                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

HON. KEVIN OWEN MCCARTHY, et al.,                :
                                                 :
       Plaintiffs,                               :       Civil Action No.:      20-1395 (RC)
                                                 :
       v.                                        :       Re Document Nos.:      8, 16
                                                 :
HON. NANCY PELOSI, et al.,                       :
                                                 :
       Defendants.                               :

                                 MEMORANDUM OPINION

     GRANTING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFFS’ MOTION FOR

                                   PRELIMINARY INJUNCTION

                                     I. INTRODUCTION

       On May 15, 2020, in response to the global health crisis caused by the COVID-19

pandemic, the United States House of Representatives (the “House”) adopted House Resolution

965, 116th Congress (“H. Res. 965”). The adopted resolution creates a framework by which

Members of the House may designate proxies to cast votes on their behalf based on their explicit

instructions. Plaintiffs—a group of House Members and constituents—filed suit seeking

declaratory judgment that H. Res. 965 is unconstitutional and an injunction against its continued

use in the House. Plaintiffs argue the resolution violates the Quorum Requirement, the Yeas and

Nays Requirement, the nondelegation doctrine, and the general structure of the United States

Constitution, which they maintain require actual physical presence to do the business of the

House. Am. Compl. ¶¶ 264–287, ECF No. 7. Defendants urge the Court not to reach the merits

of the case, arguing that various threshold doctrines bar review of Plaintiffs’ claims. Because the

Court finds that Defendants are immune from suit under the Speech or Debate Clause of the

Constitution, it does not reach the merits and grants Defendants’ Motion to Dismiss.
                                      II. BACKGROUND

        COVID-19 is a “severe acute respiratory illness,” caused by a novel coronavirus

discovered in 2019, with no known cure, effective treatment, or vaccine. S. Bay United

Pentecostal Church, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring) (mem.). Millions

of people across the United States and the world have been infected and hundreds of thousands

have died from the disease. See Ctrs. for Disease Control and Prevention (“CDC”), Coronavirus

Disease 2019 (COVID-19): Cases in the U.S. (Aug. 1, 2020),

https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. To prevent the

spread of infection, the CDC recommends keeping at least six feet distance between individuals

who do not live in the same household. See CDC, Coronavirus Disease 2019 (COVID-19): How

to Protect Yourself & Others (July 31, 2020), https://www.cdc.gov/coronavirus/2019-

ncov/prevent-getting-sick/prevention.html. During the pandemic, Congress had continued

working and has passed relief bills aimed at addressing the public health emergency, 1 but

Members have not been immune from the diseases’ spread. See Defs.’ Opp’n Mot. Prelim. Inj.

(“Defs.’ Opp’n”) at 13, ECF No. 16-1 (noting that eight Members of Congress have contracted

the virus).

        House Regulation 965 relates directly to COVID-19 and the novel coronavirus that

causes the disease. Specifically, H. Res. 965 allows the Speaker, after notification “by the

Sergeant-at-Arms, in consultation with the Attending Physician, that a public health emergency

due to a novel coronavirus is in effect,” to designate a period of time “during which a Member


        1
         See Coronavirus Preparedness and Response Supplemental Appropriations Act, Pub. L.
No. 116-123, 134 Stat. 146 (2020); Families First Coronavirus Response Act, Pub. L. No. 116-
127, 134 Stat. 178 (2020); Coronavirus Aid, Relief and Economic Security (CARES) Act, Pub.
L. No. 116-136, 134 Stat. 281 (2020); Paycheck Protection and Health Care Enhancement Act,
Pub. L. No. 116-139, 134 Stat. 620 (2020).


                                                 2
who is designated by another Member as a proxy . . . may cast the vote of such other Member or

record the presence of such other Member in the House.” H. Res. 965 § 1(a). The period of time

designated by the speaker terminates after 45 days but may be extended if the public health

emergency remains in effect. Id. § 1(b). Proxies are designated by Members submitting a signed

letter to the Clerk that specifies the Member serving as the proxy. Id. § 2(a)(2). Designation

may be revoked at any time by submitting a signed letter to the Clerk and is automatically

revoked after a vote or a recording of the absent Member’s presence. Id. A Member may be

designated as a proxy for only up to ten other Members and the Clerk is charged with

maintaining a list of all designations. Id. § 2(a)(4)–(b). Members who have designated proxies

are “counted for the purpose of establishing a quorum under the rules of the House.” Id. § 3(b).

