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Case number 22-5263.

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Andrew F. Clyde, individual and in his official capacity as a member of the U.S.

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House of Representatives at the balance, versus William G. Walker in his official capacity as Sergeant at Arms of the U.S.

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House of Representatives, and Catherine Spindor in her official capacity as Chief Administrative Officer of the U.S.

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House of Representatives.

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Mr. Cuccinelli for the appellant, Mr. Berry for the police.

[00:00:28] Speaker 05:
Good morning.

[00:00:29] Speaker 05:
Good morning, counsel.

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I think I still have one minute to say good morning.

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Mr. Cuccinelli, please proceed when you're ready.

[00:00:35] Speaker 04:
Apologies to the clerk.

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If I could reserve two minutes for battle, I would appreciate it.

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I'm Ken Cuccinelli for the appellants in this matter.

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And as this court pointed out in Vanderjack in 1982, it's not the judiciary's role to tell Congress what rules they should adopt, but it is the judiciary's rule to tell Congress what they cannot adopt when what they or implement

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when those implementations are unconstitutional.

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The issue before this court is whether any constitutional protections may exist in the presence of the House's rulemaking power.

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The district court's dismissal of the case below effectively nullified the individual protections of the members under Article 1, Section 5,

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and under the 27th amendment.

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And we respectfully suggest that this court should undertake three steps in overruling the district court below.

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First, with respect to subject matter jurisdiction, that it does exist, and I'll address that momentarily.

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that the speech or debate clause defense is inapplicable as a bar in this case and to reach the merits of the case itself.

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A subject matter jurisdiction is interesting in the DC Circuit.

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It clearly exists in this case, but the nomenclature of this circuit has, with all due respect, been wrong for 50 years.

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This court's case law

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uses the word jurisdiction, but does speech or debate clause defense analysis, which is exactly what the district or did below.

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If the speech or debate clause were jurisdictional in the manner described frequently, at least in terms of the words used, the Supreme Court wouldn't have reached

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Perhaps any of the speech or debate clause cases.

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Are you asking this panel to overturn the precedent of the circuit, which is something that we lack the authority to do?

[00:02:36] Speaker 04:
No, I'm not your honor.

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If you want to keep using the word jurisdiction, that's fine.

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Killworm uses the word defense.

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The Powell court helpfully listed the six arguments that they were going to address.

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One was your subject matter jurisdiction.

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Another was speech or debate clause.

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I would just point out that the district court here did what often happens is they called, they said they were dismissing the case for jurisdictional grounds, but in fact did an analysis that is a speech or debate clause defense analysis.

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So you can, it doesn't have to be subject matter jurisdiction, right?

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cases have used the term jurisdiction.

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I don't recall one that actually said subject matter jurisdiction.

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So if it's jurisdiction, that just means it's a thing that we address at the threshold.

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And if it's not subject matter jurisdiction, then it can be the type of jurisdictional argument like sovereign immunity or something that can be.

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waived by failure to assert it, but here it's been asserted.

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And so we have we and we have cases that speak of it in term in jurisdictional terms, more than one decision.

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And so then it's an issue that we address at the threshold, whether the speech or debate immunity applies.

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And so let me address that that the error in analysis of the district court below was in

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this speech or debate clause analysis, treating the acts at issue as somehow non-distinct, as it couldn't be separated from the passage of HR 73.

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Instead of dealing with it as analyzing the implementation of HR 73, acknowledging that the passage of HR 73 is entirely protected under the speech or debate clause.

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But the context, which is the word

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used by the district court below, that it relied upon to convert what it called on page eight of its own order, administrative functions, into legislative acts, as that phrase is used in speech or debate clause analysis, was the context of being the subject of a House rule, the product of a House rule, the majoritarian power of the House.

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to write it's own rules.

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You don't question that enacting a rule of proceeding is not within the jurisdiction of the House.

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Correct.

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I do not.

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And you are not alleging that this particular rule establishing security procedures is itself unconstitutional.

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On its face, no.

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In implementation, it is.

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But not on its face.

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Correct.

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Yes, so HR 73 says nothing about magnetometer.

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It just refers to security.

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But you don't think the use of magnetometers would be unconstitutional.

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Well, it impeded members from voting, including Representative Clyde, one of the plaintiffs here.

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We cited others who couldn't vote because of how this rule was implemented on their most fundamental responsibility.

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And the fines were assessed for literally just walking on

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floor, which under no circumstance could reasonably be called disorderly behavior.

