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Clause Shields Campbell, Senate Counsel Argues

Sen. Ben Nighthorse Campbell’s (R-Colo.) firing of a 63-year-old aide in his state office can’t be reviewed by the courts because lawmakers enjoy special protection that shields them from complying with labor laws, the Senate’s legal counsel for employment matters argued in a case that affects thousands of Congressional employees.

Weighing in with an 81-page brief, Senate lawyers told the 10th U.S. Circuit Court of Appeals that former Campbell aide Rita Bastien’s lawsuit alleging age discrimination brought under the auspices of the Congressional Accountability Act was properly dismissed without a full hearing when a Wyoming judge ruled last year that the Senator was shielded by the Constitution’s Speech or Debate Clause.

In June, U.S. District Judge Clarence Brimmer sided with Campbell and dismissed Bastien’s suit after concluding that her duties were sufficiently tied to the legislative process, even though she contends that her day-to-day activities had little, if anything, to do with the process of producing legislation.

The case is being closely watched by AARP, which, along with several other groups, filed an amicus brief defending the rights of Congressional employees to bring suit under 11 labor and safety laws just like workers in the private sector.

Bastien, who served as a case worker handling immigration matters for seven years in Campbell’s Englewood, Colo., office, alleged in her complaint that she worked in an “intimidating and hostile” office overseen by Campbell’s chief of staff, Ginnie Kontnik, who, along with Campbell, allegedly expressed “reservations about older workers’ abilities to learn and fit in,” according to the complaint.

“Chief of Staff Kontnik is known by staff members to be manipulative and cruel to older staff members, discriminatory against older workers and verbally disrespectful to Senator Campbell, his family and older workers,” Bastien contended in her complaint.

The legal brief filed April 3 by Jean Manning, the Senate employment legal counsel, didn’t address the specific allegation of age discrimination.

Instead, the brief offered an aggressive argument in favor of a sweeping application of the immunity afforded under the Speech or Debate Clause to cover virtually all personnel actions and decisions made by lawmakers.

Campbell’s office has refused to comment on the case. Manning’s office said that she was on vacation and unavailable for comment.

“The district court correctly recognized that the instant case cannot proceed without asserting questions about acts that are part of the legitimate, legislative function of Congress and the motivation for those acts, thus threatening and interfering with the independence of a legislator,” Manning wrote in her brief.

“If this action were to proceed, the Court would be forced to impermissably inquire into matters essential to the legislative process and the Senator’s legislative agenda such as the nature and purpose of Plaintiffs meetings with constituents, how the information obtained from these meetings impacted Senator Campbell’s legislative agenda and activities, and whether Plaintiffs performance of her job duties frustrated that agenda or misguided the Senator as to the will of his constituents. That is precisely the type of judicial intrusion the Speech or Debate Clause prohibits.”

Manning pointed out that one of the potential remedies that might be available to Bastien if the case was allowed to proceed would be reinstatement in Campbell’s office.

The protected legislative activity “includes the authority to reorganize and fire, without judicial interference,” the brief noted.

In her appeal, Bastien argued that the lower court judge made a serious error when he allowed Senate lawyers to submit testimony that she contends inaccurately described her job duties without giving her a chance to refute those statements. The judge relied on those statements to incorrectly conclude that Bastien was deeply involved in the legislative process, according to her brief.

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