National Association of Social Workers v. John B. Harwood , 69 F.3d 622 ( 1995 )

SELYA, Circuit Judge.

Over a century ago, Charles Dudley Warner, a nineteenth-century Connecticut journalist, earned a sliver of immortality by coining the phrase “politics makes strange bedfellows.” This appeal, which forges an improbable alliance among such disparate groups as the National Association of Social Workers, the Rhode Island State Rifle and Revolver Association, the Rhode Island Affiliate of the American Civil Liberties Union, the Rhode Island State Right to Life Committee, Inc., the Coalition to Preserve Choice, the National Education Association, and Ocean State Action, proves that the aphorism still has force.

Here, the improbable allies (all private, non-profit organizations) banded together with others to bring an action in Rhode Island’s federal district court against John B. Harwood, Speaker of the Rhode Island House of Representatives (the House) and Guido Petteruti, the House’s head doorkeeper.¹ The plaintiffs challenged the constitutionality of House Rule 45 — a rule that purports to ban both lobbyists and lobbying from the floor of the House while the House is in session — on its face and as applied. The district court found for most of the plaintiffs and ordered the House to desist from continuing its prevailing practices with regard to the interpretation and enforcement of Rule 45. See National Ass’n of Social Workers v. Harwood, 874 F.Supp. 530 (D.R.I.1995) (Social Workers ).² Given the benefit of briefing and argument on the doctrine of legislative immunity — a benefit denied to the distinguished district judge, since the defendants inexplicably neglected to raise the issue in the lower court — we reverse.

1. BACKGROUND

We recount the facts “in the light most hospitable to the verdict-winner, consistent with record support.” Cumpiano v. Banco Santander P.R., 902 F.2d 148, 151 (1st Cir.1990).

In January 1993, the House, under fresh leadership that had pledged procedural reform, adopted several new rules. Among them was Rule 45 (the full text of which is reproduced in the appendix). On its face, Rule 45 banishes all lobbyists from the floor of the House (and the House lounge) while the House is in session. Nonetheless, the rule permits members of the public to be on the House floor while the House is in session, provided that “they remain seated along the sides of the chamber, refrain from conversation, and maintain the decorum of the House,” and provided further that they do not “directly or indirectly engage in the practice of lobbying.” Rule 45(b).

Although Rule 45 does not define the term “lobbyist,” it incorporates the statutory definition of “lobbying” contained in the Rhode Island Lobbying Act, R.I.Gen.Laws §§ 22-10-1 to 22-10-12 (the Act). The Act defines “lobbying” as “acting directly or soliciting others to act for the purpose of promoting, opposing, amending, or influencing in any manner the passage by the general assembly of any legislation or the action on that legislation by the governor.” Id. § 22-10-2. The Act requires lobbyists for private organizations and interests to register with the Secretary of State, see id. §§ 22-10-5 & 22-10-6, and to wear identifying badges, see id. § 22-10-8. Government officials who lobby are given considerably more leeway. The Act grants safe passage to many elected officials, see id. § 22-10-3(1), and other public employees, while required to register, are otherwise exempt from the Act’s provisions. See id. § 22-10-4.1. Neither elected officials nor other public employees are required to wear identification badges.

The district court found that, prior to the adoption of Rule 45, the House provided two galleries overlooking the chamber which were accessible to all members of the public, lobbyists included. In addition, “representatives of both private and governmental organizations were allowed to be present on the floor of the House.” Social Workers, 874 F.Supp. at 535. These lobbyists typically occupied seats on the periphery, in an area ranged alongside the two outermost aisles of the House floor. They communicated with legislators in a variety of ways, such as by whispered conversations on the perimeter of the House floor, written notes, physical gestures, and other assorted signals. See id. This buzznacking took place even while the members were debating floor amendments.

After the adoption of Rule 45, access to the overhead galleries remained unchanged. But from that point forward, the House excluded private lobbyists (easily recognized by their obligatory identification badges) from the House floor while the House was in session. The district court found that, in contrast, “agents or employees of governmental bodies [were] allowed to be present on the floor of the House while it [was] in session, as [were] members of the general public.” Id. Moreover, the “defendants permitted agents of governmental organizations to be present, to speak, to respond to questions, to provide information, and to confer with legislators on the House floor during House sessions on frequent occasions,” notwithstanding the apparently unconditional text of Rule 45. Id. at 537.

The plaintiffs struck back on April 27, 1993. On that date, they filed a civil action under 42 U.S.C. § 1983 (1988) against Messrs. Harwood and Petteruti (as the individuals purportedly responsible for enforcing the House’s rules) charging that Rule 45, on its face and as applied, violated the plaintiffs’ rights under the First and Fourteenth Amendments. The defendants denied the allegations. Following a four-day bench trial, the judge found for the plaintiffs. See National Ass’n of Social Workers v. Harwood, 860 F.Supp. 943 (D.R.I.1994). The defendants then moved to alter the judgment. While that motion was under advisement, we decided AIDS Action Comm. v. Massachusetts Bay Transp. Auth., 42 F.3d 1 (1st Cir.1994). The judge then issued the opinion that is now before us, 874 F.Supp. 530, modifying the original rescript in certain particulars.

In substance, the court found that the presence of the general public on the perimeter of the House floor — a presence expressly permitted by Rule 45 — constituted “communicative and expressive activity,” id. at 540; that, due to the communicative possibilities inherent in physical presence, the public’s access to the perimeter of the House floor rendered the floor itself a limited-purpose public forum, see id.; and that, therefore, both Rule 45’s exclusion of lobbyists and its proscription against lobbying on the House floor constituted impermissible time, place, and manner restrictions on expressive activity, see id. at 54(M1.³ On this basis, the court held that Rule 45, on its face, violated the plaintiffs’ First Amendment rights. See id. at 541.