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And the problem that the House hasn't addressed is the

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elimination of the individual members protections that are explicit in the Constitution.

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The disorderly behavior restriction is a restraint on the power of the House's ability to punish members and therefore to pass rules.

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Not to pass the rules, but the nature of the rules has to respect that to punish a member requires disorderly behavior.

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And you think that's a standard that is susceptible to judicial determination?

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Well, if it isn't susceptible to judicial determination, then it is left to the House to determine for itself.

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And that is a classic wolf guarding the sheep.

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That's the House just saying, trust us.

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And the court clearly reaches many speech or debate clause cases.

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And we believe that they should overrule the court below, reach this one, and address the merits.

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that the actions to implement HR 73 were not legislative acts.

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So sometimes implementation acts can be legislative acts.

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Yes.

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Obviously, sometimes they can be.

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And so the question is, where does this one fall?

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And the Supreme Court's language in Bravo or Gravel says in deciding whether something counts as a legislative act, even though it's not a course speech or debate,

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that it must be an integral part of the deliberative and communicative processes by which members participate in House proceedings.

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And so you're not taking issue with the proposition that determining the conditions under which somebody goes on the House floor and who goes on the House floor is an integral part of the communicative processes, deliberate processes by which members participate in House proceedings.

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Your argument is that even if that's true, imposition of the fine and exaction of the fine is not

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understanding your argument conceptually correctly?

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Very close.

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So I would say that a security rule that in any way impedes the access of the members to the floor does

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trigger a constitutional problem.

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I mean, they're missing votes.

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So you may have an argument on the merits about whether it triggers a constitutional problem.

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I guess what I'm trying to understand is, is it within the fold of speech or debate clause immunity?

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And on that, I didn't understand you to take issue with the proposition that having a rule about who can come on the floor and what conditions they come on the floor to engage in the deliberative and communicative processes

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by which members participate in house proceedings, because that's what happens on the floor.

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I didn't understand you to say that that filter was itself something that's outside of speech or debate immunity.

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Correct.

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So what you're focused on is... I don't want to overstate.

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Yes.

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And what you're focused on is even if that's within speech or debate immunity, the exaction of the fine as the consequence of violating the thing that we just said is within speech or debate immunity, that's outside of speech or debate immunity.

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That's the way you're conceiving it.

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So on the former, what we call the doorkeeping role is not a legislative act.

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So we would not concede that that is an intimate part of the legislative process.

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That doesn't suggest there can't be some security mechanism for accessing the floor, as does exist.

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However, that is not a legislative function done by members as members, to use some of the other court phrasing,

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And the payroll function is actually got a finding from the Third Circuit, a holding, that it is not a legislative function.

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So why didn't you challenge that then?

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Well, we did.

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I thought what you were challenging is the fine.

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Well, and the extraction of the fine as well, yes, under the 27th Amendment.

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I'm just not leaving aside the disorderly behavior protection for the members.

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and as if walking onto the floor is somehow disorderly or embarrassing to the House.

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If the House gets to define disorderly via passing a rule, then we've written the disorderly behavior protection out of the Constitution, out of Article 1, Section 5.

[00:10:19] Speaker 04:
Um, both have to be able to exist together.

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And that does, your honor, require a judicial description of what are those boundaries is describing those boundaries is the province of the court.

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And because these are not legislative acts of themselves, the door keeping function and the payroll function of this case should not have been dismissed.

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And it should have reached the merits.

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And by the way, I would note that addressing whether these acts are legislative is not a merits question.

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The merits question is only accessed by determining that they are not.

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Right.

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Deciding whether the legislative acts goes to speech or debate immunity, not to the ultimate merits of your claim.

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So you don't think that

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determining the conditions under which members access the floor for purposes of engaging in the, I think you'd at least agree that what members do on the floor is an integral part of the deliberative and communicative processes by which members participate in house proceedings.

[00:11:23] Speaker 05:
Yes, I can't think of examples when I would not agree with that.

[00:11:26] Speaker 05:
Right, right.

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And so then determining the conditions under which members come onto the floor to do that, you don't think is an integral part

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of the community deliberative and communicative processes by which members participate in house proceed.

[00:11:41] Speaker 04:
So this starts to get awfully close to the courts allowance for the house to make rules.

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It has no saying that but to only step in when the

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those rules in implementation somehow violate other constitutional rights, the language of Valin and Vanderjack.

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And that's the situation here.

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The way this was implemented was impeding votes of members.

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It actively blocked people, including one of my three clients, from a vote, their most fundamental undertaking.