Members serving as proxies must (1) obtain “exact instruction from the other Member with

respect to such vote or quorum call,” (2) “announce the intended vote or recorded presence

pursuant to the exact instruction received from the other Member,” and (3) “cast such vote or

record such presence pursuant to the exact instruction received from the other Member.” Id.

§ 3(c). 2

            Plaintiffs sued on May 26, 2020 and filed an amended complaint on May 29, 2020. See

Am. Compl. On the same day, they filed for a preliminary injunction and for entry of a

permanent injunction and final judgment. See Pls.’ Mot. for Prelim. Inj. (“Pls.’ Mot.”), ECF No.

8. Defendants filed their opposition and a motion to dismiss on June 19, 2020. See Defs.’

Opp’n. The parties agree that the case presents purely legal questions regarding the justiciability




            2
        Defendants noted during oral argument that, as of July 24, 2020, a quorum has been
reached without counting the Members voting by proxy.


                                                  3
of Plaintiffs’ claims and the correct interpretation of the Constitution. The Court held oral

argument on July 24, 2020 and has now fully considered the parties’ arguments.

                                          III. ANALYSIS

       Defendants argue that the Court should not reach the merits of Plaintiffs’ claims for three

primary reasons. First, Defendants claim that Plaintiffs lack standing because H. Res. 965 does

not result in vote dilution, the injury claimed by Plaintiffs. Second, Defendants argue that

Plaintiffs lack standing under Raines v. Byrd, 521 U.S. 811 (1997). Third, Defendants argue that

the Speech or Debate Clause bars the suit. The Court addresses each argument in turn but relies

only on the third to dismiss Plaintiffs’ Amended Complaint.

                                            A. Standing

       To establish standing under Article III of the Constitution, Plaintiffs—both the Members

and constituent Plaintiffs—must demonstrate that: (1) they have suffered an injury that is both

“concrete and particularized” and “actual or imminent,” rather than conjectural or hypothetical;

(2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be

redressed by a court decision in their favor. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61

(1992). When assessing Plaintiffs’ standing, the Court “must assume they will prevail on the

merits of their constitutional claims.” LaRoque v. Holder, 650 F.3d 777, 785 (D.C. Cir. 2011)

(citing Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1105 (D.C. Cir. 2006)).

                                          1. Vote Dilution

       To establish the injury element of standing, Plaintiffs argue that allowing Members to

vote by proxy dilutes their voting power. Am. Compl. ¶¶ 258–60. Because H. Res. 965 allows

a Member to serve as a proxy for up to ten other Members, Plaintiffs claim that the Member

serving as a proxy has a disproportionate share of voting power relative to the Members




                                                   4
physically present not serving as proxies. Plaintiffs put forth the following hypothetical to

demonstrate:

       Suppose 200 Members vote on a measure on the floor of the House and another 50
       absent Members purport to vote by proxy under the H. Res. 965. If the Court
       assumes, as it must, that the proxy rule is unconstitutional, the proxy votes, as a
       matter of simple arithmetic, dilute the voting power of each of the Representative
       Plaintiffs from 1/200 of the House’s power to 1/250, indisputably inflicting a
       concrete injury.

Pls.’ Reply at 3, ECF No. 24. The rule, Plaintiffs claim, effectively amplifies the voting power

of Members serving as proxies and diminishes the power of Members physically present voting

only for themselves.

       Defendants respond that H. Res. 965 does not result in vote dilution because the text of

the rule “makes clear that each Member is entitled to one and only one vote.” Defs.’ Opp’n at

21. Plaintiffs, they argue, “urge the Court to ignore House Resolution 965’s text and interpret it

to mean that some Members are entitled to cast multiple votes.” Id. at 23. In response to

Plaintiffs’ hypothetical, Defendants say “each Member is constitutionally entitled to one vote out

of the total number of House Members (up to 435). Under the House’s rules, all Members

receive that share . . . [Under H. Res. 965], Plaintiffs’ votes weigh no less than before.” Defs.’

