David A. Clarke v. United States

BUCKLEY, Before EDWARDS and ROBINSON, Judges, Circuit Senior Judge. Circuit Opinion for the court filed Judge Circuit EDWARDS. filed Circuit

Concurring opinion Judge BUCKLEY. EDWARDS, Circuit

HARRY T. Judge: whether Con- in this case is

The issue Constitution, can gress, consistent with of the Dis- of the Council compel members Council”) (“the enact a trict of Columbia response legislation. particular piece of construing District of judicial to a decision Georgetown Universi- law to bar Columbia Harrison, discriminating of sexu- Deputy John C. Associate basis ty from Gen., Justice, the Na- Dept, Congress passed Atty. appel- U.S. preference, al Bolton, Liberty Aca- Atty. Religious lant. John R. Capital Asst. Gen. at tion’s filed, Jay the time the brief was B. Pub.L. Freedom demic Stephens, also known Atty., Jay Sing- U.S. and Michael 102 Stat. 2269-14 § Mollin, Attys., Dept, “Armstrong er and Alfred Amendment.” Justice, expenditure appellant. Armstrong were on the brief for makes by the protected “speech” the District constitute appropriated of funds on the Because contingent Amendment. year fiscal current coerces following mea- adoption of the Council’s legislation, piece of particular votes on sure: asserted interests none of the and because discriminato- not be an unlawful shall [I]t is sufficient—un- justify of ry in the District Columbia practice re- First Amendment of any der standard any educational institution of the abridgment justify the view-—to organization or religious with a affiliated rights, we free Council members’ of a with the tenets closely associated Armstrong Amendment unconsti- find the restrict, deny, religious organization of the District judgment The tutional. abridge, or condition— therefore affirmed. Court is service, fund, (A) facili- any the use of benefit;

ty, or or endorsement, (B) any of granting I. BACKGROUND recognition, approval, or orga- that are person persons or A. The Structure District Govern- in, for, engaged promoting, en- or nized ment condoning any homosexual couraging, or To understand the full dimensions of this orientation, act, or belief. lifestyle, case, necessary it the nature to examine 145(c). Id. § background government and of local in the enacting measure into Instead of I, eight District. Article of the section law, however, thirteen members all District Congress ex- Constitution authorizes “[t]o (“appellees” or “Council City Legislation in all ercise exclusive Cases court, members”) at- suit in federal filed whatsoever, over ... the Seat of the constitutionality Arm- tacking the States,” grant Government of grounds. various strong Amendment on power that has construed to invest been held that The District Court Congress near-plenary authority with over Amendment, mem- by compelling Council government the structure in the District. particular piece of in favor of a bers to vote See, e.g., Pipeline Northern Construction legislation, violated the Council Co., Pipe v. Marathon Line Co. v. United right speech, free see Clarke 50, 76, 2858, 2874, 102 73 L.Ed.2d (D.D.C.1988), States, and F.Supp. 605 (1982); States, 411 U.S. Palmore v. United (“United States” appellant United States 389, 397-98, 1670, 1676, 36 L.Ed.2d Government”) appealed. “the (1973). Although Congress provid- has long ago variety governmental ed for a frame- made incorporated function of the works since the District was manifest clear that “[t]he representative for most of the District’s existence in a First Amendment legislators governors its were until selected government requires express input the electoral of the District’s given latitude to without the widest H.R.Rep. policy.” Floyd, Bond v. residents. See issues of views on No. Cong., 17 93d 1st Sess. 47-49 [herein- H.R.Rep. (1966). 482], reprinted after to this man- Pursuant No. recently held that date, the First Circuit Staff of House Committee on the District Cong., public issues Columbia, Sess., voting on “the act of 93d 2d Home agency or board comes Rule for of Columbia 1973- member of a District Background Legislative History guarantee within the freedom of and “[tjhere amendment,” of H.R. 9056 and H.R. 9682 and Related the first Culminating opin- Bills expression of more definite can be no of Co- by voting on a controversial ion than lumbia Self-Government Governmen- Reorganization (Comm. Hull, 1487-89 878 F.2d issue.” Miller v. Town of tal Act Legislative 1974) (1st Cir.1989). agree. Print We Accord- [hereinafter Histo- appel- long This absence of democratic the votes of each ingly, we hold that ry]. lee, capital in the nation’s drew legislator, like the votes of other and led to objection,1 