for lack of standing. That hurdle is that we are not only dealing here with legislators suing as legislators, but also with legislators suing as voters and as representatives of the classes of all voters represented by Republicans. In that sense, appellants would seem to have strengthened their argument for judicial review by including “private plaintiffs” in their suit. See Riegle, 656 F.2d at 882; note 16 supra. For regardless of the requirements for legislators’ standing, there can be no doubt that the voting rights cases established that “complete nullification” of voting power is not necessary for citizens challenging congressional elections to acquire standing. White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973).

Judge Bork resolves this problem by denying standing on the grounds that “a private plaintiffs suit raises identical separation-of-powers concerns because those concerns are about the relationship of the courts to Congress,” infra at 1184. In the following section, we discuss why we cannot accept his expansion of standing doctrines to include separation-of-powers concerns. On the other hand, simply because we grant standing does not mean that we must reach the merits of this suit, as Riegle thought might be necessary. See note 24 supra.

5 . “As with many other areas of justiciability concern, in short, it would be better to forgo resort to article III and supposed limits on judicial power in favor of direct attention to the substantive and remedial problems raised by the particular case.” 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3531, at 112 (Cum.Supp.1980). See also note 27 infra.

6 . U.S. Const, art. I, § 6, cl. 1 provides: “The Senators and Representatives shall ... and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

7 . Brief for Appellants at 4.

8 . Judge Bork reminds us infra at 1185, note 5, of the “Supreme Court’s recently announced principle that Speech or Debate Clause issues are generally to be dealt with before the merits are reached. Davis v. Passman, 442 U.S. 228, 235, n. 11, 99 S.Ct. 2264, 2272 n. 11, 60 L.Ed.2d 846 (1979).” That principle is designed to protect legislators “not only from the consequences of litigation’s results but also from the burden of defending themselves.” Davis, 442 U.S. at 236 n. 11, 99 S.Ct. at 2272, quoting Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 1427-1428, 18 L.Ed.2d 577 (1967). Because we do not reach the merits of this case, but in fact affirm the lower court’s dismissal, it seems likely that we are within the spirit — if not the letter — of Davis. In addition, we are mindful of the Supreme Court’s repeated admonitions not “ ‘to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’ Burton v. United States, 196 U.S. 283, 295 [25 S.Ct. 243, 245, 49 L.Ed. 482].” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 [56 S.Ct. 466, 483, 80 L.Ed. 688] (1936) (Brandéis, J., concurring).

9 . The “Clause has been read ‘broadly to effectuate its purposes,’ ... and includes within its protections anything ‘generally done in a session of the House by one of its members in relation to the business before it.’ ” Doe v. McMillan, 412 U.S. 306, 311, 93 S.Ct. 2018, 2024, 36 L.Ed.2d 912 (1973) (citations omitted.) Still, it is at least debatable whether the partisan organizational actions of the Democratic Caucus should be immunized as “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972). See Reinstein & Silverglate, Legislative Privilege and the Separation of Powers, 86 Harv.L.Rev. 113 (1973); The Supreme Court, 1974 Term, 89 Harv.L.Rev. 131 (1975).

10 . The standard is quoted from United States v. Brewster, 408 U.S. 501, 528, 92 S.Ct. 2531, 2545, 33 L.Ed.2d 507 (1972), itself an example of awkward adjudication. Brewster held that a former senator could be prosecuted for being bribed to perform a legislative act, despite the immunities of the Speech or Debate Clause, because “an inquiry into the purpose of a bribe ‘does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them.’ ” 408 U.S. at 526, 92 S.Ct. at 2544 (citation omitted).

See also Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979).

11 . See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 509-10, n. 16, 95 S.Ct. 1813, 1824-1825, n. 16, 44 L.Ed.2d 324 (1975) (discussing “the absolute nature of the speech or debate protection.”)

12 . H.R. Rule X, cl. 6(a)(1), Rules of the House of Representatives, § 701a, reprinted in Jefferson’s Manual and Rules of the House of Representatives, H.R.Doc. No. 96-398, 96th Cong., 2d Sess. 387 (1981), provides: “The standing committees specified in clause 1 shall be elected by the House at the commencement of each Congress, from nominations submitted by the respective party caucuses.”

13 . Brief for Appellants at 13.

14 . See, e.g., Metzenbaum v. FERC, 675 F.2d 1282, 1287 (D.C.Cir.1982); Exxon Corp. v. FTC, 589 F.2d 582, 590 (D.C.Cir.1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2160, 60 L.Ed.2d 1044 (1979); Consumers Union of United States v. Periodical Correspondents’ Ass’n, 515 F.2d 1341, 1347-48, 1351 (D.C.Cir.1975).