The court also found that the House haphazardly enforced Rule 45, allowing lobbying by government officials while prohibiting others from lobbying. See id. at 535-37. Predicated on this finding, the court concluded that “the application of Rule 45 amounts to a content based restriction on speech.” Id. at 541. Because the court could discern no “compelling government interest” that justified the exclusion of private lobbying while sparing governmental lobbying, it held the interpretation and enforcement of Rule 45 invalid under the First Amendment. Id. at 541-42.

In constructing a remedy, the judge, presaging an issue not yet raised by the parties, voiced concerns about judicial interference in legislative affairs. See id. at 542. He therefore declined the plaintiffs’ invitation to “require defendants to return to the pre-1993 practice of admitting all lobbyists, public and private, onto the floor of the House on a first-come, first-served basis.” Id. Instead, he opted to declare “the current interpretation and enforcement of Rule 45 unconstitutional,” and to order the House to refrain from “continuing its current practices with regard to this issue.” Id. at 543.⁴ The House leadership responded on two levels: the House itself passed a new rule barring all persons except legislators and legislative aides from the House floor, and the named defendants launched this appeal.

II. PROCEDURAL DEFAULT

On appeal, the defendants, having engaged new counsel, advance a point that, for some unfathomable reason, they neglected to raise below: the claim that, with regard to the defendants’ actions anent Rule 45, they are safeguarded from judicial interference under the federal common law doctrine of absolute legislative immunity. The State of Rhode Island, through its Attorney General, as ami-cus curiae, lends its support.

It is very late in the day to bring a new argument to the fore. Ordinarily, an appellant who has not proffered a particular claim or defense in the district court “may not unveil it in the court of appeals.” United States v. Slade, 980 F.2d 27, 30 (1st Cir.1992). This rule is deeply embedded in our jurisprudence, see, e.g., Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.1992) (“If any principle is settled in this circuit, it is that, absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal.”), and we have invoked it with a near-religious fervor, see, e.g., McCoy v. Massachusetts Inst. of Technology, 950 F.2d 13, 22 (1st Cir.1991) (collecting cases), cert. denied, 504 U.S. 910, 112 S.Ct. 1939, 118 L.Ed.2d 545 (1992). Nor can this variant of the raise-or-waive principle be dismissed as a pettifogging technicality or a trap for the indolent; the rule is founded upon important considerations of fairness, judicial economy, and practical wisdom. See, e.g., Sandstrom v. Chemlawn Corp., 904 F.2d 83, 87 (1st Cir.1990); United States v. Miller, 636 F.2d 850, 853 (1st Cir.1980). Thus, parties must speak clearly in the trial court, on pain that, if they forget their lines, they will likely be bound forever to hold their peace. This is as it should be: the rule fosters worthwhile systemic ends and courts will be the losers if they permit it to be too easily evaded.

But foolish consistency is reputedly the hobgoblin of little minds, see Ralph Waldo Emerson, “Self Reliance,” in Essays: First Series (1841), and in the last analysis, this articulation of the raise-or-waive principle, though important, is a matter of discretion. See United States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir.1990) (holding that “an appellate court has discretion, in an exceptional case, to reach virgin issues”); accord Singleton v. Wulff 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); United States v. Mercedes-Amparo, 980 F.2d 17, 18-19 (1st Cir.1992); United States v. Krynicki, 689 F.2d 289, 291-92 (1st Cir.1982). Thus, this rule (like most rules) admits of an occasional exception. “Occasional” is the key word. Since exceptions must be few and far between, an appellate court’s discretion should not be affirmatively exercised unless the equities heavily preponderate in favor of such a step.

In the La Guardia and Krynicki opinions, we set forth guidelines that suggest when it may be appropriate to invoke the exception, and we need not rehearse the litany. Instead, we explain why those criteria are satisfied here, and, in the process, explicate the criteria themselves.

First, this is not a ease in which, by neglecting to raise an issue in a timely manner, a litigant has deprived the court of appeals of useful factfinding. The court below made a number of findings as to the appellants’ conduct in interpreting and enforcing Rule 45, and addressing the omitted issue requires only that we determine whether the described conduct, giving full deference to these factual findings, falls within the established boundaries of legislative immunity. Thus, it can fairly be said that the omitted issue is purely legal in nature, and lends itself to satisfactory resolution on the existing record without further development of the facts. These attributes ease the way for invoking the exception. See La Guardia, 902 F.2d at 1013; Krynicki, 689 F.2d at 291-92.

Second, appellants’ belated proffer “raises an issue of constitutional magnitude,” a factor that favors review notwithstanding the procedural default. La Guardia, 902 F.2d at 1013. Third, the omitted argument is “highly persuasive,” Krynicki 689 F.2d at 292, a circumstance that “often inclines a court to entertain a pivotal argument for the first time on appeal,” La Guardia, 902 F.2d at 1013, particularly when declining to reach the omitted argument threatens “a miscarriage of justice,” Krynicki 689 F.2d at 292.⁵ Fourth, we see no special prejudice or inequity to the plaintiffs. The omitted defense is law-based, not fact-based. In addition, the parties have joined issue; the claim of legislative immunity was made in full in the appellants’ opening brief in this court, the plaintiffs responded to it in extenso, and both sides addressed the point during oral argument. The absence of unfairness has a definite bearing on a decision to overlook this type of procedural default. See United States v. Doe, 878 F.2d 1546, 1554 (1st Cir.1989); cf. Singleton, 428 U.S. at 120, 96 S.Ct. at 2877 (discussing importance, in determining whether to reach the merits of an omitted issue, of ensuring that the opposing party “ha[s] the opportunity to present whatever legal arguments he may have” to the court of appeals). Fifth, the omission seems entirely inadvertent rather than deliberate; although withholding the argument had the regrettable effect of blindsiding the district judge and needlessly prolonging the litigation, it yielded no tactical advantage to the defendants.

