Gregg v. Barrett, 84-5458

• Decision Date: 08 October 1985
• Docket Number: No. 84-5458,84-5458
• Citation: 771 F.2d 539
• Parties: Judd GREGG, U.S. Congressman, et al., Appellant v. William J. BARRETT, Individually and in his official capacity as Acting Public Printer, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 539

771 F.2d 539

248 U.S.App.D.C. 347

Judd GREGG, U.S. Congressman, et al., Appellant v. William J. BARRETT, Individually and in his official capacity as Acting Public Printer, et al.

No. 84-5458.

United States Court of Appeals, District of Columbia Circuit.

Argued April 15, 1985.

Decided Sept. 13, 1985.

As Amended Oct. 8, 1985.

Maxwell A. Miller, Denver, Colo., with whom Michael R. Perna, Denver, Colo., was on brief, for appellants.

Charles Tiefer, Asst. Gen. Counsel to the Clerk, U.S. House of Representatives, Washington, D.C., with whom Steven R. Ross, Gen. Counsel to the Clerk, Michael Davidson, Senate Legal Counsel, M. Elizabeth Culbreth, Deputy Senate Legal Counsel and Morgan J. Frankel, Asst. Senate Legal Counsel, United States Senate, Washington, D.C., were on the brief for appellees Congressional.

Robert C. Seldon, Asst. u.S. Atty., Washington, D.C., with whom Joseph E. DiGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Michael J. Ryan, Asst. U.S. Attys., Washington, D.C., were on brief for appellee Public Printer.

Before MIKVA and EDWARDS, Circuit Judges, and McGOWAN, Senior Circuit Judge.

MIKVA, Circuit Judge:

Appellants, who are Members of Congress, lawyers and academicians, ask this court to address their contention that the Congressional Record is not properly prepared by the responsible officials of the Congress. The District Court dismissed the complaint brought by appellants on the ground that the Speech or Debate Clause of Art. I, Sec. 6 of the United States Constitution precluded any jurisdiction to hear the complaint. We affirm the dismissal of the complaint, albeit on different but related grounds.

I. BACKGROUND

Appellants are Congressmen Judd Gregg, Manuel Lujan and Robert Walker, as well as Wilburn Nelson, Larry Westberg, and Thomas McCabe, all practicing members of the Idaho Bar, and Robert Burnside, a reference librarian at the University of California at Davis School of Law, and N. David Bleisch, a Boston College Law School student and member of the editorial staff of the Boston College Environmental Affairs Law Review. The appellees include William J. Barrett, Acting Public Printer, G. Russell Walker, Editor-in-chief of Official Reports of Debates of the United States Senate, Geradine Lyda, Director of the Office of Official Reporters of the United States House of Representatives, and Congressman Augustus Hawkins and Senator Charles Mathias, Jr., Chair and Vice-Chair, respectively of the Joint Committee on Printing of the United States Congress.

The gist of the complaint is that the Congressional Record is not a faithful transcript of what actually is said on the floor of the House and of the Senate. All of the appellants claim that the first amendment warrants their claim. The congressional appellants, for example, insist that they have a constitutional right to transmit an "accurate" report of congressional proceedings to their constituents, and that it is equally important that they receive an accurate transcript so that they can perform their congressional duties. The lawyer appellants claim that they need an accurate record to serve as the legislative history of statutes passed by the Congress.

Although Art. I, Sec. 5, cl. 3 of the United States Constitution requires that "Each House shall keep a Journal of its Proceedings The transition to official publication began in 1846, when the Senate authorized each member to subscribe for twelve copies of the Congressional Globe; the House followed suit in 1847. The two Houses attempted to contract with private printers to transcribe all debates and to furnish those debates to the Congressional Globe to publish. When these contracts failed, the Government Printing Office took on the responsibility for publishing the Congressional Record, and the House and Senate hired reporters to transcribe their debates. See McPherson, supra, at 148.

and from time to tim publish the same," these official journals are abbreviated versions of congressional proceedings, recording only major acts taken by the respective houses. They are separate and distinct from the Congressional Record, the document involved in this action. Prior to 1846, debates in Congress were not officially reported. Private publications, such as the National Intelligence, the Register of Debates, and the Congressional Globe, however, began regularly publishing partial texts of debates. See 126 Cong.Rec. 18775, 18776 (1980) (statement of Sen. Byrd) (historical address); McPherson, Reporting the Debates of Congress, 28 Q.J. Speech 141, 142-46 (1942).

