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Case number 22-5058.

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Thomas Missy, the Honorable, in his official and individual capacity at balance.

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Versus Nancy Volosi, the Honorable, in her official capacity only at out.

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Mr. Wiest for the balance.

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Mr. Leder for the at least.

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Morning, Your Honors, and may it please the court.

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I wanted to begin my argument this morning by addressing the defendants

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speech or debate community arguments, which form the predicate of the district court's dismissal in this case.

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This court's precedents direct courts to look at what is the act that is going on to determine if it's legislative and subject to immunity or if it is not.

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And here I want to focus the court, and this is not about the substance of the rule in terms of this immunity.

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This is about the act of enforcement.

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The act of enforcement that went on here was a deduction in pay.

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In other words, this is a claim for illegally withheld pay.

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Wasn't it really a fine though?

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Your honor, that's the nomenclature that they got.

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But let me address how that's collected.

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Pay is not reduced.

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continually over time, like there's no reduction in salary.

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This is a fine for the non wearing of the mask.

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Your honor, there is a deduction in compensation here because of the method of enforcement.

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This isn't a garnishment that goes out.

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This is the amendment doesn't say the 27th Amendment doesn't say reduction in compensation.

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That's not what it says.

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That's not what it says.

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Your honor, the 27th Amendment specifically says no law varying the compensation.

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So we're not only talking about increases, and that's the substance of 27th Amendment argument.

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But I thought you were going to talk about speech or debate immunity.

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This is the merits.

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So why don't you talk about the immunity question?

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And maybe you could start by distinguishing this case from consumer union and McCarthy.

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I would be happy to, your honor, consumer union did not deal with an out of, um, in fact, that case dealt with press access, as I recall.

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Right.

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Right.

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Your honor, the United States Supreme Court has already addressed this, this compensation issue.

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And that's why I wanted to begin on the speech debate issue with focusing in on

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What is the act that's going on here?

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And the act that's going on here is illegally withholding pay.

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That's our claim and our contention.

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Now, I understand we're going to proceed with the merits and I'm going to argue that a couple of minutes, but I want to focus on the immunity issue.

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What is the act?

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What is the beef, if you will, and it's legally withholding pay.

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The United States Supreme Court in Powell versus McCormick has addressed that issue.

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And instead, when it comes to pay, and Powell, by the way, Your Honor, is a case that was all about withholding of pay.

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He was initially excluded from Congress, Congressman Powell was.

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But by the time it came up to the United States Supreme Court, what was the beef at that point was the illegal withholding of pay.

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They said that's the part that's not moved.

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And they said, when it comes to that illegal withholding of pay, and that was the claim that Congressman Powell had, there was not immunity for that.

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The US Supreme Court has ruled, when we're looking at the act, and the act here is the withholding of pay, there is no speech or debate immunity for that.

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There's an on-point US Supreme Court case on that.

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And that's Powell.

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Isn't the withholding of pay one of the reasons, arguably, why the plaintiffs here have standing?

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Because they have a pocketbook injury.

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Otherwise, I think standing might be more in-depth.

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Certainly, of course, you know, I suppose notwithstanding the immunity analysis, anytime there's discipline imposed, there could be tangential effects, but certainly the pocketbook harm here is why they have standing.

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But it's also why there's not speech or debate immunity, because the US Supreme Court has addressed it in Powell.

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When it's a pay claim, and that's what it is, this isn't about mere, it's not like Congressman Wrangel in the Wrangel case, where he's having to sit in the well of a house and have a censure read to him.

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We're dealing with the deprivation of pay, and the United States Supreme Court in Powell dealt with exactly that.

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There was rule enforcement, there were ethics things that predated that.

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It was all enforcement of the house rules.

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But why was there no speech and debate immunity?

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Can we just, since you're talking about, let me just ask you about this.

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I want to get around to Powell this way.

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In Gravel, the court said it has the power to, it says, it has the judicial power to determine the validity of legislative actions impinging on individual rights.

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That was Powell, right?

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His right to serve in Congress.

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Right.

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The individual rights.

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And then Browski and all these other cases involved persons with individual rights.

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Right.

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Right.

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Two nonmembers and one member not yet sworn in.

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But that's not the case here.

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Your clients are members of Congress.

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But, Your Honor, so was Congressman Powell.

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By the time that case came up, he had been excluded.

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They weren't adjudicated.

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The Supreme Court was not adjudicating necessarily the exclusion, although that was part and parcel of it.

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Really what they were dealing with was the illegal withholding of pay.

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That was the issue when it came up that the United States Supreme Court, Powell, and they said, no speech or debate or meeting for that.

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We can get to the merits of it.

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Why?

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Because we're dealing with an administrative action.

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It's just like Kilburn when you sent the Sergeant at Arms out to go on and enforce a congressional order.

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Certainly the members of Congress that enacted that rule, they've got speech or debate immunity.

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Sergeant at Arms does not.