Reply at 3, ECF. No. 26. Because the proxy voting rules do not change Plaintiffs’ share of the

vote relative to the House as a whole, Defendants say that the alleged injury of vote dilution

cannot be established.

       In Michel v. Anderson, 3 the D.C. Circuit considered whether a House rule that granted

delegates from Puerto Rico, Guam, the Virgin Islands, American Samoa, and the District of

Columbia a right to vote in the Committee of the Whole violated the Constitution. 14 F.3d 623,


       3
         Whether Michel and other cases on legislative standing cited here remain good law in
the D.C. Circuit is discussed in Section III.A.2. below.


                                                 5
624–25 (D.C. Cir. 1994). The court took as a given that Members of Congress had “standing to

assert their voting power has been diluted.” Id. at 625 (citing Vander Jagt v. O’Neill, 699 F.2d

1166 (D.C. Cir. 1982)). Instead, the court focused on whether the constituent plaintiffs had

standing to raise what the defendants called “a generalized abstract grievance” about their

Members’ voting power. Id. at 626. Finding the constituent plaintiffs did have standing, the

court stated “it is difficult to understand why voters would not have standing to raise a claim that

their vote was diluted because previously they had a right to elect a representative who cast one

of 435 votes, whereas now their vote elects a representative whose vote is worth only one in

440.” Id.

        In Vander Jagt, the court considered a claim from Members alleging that their voting

power had been diluted “by providing them with fewer seats on House committees and

subcommittees than they are proportionally owed.” 699 F.2d at 1167. Explaining the Members’

claim, the court stated that “[e]ven though Republicans constituted 44.14% of the House and

Democrats 55.86%, Republicans were given only 40% of the seats on the Budget Committee and

the Appropriations Committee, only 34.29% of the Ways and Means Committee seats, and only

31.25% of the Rules Committee seats.” Id. The court found standing had been established based

on the allegations that “as legislators and as voters their political power has been diluted.” Id. at

1168.

        In Skaggs v. Carle, a group of Members and constituents challenged a House rule that

required a three-fifths majority, instead of a simple majority, to pass any bill containing an

income tax increase. 110 F.3d 831, 833 (D.C. Cir. 1997). The plaintiffs argued they had

“standing to challenge the dilution of a Representative’s vote from one of 218 to one of 261

needed (assuming that all 435 Members vote) for the House to pass an income tax increase.” Id.




                                                  6
at 834. The court, following Michel, held “that vote dilution is itself a cognizable injury” but

that the challenged rule did not in fact dilute voting power because a simple majority could vote

to bypass the new requirement. Id. at 835. While the dissenting judge disagreed with this

holding, he described the vote dilution injury similarly as “dilution of [Representatives’] votes

from 1/218th to 1/261st of the votes necessary to pass a tax increase.” Id. at 837 (Edwards, C.J.,

dissenting).

       Michel, Vander Jagt, and Skaggs all speak of voting power, and consequently the dilution

of that voting power, in similar terms; a Members’ voting power is defined relative to the entire

congressional body. See Michel, 14 F.3d at 626 (“a representative who cast one of 435

votes . . . is [now] worth only one in 440”); Vander Jagt, 699 F.2d at 1167 (noting smaller

percentages of committee seats “[e]ven though Republicans constituted 44.14% of the House and

Democrats 55.86%”) (emphasis added); Skaggs, 110 F.3d at 834 (“the dilution of a

Representative’s vote from one of 218 to one of 261 needed (assuming that all 435 Members

vote)”). The Court understands Plaintiffs argument to require a slightly different definition.