412(a). regular bipartisan 404(e), legislative power id. §§ Council, provide conferred the Act to repeated efforts exceptions, government in the District. enumerated to all representative “extend[s] Rep. rightful subjects within the S. Cong., 93d 1st Sess. 3 Legislative History District consistent with the Constitution of reprinted in provisions the United States and the of this (noting at that over 40 home rule bills Act.” Id. were introduced in between § 1972). delegation legis- The Home Rule Act’s power, however, complete lative is neither successfully These efforts culminated Congress provided nor irrevocable. several passage with the of the District of Colum- supervisory mechanisms to assure itself a bia Self-Government and Governmental in governance. signifi- role District Most (“Home Reorganization Act”), Act Rule cantly, Act, under section 601 of the Con- 93-198, (1973). No. 87 Stat. 774 In- Pub.L. gress right, time, any at to “reserve[d] “grant tended to inhabitants of the exercise its authority leg- constitutional powers District of Columbia of local self- District, by enacting legis- islature for the 102(a), government,” id. the Home Rule § lation for the any subject District on ... provides popularly

Act for a elected Coun- including legislation repeal to amend or popularly Mayor, cil and a elected id. any law in in any force the District ... and 401(a), 421(a), charged responsibili- with §§ passed by act the Council.” Home Rule ty superintending municipal life in the Moreover, although Act 601.2 the Coun- § Act, aim in District. The central Mayor obliged prepare cil and are to short, provide sys- was to the District “a District, budget annual for the see id. municipal government tem of similar to expenditures may by be made § provided throughout in all other cities District—either of funds furnished to the H.R.Rep. the United States.” No. 482 at by District the federal Government or of Legislative History reprinted in at through funds raised the District’s own supporters 1442. As House of home rule ap- means of revenue collection—unless explained: proved by Congress, act of see id. 446. § govern- Restoration of an elected local course, Finally, retains its con- powers ment with and fi- I, authority stitutional under article section is, judgment nance of the commit- eight modify or even abolish the frame- tee, perhaps important step the most government by work of local established any Congress which this or can take for the Home Rule Act. Capital. Self-government the Nation’s necessary responsive responsible B. government. passed Amendment was Legislative History 50, reprinted Id. in by Congress response in to the District’s at 1490. Act, Rights Human D.C. Code Ann. 1- §§ (1981). The Home Rule Act vests the District’s by 2501 to 1-2557 Enacted legislative power in the Council. Home See the Act was intended to 404(a). prohibit Rule Act Under the in employment, discrimination § process by housing, public established accommodations and edu- authority, subject “race, color, approval by religion, has the cation based on na- sex, Mayor, by status, to enact laws for the origin, age, per- tional marital vote, orientation, majority power and the appearance, to override sonal sexual fami- mayoral by matriculation, ly responsibilities, vetoes a two-thirds vote. political See Eisenhower, addition, Kennedy, according 1. Presidents Johnson In law enacted legislative procedure by strongly established supported legislation the Home Nixon all Congress, Rule Act must be submitted to which establishing aimed at democratic days disapprove then has 30 the law con- the District. See re- H.R.Rep. current the law resolution before becomes effec- printed in 2 History at 1442-43. Legislative 602(c)(1). tive. § See Home Rule Act as the (a) may be cited This section in- See. affiliation, handicap, source of physical Liberty and Religious Capital “Nation’s come, of residence or business.” place Act.” Freedom Academic Id. § appropriated (b) funds None gay rights groups student two expended obligated Act shall be University (“Georgetown” Georgetown date if on that after December University”) brought suit under or “the adopted has not the District of Columbia Act, seeking compel Rights Human (c) of this section. subsection “Univer- grant them official Georgetown to of Co- (c) the District 1-2520 Section campus as well as Recognition,” sity edition) is now amend- lumbia Code (1981 to that status. corresponding privileges (2) the adding after subsection ed Georgetown Gay Rights Coalition following subsection: (en (D.C.1987) 536 A.2d University, provision “(3) Notwithstanding any other is affiliated banc). Georgetown, which Columbia, it of the