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And the sergeant at arms, the doorkeeper, applied the fine.

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chief administrative officer collected the fine, but it was the sergeant at arms, the doorkeeper who decided that the rule was broken and the implication being, uh, assuming there is a protection against being fined for disorderly behavior that the member had committed disorderly behavior.

[00:12:42] Speaker 05:
And what's the, so we have a case consumer's union, for example, which has to do with whether a press entity can get in the gallery of the house chamber.

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And we held that the enforcement of that rule, which prohibited the press entity from getting into the gallery, was within speech or debate immunity.

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So that case couldn't go forward.

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And this case is about whether a member can get to the floor.

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If there's speech or debate immunity for whether a press entity can get to the gallery of the floor, how is there not speech or debate immunity for whether a member can get to the floor?

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Judging by your question, your honor, I would flip it around that there is much more opportunity to control the access of non-members than of members, which is what was done in the consumer's union.

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And I would point out the members themselves personally made those decisions for the first hundred years of the house about which press got to access the floor.

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So when you think of what are things that members do as members,

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The Consumers Union case spells out the history that members did this.

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They clearly thought that press access to their proceedings was an intimate part of the legislative process, presumably because of the communication back and forth to constituents, but they were nonmembers.

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And when they were on the floor, they were lobbying members while legislation was under consideration.

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And so they were removed from the floor up to the gallery.

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And at a certain point, the Congress delegated the decision, because there are only so many seats, of deciding who may access that gallery to essentially commission of non-members, but did maintain voting control over those decisions.

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in a way that was not maintained with HR 73.

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So you have non-members who are literally lobbying on the floor in the midst of legislative consideration

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who were removed from the floor.

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And speech or debate clause protection was provided because the context, which is what I feel like there's fourth judge here, Judge Ginsburg and Walker analyzing Consumers Union talked about this context and the atmosphere of legislation on the floor.

[00:15:08] Speaker 04:
But that atmosphere was with respect to non-members who were lobbying members on the floor.

[00:15:13] Speaker 05:
But non-members and members, I guess,

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It seems to me, if we're talking not about the merits, but about speech or debate immunity, the fact that this case involves members seems like it more squarely implicates speech or debate immunity than less squarely implicates it, because it actually has to do with members on the floor as opposed to non-members in the gallery.

[00:15:30] Speaker 04:
So the reason it is less applicable, one, is because I don't think anybody would dispute that House members have the right to access the floor that press members don't.

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This is the place where their job with the legislating.

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So, in that sense, there is that's one removal of consumers union.

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Another is there are no member rights that press members have that my clients do.

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And that is not to be punished for behavior that isn't disorderly, even if.

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They have to comply with certain requirements.

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There's no allegation that any other rule or any other requirements weren't in compliance by any of the members.

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And then they also, when the fines are removed from their pay, that varied their pay downward.

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lowered their pay contrary to the 27th amendment that's not a legislative act the the payroll function as the third circuit held and are you indicating that we should analyze that separately essentially the administration of the rule versus the enforcement of the rule yes your honor um well no no i'm sorry i heard you wrong the implementation of the the two parts are the passage of the rule

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which the House clearly has the power to pass rules, and this Court and the Supreme Court have always made clear we're not going to invade the province of the House's rulemaking power.

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However, when rules that in implementation either violate other individual or constitutional rights or are illegal in some way, that portion of this chain of causation may be reviewed by the courts and has been repeatedly by this Court and by the Supreme Court.

[00:17:14] Speaker 03:
That's what I meant.

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If any time a member raises one of these arguments and then we decide that there's not speech or debate immunity, I mean, won't that mean how would that not impact the independence of Congress as a as a separate branch?

[00:17:34] Speaker 04:
So if I could bring three pieces together and answering that one, I'd compare to the McCarthy case two years ago, where the act

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Again, skipping the voting to implement how they vote, but the implementation was about voting.

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I mean, it was about as intimate an element of the legislative process as you can get.

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Then you have the Ballon case that was about quorum, determining quorum and voting.

[00:18:04] Speaker 04:
So, you know, those kinds of implementations of these truly legislative elements, I don't think the court could ever get into.

[00:18:14] Speaker 04:
However, where there are specific other protections, like the disorderly behavior protection, like the protection of unburied salary, if the court doesn't... Your argument is that if there is like a

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an invasion of the members' constitutional rights.

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And so the way that members vote or some of those questions, I mean, those could easily be re-characterized as invading the members' constitutional powers.