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And that was also the holding of the U.S.

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Supreme Court in Powell for dealing with the withholding of pay.

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Okay, but I take you back to the proxy voting case.

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We gave

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speech or debate immunity to the staff who administered the proxy voting vote.

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They had speech or debate immunity.

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They did, Your Honor, because that dealt with the actual voting on the Hall of the House that did not deal with administrative enforcement of rules, which puts us on point with the power.

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No, this was, this was, they were, they were, the staff

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was implementing the rule adopted by Congress on proxy voting.

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Has that been any different from this case?

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Absolutely, it's distinguishable.

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In that case, you are dealing with the actual processes of the function of voting.

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That is core speech or debate.

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Here, you're dealing with the coding of pay.

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In that case, it is speech or debate immunity.

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In this case, it's power.

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And it's POW because it's the withholding of pay.

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It was the exact same injury that the US Supreme Court held was not speech or debate in POW.

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That's what we've got here.

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We've got a pay claim here.

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That's what this is about.

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What if the fine had been imposed?

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I mean, what if they were just sent a fine through the mail saying, please write a check for $500?

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And so there was no withholding from their paycheck.

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They were just sent a fine, like a parking ticket.

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Would that make a difference?

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It could your honor here there was no statutory basis to actually enforce it.

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It's not like there was a garnishment statute that the speaker could go out and what's interesting at least in terms of how this got implemented, one of my clients who's got a side business, Congresswoman Green, she just maxed out her withholding.

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She pays a dollar every month towards this fine.

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We'll never collect it from her because she figured out she's independently welding.

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I can tell you, Congressman Massey's wife, she is well aware of the withholding of pay because that's their primary source of income.

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And so again, we're dealing with a deduction of the paycheck itself.

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It seems like you're putting a lot of weight on the way that the House is enforcing the fine.

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And I'm just wondering if, like, the enforcement was just done in some other way, then would there be speech and debate immunity?

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Because you're suggesting the immunity turns on the way that the fine is collected.

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And that seems, you know, I'm not sure that the immunity can turn on that distinction.

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So you're on I don't believe that if it were collected in other mechanisms, I do not believe that there would be speech or debate and you'd be right back.

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What's this house sergeant arms going out arresting this person right?

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That was that was the Coburn case.

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And there was featured of immunity in that case for the congressional actors that were passing that resolution directing the arrest, but not for the sergeant in arms that was carrying it out, that illegal Fourth Amendment.

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So, um, again, we're not in it.

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So you don't contest at all the fact of the actual enforcement of the mass wearing during this process.

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Because again, to judge Brown's point, you're focused on the we are on the fine.

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I think you have to focus on the act of the enforcement to that to appropriately analyze speech, debate, immunity.

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In other words, are you making somebody stand in the wall of the house?

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Are you dealing with proxy voting that is course sort of speech in the house that is core methods of on how the cows votes?

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Are you dealing with something that takes it outside of the house, which isn't how case on pay.

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And it also happens to be, you know, you rest.

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My question is, so should we assume that in terms of the actual enforcement of the mass wearing, you're not having any issue with that.

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You're just focusing on the page.

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Ron, or is the enforcement is the, is the fine, right?

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That is, I mean, in terms of, Hey, he's been given a notice or Hey, he's going to be censured or reprimanded.

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I think that's probably speech or debate.

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I think where it stops being speech or debate is when you go and you take something out of somebody's pay.

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And now we're right on point.

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See, I think you're right that you focus on the act.

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But the act here is the resolution, not, and you don't look at the courts, they unravel in our cases.

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So you look at the act, not the act.

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And here the act is the resolution.

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Right?

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No, you're not.

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No.

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And again, we know that that's the case because of Powell.

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And Powell, there was resolutions that were directing, in that case, the exclusion of Congressman Powell and the deduction of his pay.

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The resolutions, and again, I think Powell, the speaker, actually got it.

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Say again how you explain the Press Gallery case in McCarthy.

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Those are access cases, Your Honor, to the Hall of the House.

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I think that's on point more.

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Isn't that what this is?

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No, Your Honor, this is the deduction of pay.

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This is the deduction of pay for coming onto the floor of the House without a mask.

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That's true.

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It directly relates to the legislative process.

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Your Honor, I think it inappropriately focuses on the substance of House Resolution 38 rather than its enforcement mechanism.

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Okay, I hear your point.

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Let me ask you a different question.

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Suppose instead of requiring masks, the resolution had required a negative COVID test.

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with the same fine structure.

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Would you be here challenging that?

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Your honor, if they had had their pay legally reduced, then yes.

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Because again, the question is, was there a rule enacted and the enforcement that immediately took effect to change the pay without intervening elections?

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So is there any way Congress could have passed a resolution that wouldn't have run afoul of a mask or a negative COVID test?

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Is there any way it could have done that?

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They could engage in what I would call traditional enforcement mechanisms.

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Which is what?

