David E. Skaggs v. Robin H. Carle, Clerk of the United States House of Representatives , 110 F.3d 831 ( 1997 )

Opinion for the Court filed by Circuit Judge GINSBURG.

Dissenting opinion filed by Chief Judge EDWARDS.

GINSBURG, Circuit Judge:

The appellants, a group comprising 27 Members of the United States House of Representatives, six of their constituents, and the League of Women Voters, appeal the judgment of the district court dismissing their challenge to two rules of the House of Representatives. The appellants claim that the rules violate the Constitution of the United States by infringing upon the rights of the individual Representatives to speak, to be heard, and to be counted. Because the injury that the appellants allege is hypothetical rather than actual, they lack standing to pursue this case. We therefore affirm the judgment of the district court.

I. BACKGROUND

On January 4, 1995 the House of Representatives adopted House Rules XXI(5)(c) and XXI(5)(d). The former provides that: “No bill or joint resolution, amendment, or conference report carrying a Federal income tax rate increase shall be considered as passed or agreed to unless so determined by a vote of not less than three-fifths of the Members voting.” The latter provides that: “It shall not be in order to consider any bill, joint resolution, amendment, or conference report carrying a retroactive Federal income tax rate increase.”

The appellants brought suit challenging the constitutionality of each rule. See Skaggs v. Carle, 898 F.Supp. 1 (D.D.C.1995). They argued that the three-fifths majority required by Rule XXI(5)(c) is repugnant to the principle of majority rule they see embodied in the presentment clause of Article I, § 7 of the Constitution (“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States”). As for Rule XXI(5)(d), they argued both that it unconstitutionally precludes the House from considering legislation upon which it is empowered by Article I, § 8 to act, and that it abridges the first amendment rights of the individual Members to speak and, on behalf of their constituents, to petition on the floor of the House.

Robin H. Carle, the Clerk of the House, moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district court granted the motion, concluding that prudence counsels against deciding the merits of a partisan political dispute:

Whether expressed in terms of a failure of standing, or “equitable” or “remedial” discretion, the fundamental consideration underlying those decisions is one of prudent self-restraint: federal courts should generally refrain, as a matter of policy, from intruding in the name of the Constitution upon the internal affairs of Congress at the behest of lawmakers who have failed to prevail in the political process.

Id. at 2. The court also dismissed the voters’ derivative claims: To allow the voters to raise the claims of their Representatives, the court reasoned, “is an all-too-faeile expedient to circumvent the doctrine of equitable discretion, and to subvert altogether the holdings of the line of discretionary abstention cases.” Id. at 3. The plaintiffs appealed.

II. ANALYSIS

The appellants call upon the court to consider the constitutionality of two rules governing the internal workings of a coordinate branch of the Government. The appellants maintain that we are both authorized and competent to perform this task: The harm worked by the Rules — diluting the Representatives’ votes and diminishing their ability to advocate a position — is apparent, as is the command of the Constitution that we remedy that harm. The Clerk responds, among other things, that the appellants lack standing because they have suffered no concrete injury-

A. Rule XXI(5)(c)

According to the appellants, the presentment clause establishes that a simple majority of the Members voting in each House of the Congress is all that is needed to pass a bill. Therefore, we are told, by providing that legislation carrying an income tax increase will not be considered to have passed in the House even if it receives the support of a majority (but not of a three-fifths majority), Rule XXI(5)(c) runs afoul of the presentment clause.

The Clerk contends that the appellants lack standing to raise this challenge because they have suffered no injury by reason of Rule XXI(5)(c) and are unlikely ever to do so. The House has never failed to deem passed a bill that has received the support of a simple majority and it is unclear whether the House will ever do so.

In order to establish their standing to sue under Article III of the Constitution, the appellants must show that: (1) they have suffered an injury that is both “concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical’”; (2) that the injury is fairly traceable to the conduct of which they complain; and (3) the injury is likely to be redressed by a court decision in their favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992). The appellants bear the burden of establishing each element. Id. at 560-61, 112 S.Ct. at 2136-37. A Representative, like any other plaintiff, must satisfy each requirement—injury in fact, causation, and redressability—an-nounced in Lujan. See Boehner v. Anderson, 30 F.3d 156, 159 (D.C.Cir.1994).