Rather than allege a dilution of voting power relative to the entire House, Plaintiffs allege

dilution of voting power relative to Members physically present for a particular vote. This

formulation of the injury requires assuming that Members are entitled to a share of the vote

defined by the number of Members voting in the House chamber. This theory of vote dilution

assumes that Members’ voting power is dynamic; for one vote, where some are absent, a

Member may enjoy 1/400th share while for another vote, where all are present, the share shrinks

to 1/435th share. The Court accepts that, as a practical reality, when fewer votes are counted

each vote carries more weight. But that does not mean Members’ voting power should

necessarily be defined dynamically.




                                                 7
       The parties do not cite, and the Court has not found, any cases adopting Plaintiffs’ theory

of vote dilution. Every case discussed by the parties defines Member voting power relative to

the entire congressional body. The Court has doubts whether Members should be entitled to any

more than 1/435th share of the voting power in the House. See Nev. Comm’n on Ethics v.

Carrigan, 564 U.S. 117, 125–26 (2011) (“A legislator’s vote is the commitment of his

apportioned share of the legislature’s power to the passage or defeat of a particular proposal.”)

(emphasis added). Indeed, one could argue that choosing to abstain or to be entirely absent for a

particular vote are methods of expressing that share of congressional power; it is not clear that

Members should be subtracted from the denominator when they are not present. However,

because the Court relies on other jurisdictional grounds to dismiss this case, it need not resolve

whether Plaintiffs’ formulation of the vote dilution injury gives rise to standing.

                                         2. Raines v. Byrd

       Raines stands for the principle that an “abstract dilution of institutional legislative power”

cannot establish an injury for the purposes of Article III standing. 521 U.S. at 826. In a line of

cases predating Raines, the D.C. Circuit repeatedly found that Members of Congress had

standing to challenge actions that allegedly diminished the institutional power of Congress. See

e.g., Moore v. U.S. House of Representatives, 733 F.2d 946, 952–54 (D.C. Cir. 1984) (finding

Members had standing to challenge alleged interference with House right to originate bills for

raising revenue); Kennedy v. Sampson, 511 F.2d 430, 432–33 (D.C. Cir. 1974) (finding Senator

had standing to challenge pocket veto). In many of these cases, rather than dismissing the action

under the rubric of standing, the court held that the cases were nonjusticiable as a matter of

remedial discretion animated by separation-of-powers concerns. See Moore, 733 F.2d at 956;

Vander Jagt, 699 F.2d at 1174–75.




                                                  8
       Having “never had occasion to rule on the question of legislative standing” raised by

these cases, 521 U.S. at 820, the Supreme Court in Raines considered whether Members of

Congress had standing to challenge the Line Item Veto Act, id. at 814. The Line Item Veto Act

allowed the President to cancel certain spending and tax benefit measures after he had signed a

bill into law. Id. Relying on D.C. Circuit precedent, the lower courts had found the Members

had standing to bring suit because they claimed that the legislation diluted their Article I voting

power—they claimed the line item veto allowed the President to circumvent Congress’s right to

vote on legislation prior to becoming law. Id. at 816–17. Emphasizing the “especially rigorous”

standing inquiry required when reviewing the constitutionality of the actions of another branch

of the Federal Government, id. at 819–20, the Court rejected the claim that an “institutional

injury (the diminution of legislative power)” gives rise to standing, id. at 821. The Court found

that the Members “ha[d] not been singled out for specially unfavorable treatment” and that their

claim was not “that they ha[d] been deprived of something to which they personally [were]

entitled.” Id. (emphasis in original). “[T]he abstract dilution of institutional legislative power”

was not sufficient to support standing under Article III. Id. at 826.

       The parties dispute the scope of Raines and its application to the present case.

Defendants argue that Raines and its progeny “establish that individual legislators cannot sue

based on an alleged dilution of their voting power.” Defs.’ Opp’n at 24. They claim that

Plaintiffs’ alleged injury—dilution of voting power—is the exact injury rejected in Raines. Id. at

25. Furthermore, and central to their position, Defendants argue Raines overruled Michel, the

primary case relied on by Plaintiffs to show standing. Id. at 28–29. Defendants note that Raines

cited Michel as a case the district court below relied on to find standing before overturning that

finding and “rejecting an approach that would base standing on ‘the abstract dilution of




                                                  9
institutional legislative power.’” Id. at 28 (quoting Raines, 521 U.S. at 826). Defendants claim

that the holding in Raines squarely contradicts Michel and therefore Michel is no longer good

law. Id. at 29.