District of the laws Church, on the defended the Catholic discriminatory be an unlawful shall not Human Act did grounds that the District of Columbia practice that, did, if the Act it and apply not affil- institution that is educational University’s rights under the violated religious organization or a iated with the First Amend- clause of free exercise closely of a associated with tenets of District of Columbia Court ment. restrict, deny, religious organization to banc, ruled hearing the case en Appeals, abridge, or condition— oblige Rights Act did not that the Human fund, service, “(A) facili- the use of “recognize” or otherwise Georgetown to benefit; ty, or or held gay' groups, but student endorse endorsement, “(B) granting of Georgetown require to the Act did that recognition, any person approval, or equal to Universi- groups access afford the for, organized or en- persons that are id. at 16-17. ty facilities and services. See in, encouraging, or gaged promoting, decision in seek review of the than Rather act, condoning any lifestyle, homosexual Court, George- the United States orientation, or belief.” a settlement based on agreed to town Cong.Reo. July (daily ed. S9108 Appeals’ de- District Columbia 1988). through its Presi- cision, indicating publicly Armstrong Debate over the Amendment of the regarded it the outcome dent that much was dominated as considerations Letter essentially fair one. See as an case parliamentary procedure as it was S.J., faculty and Timothy Healy, from Armstrong policy. concerns of Senator (Mar. University Georgetown alumni as essential justified his Amendment Cong.Reo. 1988), S9114- in 134 re-printed Georgetown’s right not subsi- protecting 8, 1988). (daily July ed. “sinful,” dize activities believed Nonetheless, certain members Con- Cong.Rec. 1988) (daily July ed. S9104 congres- that disagreed, decided gress and (remarks Armstrong), religious of Sen. pro- consideration of District’s sional with which Senator conviction opportuni- an posed budget presented agreement, indicated his see id. S9105 to overrule ty (same). initiate action of the discussion the Sen- Most July ate, however, Arm- decision. On focused on whether Georgetown following strong comported with Senate Armstrong proposed Amendment Senator XVI,3 appropriations prohibits Rule which the enactment the 1989 D.C. amendment to legislation through ap- an of substantive bill: Appropriations hibits Senate Committee on provides that "no of- 3. Rule XVI amendment proposes gener- by any appropriation bill "report[ing] ... Senator which from contain- fered any general legislation be received to proposing shall ing al new or to such bill amendments XVI, 4, reprinted appropriation bill....” Rule Id., 2, ¶ general legislation." reprinted in S.Doc. ¶ (1988) Cong., Sess. 11 in S.Doc.No. 100th 2d No. 33 11. pro- S.Doc. No. Rule also 33]. The [hereinafter members “mandate” at S9125 e.g., id. bill. propriations Ap- Brief for the ignoref ... “cannot Byrd) (objecting ].” (remarks of Sen. “var- 13. at 23 n. precedent” pellant “a bad as Amendment consti- sundry amendments and ious bill”); appropriation on an tute District Court Proceedings C. 11, 1988) (re- July (daily ed. id. S9175 way or the one action than take Rather Weicker). id. of Sen. marks amendment, the thir- on the other 8, 1988). Sup- (daily July ed. at S9123-34 Council, including teen members Armstrong Amendment porters Clarke, suit filed David Chairman himself, House, like Senator capaci- and official individual in both their perception their defense based ties, have the seeking and interpreted the Human declared unconstitutional of Columbia by the District applied preliminarily have its enforcement the constitutional Appeals, violated v. Unit- enjoined. See Clarke permanently by requiring religious institutions rights of (D.D.C.1988). States, F.Supp. 605 ed organizations support for provide them to Arm- challenged the The Council incompati- that were advocating practices of their as a violation strong Amendment religious teach- the institutions’ ble under rights to free fi- was ings. The Amendment; condi- as an unconstitutional part of the 1989 passed as a nally measure; an uncon- spending aon tion Act, Pub.L. Appropriations of Columbia takings; as an establishment stitutional (“1989 100-462, 102 Stat. as a violation religion; and Act”), on October Appropriations D.C. resi- rights of District associational position on particular a express who dents pressure from the tremendous It is clear F.Supp. at 607. homosexuality. See brings to bear Amendment the summary moved for States The United Amend- that the Council members on the coun- members the Council judgment, and compel appellees