Sixth — and perhaps most salient — the omitted issue implicates matters of great public moment, and touches upon policies as basic as federalism, comity, and respect for the independence of democratic institutions. Courts must be sensitive to such concerns. See Stone v. City and County of San Francisco, 968 F.2d 850, 855 (9th Cir.1992) (explaining the court’s election to address a matter first raised on appeal because “[tissues touching on federalism and comity may be considered sua sponte”), cert. denied, — U.S. —, 113 S.Ct. 1050, 122 L.Ed.2d 358 (1993). We believe that this sensitivity is appropriately expressed by a frank recognition that, when institutional interests are at stake, the case for the favorable exercise of a court’s discretion is strengthened, and waiver rules ought not to be applied inflexibly.⁶ See, e.g., Hoover v. Wagner, 47 F.3d 845 (7th Cir.1995) (suggesting that “when matters of comity are involved, the ordinary doctrines of waiver give way”); Jusino v. Zayas, 875 F.2d 986, 993 (1st Cir.1989) (discussing court’s reluctance to apply waiver rules concerning “a line of defense that calls into play the Commonwealth’s Eleventh Amendment immunity”); cf. Granberry v. Greer, 481 U.S. 129, 134, 107 S.Ct. 1671, 1675, 95 L.Ed.2d 119 (1987) (explaining that, when a state fails to raise a nonexhaustion claim in a federal ha-beas proceeding, the federal tribunal nonetheless should consider “whether the interests of comity and federalism will be better served ... by requiring [exhaustion]”).

Here, an important issue of public concern confronts us. It is presented belatedly, but in a posture that permits its proper resolution on the existing record and works no unfair prejudice to the opposing parties. Failure to address the issue may well result in an unwarranted intrusion by a federal court into the internal operations of a state legislature. Under these exceptional circumstances, we follow the course of perceived duty and proceed, in the exercise of our discretion, to weigh the legislative immunity argument.⁷ See La Guardia, 902 F.2d at 1013 (“Rules of practice and procedure are devised to promote the ends of justice, not to defeat them.”) (quoting Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941)).

III. THE MERITS OF THE OMITTED DEFENSE

We bifurcate our analysis of the legislative immunity defense, first discussing the general nature and scope of the doctrine and then addressing the specific contours of the appellants’ claim.

A. Legislative Immunity: In General.

The Speech or Debate Clause commands that “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other place.” U.S. Const, art. I, § 6, cl. 1. The Clause is, by its terms, limited to members of Congress. See Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 404, 99 S.Ct. 1171, 1178, 59 L.Ed.2d 401 (1979). Nevertheless, state legislators and their surrogates enjoy a parallel immunity from liability for their legislative acts.

While this immunity is derived from federal common law, it is similar in scope and object to the immunity enjoyed by federal legislators under the Speech or Debate Clause. When the Justices initially recognized state legislative immunity as a component of federal common law, they turned to the Speech or Debate Clause for guidance anent the contours of the doctrine. See Tenney v. Brandhove, 341 U.S. 367, 376-79, 71 S.Ct. 783, 788-90, 95 L.Ed. 1019 (1951). Later, the Court acknowledged that the immunities enjoyed by federal and state legislators are essentially coterminous. See Supreme Court of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 732-33, 100 S.Ct. 1967, 1974-75, 64 L.Ed.2d 641 (1980). Hence, our exploration of the appellants’ legislative immunity claim begins with a distillation of principles extracted from federal constitutional jurisprudence.

The Speech or Debate Clause has its roots in a similar provision found in the English Bill of Rights of 1689.⁸ See United States v. Johnson, 383 U.S. 169, 177-78, 86 S.Ct. 749, 753-54, 15 L.Ed.2d 681 (1966); Tenney, 341 U.S. at 372, 71 S.Ct. at 786. The Clause is modeled to ensure that the Legislative Branch will be able to perform without undue interference the whole of the legislative function ceded to it by the Framers. See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 502, 95 S.Ct. 1813, 1820, 44 L.Ed.2d 324 (1975). To that end, the Clause operates to shelter individual legislators from the distractions and hindrance of civil litigation, see id. at 503, 95 S.Ct. at 1821, and “immunizes [them] from suits for either prospective relief or damages,” Consumers Union, 446 U.S. at 731, 100 S.Ct. at 1974.

While the core protection conferred by the Clause concerns speech or debate by a member of Congress on the floor of either the Senate or the House, see Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972), the penumbra of the Clause sprawls more broadly. This breadth of application, which draws its essence from the Supreme Court’s espousal of a “practical rather than a strictly literal reading” of the Clause, Hutchinson v. Proxmire, 443 U.S. 111, 124, 99 S.Ct. 2675, 2682, 61 L.Ed.2d 411 (1979), is made manifest in two ways. For one thing, the Clause’s prophylaxis extends to any act “generally done in a session of the House by one of its members in relation to the business before it.” Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1880). So read, the Clause protects not only speech and debate per se, but also voting, see id., circulation of information to other legislators, see Doe v. McMillan, 412 U.S. 306, 312, 93 S.Ct. 2018, 2024, 36 L.Ed.2d 912 (1973), participation in the work of legislative committees, see Gravel, 408 U.S. at 624, 92 S.Ct. at 2626; Tenney, 341 U.S. at 378-79, 71 S.Ct. at 789-90, and a host of kindred activities.