       Plaintiffs disagree. They state that “Defendants cite no D.C. Circuit decision endorsing

their view, which is not surprising because the D.C. Circuit has never said—much less held—

that Raines abrogated Michel or Vander Jagt.” Pls.’ Reply at 5. Plaintiffs maintain that the

Court must follow Michel unless “Supreme Court precedent ‘eviscerates’ the circuit precedent,

such that the two decisions are ‘incompatible with’ each other.” Id. at 5–6 (quoting Perry v.

Merit Sys. Prot. Bd., 829 F.3d 760, 764 (D.C. Cir. 2016), rev’d on other grounds, 137 S. Ct.

1975 (2017)). Plaintiffs argue Raines and Michel can coexist because Raines only foreclosed

claims of an “institutional injury” in an interbranch, as opposed to intrabranch, context. Pls.’

Reply at 7–9. D.C. Circuit cases following Raines make clear, they say, that the “holding is

limited to situations in which Members seek to vindicate the powers of Congress as an

institution, usually against a perceived attack on Congress’s powers by the President.” Id. at 8

(emphasis in original).

       Language in Raines and the D.C. Circuit cases applying its holding lend support to

Plaintiffs’ view. First, Raines left undisturbed the holding in Coleman v. Miller, 307 U.S. 433

(1939). The Raines Court explained that the legislators in Coleman had standing to sue because

the votes there “were deprived of all validity.” 4 521 U.S. at 822. While Plaintiffs have not



       4
         Coleman v. Miller involved state legislators challenging Kansas’s adoption of the Child
Labor Amendment to the Constitution where the legislative body had been evenly split on the
question, which would normally defeat the resolution, but the Lieutenant Governor cast the
deciding vote. 307 U.S. 433, 435–36. The Court found that the plaintiffs had standing, stating
that they “ha[d] a plain, direct and adequate interest in maintaining the effectiveness of their
votes.” Id. at 438.


                                                 10
alleged a complete deprivation of their votes, the Raines Court’s treatment of Coleman carves

out space for at least some cases involving legislative standing to move forward. Second, and

more importantly for Plaintiffs, the Raines Court noted that the Members at issue in that case

were “unable to show that their vote was denied or nullified in a discriminatory manner (in the

sense that their vote was denied its full validity in relation to the votes of their colleagues),” so

hypotheticals such as a law “in which first-term Members were not allowed to vote on

appropriations bills” were inapplicable. Id. at 824 n.7 (internal quotations omitted). Arguably,

such hypotheticals are relevant to this case, even if proxy voting is not discriminatory in the

same manner. Such hypotheticals involve internal House rules that change the voting power of

Members relative to other Members. If Plaintiffs’ vote dilution theory is accepted, then they

have alleged that “their vote was denied its full validity in relation to the votes of their

colleagues.” Id. Moreover, Raines does not specifically state that Michel was overruled.

        In Chenoweth v. Clinton, the D.C. Circuit considered the impact of Raines on the circuit’s

legislative standing precedent. 181 F.3d 112, 115–16 (D.C. Cir. 1999). Lending support to

Plaintiffs’ interbranch/intrabranch distinction, Chenoweth involved Members challenging a

Presidential Executive Order and alleging a diminution of legislative power. Id. at 112–13. The

court stated that the injury the plaintiffs claimed, “a dilution of their authority as legislators,” was

“precisely the harm we held in Moore and Kennedy to be cognizable under Article III . . . [but]

also, however, identical to the injury the Court in Raines deprecated as ‘widely dispersed’ and

‘abstract.’” Id. at 115. As such, the court found that “the portions of our legislative standing

cases upon which the current plaintiffs rely are untenable in light of Raines.” Id. Notably,

Chenoweth does not mention Michel or Vander Jagt as cases repudiated by Raines.




