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Campbell Denied Use of ‘Speech or Debate’ Defense in Bastien Case

A federal appeals court has rejected Sen. Ben Nighthorse Campbell’s (R-Colo.) argument that the Constitution shields lawmakers from suits brought under the Congressional Accountability Act, becoming the third and highest court to rule against the immunity defense.

The decision, handed down late Friday by the 10th U.S. Circuit Court of Appeals in Denver, means that the age discrimination case brought by former Campbell employee Rita Bastien in 2001 can proceed to trial. It also sets up a potential Supreme Court fight over the parameters of the first landmark statute to apply labor and workplace laws to Congress.

Because the CAA designates “the office of” the lawmaker and not Campbell himself as the defendant, the case will likely proceed despite the Senator’s January retirement.

In 2002, a U.S. District judge dismissed the suit brought by Bastien, a former caseworker in Campbell’s state office, before it could be heard by a jury. The judge agreed with Campbell’s argument that Bastien was sufficiently tied to the legislative process to trigger constitutional protection. The question before the 10th Circuit was whether that constitutional provision — which protects Members from being questioned about the “Speech or Debate in either House … in any other place” — covers personnel decisions.

In its decision, the three-judge panel answered that question with a resounding no.

“As we read the Supreme Court’s opinions on the Speech or Debate Clause, the Clause protects only ‘legislative’ acts by a Member of Congress or aide, and only official, formal acts (or perhaps their functional equivalent) deserve the adjective ‘legislative,” the panel wrote.

“In particular, plaintiff’s informal contacts with constituents and other sources of information and opinion were not legislative in nature. Because plaintiff’s duties were not legislative and personnel actions allegedly taken against her were not in themselves legislative, her CAA claim can proceed,” the decision continues.

The panel — composed of Judges Stephanie Seymour (a Jimmy Carter appointee), Bobby Baldock (Ronald Reagan) and Harris Hartz (George W. Bush) — was unequivocal in its refusal to apply the Speech or Debate Clause to the kind of work performed by Bastien and thousands of staffers on and off the Hill.

“To extend protection to informal information gathering — either personally by a Member of Congress or by Congressional aides — would be the equivalent of extending Speech or Debate Clause immunity to debates before local radio stations or Rotary Clubs.”

Citing Congress’ deliberation in writing the CAA to provide outside adjudication of discrimination claims, the panel indicated that the “defendant would have a stronger argument if the cause of action here were not one created by Congress.”

Bastien attorney John Evangelisti said his client was thrilled about the court’s ruling.

“They took a fresh look at it and decided it from the ground up. It lays a good foundation for the interpretation for the act. If the lower court decision had been affirmed, then this act would apply to very few employees,” Evangelisti said.

As to whether Campbell will appeal to the Supreme Court, Evangelisti speculated: “I doubt that he’s interested in going to the Supreme Court and establishing that Congressional staffers don’t have civil rights. You wouldn’t’ want to go into the history books on that note.”

But Campbell’s attorney, Senate Chief Counsel for Employment Jean Manning, indicated at the oral argument in March that such an action was likely if the 10th Circuit ruled against the Senator.

Neither Manning nor Campbell’s office returned calls seeking comment.

Bill Thompson, executive director of the Office of Compliance, the legislative branch agency that oversees the implementation of the CAA, said: “I am pleased that the 10th Circuit appears to have followed the principles espoused by the sponsors of this bipartisan law who indicated that personnel actions were never intended to be covered by Speech or Debate immunity.”

Passed in 1995 just days after Republicans took control of both chambers, the much-ballyhooed CAA was Congress’ first broad measure to apply federal labor laws and anti-discrimination practices to itself.

In its decision, the 10th Circuit affirmed a key portion of the law, which allows an aggrieved staffer to take his or her employer to court after having exhausted counseling and mediation requirements. Upholding the lower court’s dismissal of Bastien’s claim could have meant that the outside adjudication privileges that the statute bestows would apply only to nonlegislative employees, including the Capitol Police, Architect of the Capitol workers and other support services. Although that category includes thousands of workers, proponents of the act espoused its applicability more broadly in 1995.

Earlier this year, two district judges ruled in separate cases against lawmakers who cited the Speech or Debate Clause as defense against a CAA suit.

In September, a federal district judge denied a motion by Sen. Mark Dayton (D-Minn.) to dismiss a case brought against his office by former staffer Brad Hanson, who claimed Dayton fired him after he told the Senator he had a heart condition. Without written explanation, U.S. District Judge Richard Leon ruled that Hanson’s case could proceed to trial.

In late August, another D.C. district judge ruled that the Constitution doesn’t automatically afford lawmakers immunity from employment discrimination suits brought by senior legislative aides. In that case, U.S. District Judge James Robertson denied a motion by Rep. Eddie Bernice Johnson (D-Texas) to dismiss a discrimination and wrongful-termination suit brought by her former chief of staff, Beverly Fields.

Both cases are now in front of the U.S. Court of Appeals for the D.C. Circuit.

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