Appellants claim that Congress committed itself to publishing an "accurate" Record, and cite the congressional declaration that: "The Joint Committee on Printing shall control the arrangement and style of the Congressional Record, and while providing that it shall be a substantially verbatim report of proceedings, shall take all needed action for the reduction of unnecessary bulk." Act of January 12, 1895, ch. 23, Sec. 13, 28 Stat. 603, codified in 44 U.S.C Sec. 901 (1982) (emphasis added). Appellants point to other internal rules designed to create an accurate Record; among these is the "bullet rule," which provides: "Only as an aid in distinguishing the manner of delivery in order to contribute to the historical accuracy of the Record, statements or insertions in the Record where no part of them was spoken will be preceded and followed by a 'bullet' symbol...." Laws and Rules of Publication of the Congressional Record, 130 Cong.Rec.App. (daily ed. Feb. 27. 1984).

The thrust of appellants' complaint is that these rules governing the accuracy of the Record are routinely broken by individual members of Congress. Appellants attached to their complaint a copy of an article by James Nathan Miller, Congress's License to Lie, Reader's Digest, Feb.1983, at 72, written as an open letter to Congress, which details examples of alleged distortion of the Record. A single example from this article captures the sense of appellants' complaint:

The courts and federal agencies can also be deceived by the counterfeiting of the Record. Observe the issue of last August 19, the day Congress voted for a $98-billion tax increase in 1983. The transcript contains a seemingly impossible phenomenon: seven full pages of floor speeches (about 10,000 words) apparently delivered just before the vote on the floor of the House in a single ten-minute period. Yet there are no bullets in the Record to indicated that any of these speeches were not delivered on the floor.

How was the trick accomplished? Each Congressman just used his revise privilege, which allowed him to go back to his office and insert a speech into the Record so that it appears to have been delivered just before the vote.

What difference does this make? This year, when the courts and the IRS interpret the language of the new tax act, they'll look up the act's "legislative history," which includes transcripts of debate supposed to show what Congress had in mind when it put particular words in the law. How then to distinguish true debate from pages of remarks added later? They'll just have to guess.

Id. at 82-83.

II.ANALYSIS

We offer neither criticism nor defense of the congressional practice. Like the philosophy

of the Speech or Debate Clause used by the District Court, Gregg v. Barrett, 594 F.Supp. 108 (D.D.C.1984) to reject appellants' claims, our analysis precludes this Court from reviewing congressional practices and procedures when they primarily and directly affect the way Congress does its legislative business.

A. The Speech or Debate Clause

A number of opinions have advanced the proposition that the Speech or Debate Clause protects the publication of materials inserted into the Record but never spoken on the floor. See, e.g., Hutchinson v. Proxmire, 443 U.S. 111, 116 n. 3, 99 S.Ct. 1675, 2678 n. 3, 61 L.Ed.2d 411 (1979) ("we assume, without deciding, that a speech printed in the Congressional Record carries immunity under the Speech or Debate Clause as though delivered on the floor."); Miller v. Transamerican Press, Inc., 709 F.2d 524, 529 (9th Cir.1983) (holding that insertion of material into Record is protected by Speech or Debate Clause and that, as a consequence, congressman could invoke privilege to avoid answering question § during deposition); Rusack v. Harsha, 470 F.Supp. 285, 296 n. 18 (M.D.Pa.1978) (holding that Speech or Debate Clause protects congressman from defamation suit based on insertion of material into Record); Hentoff v. Ichord, 318 F.Supp. 1175, 1179 (D.D.C.1970) (holding that Speech or Debate Clause forbids issuance of injunction to prevent publication in Record of Committee Report); Straus v. Gilbert, 293 F.Supp. 214, 216 (S.D.N.Y.1968) (holding that congressman could use franking privilege on all materials inserted in the Record, even materials for purposes of campaigns: "this court does not, and cannot, tell Congress what it can print in its Journal."); McGovern v. Martz, 182 F.Supp. 343, 347 (D.D.C.1960) (holding that Speech or Debate Clause immunizes insertion of materials into Record from action for defamation).

Our difficulties with applying this clause to the case sub judice have to do more with fit than philosophy. There is little doubt that the primary purpose of the Speech or Debate Clause was to insulate Members of Congress from any legal accounting for their legislative communications. In his opinion for the Court in United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966), Mr. Justice Harlan canvassed the history of the Speech or Debate Clause from its British common law origins to the American constitutional system. From its earliest formulation, Justice Harlan observed.

[the Speech or Debate Clause] was the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the commons and the Tudor or Stuart monarchs during which successive...