designed to the ment was summary motion cross with a tered amendment the to enact judgment. Dis- The Rights Act. city’s Human Amendment to Finding the pro- Act Appropriations trict of Columbia of the Council violation be $3,743 District ex- finance billion to vided the District speech, rights to freedom the the event that In penses. See id. the motion Council granted amendment, the enact the to Council failed in their judgment entered members from legally be barred would the votes court found trial favor. funds, appropriated the spending any of sufficiently ex- members be Council $3,206 approximately including the billion— “speech,” and to qualify pressive through city’s total—raised 85% re- attendant consequences severe id. collection. See means of revenue own meant the amendment jecting “aye” when to vote refusing price not coerced into effectively were in Coun- to a vote came the amendment The court at 609-10. id. opposing it. See words, complete cil, was in other could Congress itself because held that also the Dis- services in municipal shut-down enacted hospitals trict—from Act, the Government Human collection, enforce- schools, law garbage legitimate interest had essen- other services virtually all ment and important out- sufficiently Amendment health, safety and welfare tial rights. members' weigh the As the Government residents. District’s appeal- States The United id. at 609. conse- severity of these concedes, ed, affirm.4 we now Armstrong Amendment quences makes complaint. See id. at 607 their raised in issues fa- Council members' in it ruled 4. Because these have raised claim, Council members n. 1. The & the Dis- First Amendment vor their agree appeal, because again on claims the other constitutional did not reach trict Court 41 0 Analysis

II. Through the Home Rule Con gress has furnished District with a Prerogatives A. The Constitutional government of democratic form of and vested the Council and the legislative power government of this in Therefore, members of the Council. “legislators” every in Council are tradition authority Congress’ over the struc such, they enjoy al sense. As broad First government ture of local the District of protections discharging broad, indisputably Columbia but it is not responsibilities. e.g., their v. Bond boundless. has the discretion to 116, 135-36, Floyd, 385 U.S. 87 S.Ct. create institutions of for the (1966). Bond, 17 L.Ed.2d responsibilities District and to define their “ held that a state could not only long ‘so as it does not contravene ” representative exclude an elected from its any provision of the Constitution.’ Pal- legislature outspoken oppo because his States, 389, 397, more v. U.S. sition to the Vietnam War: 1670, 1676, (1973) The manifest function of the First (quoting Capital Hof, Traction Co. v. Amendment in representative govern- 580, 582, 43 L.Ed. 873 requires legislators ment given be (1899)). Congress’ This limitation on pow express the widest latitude their merely ers general an instance of the policy_ views on issues of Legisla- principle may that the Government not dis obligation positions tors have an to take regard the strictures of the Constitution political on controversial questions so conferring when discretionary benefits. fully constituents can be in- See, e.g., Goldberg Kelly, them, formed and be better able to 262-63, 1011, 1017-18, 25 L.Ed.2d qualifications office; assess their (welfare benefits cannot be con they also may represented gov- so procedural pro ditioned on waiver of due person ernmental debates they rights); Verner, cess Sherbert v. represent have elected to them. 398, 403-06, 1790, 1793-95, Id. at (emphasis 87 S.Ct. at 349-50 (1963) (free exercise clause added). and until Congress Unless restruc- conditioning unemployment bars bene tures District to divest the agreement Sabbath); fits on to work on legislative functions, Council of its it must Randall, Speiser 513, 518-19, v. 357 U.S. respect the broad First rights Amendment 1332, 1338, 78 2 S.Ct. that the enjoy by Council members virtue (First conditioning Amendment bars of tax legislators. of their status as exemption showing taxpayer on that had engaged not advocacy). subversive See The issue in this case is whether the Epstein, Court, Supreme The Armstrong Amendment is consistent with 1987 rights. Term—Foreword: Unconstitutional these The United States concedes Conditions, Power, State and the Limits that the Amendment does not Consent, 4, 6-8, 102 Harv.L.Rev. legislative process 73-102 alter the established of (1988).5 Act; the Home Rule the assent of a majori- gress obliged with the District Court that the is to observe the Constitution Amendment, Amendment violates