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They could censure, as was the case in Ramble.

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They could reprimand.

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They have the power to exclude if they can get two-thirds votes, as the Constitution requires under the Discipline Clause.

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There's a full panoply of enforcement mechanisms available to them.

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What they cannot do is vary compensation without an intervening election under the plain text of the 27th Amendment.

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Well, if there was a center, though, would would that still leave in place, um, the plaintiffs First Amendment claims?

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honor.

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I think the defendants may have speech or debate immunity under angle if it were a mere censure.

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In other words, not something that was that was going beyond actions in the house.

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You know, voting, for instance, is protected under speech or debate, and that is McCarthy case.

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We know that reprimands and censures are under the precedent and wrangle.

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what takes this outside of it and puts it on all four with how happens to be the deduction and pay because of the enforcement.

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For instance, suppose, suppose we agree, suppose we agree with judge child's point that this isn't a reduction of pay because it's just a deduction of a fine.

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In other words, the pay is still the same.

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Um, then what, how does that affect the speech?

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Your honor, that, that I think puts labels over, um, what is actually going on here because it is a,

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a deduction in pay.

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What about the withholding of income taxes?

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Is that a deduction in pay?

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It would be your honor accepted.

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Well, except the Congress, the members of Congress have their have pay withheld.

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They do.

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Well, why isn't that a violation of the 27th?

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Because your honor, that law has been a record of the withholding has been a record and there's been multiple intervening elections since that law.

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I see.

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OK, what about what about what about what about health care?

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What about what about a member of Congress who during the term of the during the term changes their

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the kind of health care they have.

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Your honor, in that case, there's consent and consent obviously would, you know, obviate a number of things.

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For instance, we allow services and seizures with consent that would otherwise not be permissible under the Fourth Amendment.

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So if someone's income goes up during the two years, if someone's income, total income, goes up for... Let's forget that.

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Your Honor, and again, you have to look at what that is.

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Is there a reimbursement scheme that is already in existence prior to the intervening election?

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Or is Congress voting themselves additional stipends or additional per diems, which would trigger the 27th Amendment?

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Here, no matter what label you put on it... So suppose during the term of a Congress, in the first year of the Congress, Congress passes a tax law which increases the tax rate that results in

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greater withholding during that term.

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Is that unconstitutional?

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You know, Your Honor, I think the tax scenario is different than the punishment scenario when we look, for instance, specifically, and I'm looking at the Article 3 compensation cases that the United States Supreme Court has adjudicated for a long period of time, there was a holding that that was a violation of the Article 3 compensation clause.

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And then obviously, in the early 2000s, the U.S.

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Supreme Court said, you know what,

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It's generally applicable to everyone, and so it isn't going to govern that.

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I would say that the same analysis would apply here.

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By the way, the reason we don't, what the US Supreme Court said in that case was, we're not going to allow the punishment and the deduction of judicial pay for individual acts, because that's punitive, that's coercive.

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Those same principles are at play here as well.

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Can you point me to any cases in which

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a court has adjudicated a claim by a member of Congress against congressional leadership or other parts of Congress where we haven't kicked the case out on standing, political question doctrines, speech or debate immunity, or what this court used to call remedial discretion.

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I mean, are there any cases in which a court has heard that type of dispute?

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Several, Your Honor.

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One, of course, we've been talking about a lot this morning is the Powell case itself,

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a case about pay.

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The other one that I would point out, and the court reached the merits and found that there was not a 27th Amendment violation, was Boehner versus Anderson.

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And in that case, this court did reach the substance of the claim and said, hey, there's not a 27th Amendment violation because the statute that was enacted in the COLA had been of record and enacted prior to the session.

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And the fact that there's automatic increases, that's just a formula, but Congress had voted it.

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Those aren't jurisdictional issues.

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This court reached the merits.

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In that case, obviously, the US Supreme Court reached the merits in Powell.

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But in Powell, he was no longer a congressman.

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Is that right?

[00:16:32] Speaker 02:
I would have to go back and look.

[00:16:34] Speaker 01:
My understanding was that he was, but even if he was not... And the basis for the court hearing was that there was a pocketbook injury to him in his personal capacity.

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Correct.

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And that pocketbook injury is present in this case as well.

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Your Honor, are there any other questions?

[00:16:52] Speaker 02:
I know that I'm over.

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Any more questions?

[00:16:54] Speaker 04:
No.

[00:16:55] Speaker 02:
Thank you.

[00:17:18] Speaker 03:
I'm Douglas Sledder, the General Counsel of the United States House of Representatives, and we urge that the decision by the District Court be approved.

[00:17:32] Speaker 03:
I'm going to just jump in on various points.

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In answer, I think it was to your question, Judge Rao.

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My friend said, well, the Boehner case.

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I happen to know that case very well, because I was one of the attorneys.

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I was representing the president of the United States, who was one of the defendants.

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So my friend is right.