[00:18:54] Speaker 04:
Well, and in the early 80s, the distribution of voting power laws.

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And then those would be reviewable also by this court, which would be in tension with this court's even very recent precedents.

[00:19:06] Speaker 04:
I fully recognize the tension between the two branches and which is also first and most respected by the courts.

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without exception, hands off approach to the House passing rules and not sitting in judgment of any of them ever.

[00:19:27] Speaker 04:
But again, how some of them do get enforced is another matter.

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And this feature debate clause is intended to maintain the independence you referenced.

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And perhaps more critically, to not have legislators bothered and taken from their legislative function

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by being dragged into court.

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And that's not who's here.

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That is not who we sued.

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We did not sue the Speaker.

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We did not sue the members.

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We sued those who were implementing in a way that violated constitutional rights, House Rule 73.

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So we're respecting that difference

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And it isn't that the court never has a role to play.

[00:20:08] Speaker 04:
We believe the court does have a role to play here, and that we're asking for a respectful resolution.

[00:20:14] Speaker 04:
By respectful, I mean respectful of the differences between the two branches, but also not allowing the writing out of individual protections, a la ballon, from the Constitution that the members have a right to expect.

[00:20:30] Speaker 05:
I'm sure my colleagues don't have additional questions for you at this time.

[00:20:33] Speaker 05:
We'll have from the Council of the House.

[00:20:39] Speaker 05:
Mr. Berry.

[00:20:52] Speaker 01:
May it please the court.

[00:20:58] Speaker 01:
House Resolution 73 was controversial.

[00:21:01] Speaker 01:
Every member of the current House leadership voted against it, believing it to be misguided.

[00:21:06] Speaker 01:
and the security screening requirements contained in the resolution were not reimposed at the beginning of this conference.

[00:21:13] Speaker 01:
But this case is not about the wisdom of House Resolution 73.

[00:21:16] Speaker 01:
Rather, it is primarily about whether a propellant suit is barred by the speech or debate clause, and then, if their suit is not precluded, whether the fines are violating the resolution run afoul of the 27th Amendment or the Constitution's discipline clause.

[00:21:32] Speaker 01:
And if I may turn to some of the points that my friend made

[00:21:36] Speaker 01:
I think that the attempt to divorce the enforcement and administration of the resolution with the implementation or adoption of the resolution just is not consistent with precedent.

[00:21:49] Speaker 01:
As the chief judge pointed out in McCarthy in discussing the consumers' union case, this court specifically said that the speech or debate clause applied to the administration and enforcement of rules governing seating and press galleries, not just the promulgation of

[00:22:05] Speaker 01:
And so too should be the case here, particularly in an instance where the where you're dealing with the regulation of member conduct and the members actually on the floor, not just in the gallery, which I think is the chief judge indicated is even more core to the legislative process.

[00:22:23] Speaker 05:
The second thing I would note is that I think there's an argument that it's even if that's true, even if members on the floor are more core than non members in the gallery, their argument is that

[00:22:36] Speaker 05:
Voting is more core than withdrawal of salary.

[00:22:44] Speaker 05:
And what's your response to that?

[00:22:45] Speaker 05:
Because I think you're right that per McCarthy and per other decisions, consumers unit itself, and Gravel seems to presuppose that implementation definitely can be a legislative act.

[00:22:54] Speaker 05:
But the question becomes, is the implementation at issue a legislative?

[00:22:58] Speaker 01:
And I think it is, Your Honor, because it's part of a scheme that regulates the very atmosphere in which lawmaking deliberation occurs.

[00:23:05] Speaker 01:
I also think it's a legislative act because it's part of a congressional discipline proceeding.

[00:23:10] Speaker 01:
In Wrangell, this court said that a congressional discipline proceeding is a legislative matter that the Constitution places within the jurisdiction of the House.

[00:23:19] Speaker 01:
And what this court said in Wrangell was the censure that was the end product, the execution of the disciplinary proceeding was not judicially reviewable.

[00:23:29] Speaker 01:
It was protected by this feature debate clause.

[00:23:31] Speaker 01:
In this instance,

[00:23:33] Speaker 01:
was not a censure.

[00:23:34] Speaker 01:
It was the result of the disciplinary proceeding.

[00:23:36] Speaker 01:
It was a fine, but I don't see why the principle of the Legislative Act being an execution of a judicial, of a disciplinary proceeding would be the same.

[00:23:47] Speaker 05:
The censure was promulgated by members?