The appellants claim that Rule XXI(5)(c) injures them in fact because it dilutes the vote of each Representative in the same manner as did the rule challenged in Michel v. Anderson, 14 F.3d 623 (D.C.Cir.1994). In that case a group of Representatives and voters challenged the House Rule giving each territorial delegate a vote in the Committee of the Whole. The Representatives claimed that they were each entitled to cast one of no more than 435 votes in the Committee and that the rule injured them by diluting each of their votes to one of 440. The voters raised the derivative claim that they had been deprived of a Representative entitled to cast one of only 435 votes. We held that, even if the doctrine of equitable discretion blocked the Representatives’ challenge, the voters had standing to complain about the dilution of their representation; they had alleged a concrete injury.

The present appellants argue that, just as the voters in Michel had standing to challenge the dilution of a Member’s vote to one of 440 that could be cast in the Committee of the Whole, so too do they have standing to challenge the dilution of a Representative’s vote from one of 218 to one of 261 needed (assuming that all 435 Members vote) for the House to pass an income tax increase. The injury is neither conjectural nor hypothetical, they say, because the House has already taken several votes that were subject to Rule XXI(5)(c). According to the appellants, it is immaterial that Rule XXI(5)(c) did not affect the outcome of any such vote, i.e., there was not even a simple majority in favor of an income tax increase; it is enough under Michel, they argue, that the vote of each Member is in some way diluted. In addition the appellants assert (without elaboration) that Rule XXI(5)(c) reduces each lawmaker’s power to bargain with his or her colleagues in order to pass an income tax increase—presumably because each Member can now offer only l/261st of the votes needed.

The Clerk responds that the plaintiffs in Michel would have suffered a concrete injury, namely the dilution of their Representatives’ votes, as soon as a vote was taken in the Committee of the Whole, and it was certain that such a vote would be taken. Therefore, the injury alleged in Michel was imminent, if not actual. In the present ease, by contrast, the Clerk contends that the appellants would be injured only if a particular piece of income tax legislation for which the Member-appellants voted were to garner a simple majority but fail to pass under Rule XXI(5)(c) for want of a three-fifths majority. That these conditions will be met is far from certain; indeed, we are told, both reason and experience suggest that it is unlikely, making the appellants’ injury neither imminent nor a concrete probability but only a hypothetical and speculative possibility.

As an initial matter, we do not agree with the Clerk that, in order to establish that they have been injured by the Rule, the appellants would have to show that 218 Members have voted or would vote (but for the Rule) in favor of a bill carrying an income tax increase. The lesson of Michel is that vote dilution is itself a cognizable injury regardless whether it has yet affected a legislative outcome.

We do agree, however, that the appellants’ alleged injury depends upon their assertion that Rule XXI(5)(c) in fact renders the votes of 218 Members inadequate to pass legislation carrying an income tax increase. If the votes of 218 Members are still sufficient in practice to pass such legislation, then Rule XXI(5)(c) has not caused the vote dilution that would establish their injury for the purpose of standing under Article III.