15 . Harrington v. Bush, 553 F.2d 190, 214 (D.C. Cir.1977). Harrington and Exxon, supra note 14, do not explicitly refer to Baker v. Carr’s political question analysis, but Consumers Union and Metzenbaum, supra note 14, do.

16 . At most, the court in Metzenbaum, supra note 14, held nonjusticiable a challenge by legislators asserting only that the House’s own operating rules had been violated. Not only were no constitutional claims at issue, but in addition the court noted that “judicial intervention may be appropriate where rights of persons other than members of Congress are jeopardized by failure to follow its own procedure.” In the end, the Metzenbaum court dismissed that suit largely for the same “prudential considerations” that we ultimately rely on. Compare 675 F.2d at 1287-88, with note 24 and accompanying text infra.

17 . See Henkin, Is There A “Political Question” Doctrine? 85 Yale L.J. 597, 605 n. 27 (1976):

Judging from the cases, even the “textually demonstrable commitment” of an issue to the political branches apparently does not necessarily mean exclusive and final commitment to the political branches without judicial review, but only the kind of commitment found, say, in the grants to Congress in Artiele I, § 8; the courts consider daily whether the political branches exercise power textually committed to them with due respect for constitutional limitations or prohibitions,

(citations omitted).

18 . See also Yellin v. United States, 374 U.S. 109, 143—44, 83 S.Ct. 1828, 1847-1848, 10 L.Ed.2d 778 (1963) (White, J., dissenting); Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed. 1826 (1949).

19 . See Henkin, supra note 17, at 604:

Although the Constitution provides that “Each House shall be the Judge of the ... Qualifications of its own Members,” the Court held reviewable, and reversed, a judgment by the House that elected-Representative Adam Clayton Powell was not qualified. Although the same clause provides that each House “shall be the Judge of the Elections (and) Returns ... of its own Members,” the Court in Roudebush v. Hartke [405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972)] reviewed and upheld a state procedure providing for a recount in an election for the United States Senate.

The Supreme Court has not recently held any issue to be textually committed by the Constitution to the other branches and therefore not justiciable — a “political question.” And the Court’s failure to require judicial abstention in those instances where scripture can most plausibly be read to require it leaves a strong sense that the present justices are not disposed to find many — or any — issues in fact so textually committed,

(citations omitted). But see Goldwater v. Carter, 444 U.S. 996, 1002, 100 S.Ct. 533, 536, 62 L.Ed.2d 428 (1979) (Rehnquist, J., concurring).

20 . McGowan, supra note 3, at 257, referring particularly to Henkin, supra note 17.

21 . Professor Henkin summarizes:

The political question doctrine saw its heyday in the New Deed Court, and received its highest measure of devotion from Justice Frankfurter, perhaps its boldest articulation by Justice Black in Colegrove [Coleman] v. Miller [307 U.S. 433, 548-59 [448-59] 59 S.Ct. 972, 979-984, 83 L.Ed. 1385 (1939) ]. It was perhaps an expression of a wider, deeper mood by Justices appointed to restore judicial self-restraint and allow the elected governors to govern....

Since Frankfurter and Black wrote, judicial review has had a new birth, its character and content reformed, and its place established as a hallmark of American political life, even a birthright of every inhabitant. I see no place in it for an exemption for uncertain “political questions.” Would not the part of the courts in our system, the institution of judicial review, and their public and intellectual acceptance, fare better if we broke open that package, assigned its authentic components elsewhere, and threw the package away?

85 Yale L.J. at 625 (citations omitted). In stating the argument generally adopted by this opinion, Professor Henkin notes that

while there may be no basis for finding an issue nonjusticiable, there are traditional reasons why a court might refuse a remedy. The difference is not only or principally conceptual or academic. To deny a remedy on equitable grounds does not carve an exception to Marbury v. Madison for which there is no basis in constitutional text or in anything else relevant to constitutional interpretation. The traditional grounds for denying an equitable remedy are few and narrow and not frequently present.

Id., at 621-22.

22 . McGowan, supra note 3, at 262.

23 . Id. In Riegle, the court stated:

The most satisfactory means of translating our separation-of-powers concerns into principled decisionmaking is through a doctrine of circumscribed equitable discretion. Where a congressional plaintiff could obtain substantial relief from his fellow legislators through the enactment, repeal, or amendment of a statute, this court should exercise its equitable discretion to dismiss the legislator’s action ... The standard would counsel the courts to refrain from hearing cases which represent the most obvious intrusion by the judiciary into the legislative arena: challenges concerning congressional action or inaction regarding legislation. Yet this standard would assure that nonfrivolous claims of unconstitutional action which could only be brought by members of Congress will be reviewed on the merits.