For another thing, because the applicability of the Speech or Debate Clause necessarily focuses on particular acts or functions, not on particular actors or functionaries, the prophylaxis of the Clause also extends to legislative acts performed by non-legislators. See Eastland, 421 U.S. at 507, 95 S.Ct. at 1823 (refusing to draw a distinction between the members of a congressional subcommittee and the subcommittee’s counsel when the latter’s actions were within the sphere of legitimate legislative activity); Gravel, 408 U.S. at 618, 92 S.Ct. at 2623 (holding that “the Speech or Debate Clause applies not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself’). This extension evinces a recognition that, as a practical matter, legislators cannot be expected to perform their constitutionally allocated tasks without staff support.

This is not to say that the protections afforded by the Speech or Debate Clause are limitless. They are not. See Gravel, 408 U.S. at 625, 92 S.Ct. at 2627. Although the Court has read the Clause generously, its protections must match its purposes. See Eastland, 421 U.S. at 501-02, 95 S.Ct. at 1820-21. When all is said and done, the absolute immunity conferred by the Clause is not afforded “simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators.” United States v. Brewster, 408 U.S. 501, 507, 92 S.Ct. 2531, 2535, 33 L.Ed.2d 507 (1972).

The key limitation — which applies both to members of Congress and to congressional staffers — is that the Clause protects “only purely legislative activities.” Id. at 512, 92 S.Ct. at 2537. If a legislator (or his surrogate) undertakes actions that are only “casually or incidentally related to legislative affairs,” id. at 528, 92 S.Ct. at 2545, or which fall outside the “legitimate legislative sphere,” Eastland, 421 U.S. at 503, 95 S.Ct. at 1821 (citation omitted), no immunity inheres. By the same token, the mere fact that a legislator or a legislative aide performs an act in his official capacity does not automatically confer protection under the Speech or Debate Clause. See Gravel, 408 U.S. at 625, 92 S.Ct. at 2627. For example, when a member of Congress disseminates press releases to the public, the Clause does not attach because such documents are “primarily means of informing those outside the legislative forum.” Hutchinson, 443 U.S. at 133, 99 S.Ct. at 2687. So, too, activities that are more political than legislative in nature do not come within the legislative sphere, and, hence, do not implicate the Speech or Debate Clause. See Brewster, 408 U.S. at 512, 92 S.Ct. at 2537. These activities include such familiar fare as “legitimate ‘errands’ performed for constituents, the making of appointments with Government agencies, [and] assistance in securing Government contracts.” Id.

B. Legislative Immunity: In Particular.

We now turn to the merits of appellants’ assertion that, under federal common law, the instant action founders on the shoals of absolute legislative immunity. The plaintiffs brought suit, as we have said, under 42 U.S.C. § 1983. In actions invoking federal civil rights statutes, federal courts customarily “equate[ ] the legislative immunity to which state legislators are entitled ... to that accorded Congressmen under the Constitution.” Consumers Union, 446 U.S. at 733, 100 S.Ct. at 1975. Viewed against this backdrop, it is unsurprising that the courts of appeals historically have relied on Speech or Debate Clause precedents to define the doctrinal boundaries of state legislative immunity under the federal common law. See, e.g., Schlitz v. Commonwealth of Va., 854 F.2d 43, 45-46 (4th Cir.1988); Agromayor v. Colberg, 738 F.2d 55, 58-59 (1st Cir.), cert. denied, 469 U.S. 1037, 105 S.Ct. 515, 83 L.Ed.2d 405 (1984); Colon Berrios v. Hernandez Agosto, 716 F.2d 85, 89-90 (1st Cir.1983) (per curiam); Green v. DeCamp, 612 F.2d 368, 371-72 (8th Cir.1980). Thus, our mode of analysis dovetails with the Speech or Debate Clause cases.

At the heart of our inquiry lies the question of whether appellants’ acts in respect to Rule 45 are “part and parcel of the legislative process.” Gravel, 408 U.S. at 626, 92 S.Ct. at 2627. If so, appellants are protected. See id. To answer this question, we must understand the nature of the acts.⁹ We can look at them in one of two ways.

In a general sense, the defendants — the Speaker and the head doorkeeper — did nothing more or less than to interpret and enforce Rule 45. Where, as here, a legislative body adopts a rule, not invidiously discriminatory on its face, see infra pp. 634-635, that bears upon its conduct of frankly legislative business, we think that the doctrine of legislative immunity must protect legislators and legislative aides who do no more than carry out the will of the body by enforcing the rule as a part of their official duties.¹⁰ See Consumers Union of the U.S. v. Periodical Correspondents’ Ass’n, 515 F.2d 1341, 1348-50 (D.C.Cir.1975) (holding congressional employees’ actions in enforcing Congress’s internal seating regulations immune under Speech or Debate Clause), cert. denied, 423 U.S. 1051, 96 S.Ct. 780, 46 L.Ed.2d 640 (1976); see also Davids v. Akers, 549 F.2d 120, 123 (9th Cir.1977) (dismissing action challenging internal rules for committee assignments brought by members of the Arizona House of Representatives against the Speaker); cf. R.I. Const, art. VI, § 7 (expressly authorizing the House to “determine its rules of proceeding”). The short of it is that the doctrine of legislative immunity, like the Speech or Debate Clause, attaches when solons’ actions are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters [committed to their jurisdiction].” Gravel, 408 U.S. at 625, 92 S.Ct. at 2627.