[00:23:51] Speaker 01:
It was, but the clerk had a role in actually implementing the censure and placing it, even the congressional

[00:24:01] Speaker 01:
And so, but I think that what we're talking about here is not only a disciplinary proceeding, but a regulation of the very atmosphere in which lawmaking deliberations occur.

[00:24:12] Speaker 01:
And my friend has mentioned Ballin a number of times in the oral argument in the brief, but I think the key thing is that Ballin is not a speech or debate clause.

[00:24:22] Speaker 01:
There was no congressional party.

[00:24:25] Speaker 01:
It was a party to that case.

[00:24:28] Speaker 01:
And the speech or debate clause issue was never raised.

[00:24:31] Speaker 01:
So Bailen cannot speak to the issue of whether certain things are legislative acts and whether you look to the speech or debate clause first and decide that immunity question before you turn to the merits of whatever claim there is that the House rule is in violation of the Constitution.

[00:24:48] Speaker 01:
And I think with respect to the issue here,

[00:24:51] Speaker 01:
Once you say that it's a legislative act, for instance, it does not matter whether we're talking about members or non-members.

[00:25:00] Speaker 01:
My learned friend says that while non-members are not being bothered, they're not being hauled into court,

[00:25:05] Speaker 01:
The members are not being bothered, not being held into court, and thus the purpose of the clause is satisfied if you're only suing non-members.

[00:25:13] Speaker 01:
But that is not consistent with this court's precedent.

[00:25:16] Speaker 01:
It's not consistent with what this court said in McCarthy.

[00:25:19] Speaker 01:
It's not consistent with Gravel because part of the purpose

[00:25:22] Speaker 01:
is that the legislative branch as a whole, the legislature, should not be dragged into court and forced to deal with what can be a hostile judiciary.

[00:25:30] Speaker 01:
It's a separation of powers issue.

[00:25:33] Speaker 01:
And so the fact you're talking about officers of the House who are appointed by the Speaker versus members of the House, the distinction there is not relevant for purposes of the speech or debate clause in terms of what the underlying function of the clause is.

[00:25:50] Speaker 01:
So you're... Oh, go ahead.

[00:25:51] Speaker 03:
Mr. Barrett, I was going to ask you, is there any circumstance in which the House enacts a rule of proceeding and implements it that a challenge to the rule or its implementation could be cognizable by this court?

[00:26:08] Speaker 03:
Are all rules of proceeding and all implementation of such rules beyond judicial cognizance?

[00:26:16] Speaker 01:
Well, number one, I certainly don't think to win this case, the answer to

[00:26:20] Speaker 01:
In this case, the answer to that question has to be yes.

[00:26:24] Speaker 01:
And I'm not going to assert, given the scope of House rules, that there can never be a House rule.

[00:26:31] Speaker 01:
The implementation of which would not be covered by the speech or debate clause.

[00:26:38] Speaker 01:
I would concede the possibility there could be House rules that regulate things that do not fall within what we would consider legislative acts.

[00:26:49] Speaker 01:
But I think, again, here we have very specific case law on point in terms of the press gallery case precedent about regulating the very atmosphere in which the deliberations of the Congress apply, the Randall precedent in terms of congressional discipline being a matter that's within the jurisdiction of the legislature, the execution of that discipline not being covered.

[00:27:14] Speaker 01:
So the fact that there may be cases where

[00:27:17] Speaker 01:
you could challenge House rules and the speech or debate clause would not apply, I don't think means that in this.

[00:27:23] Speaker 05:
Well, I take it under the House rules, I don't know how broad the power, the House rules power ranges, but under the Supreme Court's precedence that we've adopted in our, in the letter of our decisions,

[00:27:37] Speaker 05:
In order to fit within speech debate community, the matter at issue, meaning what's covered by the House rule, has to be an integral part of the deliberative and communicative process by which members participate in House proceedings.

[00:27:49] Speaker 01:
Yes, and I think that there very well could be House rules that do not meet that test.

[00:27:53] Speaker 01:
For instance, if there's a House rule saying that there are going to be tacos served in the House cafeteria every Tuesday, I do not believe that we would claim that the execution of that would be protected

[00:28:07] Speaker 01:
feature debate.

[00:28:08] Speaker 03:
I mean by someone who really wanted their tacos.

[00:28:11] Speaker 01:
Excuse me.

[00:28:11] Speaker 03:
Not even by a member who really wanted their tacos.

[00:28:14] Speaker 01:
I mean, they wanted a taco on Wednesday, you know.