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There were congressional officials, officers who were defendants.

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but the president was, and so we couldn't argue speech or debate immunity to get rid of the case because the president was a defendant.

[00:18:11] Speaker 03:
The court, I think, has shown that it has not only read the briefs, but read the D.C.

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Circuit and Supreme Court opinions.

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This notion

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that because they're suing officers of the House, it takes it out of Beecher Bay.

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That's been just absolutely completely rejected.

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The Supreme Court rejected it in Gravel and Eastland.

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This court most recently rejected it in McCarthy.

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The recent cases are all ones that I've argued before this court or the district court.

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The exact same argument was raised.

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It was so well.

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We also didn't see him focusing much on Grimdell.

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And there's kind of that two step process about it being an integral, deliberative, communicative process that we're talking about, again, the mass policy.

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They don't seem to dispute that.

[00:19:13] Speaker 04:
But then you also have the issue about, is this within the jurisdiction of the House?

[00:19:18] Speaker 04:
He seemed to have skipped over to just, this is a fine being implemented to the mass policy.

[00:19:25] Speaker 03:
I'm a little hard of hearing.

[00:19:28] Speaker 04:
I don't think he focused on Gravel at all.

[00:19:33] Speaker 04:
It's my point.

[00:19:34] Speaker 04:
So I guess what I'm asking you is don't we have to go through that analysis?

[00:19:38] Speaker 03:
Your honor, the Gravel analysis is what Judge Walton did.

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Judge Walton said

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Revelle sets a two-part test and therefore that's why just Walton felt that he needed to examine whether there actually this was a reduction in compensation.

[00:19:58] Speaker 03:
We're fine that he did that but we don't think it was necessary and for example the opinion I call to your attention

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in Clyde says that the speech or debate clause is not, immunity is not limited by other parts of the Constitution.

[00:20:18] Speaker 03:
So you don't need to reach that issue.

[00:20:21] Speaker 03:
But as I say, Jeff Walton did, and we think he absolutely, and as citing Prevel, that there are two points.

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And so as I say, we think it was unnecessary.

[00:20:32] Speaker 03:
But looking at it as alternative ways of reaching the same result, we're fine.

[00:20:38] Speaker 03:
But I think that particularly the McCarthy decision by this court shows that the key question, as this court has understood the Supreme Court is saying, is you look to see, is this integral to the legislative process?

[00:20:56] Speaker 05:
Well, when I asked

[00:20:58] Speaker 05:
the plaintiff's counsel about McCarthy, his answer was that the difference is that there, the staff who had speech or debate immunity were involved in the legislature, they were involved in enforcing the proxy rule, that is the voting in Congress, whereas here,

[00:21:27] Speaker 05:
what they're doing, and I'm just repeating what he says, there's nothing to do with voting in Congress.

[00:21:32] Speaker 05:
It's the deduction of pay.

[00:21:34] Speaker 05:
And that's the distinction he makes.

[00:21:35] Speaker 05:
What's the matter with that?

[00:21:37] Speaker 03:
The matter with that, Your Honor, is the reduction in pay is obviously part of the scheme that the Congress, that the House set up here was the limitations on access to the House chamber.

[00:21:57] Speaker 05:
and the enforcement mechanism well he said they weren't excluded from the house they were just fine that's his whole point and his in fact i think he said you know congress did have the authority there would have been there would have been uh uh speech debate immunity if what congress has done is is uh expelled them from congress

[00:22:19] Speaker 03:
Right.

[00:22:19] Speaker 03:
I believe I did take, I think he did make that concession to you, which I found very interesting.

[00:22:26] Speaker 03:
But your honor, let's look at McCarthy.

[00:22:28] Speaker 03:
McCarthy was a remote voting scheme.

[00:22:33] Speaker 03:
The way that scheme is implemented is by the staff.

[00:22:38] Speaker 05:
The speaker doesn't, and her- But the staff was, I assume the act was, the staff was registering a remote vote, right?

[00:22:49] Speaker 03:
And I think it's more than registering.

[00:22:53] Speaker 03:
They set up the whole system and make it work.

[00:22:57] Speaker 05:
But his point is that has to do with the voting.

[00:22:59] Speaker 05:
Whereas this case is about the deduction of pay.

[00:23:02] Speaker 05:
I get your point that, well, the deducting of the pay is the way you enforce the resolution.

[00:23:08] Speaker 05:
But his point is that it's fundamentally different because the deduction of pay has nothing to do with the voting.

[00:23:16] Speaker 05:
In other words, the plaintiffs in this case could vote.

[00:23:20] Speaker 05:
That wasn't what was being interfered with here.

[00:23:22] Speaker 05:
They were deducting their pay.

[00:23:25] Speaker 03:
So let's look at Consumers Union, which Your Honor first asked about, and I don't think I ever heard an answer there due to your question.