In a more specific sense, it might be said that the district court granted relief because it found Rule 45 to be fatally deficient in three particulars: (1) on its face, Rule 45 transgressed the First Amendment by banning lobbying on the floor of the House while the House is in session; (2) on its face, Rule 45 transgressed the First Amendment by banishing all lobbyists from the perimeter of the House; and (3) the appellants interpreted, applied, and enforced Rule 45 to allow governmental lobbyists onto the House floor while denying comparable access to private lobbyists. Assuming for argument’s sake that this narrower perspective is relevant, the question of whether the appellants are entitled to legislative immunity would be reduced to a question of whether the acts which the district court found problematic fell within or without “the legitimate legislative sphere.” Eastland, 421 U.S. at 503, 95 S.Ct. at 1821.

The first area of inquiry can celeritously be dispatched. We think it is beyond serious dispute that enforcing a duly enacted legislative rule which prohibits lobbying on the House floor during House sessions is well within the legislative sphere. Such a restriction necessarily affects the manner in which the House conducts its most characteristic legislative functions, e.g., debating and voting. A rule that colors the very conditions under which legislators engage in formal debate is indubitably part and parcel of the legislative process, and the acts of House officials (whether or not elected members) in enforcing it are therefore fully protected against judicial interference by the doctrine of legislative immunity. See id.; see also Doe, 412 U.S. at 312-13, 93 S.Ct. at 2024-25; Tenney, 341 U.S. at 378-79, 71 S.Ct. at 789-90.

At first blush, the next area of inquiry— whether the exclusion of all lobbyists from the perimeter of the House is within the legislative sphere — appears more murky. Seating arrangements for non-legislators arguably are less integral to the legislative process than the regulation of lobbying during House sessions. As the trial testimony in this case amply demonstrates, however, when lobbyists are present on the House floor (even on the perimeter), they often become embroiled in the legislative process either through self-initiated or legislator-initiated contacts. And, even if lobbyists are able to maintain stoic silence on the perimeter, their mere presence affects the legislative environment.¹¹ We conclude, therefore, that regulation of admission to the House floor comprises “an integral part of the deliberative and communicative processes by which Members participate in ... House proceedings with respect to the consideration and passage or rejection of proposed legislation.” Gravel, 408 U.S. at 625, 92 S.Ct. at 2627. Consequently, the doctrine of legislative immunity pertains.

We are not alone in our view of a legislature’s House as its castle. In Periodical Correspondents’, the court reached a similar conclusion. There, the Periodical Correspondents’ Association, which issues credentials to the press galleries of Congress, denied accreditation to a particular periodical, Consumer Reports, on the ground that it had ties to an advocacy organization. Consumers Union sued the sergeants-at-arms of the House and Senate, among other defendants, alleging that the exclusion violated the First Amendment. The court held that the sergeants-at-arms were immune under the Speech or Debate Clause because arrangements for seating the press in the House and Senate galleries were “integral” to “the legislative machinery.” 515 F.2d at 1350. In a later case, the court elaborated its rationale, explaining that the seating “immediately concerned House consideration of proposed legislation” because the arrangements “were intended to shield members of Congress from press members’ use of their House access to lobby legislators.” Walker v. Jones, 738 F.2d 923, 930 (D.C.Cir.) (discussing Periodical Correspondents’), cert. denied, 469 U.S. 1036, 105 S.Ct. 512, 83 L.Ed.2d 402 (1984).

Like the seating arrangements at issue in Periodical Correspondents’, the seating arrangements dictated by Rule 45 involve the “regulation of the very atmosphere in which lawmaking deliberations occur.” Walker, 733 F.2d at 930. Moreover, if there is a distinction between Periodical Correspondents’ and the instant case, it does not advantage the present plaintiffs; the Rhode Island House is seeking to regulate access to its own floor, rather than to galleries located above the floor.

We come now to the third area of inquiry, involving the significance, if any, of the plaintiffs’ claim that the appellants interpreted and enforced Rule 45 in a manner that allowed lobbying on the House floor by governmental, but not private, lobbyists. This as-applied exclusion of private lobbyists, at its most primitive level, involves regulating the legislative environment by controlling access to the seating on the perimeter of the House floor. Because such regulation is “done in a session of the House by one of its members in relation to the business before it,” Kilb-oum, 103 U.S. at 204, it is within the legislative sphere.

To be sure, both our dissenting colleague and the plaintiffs protest that the House treats private lobbyists differently (and less hospitably) than public lobbyists, and that this differential treatment offends the First Amendment. These charges lack sufficient force to strip away the shield of absolute legislative immunity.