[00:28:17] Speaker 01:
No, but in more serious notes, something regulating that, for instance.

[00:28:21] Speaker 01:
Well, we have a case, for example, with the house restaurant, the food service worker, and it's a... Yeah, so I'm not claiming that there could be house rules and there probably are house rules.

[00:28:32] Speaker 01:
to which the legislative act test is not met.

[00:28:35] Speaker 01:
What I'm saying is, in this case, I very much believe, and the President indicates, that the legislative act test is met.

[00:28:41] Speaker 03:
This case doesn't indicate any boundary issue, is what you're suggesting.

[00:28:45] Speaker 01:
Oh, no.

[00:28:45] Speaker 01:
I think it is.

[00:28:46] Speaker 01:
Again, we're talking about magnetometers that were placed directly outside the House chamber after January 6.

[00:28:53] Speaker 01:
And I think that it regulates the very atmosphere in which the law making delivery.

[00:28:58] Speaker 05:
So that might.

[00:28:59] Speaker 05:
But I mean, I think there was some resistance to that too.

[00:29:02] Speaker 05:
But even if that does, the question is, does the consequence of not going through the magnetometer, i.e.

[00:29:08] Speaker 05:
the imposition of the fine and the transaction of the fine for the salary, is that integrally related to, is it an integral part of the communicative process by which members participate in house proceedings?

[00:29:22] Speaker 01:
And I would say, Your Honor, pursuant to this precedent, the answer is yes, because the administration and enforcement of the press gallery access rules was deemed to be a legislative act to protect speech and debate clause immunity, and the execution of congressional discipline, whether it be by censure or a fine, is considered to be a matter that is within the jurisdiction of the House and was protected by speech or debate clause immunity.

[00:29:46] Speaker 05:
I mean, in consumers' union, there wasn't the imposition of a fine.

[00:29:48] Speaker 05:
It was just that the entity that wanted to get in wasn't allowed to get in.

[00:29:52] Speaker 05:
And so from your view, if the consequence of trying to get in when you don't have the pass to get in is that you're subject to a fine, and then that entity tried to challenge the imposition of the fine, you'd still say that's a legislative act.

[00:30:05] Speaker 01:
I would say that.

[00:30:07] Speaker 05:
And if I know my time's running out, if I could briefly turn to the merits of the two claims here at issue with respect to this, make sure there's not additional questions on future debate immunity because that's the that was what the case, the district court decision rested on.

[00:30:22] Speaker 00:
But just whether or not we need to bifurcate the spring versus the fine.

[00:30:26] Speaker 01:
Right.

[00:30:27] Speaker 01:
Again, I think that the district court was correct.

[00:30:29] Speaker 01:
You're talking about the scheme regulating the behavior on the House chamber and that the enforcement aspect of it is an integral part of the scheme.

[00:30:39] Speaker 01:
So I think the district court was right on that.

[00:30:42] Speaker 01:
And it's supported by the fact that in

[00:30:46] Speaker 01:
consumers union, this court did not distinguish between the promulgation of the rule, the administration of the rule and the enforcement of the rule.

[00:30:55] Speaker 01:
They saw it also as a scheme.

[00:30:57] Speaker 01:
And the fact that this is a disciplinary proceeding and the wrangle court court decision teaches that the enforcement of the discipline, the implementation of the discipline is protected by this feature debate clause.

[00:31:09] Speaker 01:
And I don't think the fact this is a fine versus a censure matters in terms of the

[00:31:15] Speaker 01:
that's given to the congressional discipline of proceeding.

[00:31:19] Speaker 05:
One follow-up question on that and then we'll just give you a brief minute to talk about the merits, but Powell versus McCormick.

[00:31:27] Speaker 05:
So that involved two measures that were implementation measures.

[00:31:34] Speaker 05:
One was withholding of the salary and the other was the doorkeeper kept

[00:31:40] Speaker 05:
going into the chamber.

[00:31:42] Speaker 05:
And those, the Supreme Court said there was no speech or debate.

[00:31:48] Speaker 05:
And so your distinction of that is?

[00:31:50] Speaker 01:
Well, I would have three answers, Your Honor.

[00:31:52] Speaker 01:
The first is, it's a technical matter.

[00:31:54] Speaker 01:
It was the back pay issue that was not moved by the time that reached the court.

[00:32:02] Speaker 01:
But secondly, as Your Honor said in the McCarthy case, the best way to interpret Powell was that these were not legislative acts.