[00:23:32] Speaker 03:
Consumers Union was a staffer who was then charged with

[00:23:39] Speaker 03:
determining and enforcing how journalists who and how journalists could come into the House chamber yeah access access to the chamber right it's part of the legislative process well the fine system here is the way of enforcing the access to the chamber so if I

[00:24:02] Speaker 03:
To me, these are very similar and quite analogous.

[00:24:08] Speaker 03:
If I could also, I think Judge Rao asked, is the focus on the pay in Powell versus McCormick, the key thing, the reason that the Supreme Court addressed that is that, as you just said before, about standing and mootness.

[00:24:26] Speaker 03:
And so the court said, well, we do have a continuing controversy

[00:24:30] Speaker 03:
because Mr. Powell at that point still had a back pay claim.

[00:24:37] Speaker 03:
And then the whole analysis of what was going on there was the pay that was then deprived because he was excluded rather than expelled.

[00:24:49] Speaker 03:
And the main part of the court's discussion was that if they were going to do this, he had to be

[00:24:57] Speaker 03:
So I think that it is really having a tail wagging the dog by making it seem like what Powell was about was the backfake.

[00:25:08] Speaker 03:
That's why there was still continuing jurisdiction.

[00:25:12] Speaker 03:
But that's not what the case was about.

[00:25:14] Speaker 04:
Have you just stated the issues?

[00:25:19] Speaker 05:
Go ahead.

[00:25:20] Speaker 05:
Did you have a problem?

[00:25:21] Speaker 05:
I was just following up on Powell.

[00:25:22] Speaker 05:
I mean, OK, I get that point, but how do you distinguish Powell's feature-to-date analysis from this case?

[00:25:30] Speaker 03:
I apologize.

[00:25:32] Speaker 05:
How do you distinguish Powell from this case?

[00:25:36] Speaker 05:
Setting aside the standing question.

[00:25:38] Speaker 05:
The Supreme Court did hear his claim.

[00:25:42] Speaker 03:
Because in Powell, what the court there focused on was

[00:25:50] Speaker 03:
the actions of the officers of the House who were carrying out the function, who kept Mr. Powell from being able to come on the floor and vote, et cetera.

[00:26:07] Speaker 03:
Since Powell, more recently in Eastland and Breville, the Supreme Court

[00:26:17] Speaker 03:
without discussing what happened in Powell made absolutely clear that the speech or debate protection applies as well to the actions of the non-member officers and officials of the court.

[00:26:33] Speaker 03:
And that is exactly what then this court applied in McCarthy and Consumers Union.

[00:26:42] Speaker 03:
What we now know is from those more recent Supreme Court opinions is you can't say, well, this is different because we're talking about the administration of what Congress did, because that exact argument is rejected at least twice by the Supreme Court and by this court most recently.

[00:27:05] Speaker 01:
Mr. Lutter, just a framing question.

[00:27:09] Speaker 01:
Do you think that the speech or debate immunity is a jurisdictional bar to this court's consideration?

[00:27:15] Speaker 03:
This court has used that exact word, Your Honor.

[00:27:20] Speaker 03:
So this court says it is jurisdictional.

[00:27:23] Speaker 03:
It's not clear whether in other courts of appeals, in other circuits, I'm not sure whether any of them have said it, but this court specifically has.

[00:27:33] Speaker 03:
Now, as Your Honor knows, maybe better than I do,

[00:27:38] Speaker 03:
So what exactly does that mean?

[00:27:43] Speaker 03:
Maybe you're aware of just the other day, Judge Nichols decided a case.

[00:27:49] Speaker 01:
He said it was jurisdictional, following some decisions of our court.

[00:27:54] Speaker 03:
And we agree it is jurisdictional.

[00:27:56] Speaker 03:
In that case, we said the House did not raise

[00:28:01] Speaker 03:
speech or debate, it wanted to get to the merits of the dispute.

[00:28:06] Speaker 03:
And we said that the House has the ability to do that.

[00:28:11] Speaker 03:
Judge Nichols said, you can only do that maybe through a clear, clearly expressed waiver.

[00:28:18] Speaker 03:
And even then he said, maybe there is no waiver because in the Elstosky case, I think it is the Supreme Court raised questions about whether there can or can't be a waiver, speech or debate.

[00:28:27] Speaker 01:
Well, if it goes to our subject matter jurisdiction, it can't be waived.

[00:28:31] Speaker 01:
It can, it cannot be, it cannot be correct if it goes to our subject matter jurisdiction.

[00:28:36] Speaker 03:
And so they were, you know, Judge Nichols held that and he therefore dismissed Mr. Meadows' case.

[00:28:46] Speaker 03:
And so at least his view, which obviously is not binding on this court, is that it cannot be that the House has to assert

[00:28:56] Speaker 03:
speech or debate if he wants it to be part of the case.

[00:28:59] Speaker 03:
And that argument he made was, it's like the Fifth Amendment.

[00:29:03] Speaker 03:
It's something that it's not self-executing.