We believe that the body of our opinion adequately rebuts the dissent’s views, and we decline to repastinate well-ploughed ground. We do add, however, our belief that the dissent seriously misconstrues the Court’s Speech or Debate Clause jurisprudence beyond all recognition. To the extent that Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) can be read to hold that legislative immunity does not extend to legislative employees, the Court in later cases has routinely confined it to its unique facts. See, e.g., Gravel, 408 U.S. at 621, 92 S.Ct. at 2625 (specifically identifying Kilbourn, Powell, and Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967), and stating that none “of these eases adopted the simple proposition that immunity was unavailable to congressional or committee employees because they were not Representatives or Senators”). Rather, the case law “reflectfs] a decidedly jaundiced view towards extending the Clause so as to privilege illegal or unconstitutional conduct beyond that essential to foreclose executive control of legislative speech or debate and associated matters such as voting and committee reports and proceedings.” Id. We see no reason why judicial control of legislative speech or debate is any less pernicious than executive control. Moreover, the decision not to extend legislative immunity to congressional employees in cases such as Powell turned on whether “relief could be afforded without proof of a legislative act or the motives or purposes underlying such an act,” thereby avoiding impermissible encroachment on “legislative independence.” Id. at 621, 92 S.Ct. at 2625. Under that standard, judicial review of House Rule 45— as the tortured course of the proceedings below graphically illustrates — unquestionably required a substantial judicial intrusion into the legislative domain. Finally, we recognize, as the dissent points out, that the Court has remarked an exception to legislative immunity for the exercise by legislators of punitive enforcement authority outside the ambit of purely legislative proceedings. See Consumers Union, 446 U.S. at 736, 100 S.Ct. at 1977. But the Court has never suggested, much less held, that the enforcement of a rule adopted by an entire legislative body designed to govern the conduct of legislative proceedings falls within that exception. If that were the rule, legislative immunity would be little more than a rumor, and the Speech or Debate Clause would be easily skirted.

Similarly, the plaintiffs’ “as-applied” arguments are unavailing. In Eastland v. United States Servicemen’s Fund, supra, the plaintiffs asseverated that “once it is alleged that First Amendment rights may be infringed by congressional action the Judiciary may intervene to protect [First Amendment] rights.” 421 U.S. at 509, 95 S.Ct. at 1824. The Court flatly rejected this asseveration, warning that the effort to carve out such an exception “ignores the absolute nature of the speech or debate protection and [the] cases which have broadly construed that protection.” Id. at 509-10, 95 S.Ct. at 1824-25. The Court added: “Where we are presented with an attempt to interfere with an ongoing activity by Congress, and that activity is found to be within the legitimate legislative sphere, [First Amendment] balancing plays no part.” Id. at 510 n. 16, 95 S.Ct. at 1825 n. 16. The Ninth Circuit put matters even more bluntly, writing that “nothing in the First or Fourteenth Amendments or in 42 U.S.C. § 1983 ... can justify [an] attempt to inject the Federal Judiciary into the internal procedures of a House of a state legislature.” Davids, 549 F.2d at 123.

The plaintiffs’ also assert that the differential treatment of public and private lobbyists violates the Equal Protection Clause. This assertion does not derail the engine of legislative immunity. Activities that comprise part and parcel of the legislative process are protected by legislative immunity; that immunity is not forfeited simply because the activities, if unprotected, might violate a plaintiffs constitutional rights. See Doe, 412 U.S. at 312-13, 93 S.Ct. at 2024-25; see also Colon Berrios, 716 F.2d at 91. Thus, in Doe, the Supreme Court ruled that the Speech or Debate Clause shields legislators’ actions “within the legislative sphere, even though [the] conduct, if performed in other than legislative contexts, would in itself be unconstitutional.” 412 U.S. at 312-13, 93 S.Ct. at 2025 (internal citation and quotation marks omitted).

For obvious reasons, the plaintiffs chafe at the broad sweep of the doctrine of legislative immunity, and, in struggling to make their point, they marshal a parade of horribles. To cite a typical example, they raise the specter of a hypothetical legislature that votes to allow access to its chambers to members of only one race or to adherents of only one religion.

The plaintiffs have the right to march, but their parade is on the wrong route. The Court has explicitly recognized that there may be some conduct, even within the legislative sphere, that is so flagrantly violative of fundamental constitutional protections that traditional notions of legislative immunity would not deter judicial intervention. See, e.g., Kilbourn, 103 U.S. at 204 (leaving open the question of whether “there may not be things done, in the one House or the other, of an extraordinary character, for which the members who take part in the act may be held legally responsible”); see also Tenney, 341 U.S. at 379, 71 S.Ct. at 789-90 (Black, J., concurring) (recognizing that the Court’s jurisprudence “indicates that there is a point at which a legislator’s conduct so far exceeds the bounds of legislative power that he may be held personally liable in a suit brought under the Civil Rights Act”). Whatever may be the outer limits of the doctrine of legislative immunity, however, it is clear that the instant case is not so extreme as to cross (or even closely approach) the border.

Taking the district court’s factual findings at face value, Rule 45, as applied, may arguably be wrong as a matter of policy and as a matter of constitutional law — but it is not invidiously discriminatory. To the contrary, the differentiation between private and public lobbyists appears to be based on two factors that bear some rational relationship to legitimate legislative purposes. First, the House leadership explained that, in its view, the exclusion of private lobbyists from the floor was a useful tool to bolster public confidence in legislative independence and integrity.¹² Second, the defendants consistently have taken the position that government lobbyists act in effect as support staff for legislators by giving them neutral statistical and factual information relevant to pending legislation. These justifications for the continued presence of government lobbyists, found by the district court to be authentic (if asthenic), see Social Workers, 874 F.Supp. at 541-42, afford a sufficiently rational basis to persuade us that this case does not give rise to the question reserved by the Kilboum Court.¹³

Thus, we conclude that, insofar as the appellants enforced Rule 45’s prohibitions against private lobbyists, but spared governmental lobbyists from exclusion, they acted within the legislative sphere and are protected from judicial interference by the doctrine of absolute legislative immunity.

