Cases TABLE OF AUTHORITIES Doe v. McMillan, 412 U.S. 306 (1973) . 2.3 Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975) . Exxon Corp. v. FTC, 589 F.2d 582 (D.C. Cir. 1978), cert. denied, 441 U.S. 943 (1979) 14 Lee v. Kelley, 99 F.R.D. 340 (D.D.C. 1983), aff'd sub nom. Southern Christian McGrain v. Daugherty, 273 U.S. 135 (1927) Metzenbaum v. FERC, 675 F.2d 1282 (D.C. Cir. 1982) Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994) Miller v. Casey, 730 F.2d 773 (D.C. Cir. 1984) Murphy v. Department of Army, 613 F.2d 1151 (D.C Cir. 1979) 2,3 14 13 8 5 Peters v. Delaware River Port Auth., 16 F.3d 1346 (3d Cir. 1994) 10 Statutes and Regulations 5 U.S.C. § 552(d) Miscellaneous Jerry Seper, House Panel Invites Fiske To Testify, The Washington Times, Jerry Seper, Leach Criticizes Narrowed Hearings, The Washington Times, R. H. Davidson & W. J. Oleszak, Congress and Its Members (4th Ed. 1994) Susan Schmidt, House Banking Panel Sets Whitewater Hearing Date, The The Federalist No. 71 (A. Hamilton) (Buccaneer Books ed., 1992) 13 6 12 10 6 8 9 On June 20, 1994, the Republican Leadership of the U.S. House of Representatives, the Ranking Minority Members of certain Committees of the House, and the Republican Members of the House Committee on Banking, Finance and Urban Affairs (referred to collectively herein as the "House Republicans") filed a motion for leave to file a Brief, as amici curiae, in support of the motion for summary judgment filed by Representative James A. Leach ("Rep. Leach"). In an order entered on June 23, 1994, this Court granted the motion for leave and directed that the Brief of the House Republicans be deemed filed as of that date. Pursuant to Local Rule 108(e), Defendants Office of Thrift Supervision ("OTS") and Resolution Trust Corporation ("RTC") file this Response. INTRODUCTION The House Republicans assert that the purpose of their Brief is to "emphasize the underlying public policy concerns - particularly those grounded in the constitutional mandate for congressional oversight and separation of powers concepts -- which support each of Representative Leach's claims." Brief at 1-2. As a result, a substantial portion of the Brief is devoted to establishing unobjectionable, but irrelevant, propositions regarding the need for "accurate and complete information to enable [Members] to discharge their duties to their constituents," and the "power of inquiry" of Congress. Brief at 3, 5. In this case, however. no one questions those propositions. Rather, Rep. Leach asks this Court to determine whether one individual Member of the House is entitled to exercise the power of inquiry afforded to "Congress" as a whole, to obtain access to documents that are not available to the general public. The answer to that question is not found in the Constitution, but in the Rules of the House of Representatives, which indicate the views of Congress that govern application of the provision of the Freedom of Information Act ("FOIA") at issue in this case. The House Rules are based on the fundamental principle of majority rule, which the historical dissertation in the Brief fails to mention. If Rep. Leach and the House Republicans are unhappy with those Rules, they must persuade their colleagues, not this Court, to change them. ARGUMENT A. Individual Members Do Not Have All The Powers Of "Congress." The Brief devotes nine pages to a discussion of the principle that Congress possesses ancillary powers of inquiry in connection with its constitutional power to legislate. Brief at 4-13. No one disputes that both Houses of Congress, and their respective Committees and Subcommittees, have broad powers of inquiry. The Brief argues, however, that each of the 535 individual Members of Congress should be deemed to have the same constitutional powers of inquiry as Congress as a whole, as if there were 535 individual "Congresses." Citing cases involving Congress' implied contempt power and the Speech and Debate Clause, the Brief argues that "[i]nquiries by Members of Congress must be deemed legitimate so long as the subject of inquiry is one 'on which legislation could be had,' . . . thus falling within the 'legitimate legislative sphere." Brief at 7 (quoting McGrain v. Daugherty, 273 U.S. 135, 173 (1927) and Doe v. McMillan, 412 U.S. 306, 314 (1973)). However, none of the cited cases support that argument. |