                                                  11
       In Campbell v. Clinton, Members challenged the President’s use of U.S. military forces

in Yugoslavia as violating the War Powers Clause of the Constitution and thereby diminishing

their legislative power. 203 F.3d 19, 19 (D.C. Cir. 2000). Applying Raines, the court found that

the Members lacked standing, in large part because of the “political self-help available to

congressmen.” Id. at 24. Lending support to Plaintiffs’ reading of Raines, the court noted an

exception to Raines may exist where, as in Coleman, legislators’ votes are entirely nullified. Id.

at 23. More importantly for Plaintiffs, Campbell cites Michel as a type of claim that Raines did

not foreclose. Id. at 21 n.2 (“The Court [in Raines] did not decide whether congressmen would

have standing to challenge actions of Congress which diminished their institutional role. Cf.

Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1992) (congressmen had standing to challenge House

rule which diluted their vote in Committee of the Whole).”). Campbell’s treatment of Michel

suggests that it survived Raines and remains binding precedent on this Court.

       An even more recent example, Blumenthal v. Trump, yet again involves a dispute

between Congress and the President, not a dispute between Members of Congress. 949 F.3d 14,

19 (D.C. Cir. 2020). There, Members argued that their institutional role had been diminished

because the President failed to obtain congressional consent before receiving Emoluments. Id.

Because the claim was “based entirely on the loss of political power,” the court could “resolve

th[e] case by simply applying Raines.” Id. According to the court, “only an institution can assert

an institutional injury provided the injury is not ‘wholly abstract and widely dispersed.’” Id. at

19–20 (citing Raines, 521 U.S. at 829). Like Chenoweth and Campbell, Blumenthal involved an

interbranch dispute with Members alleging an injury to Congress as a whole. As such, the facts

do not mirror the present case.




                                                 12
        The broad principles undergirding Raines, Chenoweth, Campbell, and Blumenthal could

be applied to this case, but the Court is not convinced that Michel has been overruled. Raines

carved out space for claims like Coleman, where Members’ votes are stripped of all validity.

521 U.S. 823–24. Raines also did not rule on the viability of a claim about a House rule in

which “first-term Members were not allowed to vote on appropriations bills,” or other similar

rules. Id. at 824 n.7. And Campbell clarified, while citing Michel, that Raines “did not decide

whether congressmen would have standing to challenge actions of Congress which diminished

their institutional role.” 203 F.3d at 21 n.2. On the other hand, many portions of Raines suggest

that this case falls within its logic. See 521 U.S. at 819–20 (“our standing inquiry has been

especially rigorous when reaching the merits of the dispute would force us to decide whether an

action taken by one of the other two branches of the Federal Government was unconstitutional”);

id. at 821 (“appellees have not been singled out for specially unfavorable treatment”); id.

(“appellees do not claim that they have been deprived of something to which they personally are

entitled”); id. at 826 (“There is a vast difference between the level of vote nullification at issue in

Coleman and the abstract dilution of institutional legislative power that is alleged here.”). Be

that as it may, as a matter of district court restraint, the Court cannot contradict circuit precedent

because Michel was not necessarily eviscerated by Raines. However, because an independent

jurisdictional hurdle bars this claim, the Court need not resolve Raines’s applicability to this

case.

                                   B. Speech or Debate Clause

        The Speech or Debate Clause of the Constitution (the “Clause”) states that “for any

Speech or Debate in either House, [Members of Congress] shall not be questioned in any other

Place.” U.S. Const. art. I, § 6, cl. 1. The Clause “reflects the Founders’ belief in legislative




                                                  13
independence.” Rangel v. Boehner, 785 F.3d 19, 23 (D.C. Cir. 2015) (citing United States v.

Brewster, 408 U.S. 501, 524 (1972)). The Clause “provides absolute immunity from civil suit”

and has been consistently read “broadly to achieve its purposes.” Id. (internal quotations

omitted) (citing Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 501–03 (1975)). To this end,

the Clause does not only apply to actual “Speech or Debate,” but also to all “legislative acts.”