[00:29:06] Speaker 03:
It has to be asserted by the party.

[00:29:08] Speaker 03:
But Judge Nichols rejected that.

[00:29:10] Speaker 01:
But it's the House's position that it doesn't go to subject matter jurisdiction.

[00:29:14] Speaker 03:
Again, it's very hard for me to know exactly what this court means when it says that it's a subject matter jurisdiction determination.

[00:29:26] Speaker 03:
In our view, there clearly has to be situations where if the House does not invoke speech or debate, the case is properly before the court, unless there are other reasons that it's not.

[00:29:40] Speaker 03:
Again, Judge Nichols took a different position.

[00:29:42] Speaker 03:
Now here, and I know you've started out, you've said, you're obviously not opposed in this specific case.

[00:29:52] Speaker 01:
Interesting question.

[00:29:53] Speaker 03:
Right.

[00:29:53] Speaker 03:
But we'll see.

[00:29:56] Speaker 03:
solid reconsideration before Judge Nichols, and maybe he's going to appeal.

[00:30:00] Speaker 03:
I don't know.

[00:30:01] Speaker 03:
So we might get to this court, and we might learn from this court exactly what this means about that it's jurisdictional.

[00:30:08] Speaker 04:
And I just want to be clear as to whether or not you believe the mask and the fine issue can be separated, or are they integral to each other because the fine is the enforcement of the mask policy?

[00:30:19] Speaker 03:
For speech or debate purposes, Your Honor, we think they are integral.

[00:30:25] Speaker 03:
because this is all, from our perspective, this is all part of the same scheme because the question is how, what, we've got the policy about masks, now how is it going to be effectively enforced?

[00:30:42] Speaker 03:
If it can't be effectively enforced, it raises a question about the practicality or the purpose of the mask requirement.

[00:30:51] Speaker 03:
and the House decided that the best way to enforce it was through the fines system.

[00:30:57] Speaker 03:
And I might add, pages 43 and 44 of our brief, we explain that the system of fines for members who violate

[00:31:08] Speaker 03:
house rules is well established in the house.

[00:31:12] Speaker 03:
And by the way, the house operates very much on a precedent and history system.

[00:31:21] Speaker 03:
And so there are, we cited there for you, there are various cases where there are fines because this is one of the ways that the house can effectively carry out its rules about decorum

[00:31:38] Speaker 03:
So it's a well-established power that the House uses.

[00:31:43] Speaker 03:
Indeed, I have to say, I think it would be a remarkable ruling by this Court about really affecting the separation of powers

[00:32:01] Speaker 03:
interfering with the House's ability to find its own members as disciplined.

[00:32:08] Speaker 03:
Remember, we're not talking about finding anybody else.

[00:32:12] Speaker 03:
We're talking about finding its own members.

[00:32:15] Speaker 03:
And this court, in various cases, first versus Black and Brown and Williamson, et cetera, has made clear that this court believes, and we think correctly, that it is very limited

[00:32:29] Speaker 03:
function in affecting the way that the House operates itself.

[00:32:39] Speaker 03:
Thank you very much, Your Honors.

[00:32:44] Speaker 01:
Mr. Weiss, we'll give you two minutes.

[00:32:45] Speaker 02:
Thank you, Your Honors.

[00:32:46] Speaker 02:
A couple of points in rebuttal.

[00:32:49] Speaker 02:
First, I have never heard a limiting principle from my colleague about their view of speech for debate immunity.

[00:32:57] Speaker 02:
I suppose, in their view, if we wanted to go back to flogging, there would be no- Well, before you get into that, that's not especially helpful.

[00:33:07] Speaker 05:
Could you respond to two of his points?

[00:33:09] Speaker 05:
Number one, that if you look at Gravel and our cases, the Sumer Union and McCarthy, that there is no distinction any longer between the actor and the act.

[00:33:25] Speaker 05:
That's what those three cases stand for.

[00:33:28] Speaker 05:
And, you know, it's the Supreme Court and our case law, and they clearly do say that.

[00:33:33] Speaker 05:
And that, therefore, you know, the distinction that Powell rested on there just is no longer something we can do.

[00:33:43] Speaker 05:
What about that?

[00:33:45] Speaker 02:
Yeah, let me address that.

[00:33:46] Speaker 02:
Your honor.

[00:33:47] Speaker 02:
Yeah.

[00:33:48] Speaker 05:
First of all, then I have a second question.

[00:33:50] Speaker 02:
Right gravel dealt with a committee process.

[00:33:53] Speaker 02:
That is, that is a core function of what the house is doing.

[00:33:56] Speaker 02:
Just like, by the way, McCarthy, just like, by the way, consumers, you needed access to the hall of the house.

[00:34:01] Speaker 02:
When we look at power, by the way, I want to, I want to correct the record.

[00:34:04] Speaker 02:
I did we repel.

[00:34:05] Speaker 02:
He initially got his pay reduced in the 90th Congress.