IV. CONCLUSION

We need go no further.¹⁴ In our republican system, different institutions of government occupy different spheres. Within its own domain, the legislative branch of a state government is entitled to a reasonable measure of independence in conducting its internal affairs. As a rule, a legislature’s regulation of the atmosphere in which it conducts its core legislative activities — debating, voting, passing legislation, and the like — is part and parcel of the legislative process, and, hence, not subject to a judicial veto. See Eastland, 421 U.S. at 509, 95 S.Ct. at 1824. Because Rule 45, and the defendants’ actions in interpreting and enforcing it, fit within the sweep of this generality, the doctrine of absolute legislative immunity requires that the federal courts refuse to entertain the suit.

Reversed. No costs.

—Appendix follows; Dissenting opinion follows appendix.—

APPENDIX

Text of Rule 45

SIXTHLY — OF ADMISSION TO THE FLOOR

45(a) The following persons shall be entitled to admission to the floor of the House during the session thereof: The Governor, the Lieutenant Governor, the Secretary of State, the Attorney General, the General Treasurer, the state controller, and members of the Senate, judges and ex-judges of the United States court and of the state courts, ex-governors, ex-Speakers of the House, ex-members of the General Assembly, representatives of the legislative council, legislative staff, director of the department of administration, the budget officer, assistant in charge of law revision, and clerks of the Senate and House committees, superintendent of public buildings, state librarian, and the authorized representatives of the press, as provided in the rule next following, and such other persons as shall be admitted to the floor by the Speaker. At the discretion of the Speaker, members of the public may be admitted to the House floor, provided, however, that all such persons may not stay in the House chamber unless they remain seated along the sides of the chamber, refrain from conversation, and maintain the decorum of the House. All persons who are unable to access the House galleries by reason of physical handicap shall be entitled to admission to the House floor.

(b) Lobbyists including former state legislators who are lobbyists shall not be entitled to admission to the floor of the House during the session thereof. No person entitled to admission to the floor of the House during the session thereof, shall either directly or indirectly engage in the practice of lobbying as defined in Rhode Island General Laws (22-10-2).

(c) Admission to the House Lounge is limited to House members and persons invited and accompanied by a House member who will be responsible for them while in the lounge. Such persons when no longer accompanied by the House member with whom they entered, shall leave the lounge. No lobbyists shall be admitted to the House lounge during the House session.

1 . Other plaintiffs in the underlying action included several individuals registered as lobbyists for non-profit organizations (Kate Coyne-McCoy, Harvey Press, Scott Nova, Barbara Baldwin, Susan Closter-Godoy, Steven Brown, Barbara Colt, Donn Dibiasio, Anna Sullivan, and Marti Rosenberg), and three elected members of the House (Edith Ajello, Barbara Burlingame, and Francis Gaschen).

2 . The district court nonetheless rebuffed the legislator-plaintiffs, who claimed that Rule 45 violated their First Amendment right to receive political information. The court ruled that, even if the legislators had been denied some level of access to lobbyists, the denial did not ''rise[] to the level of a constitutional deprivation.” Social Workers, 874 F.Supp. at 542. The legislator-plaintiffs have not appealed and, accordingly, we confine our discussion to the claims brought by the other plaintiffs.

3 . In the court's view, the rule did not "leave open ample alternative means of communication for the lobbyists,” Social Workers, 874 F.Supp. at 541, because "representatives elected to the Rhode Island House of Representatives are part time legislators ... [who] lack legislative office quarters in the State House or elsewhere, [and who] lack legislative staffs, and [who] generally have full time jobs in addition to their legislative duties.” Id. This meant, the court reasoned, that exclusion of the lobbyists denied them the opportunity to communicate with hard-to-find legislators by way of silent presence. See id.

In condemning the ban on lobbying on the House floor during House sessions, the court took a similar tack. It found that, “with regard to floor amendments, which are often proposed and voted on in the same House proceeding, the only timely and useful communication that can take place is that which occurs on the floor of the House, during the debate on the amendment.” Id.

4 . For reasons that are not readily apparent to us, the plaintiffs never sued the House as a body and, therefore, the district court plainly lacked jurisdiction to enjoin the House. The plaintiffs now concede that, insofar as the lower court purported to do so, its order cannot stand. Withal, the plaintiffs argue that the court’s underlying ruling — that Rule 45 is unconstitutional — may endure, as the court had jurisdiction over the individuals charged with the rule’s enforcement. For reasons which more clearly appear infra, we need not unsnarl this tangle.

5 . In this context, "miscarriage of justice” means more than the individualized harm that occurs whenever the failure seasonably to raise a claim or defense alters the outcome of a case. Rather, courts ordinarily will relax the raise-or-waive principle on this basis only if a failure to do so threatens the frustration of some broadly important right. See Schlesinger v. Councilman, 420 U.S. 738, 743, 95 S.Ct. 1300, 1306, 43 L.Ed.2d 591 (1975) (holding that, when “jurisdictional and equity issues ... [are] sufficiently important,” courts may consider issues on appeal that were not raised below); Krynicki, 689 F.2d at 292 (explaining that the interest at stake must be "legitimate and significant”). For this reason, courts often are more prone to make the infrequent exception in cases that involve a discernible public interest, and less prone to do so in disputes between private parties.