the First we near-plenary authority when it exercises its over particular, also do not address them. express we District, the affairs of the so the states are opinion specified no on whether the obliged they to observe the Constitution when Rights amendment to the Human Act would be power exercise their over the structure of mu- by Congress directly. enacted constitutional if nicipal governments. e.g., Gomillion v. 339, 344-45, 125, Lightfoot, reason, 5. For this the cases drawn to our atten- (1960) ("Legislative con- tion the United States in which the municipalities, trol of no less than other state acknowledged authority Court has the broad of power, scope lies within the of relevant limita- institutions, legislatures municipal state over imposed tions tion.’’). the United see, States Constitu- e.g., Pittsburgh, Hunter v. 178- 52 L.Ed. 151 do not settling come close to this case. Just as Con-

411 The United (loss exemption). tax of necessary is members Council’s ty however, the Arm- argues, Hu- the States amendment before spared such should strong be- measure any other or Rights man voting by the Council scrutiny, because None- Council, law. become can fore Like speech. protected is not contends members theless, States United difficulty” in Circuit, effectively re- “we has First Armstrong Amendment freely on right to vote “the concluding that the Council responsibilities defined the broad falls within they arise” imposing year, fiscal issues the 1989 for members leg- afforded protections passing duty” of “ministerial on them v. Town Miller Bond. Brief under islators See amendment. (1st Cir. 532-33 Hull, are F.2d Although we Appellant 1989). members of that those skeptical Armstrong Amendment supported who inherently expres vote is legislator’s A terms, in these the measure conceived moreover, simply be so, not This is sive. our to confirm feel constrained do not a verbal voting requires the act cause into inquiry extensive through an intuitions Supreme Court Voting, as the utterance. meaning history and and col recognized, is the “individual has posi- States’ United For the Amendment. within the opinion expression [ ] lective by any means poses, merely without tion v. Prox process.” Hutchison decide: we must question answering, the 111, 133, 99 S.Ct. mire, 443 U.S. duty to impose the Congress can whether (1978)(emphasis add 2697, 61 L.Ed.2d the Human enact the only of not ed). function It serves the constitutional consistent Act proposed legisla disposing of mechanically legisla- members as rights of “‘will, prefer tion, registering ” cannot. that it We hold tors. legislator ence, individual or choice’ com political to the concern an issue of 861 F.2d Meyer, munity. Montero “Speech” Protected Voting B. Cir.1988) (10th (quoting Law Black’s case this issue The central 1979)), (5th de cert. ed. DICTIONARY ais Armstrong Amendment whether — -, nied, purposes of regulation of reason, leg (1989). For L.Ed.2d con States First Amendment. “the indica best voting record islator’s Arm the condition cedes that specific position on or tion of her] [his Dis attaches strong Amendment ideological persua her and his issues virtually irresistible funding exerts trict’s Ujifusa, & G. M. Barone Al sions.” vote, on the Council pressure xviii Politics manac of American way. Brief particular in a to vote (identifying xvi-xviii (1988); id. at see also Threats 23 n. 13. Appellant at for ideological scales describing eleven this one than less extreme considerably records). voting rating congressional Amend the First trigger held to have been directly that have courts The two federal Riley v. scrutiny,” “exacting ... ment’s — legisla- whether question of Blind, considered Federation National have both protected voting is 2678,101 tive L.Ed.2d U.S.-, 108 S.Ct. In Miller v. Town it is.6 that concluded affirma- coercing at when aimed 669 Cir.1989), (1st a munici- Hull, 878 F.2d 523 e.g., belief conviction. tions of the elected ordered of selectmen pal board 518-19, at at 78 Speiser, First Amendment be accorded some content to expressly avoided Circuit 6. The Second Supreme That the Yonkers, at 457. protection....” Id. City 856 question in United States Cir.1988), may when reviews this issue reach part (2d granted in sub rt. F.2d 444 ce reaching - -, prevent fromus States, does not Yonkers U.S. Spallone v. United nom. Moreover, explain we denied, case. issue in this below, cert. 103 L.Ed.2d infra, find Yonkers -, see note 103 L.Ed.2d U.S. before the case facts from distinguishable on its analysis (1989), assuming purpose of expressive us. voting has sufficient act “the redevelopment ciently expressive the town’s au- members of to merit First