Both the House Rules and their role in the 104th Congress strongly suggest that Rule XXI(5)(c) does not prevent 218 Members set upon passing an income tax increase from working their legislative will. First, the House Rules allow any Member to introduce a resolution to amend or to repeal Rule XXI(5)(c), and any such resolution could be adopted by the vote of a simple majority. See House Rule X(l)(m) and XI(4)(d); see also, for example, H. Res. 168, 104th Cong., 1st Sess., 141 Cong. Rec. 6104, 6116 (1995) (amending Rule XIII(4)). Although the Rules Committee would have jurisdiction over such a resolution and might slow or block its consideration, 218 Members of the House could by petition cause a resolution to be discharged from that Committee and put to a vote on the floor of the House. See generally Deschler’s Precedents of the United States House of Representatives, vol. Y, at 8 (motion to discharge); id., vol. I, at 318-319 (procedure for discharging from Rules Committee resolution to amend the rules). Similarly, if the Rules Committee determines that the vote on a bill should be governed by a special rule, a simple majority may amend that rule. See id., vol. VI, at 328-329. For that matter, a simple majority may suspend Rule XXI(c)(5) in order to allow a bill carrying a tax increase to pass by a simple-majority vote; although suspending a rule ordinarily requires the support of two-thirds of those voting, see House Rule XXVII, a simple majority has in the past resolved to suspend this two-thirds requirement. VIII Cannon’s Precedents of the House of Representatives at 841. And, contrary to the dissent, these procedures for amending, suspending, and repealing the House Rules are not “alternative remedies” for the vote dilution allegedly worked by Rule XXI(5)(e). Rather, if a simple majority can prevail in the House by voting first on a procedural and then on the substantive issue, then there has been no vote dilution even arguably offensive to the presentment clause.

The appellants object that the procedures by which they might avoid the three-fifths requirement of Rule XXI(5)(c) are rarely tried and still more rarely successful. For example, they observe that “[sjpecial rules are now so complex and detailed that it is extremely difficult for the floor to amend them without the assistance of the Rules Committee.”

The Clerk’s very telling response is that on at least four occasions during the 104th Congress the House voted to waive the requirements of Rule XXI(5)(c) in order to allow a simple majority to enact legislation that increased income tax rates. See H. Res. 238, 104th Cong., 1st Sess., 141 Cong. Rec. 10314, 10327-28 (1995) (suspending application of Rules XXI(5)(c) and (d) in connection with Medicare Preservation Act); H. Res. 245, 104th Cong., 1st Sess., 141 Cong. Rec. 10853, 10867-68 (1995) (same in connection with Seven Year Balanced Budget Reconciliation Act); H. Res. 392,104th Cong., 2d Sess., 142 Cong. Rec. 3029, 3045 (1996) (same in connection with Health Coverage Availability and Affordability Act); H. Res. 440, 104th Cong., 2d Sess., 142 Cong. Rec. 5432,5444-45 (1996) (same in connection with Small Business Job Protection Act). However complicated the procedures for suspending Rule XXI(5)(c) may seem, therefore, they do not appear in practice to prevent a simple majority from enacting an income tax increase.

Chief Judge Edwards, in dissent, concludes that the present appellants’ votes were diluted as in Michel when they voted in favor of the Mink Amendment. But our colleague is able to reach this conclusion only because he assumes that in fact “each of the 96 votes in favor of the Amendment represented only l/261st of those necessary for passage.” As we see it, the plaintiffs have given little reason to believe that the Mink Amendment would not have passed had it had the support of 218 Members. For, as detailed above, when a simple majority wanted to vote for legislation increasing income tax rates, the House has voted to waive the Rule; indeed, the appellants point to no instance in which a Member (presumably one who wanted to vote for legislation increasing income tax rates) proposed to waive the Rule but the House voted against waiving the rule. We are therefore forced to the conclusion that the plaintiffs have alleged only a conjectural or hypothetical injury.

In sum, the appellants claim that they face imminent injury because a simple majority of the House of Representatives cannot commit the House to raising income tax rates. We are unpersuaded, however, that Rule XXI(5)(c) prevents a simple majority from doing just that. At most the appellants have shown that Rule XXI(5)(c) could, under conceivable circumstances, help to keep a majority from having its way — perhaps, for example, because a simple majority in favor of an income tax increase might not be prepared, for its own political reasons, to override the preference of the House leadership against suspending or waiving the Ride in a particular instance. But that prospect appears to be, if not purely hypothetical, neither actual nor imminent. We conclude therefore that the appellants lack standing to challenge Rule XXI(5)(c).'

