fails to acknowledge that the Rules impose any limitations on the rights of individual

Members.

As the Brief points out, "it is essential to protect and give effect to legitimate and legally prescribed means of securing information. . . ." Brief at 4. In this case, however, it is the House Republicans who seek to bypass the "legitimate and legally prescribed means" for obtaining the information at issue. If it were true, as the Brief argues at 7, that individual Members have an unlimited right to obtain information "so long as the subject of inquiry is one 'on which legislation could be had," (quoting McGrain, 273 U.S. at 177) then the House, Senate and Committee Rules establishing the procedures for obtaining access to government information would be rendered meaningless.

Finally, the Brief argues that the Chairman of a Committee and the Ranking Minority Member have "functionally equivalent authority within their Committee." Brief at 2-3. To the contrary, however, the Rules of the House Banking Committee make clear that no individual member, including the Ranking Minority Member, has the same authority or status as the Chairman of the Committee. See, e.g., Committee Rule 4.6(a) ("The Chairperson, at any investigative hearing, shall announce in an opening statement the subject of the investigation.") (emphasis added); Committee Rule 4.4 ("When any hearing is conducted by the Committee... the minority party Members on the Committee shall be entitled, upon

Katsanos, dated June 27, 1994 (requesting documents from the RTC in preparation for Madison hearings) (attached as Ex. A); Susan Schmidt, House Banking Panel Sets Whitewater Hearing Date, The Washington Post, June 28, 1994 at A10 (reporting that the House Banking Committee has scheduled hearings on Madison to begin on July 26) (attached as Ex. B); Jerry Seper, House Panel Invites Fiske To Testify, The Washington Times, June 28, 1994 at A3 (reporting that the House Banking Committee has scheduled hearings, requested documents and invited witnesses to appear at the hearings) (attached as Ex. C).

request to the Chairperson. to call witnesses selected by the minority....) (emphasis added); Committee Rule 3.2 ("The Chairperson may call and convene, as the Chairperson

considers necessary, additional meetings of the Committee. . . .") (emphasis added); Committee Rule 2.3(a) ("The power to authorize and issue subpoenas under clause 2(c) may be delegated to the Chairperson of the Committee pursuant to such limitations as the Committee may prescribe.") (emphasis added). See generally Committee Rules 1-7 (differentiating between rights of "Committee," "Chairperson," and "Member of Committee") (Ex. 6 to Defendants' Memorandum).ʻ The Brief cites no authority in the Committee Rules granting the Ranking Minority Member the power to demand non-public documents from another branch of government.

It is true that the Constitution grants individual Members of Congress certain special rights and privileges. However, none of the specific rights and privileges enumerated in the Constitution are relevant to the issues in this case, and there is no general Constitutional principle elevating Members of Congress to a special class, exempt from the legal

restrictions that govern other citizens. Notwithstanding its expressions of concern regarding "separation of powers," and "checks and balances," the Brief filed by the House Republicans evidences a disdain for the rights of the other branches of our government that was

foreshadowed long ago:

4

Citing a Fourth Circuit decision and two decisions by the U.S. District Court for the District of Columbia, the General Counsel for the House of Representatives has stated that, in his opinion, the Committee Chairman has the authority to initiate a Committee investigation and to write letters requesting non-public information without formal action by the Committee, such as a subpoena or Committee vote. 138 Cong. Rec. H 342 (daily ed. Feb. 5, 1992) (attached as Ex. D) (citing United States v. Mitchell, 877 F.2d 294 (4th Cir. 1989); United States v. North, 708 F. Supp. 372 (D.D.C. 1988); United States v. North, 708 F. Supp. 380 (D.D.C. 1988)).

The tendency of the legislative authority to absorb every other,
has been fully displayed and illustrated by examples, in some
preceding numbers. In governments purely republican, this
tendency is almost irresistible. The representatives of the
people, in a popular assembly, seem sometimes to fancy that
they are the people themselves; and betray strong symptoms of
impatience and disgust at the least sign of opposition from any
other quarter; as if the exercise of its rights by either the
executive or judiciary, were a breach of their privilege and an
outrage to their dignity. They often appear disposed to exert an
imperious controul [sic] over the other departments; and as they
commonly have the people on their side, they always act with
such momentum as to make it very difficult for the other
members of the government to maintain the balance of the
Constitution.