Amend- questions, to terminate the com- ment status. The thority to vote town’s relevant indicated, public housing finance a are “whether intent mitment ‘[a]n convey particularized message project. the members of the When redevel- [is] refused, present, and the likelihood opment authority they were sus- [whether] [is] great message that the will be understood pended by Sug- id. at 527. the board. See ” by Johnson, those who it.’ gesting proposition that the was “unassail- view[ ] (quoting Spence, S.Ct. at 2539 at able,” First concluded: Circuit 2730). difficulty finding have no that the [W]e voting public by act of issues a mem- criteria, question Under these there is no public agency ber of a or board comes the votes of the Council members speech guarantee within the freedom qualify speech. Under the scheme of espe- of the first amendment. This is by local established the Home cially agency true when the members are perform Rule the Councilmembers There elected officials. can be no more legislators perform same functions that expression opinion by definite than municipality. other Like the votes of voting aon controversial issue. elsewhere, legislators the votes of the indi- vidual Council members are (footnote omitted); intended to Id. at 532 see also id. at express positions their on issues of (finding protected 533-34 voting status of policy, and are understood to do so sufficiently “apparent,” and violation of Council members’ constituents and other sufficiently “egregious,” First Amendment observers. qualified immunity). claim of overcome contends, The District Court for the Western Dis- however, The United States equated legisla- trict of Wisconsin also partic- vote the Council on the speech in City tor’s vote with Wrzeski v. Congress’ specified ular issue of amend- Madison, (W.D.Wisc.1983). F.Supp. ment to the Human Act should be case, city conduct, In that council enacted a speech. deemed not The coercive obliging measure individual council mem- effect that the Amendment ex- against bers to vote either favor or members, all erts on the Council the United pieces reasons, considered the coun- States leaves them no real choice Noting plaintiff cil. that the adopt council mem- but amendment. legislator strip ber’s “status as a does not And because the Council members have no any rights choice, her of she approval would otherwise en- of the amendment is joy speak under the First Amendment longer personal expression, act of all,” freely speak or not to and that the but rather a duty” “ministerial that Con- city had gress may council failed to show that legitimately impose on the Coun- requirement op- would further its pursuant effective cil members near-plenary to its eration, plaintiff’s court authority sustained over the structure of the Dis- mandatory-vote provision claim that the government. vi- trict’s Ap- See Brief for the right olated pellant her to ab- Pointing Supreme stain. Id. at 667. Books, Court’s decision in Arcara v. Cloud Inc., recent Court’s decision (1986), the United States con- — Johnson, U.S.-, Texas v. Armstrong cludes that the 2533, (1989), lends further upheld regu- should therefore be as a valid support to our conclusion that the votes of lation of the compo- “noneommunicative” the protected by Council members are the nent of the Council members’ “conduct” Invalidating First Amendment. the re- performing responsibilities. their official spondent’s burning conviction for an Amer- Appellant Brief for the at 24-27. flag, ican the Court reaffirmed Johnson Spence the test established in Washing- argument, including v. We find this the ton, 405, 2727, Arcara, 418 U.S. 41 L.Ed.2d United States’ strained reliance on Arcara, 842 for identifying wholly unconvincing. conduct suffi- the compris[es] mandating speech “necessarily the the deci- law held that a state prostitu- say any building used for of both what to and what not to of sion closure Thus, of lewdness could Riley, or other forms at 2677.7 the say.” tion raising First applied to a bookstore without Armstrong the coercive character at 478 U.S. Amendment, Amendment concerns. See converting far from an act of apply- at 3175-77. Cases S.Ct. expression protected unprotect- into one of scrutiny ing First Amendment conduct, very is the source of the ed incidentally affect applicable laws that deficiency. Amendment’s constitutional inapposite, the ex- speech were ac- expressive the plained, because unlike Scrutiny C. First Amendment cases, at in those “the sexual tivities issue 1. Conventional Standards in this manifests activity carried on case Because find that the votes of protected expres- absolutely element of merit First Amend the Council