Doe v. McMillan, 412 U.S. 306, 312 (1973). “Legislative acts” are “generally done in a session

of the House by one of its members in relation to the business before it,” Kilbourn v. Thompson,

103 U.S. 168, 204 (1880), and “must be an integral part of the deliberative and communicative

processes by which Members participate in committee and House proceedings with respect to the

consideration and passage or rejection of proposed legislation,” Gravel v. United States, 408

U.S. 606, 625 (1972). The Clause extends to aides and congressional staff carrying out

legislative acts. See Rangel, 785 F.3d at 24–25.

       Defendants argue that Plaintiffs’ challenge of H. Res. 965 falls squarely within the scope

of the Clause’s grant of immunity. Defendants claim the proxy vote rules regulate voting and

“voting by Members is a quintessential legislative act.” Defs.’ Opp’n at 35. And Defendants say

that Plaintiffs’ pleading against “the Speaker, the Clerk, and the Sergeant-at-Arms for their

administration of the proxy voting rules,” does not change the application of the Clause because

“execution of internal House rules is a ‘legislative’ act entitled to . . . immunity.” Id. (emphasis

in original). Defendants rely primarily on Consumers Union to argue that “enforcing internal

rules of Congress validly enacted under authority specifically granted to the Congress” enjoys

protection under the Clause. Id. (quoting Consumers Union v. Periodical Correspondents’

Ass’n, 515 F.2d 1341, 1350 (D.C. Cir. 1975)).




                                                 14
       Plaintiffs draw a distinction between actual legislative acts and “executing a legislative

order, or carrying out [legislative] directions.” Pls.’ Reply at 16 (quoting Walker v. Jones, 733

F.2d 923, 931 (D.C. Cir. 1984) (alterations in second source). They point to Kilbourn, where the

Supreme Court held that the Clause did not bar a false imprisonment suit against the House

Sergeant-at-Arms for carrying out an arrest that the Court found was illegal. Id. at 15 (citing

Kilbourn, 103 U.S. at 196). Plaintiffs say Powell also supports their position because the Court

allowed claims against House employees—acting based on instructions from Members—to

move forward. Id. at 16 (citing Powell v. McCormack, 395 U.S. 486, 504–06 (1969)).

Administration of the proxy voting rules, Plaintiffs claim, falls “unquestionably on the

‘execution’ side of the line.” Id. at 17. They further argue that construing H. Res. 965 as

integral to the legislative process rejects the historical fact that proxy voting has never been used.

Id. at 17–18. Finally, Plaintiffs say that Consumers Union, which Plaintiffs’ counsel

acknowledged is Defendants’ best case during oral argument, is “readily distinguishable”

because the plaintiff there brought an as-applied challenge and because the rule at issue there, as

opposed to proxy voting, had a long history of use in Congress. See id. at 19.

       It is true that, in Walker v. Jones, the D.C. Circuit recognized the distinction explained by

Plaintiffs. The court highlighted the “decidedly jaundiced view toward extending the Clause” to

shield “executing a legislative order,” or “carrying out [legislative] directions.” Walker, 733

F.2d at 931–32 (quoting Gravel, 408 U.S. at 620–21(internal quotations omitted)). But the court

also stated that “[t]he key consideration, Supreme Court decisions teach, is the act presented for

examination, not the actor. Activities integral to the legislative process may not be examined.”

Id. at 929. In Walker, the court found that extending the Clause’s protection to the hiring and

firing of a food service manager would “stretch the meaning of the word [“legislative”] beyond




                                                 15
sensible proportion.” Id. at 931. But this case does not involve a matter so far removed from the

legislative process. Applying the Clause here to the administration of rules governing how

Members can vote on legislation by proxy does not stretch the meaning of the word “legislative”

in a similar way or in any way at all.