[00:32:09] Speaker 01:
I think the most logical way of looking at it is that the wholesale exclusion of a member from the body, meaning that they don't get paid, they're not considered to be a member.

[00:32:20] Speaker 01:
One of the things that you don't get to go on the floor is the wholesale exclusion is not a legislative act.

[00:32:26] Speaker 01:
That's very different than a rule of general applicability, which regulates member's conduct and says that it doesn't stop you from getting on the floor, but if you go on the floor without going through security screening, you're going to get fined.

[00:32:39] Speaker 01:
I also think that there's certainly tension between the reasoning and power between members versus non-members and what came later in terms of Revelle and what's come later in terms of even this court's precedent, such as McCarthy.

[00:32:54] Speaker 01:
And then just very briefly, on disorderly behavior, I think that the dictionary definitions, whether it be at the time or now, give a definition of disorderly behavior as being contrary to the rules, contrary to law.

[00:33:09] Speaker 01:
The precedents indicate that the Congress has very broad discretion to define disorderly behavior.

[00:33:15] Speaker 01:
And if there's a rule that says you have to go get a security screening before going on the House floor, you don't go through the magnetometer, I think it is reasonable to say that that is not consistent with border to behavior.

[00:33:26] Speaker 01:
If I show up to the airport and say I'm not going to go through the magnetometer at the checkpoint, I'm just going to walk around it,

[00:33:34] Speaker 01:
I don't think many people would say that that's ordered behavior.

[00:33:37] Speaker 01:
I think a reasonable person would say that's disorderly behavior.

[00:33:40] Speaker 01:
Second, with respect to the 27th amendment issue, as I understand their brief, they're not challenging the imposition of a fine.

[00:33:48] Speaker 01:
They're saying the method of collection is unconstitutional.

[00:33:52] Speaker 01:
But we strongly believe that's not the case.

[00:33:56] Speaker 01:
They're given 90 days to pay the fine.

[00:33:59] Speaker 01:
If not, then it gets deducted from one's paycheck.

[00:34:02] Speaker 01:
There are many reasons why deductions are made from one's salary for the compensation for services.

[00:34:07] Speaker 01:
For instance, if you don't pay your child support, you can have your wages garnished, deducted from your salary.

[00:34:13] Speaker 01:
People don't say that if your wages are garnished for not paying child support, your salary, your compensation for services has been reduced.

[00:34:20] Speaker 01:
Your salary is the same, but some of it is just averted for another purpose.

[00:34:25] Speaker 01:
Here, the salary, the compensation has not been changed.

[00:34:28] Speaker 01:
Some of it has been diverted for another purpose, which is paying the debt that they owe to the house because they haven't paid their fine.

[00:34:35] Speaker 01:
And there's a specific statute on the books that allows the house to collect debts due to deductions from the paycheck.

[00:34:41] Speaker 01:
So, Your Honor, I think even if you get to the merits, the district work is still be affirmed.

[00:34:45] Speaker 01:
But I think pursuant to this court's decisions and consumers union, McCarthy and Rangel, it is clear these are legislative acts and that feature debate.

[00:34:54] Speaker 00:
And just quickly, how long have fines been being deducted?

[00:34:58] Speaker 00:
from salaries.

[00:34:59] Speaker 01:
So the fines ended at the end of the last Congress.

[00:35:03] Speaker 01:
So the way they did it is they divided it up so that when the fines were imposed, a certain amount was taken out of paycheck so that the fine would be satisfied by the end.

[00:35:14] Speaker 01:
That's what happened with respect to Congressman Gohmert.

[00:35:18] Speaker 01:
Now the other two appellants basically had almost their entire paycheck was being withheld for tax purposes.

[00:35:26] Speaker 01:
So all that could be done

[00:35:28] Speaker 01:
was that it could be deducted about $1 a pay period.

[00:35:31] Speaker 01:
So for Mr. Clyde, Mr. Smucker, they had to pay, I think, roughly about $18 in fines.

[00:35:39] Speaker 01:
That's all that the House was able to take.

[00:35:41] Speaker 01:
But they're not having deductions anymore because the ability to collect the fine ended at the end of the last month.

[00:35:47] Speaker 00:
And is that something the House has been doing over time?

[00:35:53] Speaker 01:
It's being deducted from salaries.

[00:35:56] Speaker 01:
So the statute allowing deductions for debt has been on the books for many, many years.

[00:36:03] Speaker 01:
And that is a way that this has been implemented.