B. Rule XXI(5)(d)

In what seems to be an afterthought — for they give the matter almost no separate attention — the appellants challenge Rule XXI(5)(d) on the grounds that it (1) “deprives the Member Appellants of some of the ‘legislative Powers’ that the Constitution vested in House Members” in violation of Article I, § 8 of the Constitution and (2) [a] “bar[s] Members from proposing and discussing matters within Congress’s competence and [b] prevent[s] their constituents from effectively petitioning the Congress and from having their Representatives present their views” in violation of the first amendment. With respect specifically to injury, the appellants allege that Rule XXI(5)(d) prevents each Member-appellant from “introducing or debating on the House floor legislation that might increase tax rates retroactively.” And, we are told — in the only purely factual allegation relevant to injury — that “Rule XXI(5)(d) continuously stifles debate on the House floor.”

The Clerk responds that no Member has ever tried to introduce a bill carrying a retroactive tax increase, nor even risen to speak in favor of such an increase only to be ruled out of order by reason of Rule XXI(5)(d). Therefore, according to the Clerk, no Member, let alone one of the appellants, has suffered the concrete injury necessary for standing to challenge the Rule.

Although the appellants claim that the Rule stifles debate on the floor of the House, they do not explain how the Rule does this. After reading the Rule more than once, we remain at a loss to know how it affects the appellants. The Rule, recall, provides that “[i]t shall not be in order to consider any bill [etc.] carrying a retroactive Federal income tax rate increase.” We cannot ascertain from this text, standing alone, whether the Rule forbids a Member from proposing a retroactive income tax increase; forbids the leadership from allowing Members to debate a retroactive income tax increase; precludes the House voting on a retroactive income tax increase; has all of these effects, or none of them. Or more: Does it forbid a Member from speaking in favor of repealing the Rule? We are reluctant to think that it does, but the Rule leaves even this question unanswered. Still, the appellants offer nothing but the Rule in support of their standing — no legislative history, no facts to which it has been applied, nothing.

Without further factual allegations the court can neither know what the Rule means in practice nor see how the appellants have been injured by it. See U.S. Const., Art. I, § 5 (“Each House may determine the Rules of its Proceedings ... ”); United States v. Rostenkowski, 59 F.3d 1291, 1306-07 (D.C.Cir.1995) (“Where ... a court cannot be confident that its interpretation is correct, there is too great a chance that it will interpret the Rule differently than would the Congress itself; in that circumstance, the court would effectively be making the Rules — a power that the Rulemaking Clause reserves to each House alone.”). Thus the appellants have not made out their standing to complain of the Rule.

We reach this conclusion folly aware — albeit no thanks to the appellants— that a party has standing to challenge a law before it is enforced against him provided that his first amendment rights are chilled by a credible threat of prosecution under that law. Virginia v. American Booksellers Ass’n, 484 U.S. 383, 392-93, 108 S.Ct. 636, 642-43, 98 L.Ed.2d 782 (1988); Chamber of Commerce v. FEC, 69 F.3d 600, 604 (D.C.Cir.1995). Putting aside the question whether the House of Representatives is constrained by the first amendment in determining the Rules of its Proceedings — a question not raised by the Clerk — we are not persuaded that Rule XXI(5)(d) even arguably chills the first amendment rights of the Member-appellants. First, there is no apparent penalty for attempting to do whatever it is the Rule proscribes; so far as we can tell, one may at most be ruled “out of order.” Moreover, those whose first amendment rights are allegedly chilled by the Rule are all Members of the United States House of Representatives. We eannot imagine that the mere risk of being- ruled out of order has caused the Member-appellants — or any Member of the House — to cower silently in derogation of his or her perceived constitutional right, indeed duty, to speak on behalf of himself and his constituents.

Before repairing to the courts, therefore, we think it only appropriate for those who would object to the Rule first to test its meaning by pursuing in the House a retroactive Federal income tax rate increase. If they are ruled out of order merely for speaking their minds, or for any other act even arguably protected by the first amendment, then they can document their injury and assert their standing to sue.

III. CONCLUSION

Because the appellants do not allege that they have suffered any concrete injury as a result of either Rule XXI(5)(c) or Rule XXI(5)(d), they have not established their standing to sue. The judgment of the district court is therefore

Affirmed.