The Federalist No. 71, at 364 (A. Hamilton) (Buccaneer Books ed., 1992). In this case, the

complaints expressed in the Brief filed by the House Republicans should be addressed to the House of Representatives, not the Courts.'

"

The Brief argues that, because Rep. Leach "serv[es] in a Congress controlled by the same party that controls the Executive Branch," the fact that Defendants have not given him the documents he seeks "raises serious separation of powers concerns." Brief at 11-12. However, this case has nothing to do with "separation of powers," because Defendants have not attempted to usurp or interfere with the investigative functions of Congress in any way.

'In this case, Congressional or judicial interference with an agency's exercise of its discretion whether to release FOIA-exempt materials would raise the very "separation of powers" issues about which the House Republicans profess concern. FOIA itself neither compels nor prohibits the release of materials exempt from mandatory disclosure under FOIA. See Defendants' Memorandum at 32-34, n.21-22. As the D.C. Circuit held in Miller v. Casey, 730 F.2d 773, 778 (D.C. Cir. 1984), an agency's discretionary decision not to disclose certain documents exempt from mandatory disclosure under FOIA "cannot be reviewed by this court." See generally, Part III.A of Defendants' Reply at 21-26.

To the contrary, Defendants have made it clear that they would respond to an authorized Congressional request for documents, including a request by Rep. Leach, if it were clear that the request was authorized by the Chairman or the full Committee.

Rep. Leach's real grievance, and that of the House Republicans, is his inability to garner a majority of votes to support his position. However, that "problem" is as old as democracy itself, and there is only one solution: Rep. Leach must persuade more Members of Congress to vote his way. In essence, the House Republicans ask this Court to override the will of the majority as expressed in the House Rules, H.R. Res. 394, the Joint

Statement and the statements of Chrman Gonzalez on behalf of a majority of the Committee · based on an argument that the democratic process is unfair. That argument calls into question the principle of majority rule, a fundamental precept on which our system of government is based.

The principle of majority rule is deeply rooted in the Constitution. See, e.g., Art. I, § 5 ("a majority of each [house] shall constitute a quorum to do business.") See also United States v. Ballin, 144 U.S. 1, 5-6 (1892) (the capacity of the House to transact business is "created by the mere presence of a majority"). The majoritarian principle is further reflected in the House Rules. See House Rule XV.4 ("If those voting on the question and those who are present and decline to vote shall together make a majority of the House, the Speaker shall declare that a quorum is constituted, and the pending question shall be decided as the majority of those voting shall appear.") (emphasis added) (attached as Ex. E); House Rule XXV ("All questions relating to the priority of business shall be decided by a majority without debate.") (Ex. E). See also Memo from Minority Staff to Hon. J. A. Leach, dated

January 14, 1993, at 1 (relevant page attached as Ex. F) ("it is generally conceded by observers from both parties that the House of Representatives is an institution organized on the principle of majority rule"); R. H. Davidson & W. J. Oleszak, Congress and Its Members, at 168 (4th Ed. 1994) ("Compared with the rules of the Senate, which emphasize minority rights, the rules of the House permit a determined majority to achieve its policy objectives."); Id. at 336 ("[T]he House is a majoritarian institution. Its fundamental principle of operation is to permit any determined majority to work its will against minority obstructionism.").

Notwithstanding that the House is a majoritarian institution, the Brief filed by the House Republicans asserts that special protections are necessary where one political party controls the Executive and Legislative Branches. Brief at 12-13. However, the Framers designed a system of checks and balances that is well-suited to protect the rights of the minority. See Peters v. Delaware River Port Auth., 16 F.3d 1346, 1355-56 n.11 (3d Cir. 1994) ("The principle of majority rule, a feature of representative democracy, actually captures and embraces political disagreement, and offers a non-violent means of settling such political disputes.").

Jefferson's Manual contains the rules of parliamentary procedure that "govern the House in all cases to which they are applicable." House Rule XLII (Ex. 5 to Defendants'

'One of the very authorities on which the House Republicans rely in their Brief indicates that the empirical evidence is to the contrary: "[A]s Jimmy Carter sadly learned and President Clinton is learning as well, unified partisan control of both branches is no guarantee of harmony. . . .[I]t 'does not seem to make all that much difference whether party control of the American government happens to be unified or divided' in influencing major lawmaking and major investigation." Davidson & Oleszak, supra, at 239. See also id. at 265 ("[T]he two branches tend to be adversaries even when they are controlled by the same party.").