[00:36:06] Speaker 01:
But it's also the case that the collection of fines ends at the end of the Congress when the fine was imposed, because the House, unlike the Senate, is not a continuing body.

[00:36:19] Speaker 01:
The House Congress ends at the end of each Congress and completely reconstitutes itself at the beginning of the current Congress, as was rather dramatically portrayed at the beginning.

[00:36:32] Speaker 03:
Mr. Berry, you said it was a statute that allows for the garnishment, or is it?

[00:36:36] Speaker 01:
There's a statute that allows for the deduction of debts owed to the House.

[00:36:41] Speaker 03:
But it's a statute, not a rule.

[00:36:42] Speaker 01:
Yes, and we did cite whatever.

[00:36:46] Speaker 05:
Thank you, counsel.

[00:36:48] Speaker 05:
Mr. Guccinelli, we'll give you the two minutes for rebuttal you asked for.

[00:36:51] Speaker 05:
Thank you, your honor.

[00:36:52] Speaker 04:
First, I would start with the lack of general applicability of these signs.

[00:36:57] Speaker 04:
Even the child support example in Hatter is analogous with the judiciary 20 years ago.

[00:37:02] Speaker 04:
But these were fines directed to specific members taken specifically from their pay.

[00:37:06] Speaker 04:
And when you read HR 73, it was written to take it from the pay.

[00:37:12] Speaker 04:
Um, and, uh, Mr. Barry correctly described the financial results for my three clients and it perfectly exemplifies one of the concerns of the founders in putting the 27th amendment in and it having been passed.

[00:37:25] Speaker 04:
And that is that they're not, that pay not be able money, not be able to be used to put pressure on members that would make a difference between poor men and rich men, then now women as well, being representatives in Congress.

[00:37:41] Speaker 04:
And here we have a real live example of it.

[00:37:45] Speaker 04:
I would also point out that in Powell, the exclusion of a member by the doorkeeper and the payroll deduction are about as close on point to the factual acts at issue here as you can find.

[00:38:00] Speaker 04:
Now the court didn't go out of its way to make holdings specific to them, but implicitly the Supreme Court in Powell found both the doorkeeper function and the payroll function

[00:38:10] Speaker 04:
to be legislative acts.

[00:38:12] Speaker 04:
Otherwise, they could not have then reached the end of the case that they did.

[00:38:17] Speaker 04:
And recently we provided the court the Third Circuit case, where it was an actual holding of the Third Circuit under speech or debate clause analysis, finding the payroll function in a Pennsylvania legislative subpoena case,

[00:38:31] Speaker 04:
to be a legislative act.

[00:38:33] Speaker 04:
So that's the only holding that we're aware of, which is why we provided to the court.

[00:38:39] Speaker 04:
And thus, the lower court should be overruled on that basis.

[00:38:43] Speaker 04:
And just with respect to Rangel, I would note that the House went through its ordinary discipline process.

[00:38:50] Speaker 04:
The whole House voted on the censure.

[00:38:52] Speaker 04:
That was determined by the House to be disorderly behavior.

[00:38:56] Speaker 04:
That doesn't mean it automatically is under the Constitution.

[00:39:00] Speaker 04:
But that wasn't a basis on which it was challenged.

[00:39:03] Speaker 04:
And what was done there was a legislative act, the reading of a censure.

[00:39:07] Speaker 04:
There was no fine here.

[00:39:10] Speaker 04:
The power was delegated to the sergeant at arms in the doorkeeper function to essentially write a ticket.

[00:39:16] Speaker 04:
And he wrote a ticket to my three clients, one of them twice.

[00:39:20] Speaker 04:
And so they owe fines.

[00:39:22] Speaker 04:
There is not a vote of the House as there was in Wrangel.

[00:39:25] Speaker 04:
The ethics committee that was sort of the appellate body was divided evenly on a partisan basis, five-five.

[00:39:32] Speaker 04:
And so the majoritarian abuse

[00:39:35] Speaker 04:
that is the beginning of this case can't be addressed in an equally divided committee.

[00:39:40] Speaker 04:
And it was probably designed that way, but that's not for us to question here.

[00:39:44] Speaker 04:
It is for us to recognize that the process there was not an ordinary legislative process that relied on a majority vote to determine what had happened in each of these instances.

[00:39:56] Speaker 05:
Thank you all very much.

[00:39:57] Speaker 05:
Thank you, counsel.

[00:39:58] Speaker 05:
Thank you to both counsel.

[00:39:59] Speaker 05:
We'll take this case under submission.