656 F.2d at 881.

24 . In Riegle, standing was granted because the court assumed, for purposes of the motion to dismiss, that the challenged statute “results in a deprivation of Senator Riegle’s constitutional right to advise and consent regarding the appointment of the defendant officers of the executive branch.” 656 F.2d at 877. The court ultimately dismissed the suit because the senator’s fellow legislators were “capable of affording him substantial relief.” 656 F.2d at 882. The court further noted, however, that a private plaintiff challenging the same statute might well be able to resist dismissal. “Because such a private plaintiffs suit would not raise separation-of-powers concerns, the court would be obliged to reach the merits of the claim.” 656 F.2d at 881.

Today’s case, however, does not fit neatly into Riegle’s analysis. This is not simply a suit between opposing sides within one branch of government, nor is it simply a suit by interested private plaintiffs against the internal operations of a governmental branch. It is some of both. It still involves Riegle’s concerns about intrusion into another branch’s internal battles, while it also — as Riegle and Metzenbaum, supra note 16, foreshadowed — presents a compelling claim for judicial involvement because private plaintiffs’ rights are at stake.

What cannot be seriously disputed is that we have broad discretion in deciding whether to issue equitable or declaratory relief. See Weinberger v. Romero-Barcelo, 456 U.S. 305 at 311— 12, 102 S.Ct. 1798 at 1802-03, 72 L.Ed.2d 91 (1982); note 25 infra. It is perhaps fair for Judge Bork to want us to define the boundaries of our discretion, in the hope that it will not be abused in the future. For today, however, we have simply tried to defend the reasonableness of why we have exercised our discretion the way we have.

25 . Our shift from the phrase “equitable discretion” to “remedial discretion” indicates only that our appellants sought both injunctive and declaratory relief, unlike Riegle’s, 656 F.2d at 877. “It is axiomatic that the request for declaratory relief is discretionary with the court, and that the request should be denied where ‘it will not terminate the controversy or serve a useful purpose.’ ” Winpisinger v. Watson, 628 F.2d 133, 141 (D.C.Cir.1980).

There have been many cases where courts have refused to grant declaratory or injunctive relief for prudential reasons not even remotely related to neutral principles of law. One from this circuit that involved constitutional claims as significant and thorny as those in this case was Lampkin v. Connor, 360 F.2d 505 (D.C.Cir. 1966). There plaintiffs from various states who opposed discriminatory voting practices like literacy tests and poll taxes sought to have census officials implement the provisions of Section 2 of the Fourteenth Amendment. That provision seemingly requires a reduction in the basis of a state’s representation in Congress when that state denies or abridges the right to vote. The unanimous court in Lampkin declined to adopt the lower court’s denial of standing, or the alternative suggestion that the case was nonjusticiable under the political question doctrine. Instead, the court exercised its discretion to withhold declaratory relief, and explained that especially because the recently-passed Voting Rights Act offered significant hope for remedying the plaintiffs’ complaints, judicial action at. that time would be unwise.

26 . See note 10 supra.

27 . The Ninth Circuit declared, apparently in dictum, that a “judicially discoverable and manageable standard cannot be found” for resolving the dilemmas it had identified in the Davids suit. While that phrase originated in Baker v. Carr’s discussion of nonjusticiable political questions, the Ninth Circuit expressly did not find the Davids suit to be nonjusticiable because of the political question doctrine.

Elsewhere, this circuit has said that such “prudential considerations ... are inextricably linked to the question of standing.” Winpisinger v. Watson, 628 F.2d 133, 139-40 & n. 31 (D.C.Cir.1980). See also Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976) (where the Supreme Court incorporated in its standing analysis an inquiry into whether an alleged injury “is likely to be redressed by a favorable decision”); Greater Tampa Chamber of Commerce v. Goldschmidt, 627 F.2d 258 (D.C.Cir.1980) (standing denied because plaintiffs, who were challenging an air-travel agreement alleged to have been improperly implemented by the Secretary of State without Senate ratification, could not show that court invalidation would enable them to obtain more amenable terms than those of the current agreement).

We do not deny standing to appellants on the grounds that we could not administer relief. Use of the standing doctrine would be appropriate if ordering a change in the committee structure would fail to remedy appellants’ complaints. See id. But while the Ninth Circuit may be right that it would be difficult to develop a thorough remedy, we probably could fashion a mathematically administrable remedy— even if it proved as awkward as the Supreme Court’s remedies in the voting rights cases. See Dixon, Reapportionment in the Supreme Court and Congress: Constitutional Struggle for Fair Representation, 63 Mich.L.Rev. 209 (1964). Once again, we treat our prudential reservations as part of our consideration of whether to provide relief, not as part of our inquiry into our Article III powers.