6 . Our belief that the defendants should not be strictly held to a waiver of their absolute legislative immunity in this case is fortified by our recognition that a primary purpose of the immunity is to prevent courts from intruding into precincts that are constitutionally reserved to the legislative branch. Overlooking a waiver in order to further this policy of non-interference is analogous to our settled rule that, because federal courts are courts of limited jurisdiction, the absence of federal subject matter jurisdiction can be raised on appeal even if the issue was not raised below. See, e.g., American Policyholders Ins. Co. v. Nyacol Prods., Inc., 989 F.2d 1256, 1258 (1st Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 682, 126 L.Ed.2d 650 (1994). In both situations, looking past the waiver has the salutary effect of ensuring that federal courts do not poach on preserves that the Constitution reserves to other forms of oversight.

7 . The dissent's principal response to this reason seems to be that overlooking the waiver “eliminates any incentive” for legislators to raise the immunity defense in a timely manner. Post at 638-639. This reasoning strikes us as triply flawed. In the first place, that argument can be used with equal force as to virtually all omitted defenses; its logical extension is that all waivers should rigorously be enforced. That view has much to commend it as a matter of case management, but, as La Guardia, Krynicki, Mercedes-Amparo, Hoover, and Stone illustrate, it is simply not the law.

In the second place, the argument underestimates the capabilities of appellate courts. There is no hint of a deliberate bypass in this case — the belated tender of the defense is the product of a change in counsel (coupled with the appearance of Rhode Island's Attorney General as an ami-cus) rather than a change in tactics or a reassessment of political costs — and, if sandbagging were to occur, we have confidence that this court would see it for what is was, and decline to exercise discretion in favor of the sandbagger.

Finally, if we assume that the dissent is correct and that our ruling today may encourage legislator-litigants to withhold immunity defenses for political reasons, that is still the lesser evil, far preferable in our view to the unwarranted insertion of the federal court’s nose into the state legislature's tent.

8 . The British version provides: “That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.” 1 Wm. & Mary, Sess. 2, ch. II (1689).

9 . In certain types of cases, the legislative immunity analysis centers on function, attempting to ascertain whether an action by one or more legislators is administrative or legislative in nature. See, e.g., Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27-28 (1st Cir.1994) (holding that legislators' decision to discharge librarian was administrative in nature, and did not give rise to legislative immunity). Here, however, we are dealing with a procedural rule adopted by a house of the legislature as a whole for the management of its own business. Hence, we are not concerned with whether the adoption of the rule comprises a legislative act — that is transparently clear — but, rather, with whether that act is more than "casually or incidentally related” to core legislative functions. Brewster, 408 U.S. at 528, 92 S.Ct. at 2545.

10 . We reject the plaintiffs' attempt to differentiate the Speaker from the doorkeeper, based on the fact that the latter is not a legislator. The case law teaches that, as long as an aide's conduct would be covered by legislative immunity were the same conduct performed by the legislator himself, the aide shares the immunity. See Eastland, 421 U.S. at 507, 95 S.Ct. at 1823; Gravel, 408 U.S. at 616, 92 S.Ct. at 2622; Consumers Union of the U.S. v. Periodical Correspondents' Ass’n, 515 F.2d 1341, 1348-50 (D.C.Cir.1975), cert. denied, 423 U.S. 1051, 96 S.Ct. 780, 46 L.Ed.2d 640 (1976). Petteruti's actions in keeping the House floor unsullied were performed by virtue of an express delegation of authority to him as part of the House's staff support apparatus, under the auspices of the Speaker and the legislative body as a whole. No more is exigible.

11 . The plaintiffs themselves have argued, in the context of their First Amendment claim, that they should at least be given the opportunity to sit silently on the perimeter of the House floor so that they may communicate through their physical presence. The district court accepted this argument, and made it a cornerstone of the ensuing First Amendment analysis. See Social Workers, 874 F.Supp. at 539-41. The importance that the plaintiffs attach to admittance to the perimeter indicates their own recognition that, by mere physical presence, they can influence ongoing legislative business.

12 . In a debate over a motion to reconsider Rule 45, the Majority Leader, Representative George Caruolo, stated:

This isn't trying to retard lobbyists from pursuing their vocation ... It's a rule that says, quite simply, this is the people’s chamber, the public is invited. But the business of the people should be conducted by the people's representatives. It should not be in any way affected by people who are registered to advocate particular positions, whether they are paid or unpaid....

Later, Representative Caruolo explained why he thought that governmental lobbyists on the floor of the House do not trigger the same public perceptions as private lobbyists:

[A]ny general officer or any government employee who is here, working in this building [the State House] on government policy— they're paid by the government. We are the government. That's the distinction ... Let’s not have private groups out here trying to manipulate this floor while we are taking votes.

In the same vein, Edward Clement, the House’s legislative coordinator, testified that he did not consider government lobbyists to be lobbyists per se, but, rather, "people called [to the floor] by members of the House for informational purposes.” Speaker Harwood echoed the same themes, describing the principal spokesman for the state Budget Office as "a dollars-and-cents guy.... a resource factual guy,” in contradistinction to “a lobbying, influence guy.”

13 . This conclusion is not undermined by the lower court’s determination that these reasons were insufficient to warrant an infringement on the First Amendment rights of private lobbyists. See Social Workers, 874 F.Supp. at 541-42. Such rigorous testing, appropriate in the First Amendment context, is out of place in the context of legislative immunity. See Eastland, 421 U.S. at 509 n. 16, 95 S.Ct. at 1825 n. 16.

14 . We do not reach and, accordingly, express no opinion on, the soundness of the district court’s First Amendment analyses and rulings.