[00:34:10] Speaker 02:
He was receded in the 91st Congress.

[00:34:11] Speaker 02:
He was a sitting member of Congress when that pay was reduced.

[00:34:14] Speaker 02:
So this distinction about, well, it may be different depending on whether he's not a member of Congress.

[00:34:20] Speaker 02:
He was a member of Congress when that pay was reduced.

[00:34:23] Speaker 02:
It was a different session.

[00:34:24] Speaker 02:
As it may be in a couple of months, it's going to be a new session of Congress.

[00:34:28] Speaker 02:
But again, we're dealing with something that's outside that court legislative function.

[00:34:32] Speaker 05:
But what about Mr. Letter's point that he said it's not outside?

[00:34:35] Speaker 05:
He said this goes to the heart of how Congress disciplines its members, which the Constitution gives directly to Congress, and that there are many rules that Congress adopts that are enforced just this way.

[00:34:49] Speaker 05:
And let me just finish my question.

[00:34:51] Speaker 05:
and that if this court were to question that, it would raise serious separation of powers.

[00:34:57] Speaker 02:
Your Honor, that simply is not true.

[00:34:59] Speaker 05:
Well, I thought you might say, but why?

[00:35:01] Speaker 02:
Right.

[00:35:02] Speaker 02:
It's not true for several reasons.

[00:35:03] Speaker 02:
First of all, it was not true

[00:35:06] Speaker 02:
in terms of the reduction in the reporting of pay in the power case.

[00:35:09] Speaker 02:
Secondly, they have numerous means that they have traditionally used, whether it's the priding people of committee chairmanships, which in fact they did in one of my clients, whether it is... Well, was Mr. Ledder wrong that this procedure of deducting pay

[00:35:25] Speaker 05:
has been part of the way in which Congress enforces its rules for decades.

[00:35:30] Speaker 05:
Is that wrong?

[00:35:32] Speaker 02:
When it has happened, historically honor has been very rare and all of that occurred prior and again the 27th amendment was initially part of the original bill of rights and obviously it sat on the shelf for a long period of time prior to its adoption by the states but ultimately the rules changed under the 27th amendment

[00:35:49] Speaker 02:
in the mid-90s, and there's been very, very few cases that have addressed that issue.

[00:35:54] Speaker 02:
This is really a case of first impression in terms of what are the limits on Congress and what they can do.

[00:35:59] Speaker 02:
Can they line people up and shoot them outside?

[00:36:01] Speaker 02:
Obviously, the Eighth Amendment would not allow them to do that.

[00:36:03] Speaker 02:
It would probably be a de facto expulsion as well.

[00:36:05] Speaker 02:
He would suggest, Your Honors, that there's no limit to that, that speech or debate, it's enforcement of their rules.

[00:36:14] Speaker 02:
We can strip them to the waist and flog them like we did back in the 1800s.

[00:36:17] Speaker 02:
It's enforcement of their rules, speech or debate immunity.

[00:36:19] Speaker 02:
There is no limiting principle that limits at all his view of speech or debate immunity.

[00:36:24] Speaker 02:
And yet we know courts protect rights.

[00:36:25] Speaker 04:
Well, they are talking about fines that have been established over time, like that's been their precedent as a way of enforcement.

[00:36:31] Speaker 02:
Your Honor, it has occurred very, very rarely.

[00:36:33] Speaker 02:
And when it has happened, it has happened generally, other than no one has challenged it after the adoption of the 27th Amendment.

[00:36:40] Speaker 02:
And so I don't think you can look to historical practice when you've got an amendment that changes.

[00:36:44] Speaker 02:
That's the very point of an amendment.

[00:36:46] Speaker 02:
And the point of an amendment is to change the status quo.

[00:36:49] Speaker 02:
For decades, for instance, we did not allow certain categories of persons to vote, and yet we amended our constitution to change the status quo.

[00:36:56] Speaker 02:
The 27th Amendment changed the status quo in much the same way.

[00:36:59] Speaker 04:
We cannot vary... Do you need to get us beyond speech and debate laws before we would even need to reach 27th Amendment?

[00:37:06] Speaker 02:
I can, Your Honor, and obviously we think Powell is this positive of that question.

[00:37:10] Speaker 02:
The other cases that they cite deal with functions within the hall of the House themselves, not

[00:37:15] Speaker 02:
not bearing pay, not administrative officers bearing pay, which is pal.

[00:37:21] Speaker 02:
Again, he was a sitting member of Congress.

[00:37:22] Speaker 02:
So all of these distinctions that they try to draw when it comes to pay, that's 27th Amendment.

[00:37:28] Speaker 02:
And this distinction that he said, well, the president was a party in vain.

[00:37:32] Speaker 02:
Well, then why didn't you dismiss the legislative defendants and the legislative actors invader that were implementing, right?

[00:37:37] Speaker 02:
They would ostensibly be subject to it.

