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Lawyers: Immunity Doesn’t Protect Senator

Legislative immunity should not protect Sen. Ben Nighthorse Campbell (R-Colo.) from being sued over a decision to fire a 63-year-old aide who is alleging age discrimination, attorneys for the former aide told an appeals court last week.

The case brought by Rita Bastien, a former caseworker for Campbell in his state office, has become a major test of Congress’ promise in 1995 to make itself subject to the same employment and safety laws that govern all other workplaces. More immediately, it has also become an opportunity for the courts to re-examine the scope of the protection afforded to Members of Congress under the Constitution’s Speech or Debate Clause.

Bastien, who was employed by Campbell for seven years and worked on immigration matters for Campbell’s constituents, contends that she was suddenly dismissed because of her age. Bastien 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.

Bastien sued under the auspices of the 1995 Congressional Accountability Act, which extended labor and safety laws to cover Congressional workers. A Wyoming judge, however, dismissed her case before it could be heard by a jury because he ruled that the Speech or Debate Clause protected Campbell from being sued. The judge determined that Bastien’s job duties were significantly tied to the legislative process to invoke the immunity shield even though Bastien contended that she had virtually nothing to do with Campbell’s legislative activities.

In a brief filed earlier this year, the Senate’s legal counsel for employment matters, Jean Manning, 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 even though Congress had overwhelmingly voted for the Congressional Accountability Act.

Bastien’s attorneys, John Evangelisti and Karen Larson, replied in a brief filed last week in the U.S. Court of Appeals for the 10th Circuit with a biting denunciation of Manning’s argument, calling it “wrong-headed,” “irrelevant” and “flawed at every turn.”

Bastien’s lawyers took aim at the contention that the activities dealing with Bastien’s firing cannot be reviewed because it would involve questioning legitimate legislative functions.

“The Office of Senator Campbell stands accused of intentionally discriminating against an employee in violation of federal law. Surely, [Campbell’s office] is not suggesting that intentional discrimination is part of the legitimate functioning of Congress. To the contrary, intentional discrimination by Members of Congress undermines, not furthers, Congress’ legitimacy,” Bastien’s brief said.

Campbell’s Senatorial duties would not be impaired by letting the case go forward, the lawyers argued. “In a CAA case such as this one, no one is asking for a court to assume a legislative function. Whatever the outcome of this case, Senator Campbell will remain free to perform his legislative functions without judicial interference. Senator Campbell will remain free to vote on legislation, propose legislation, hold hearings, and participate in the legislative process,” the brief said.

Oral arguments in the case, which is expected to be heard by a three-judge panel, have not been scheduled yet.

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