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.

All but one of the cases cited in the Brief involved the legitimacy of an inquiry by a Committee or Subcommittee, not an individual Member. For example, in Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975), the issue was whether a Subcommittee and its Members could be enjoined from enforcing a subpoena issued by the Subcommittee. The Supreme Court held that the Speech and Debate Clause protected the Subcommittee and its Members from suit only if their actions fell within the "sphere of legitimate legislative activity." Id. at 503. After noting that Congress' "subpoena power may be exercised by a committee acting, as here, on behalf of one of the Houses," the Court found that the "Subcommittee was acting under a unambiguous resolution from the Senate authorizing it to make a complete study of the 'administration, operation, and enforcement of the Internal Security Act of 1950 . . . .' Id. at 505-06 (quoting S. Res. 341, 91st Cong., 2d Sess. 1970). Therefore, because of that "grant of authority," the Supreme Court concluded that the actions of the Members of the Subcommittee fell within the "sphere of legitimate legislative activity" and were protected from suit under the Speech and Debate Clause. Id. at 506. In Eastland, the Court said nothing about the rights of an individual Member acting alone. Certainly, the Court did not suggest that an individual Member of Congress could obtain any information from agencies that is not available to the general public. Rather, the case stands only for the proposition that a Member cannot be sued for participating in legitimate actions of the Committee.'

1 See also Watkins v. United States, 354 U.S. 178, 181 (1957) (involving legitimacy of questions asked "during a hearing before a congressional investigating committee"); McGrain. 273 U.S. at 151 (involving legitimacy of investigation conducted by select committee of senators pursuant to Senate resolution); McMillan, 412 U.S. at 307-08 (involving legitimacy of actions taken by House Committee and Subcommittee in connection with investigation conducted by

Similarly, in Watkins, 354 U.S. at 200-06, the Supreme Court explained that the ability of a Committee and its Members to exercise Congress' right of inquiry is limited by the authority delegated to them by the House or the Senate, and that "[o]nly the legislative assembly initiating an investigation can assay the relative necessity of specific disclosures." In this case, the House has delegated the exercise of its right of inquiry through its Rules. In H.R. Res. 394 and the Joint Statement, it has also established the manner in which its right of inquiry into matters related to Madison shall be exercised. Under Watkins, it is clear that Rep. Leach has no authority to exercise a Congressional right of inquiry except in

accordance with those instructions by the House.

In Gravel v. United States, 408 U.S. 606 (1972), the only cited case that involved unilateral action by an individual Member, the Supreme Court found that the action was not protected by the Speech and Debate Clause, in part because the Member's action was not authorized by Congress or the Member's Committee. In Gravel, the Court determined that an individual Senator's actions, in arranging for the private publication of a Defense Department study, did not fall within the "legitimate legislative sphere" because private publication of the study was not essential to the Senate's deliberations, and "[i]nsofar as we are advised, neither Congress nor the full committee ordered or authorized the publication." 408 U.S. at 625-26 & n. 16. Nothing in Gravel indicates that a Member of Congress, acting unilaterally, has any right to obtain information that is not available to the general public.

The Brief argues that individual Members of Congress should have the same right to obtain information as Congress or its Committees, because Members need information to

Subcommittee pursuant to House resolution).

participate in the legislative process and to report to their constituents. However, that argument misses the point. No one questions the general proposition that individual

Members need access to information to carry out their legislative functions and constituent obligations. The issue in this case, though, is how and when a Member can have access to information that would otherwise be non-public. As explained in Defendants' Memorandum at 26-29, and in Defendants' Reply at 15, the Rules of the House and Senate, and the Rules of their respective standing Committees, specify procedures for obtaining information from other branches of government. Under the Rules, an individual Member obtains access to information through the Committee structure. The Brief acknowledges, as it must, that Congress operates through that Committee structure. Brief at 2 ("Congress has evolved since its inception to delegate its work to specialized committees . . . ."); Id. at 11 ("Time and again, it has been the queries and diligence of individual Members, acting through the Committee process, that have brought to public light government excesses, corruption, conflicts of interest and even criminal conduct.") (emphasis added). However, the Brief

2 See Brief at 5-6 ("The congressional role in the appropriations process provides Members of Congress with particular need for information concerning disbursement of and accounting for public funds."); Id. at 8-9 ("the Constitution clearly contemplates that individual Members of Congress will independently participate in the legislative process and thus have an independent claim to benefit from the power of inquiry."); Id. at 9 ("[a]ll Members have a constitutionally recognized status entitling them to share in congressional powers and responsibilities, many of them requiring access to executive information.") (quoting Murphy v. Department of Army, 613 F.2d 1151, 1156 (D.C Cir. 1979)).

'The Brief asserts that "[a]s this case confirms, in the case of undivided government, the public cannot always rely on Congress as a whole or its formal committees to thoroughly investigate Executive Branch agencies, especially when the investigation touches upon senior Executive Branch officials." Brief at 11-12. However, that assertion ignores the recent actions by the House Leadership and the House Banking Committee, which demonstrate that Congress is moving forward with hearings related to Madison. See Letter from Hon. H. Gonzalez to S. -5

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