[00:37:39] Speaker 02:
And the reason that that was not the case, I would submit to you, was because Powell precluded that argument.

[00:37:45] Speaker 05:
But you see, you're getting into the merits of the case as part of the speech or debate analysis.

[00:37:52] Speaker 05:
And the whole purpose of speech or debate immunity is to keep the courts out of there.

[00:37:58] Speaker 02:
Your Honor.

[00:37:58] Speaker 05:
So it doesn't, it shouldn't make any difference for purposes of speech or debate what the 27th Amendment says.

[00:38:06] Speaker 05:
The question is, can the defendants here be held accountable in court for what the defendants say is a legislative act?

[00:38:18] Speaker 05:
And we can't resolve that by, we're not allowed to resolve that by looking at the merits of your 27th Amendment case.

[00:38:26] Speaker 02:
Your Honor, I would submit... Isn't that right?

[00:38:28] Speaker 02:
Well, the speech or debate, jurisprudence always looks at the act.

[00:38:34] Speaker 02:
And that's what I've been focusing on.

[00:38:35] Speaker 02:
What is the act that's at issue here?

[00:38:38] Speaker 05:
Yeah, you look at the act, but not the legality or constitutionality of the act.

[00:38:42] Speaker 05:
You look at the act and the defendant's position here is that the act is an integral part of the resolution.

[00:38:49] Speaker 02:
Your honor, if that were true, and that position were true, and that was the same position, by the way, that these same defendants articulated in power that the United States Supreme Court rejected.

[00:38:58] Speaker 05:
If that were true... What do you do with gravel?

[00:39:02] Speaker 02:
It's just like McCarthy, you're dealing with the internal function for consumers union.

[00:39:07] Speaker 02:
You're dealing with access to the house and the internal functioning of it versus an outside administrative function in the pay.

[00:39:12] Speaker 02:
That's the distinction.

[00:39:14] Speaker 02:
And again, if there were not a United States Supreme Court case right on point, I would say that it might have a stronger argument, but here there is.

[00:39:22] Speaker 02:
And they have failed utterly to distinguish the holding and power.

[00:39:25] Speaker 02:
We're dealing with employee actors.

[00:39:28] Speaker 02:
who were reporting a pay decrease, and that was the issue ultimately impaled as respects the sitting member of Congress.

[00:39:35] Speaker 02:
So I did want to just very, very briefly.

[00:39:40] Speaker 01:
Just to clarify, the plaintiffs here are bringing the suit both in their individual and official capacity.

[00:39:46] Speaker 02:
They are, Your Honor.

[00:39:48] Speaker 02:
And the individual for the pay that they're due, the official, because if the pay is diminished, we start to deal with congressional independence.

[00:39:56] Speaker 02:
And so that's the official capacity issue.

[00:39:59] Speaker 02:
I wanted to finish on this in terms of this distinction of it's not a pay decrease, it's a fine.

[00:40:05] Speaker 02:
If you go back, Your Honors, and you look at the U.S.

[00:40:08] Speaker 02:
Supreme Court's discussion in U.S.

[00:40:09] Speaker 02:
v. Hatton, that was the 2001 Article III judicial pay case, they said it's not a problem that the taxes are uniform.

[00:40:17] Speaker 02:
It becomes an issue of independence.

[00:40:19] Speaker 02:
And if you go into the sleeper article that we cited, which this court is also cited in some of its first prudence and talks about the development of the 27th Amendment, it's all about independence of members of Congress individually.

[00:40:31] Speaker 02:
To be able to articulate and have sustenance, that's why in part we have the ascertainment clause.

[00:40:37] Speaker 02:
That's also why they did the 27th Amendment to ensure independence.

[00:40:39] Speaker 02:
That was the same guiding principles that drove the Article III compensation clause.

[00:40:44] Speaker 02:
What the U.S.

[00:40:44] Speaker 02:
Supreme Court said in Hatter on Article III is, hey, look,

[00:40:48] Speaker 02:
It's okay if it's a uniformed tax, because that's not directed at anybody.

[00:40:53] Speaker 02:
But we're going to have a real problem if you start to find judges who don't like the rulings.

[00:40:57] Speaker 02:
That's a violation of the Article 3 compensation clause.

[00:41:00] Speaker 02:
I would finish with suggesting to this Court that the same is true when it comes to a violation of the 27th Amendment.

[00:41:06] Speaker 02:
We start to get into, and this is right out of Madison, I wanted to finish this, in Hamilton, in the Federalist.

[00:41:14] Speaker 02:
If you control a man's pocketbook, you control his will.

[00:41:17] Speaker 02:
That's what this is about.

[00:41:19] Speaker 02:
And the 27th Amendment takes this form of enforcement off the table.

[00:41:24] Speaker 02:
Thank you, Your Honor.

[00:41:25] Speaker 01:
Thank you.

[00:41:26] Speaker 01:
Case is submitted.