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House Brief Endorses ‘Speech’ Shield

For the first time, the House has asserted itself in a lawsuit brought under the Congressional Accountability Act, telling a federal appeals court that such cases should proceed only if they do not require judicial intrusion into legislative affairs.

Last week, the House general counsel’s office filed a “friend of the court,” or amicus curiae, brief in a discrimination lawsuit brought against Rep. Eddie Bernice Johnson (D-Texas) by her former chief of staff, Beverly Fields. In court documents, Johnson claimed that the Constitution’s Speech or Debate Clause gives her immunity from being sued. The district court didn’t agree and declined to dismiss the case, and the issue is now before the U.S. Court of Appeals for District of Columbia.

Congress passed the CAA in 1995 to bring itself under 11 federal workplace and anti-discrimination laws for the first time.

The general counsel’s office represents the institutional position of the House in court matters.

Although they are part of the bipartisan legal advisory group with the House Republican leadership, the Democratic leadership declined to support the filing of the brief, according to the document. Minority Whip Steny Hoyer (Md.) deferred questions to Minority Leader Nancy Pelosi (Calif.), whose office did not provide comment as of press time.

Not all Republicans supported the filing. Rep. Christopher Shays (R-Conn.), one of the drafters of the statute, said in a statement that the “intent of CAA was not to allow Speech and Debate immunity to shield Members from liability in suits filed by staff under the Act.”

The amicus brief filed by the House supports Johnson’s underlying assertion that the Constitution prevents Members from being questioned about “Speech or Debate in either House … in any other place.” But the language in the general counsel’s brief is far more measured than have been past declarations of the immunity by individual lawmakers, including Johnson, and circumscribes a narrower definition of when the defense should be used in CAA suits.

“While the House does not have a direct interest in the outcome of this particular case, it has a very great interest in ensuring that the Speech or Debate Clause is construed in a manner that both preserves the broad protections afforded to Members in the conduct of their legislative responsibilities and, at the same time, does not unduly constrain the ability of House employees to vindicate their rights under the CAA,” the brief states.

More specifically, the brief rejects the “bald proposition that a Member of Congress is automatically entitled to Speech or Debate immunity with respect to an employment claim simply because the employee performed some legislative duties.”

That argument is essentially, however, what lawmakers — including Johnson, Sen. Mark Dayton (D-Minn.) and then-Sen. Ben Nighthorse Campbell (R-Colo.) — have claimed in their defenses against CAA suits. In mid-December, the 10th U.S. Circuit Court of Appeals rejected Campbell’s immunity argument, marking the first time a federal appeals court has ruled on the reachings of the Speech or Debate Clause, as it relates to Congressional employment practices, since passage of the CAA in 1995. The Senate Chief Counsel for Employment, Campbell’s attorney, has argued for a more sweeping interpretation of Speech or Debate immunity.

In the amicus brief, the general counsel’s office asserts that the basic parameters of Speech or Debate immunity did not change with the statute’s enactment. The brief seeks to convince the court to tweak the pre-1995 legal standard so that a Member is entitled to immunity if two conditions are met: “(1) the employee’s duties were directly related to the due functioning of the legislative process, and (2) the personnel action in question arose out of the employee’s performance of non-performance of those legislative duties.”

While those conditions would likely prevent many suits brought by legislative staffers from going forward, it doesn’t automatically exclude all employee with legislative ties from having their cases heard in court. In an example used in the brief, if a employee was fired because of improper use of office resources or embarrassing behavior at a non-legislative meeting with constituents, “then Speech or Debate immunity out not to apply because there is little danger the courts will intrude into the legislative sphere (even though the employee’s duties are legislative in nature).”

In seeking to overturn Bastien v. Campbell, the House’s brief also asserts that the 10th Circuit erred in setting up an “artificial distinction” between “informal” information gathering and “formal” legislative acts — the rationale used to determine Bastien’s work as a constituent services officer was not covered by Speech or Debate immunity. That standard, the counsel’s office maintains, could cause Congressional offices to rethink their informal information gathering because it might not be protected from judicial or executive branch intrusion.

The D.C. Circuit is set to hear oral arguments in Fields v. Johnson in mid-April.

Another appellant before the D.C. Circuit — former Dayton employee Brad Hanson — has asked for his appeal to be consolidated with that of Fields. The court has yet to decide on his motion, which was opposed by Johnson. In September, a D.C. District judge denied Dayton’s motion to dismiss the case on Speech or Debate grounds. Dayton appealed to the D.C. Circuit, and the case is currently on a separate briefing schedule.

A split between the federal circuits on these cases would likely set up a Supreme Court fight over whether the Constitution shields lawmakers from suits brought under the CAA, and, if so, under what circumstances. The landmark statute was the first to apply labor and workplace laws to Congress, and the much-balleyhooed law was the first plank in House Republicans’ 1994 “Contract with America.”

If Speech or Debate immunity is determined by either the Supreme Court or individual circuits to prohibit Congressional staffers from suing their employers for discrimination or other wrongdoing, only custodial workers, cafeteria and service employees and the Capitol Police would likely be covered by Congress’ promise to live under the same workplace laws as the rest of the country and to submit to adjudication in federal court when an employee believes one of those laws has been broken. Although, as the House’s brief points out, any employees barred by Speech or Debate immunity from pursuing their claims judicially would still be able to have their cases heard by independent hearing officers at the Office of Compliance, the ability to go to federal court was a key provision of the statute as debated in 1995.

“CAA was intended to make Congress live by the laws it writes, abiding by the very principles it uses to protect workers in the private sector,” Shays said.

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