       Consumers Union offers further guidance on the scope of the Clause. There, the plaintiff

sued the Sergeants-at-Arms of both the House and Senate challenging the constitutionality of

rules governing access to the press galleries of each chamber. 515 F.2d at 1342–46. The

plaintiff had been denied the accreditation required to access the press galleries and alleged that

the rules governing the galleries violated the First Amendment. Id. at 1342. The Sergeants-at-

Arms—like the Clerk and Sergeant-at-Arms in this case—were ultimately responsible for

enforcing the rules. Id. at 1345. The district court below had determined “that legislative

immunity by virtue of the Speech or Debate Clause did not attach to the appellants who were

non-members of Congress.” Id. at 1346. But the D.C. Circuit reversed, finding that the rules at

issue were “matters committed by the Constitution to the Legislative Department” and therefore

the Speech or Debate Clause barred the suit. Id. The court found that even though the

defendants “were not engaged in the consideration and passage or rejection of proposed

legislation,” the Clause protected them because “[t]hey were enforcing internal rules of Congress

validly enacted under authority specifically granted to the Congress and within the scope of

authority appropriately delegated by it.” Id. at 1350. Controlling who had access to the press

galleries constituted functions that “were an integral part of the legislative machinery.” Id.




                                                 16
       The Court finds that Consumers Union controls; Plaintiffs’ efforts to distinguish the case

are unconvincing. 5 If rules controlling access to the press galleries are “an integral part of the

legislative machinery,” rules controlling how Members vote are even more so. Id. The proxy

voting rules constitute “regulation of the very atmosphere in which lawmaking deliberations

occur.” Walker, 733 F.2d at 930 (discussing Consumers Union). Plaintiffs’ claim that

Consumers Union should not apply because proxy voting has never been used before, Pls.’ Reply

at 19–20, does not change the fact that it has become part of “the legislative machinery” by

which the House operates today, Consumers Union, 515 F.2d at 1350. And the House

unquestionably has the authority, under the Constitution, to “determine the Rules of its

Proceedings.” U.S. Const. art. I, § 5, cl. 2. The Court can conceive of few other actions, besides

actually debating, speaking, or voting, that could more accurately be described as “legislative”

than the regulation of how votes may be cast. And Plaintiffs’ suggestion during oral argument

that Consumers Union is an outlier case does not change that it is binding precedent for this

Court and has been reaffirmed in subsequent cases. See Barker v. Conroy, 921 F.3d 1118, 1127–

28 (D.C. Cir. 2019); Rangel, 785 F.3d at 24 (quoting Consumers Union, 515 F.2d at 1351)

(“Congress’s ‘execution of internal rules’ is ‘legislative’”). 6 This Court is no freer to contradict



       5
          Plaintiffs suggested that Consumers Union could be distinguished because the plaintiff
only brought an as-applied challenge whereas here Plaintiffs challenge the validity of the proxy
voting rules “in toto.” Pls.’ Reply at 19. The Court does not find this distinction convincing. As
Defendants note, the plaintiff in Consumers Union did put forth a facial challenge to the rules,
see 515 F.2d at 1345–46, and “[a]n act does not lose its legislative character simply because a
plaintiff alleges that it violated . . . the Constitution.” Defs.’ Reply at 11 (quoting Rangel, 785
F.3d at 24 (citations omitted)).
       6
         The implications of the broad immunity conferred by the Clause, while important for
ensuring an independent legislative body, may be troubling. See Brewster, 408 U.S. at 516
(“[T]he Clause is a very large, albeit essential, grant of privilege. It has enabled reckless men to
slander and even destroy others with impunity.”). But the present case does not involve
hypothetical rules, discussed at oral argument, that deprive Members of votes on a


                                                  17
Consumers Union because it may be an outlier than it is to contradict Michel because it may

have been implicitly overruled by Raines.

                                     IV. CONCLUSION

       For the foregoing reasons, the Court finds that Defendants are immune from suit under

the Speech or Debate Clause and therefore GRANTS Defendants’ Motion to Dismiss and

DENIES Plaintiffs’ Motion for Preliminary Injunction. An order consistent with this

Memorandum Opinion is separately and contemporaneously issued.


Dated: August 6, 2020                                           RUDOLPH CONTRERAS
                                                                United States District Judge




discriminatory basis. Therefore, the Court need not decide whether immunity would apply in a
such a case.


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