members 705, (em- at Id. 106 S.Ct. at 3176 sion.” protection, we must now determine ment 3, added); n. see also id. phasis the Government’s interest in en whether ("Here the 'non- at 3177 n. 3 ... S.Ct. Armstrong Amendment is forcement regu- speech* subject general conduct sufficiently outweigh strong to the Amend absolutely no lation bears connection infringement ment’s of the Council mem add- expressive activity.” (emphasis unnecessary free rights. bers’ It ed)). engage in inquiry an extended into said of The same cannot be must that whether United States show No matter how little members’ votes. Armstrong “a advances when con- choice Councilmembers have compelling state interest and ... is narrow sidering contained within the end,” ly Perry drawn achieve that Educ. Amendment, will re- their votes Ass’n, Perry Local Educs.’ Ass’n expressive precisely be- tain their character 955, S.Ct. 74 L.Ed.2d acting cause the Council will be (1983)—the appropriate standard already As we have con- legislators. scrutiny regulation for a content-based concedes, cluded, and as the United States only speech—or Armstrong Amendment does not alter important Amendment “furthers an or sub legislative process by the established imposes ... interest” and “no stantial Rule Act. Before the Home speech] than is greater restriction of [a Human Act can amendment inter to the furtherance of that essential District, amendment, law become est,” O’Brien, States v. legislation before piece like other 20 L.Ed.2d Council, majority must be enacted (1968)—the appropriate standard Thus, vote of Council’s members. regulations only incidentally general an “indi- Amendment coerces abridge speech. For we conclude that opin- expression vidual collective abridgment justify interests asserted to Proxmire, ],” ion[ speech rights free the Council members’ the Council members either standard are insufficient under importance to the District as a issue of Amendment review. community. political that, undisputed under article It is both clearly affirmation violates Such coerced I, section right to free 8 of the Constitution and First Amendment. section simply on- to vote invalidated those laws not because Amendment’s directive compa- might mistakenly in favor of the have concluded lookers flag compulsory struck salute law rable down in West involuntarily compelled to the chal- assert those Virginia Education them, State Board messages agreed lenged but also Barnette, 1178, L.Ed. U.S. 87 v. right not to be an individual has because mandating display of and the law ideological an "instrument ... an [of] made license-plate "Live Free or Die" struck the motto unacceptable.” point he Id. at of view finds Wooley Maynard, v. down at 1435. (1977). The Court 51 L.Ed.2d 752 S.Ct. Act, Congress interests, however, 601 of the Home Rule could Neither of these directly legislation enacted the Armstrong that is sufficient to redeem the subject Armstrong pro- of the Amendment. Amendment. The Senate’s interest in so, moreover, Doing tecting integrity would have avoided parliamentary of its imposing any procedures restriction on the Council concern that dominated —the Thus, speech. Arm- because the Senate debate over the Amend- “ Cong. ment, strong (daily substan- see Reo. S9123-34 ‘burden[s] tially 8, 1988) one, speech necessary July more than is respectable ed. —is ” further’ the Government’s interest in sufficiently important outweigh sim- it is not ply having specified rights guaranteed amendment incor- members un- Council porated D.C.Code, into the Indeed, Board der the Trust- Constitution. Rule XVI —Fox, -, ees v. S.Ct. was not sufficiently important viewed as 3034,106 (1989)(quoting prevent the directly approving Ward Senate from — Racism, U.S.-, Against general legislation Rock portions in other of the (1989)), Appropriations 1989 D.C. Act. See that interest is insufficient to Appropriations sustain the D.C. (amending Act § Amendment.8 ll-1563(d) (1981) (judicial § D.C.Code Ann. pension plan)). case, In any Congress identify United States and amici two could have secured the desired modification supposedly interests by forcing advanced Rights of the Human Act consistent with Council legislation enact the by enacting Rule XVI specified amend- First, here at issue. it is claimed that ment independently of the Ap- 1989 D.C. conditioning legislative District funds on propriations Thus, Act. we conclude that by action the Council allowed the Senate to respect this also the Amend- secure an amendment to the D.C.Code ment substantially burdens speech more violating without prohi- Senate Rule XVI’s than necessary to further the Govern- “general legislation” bition on appro- in an ment’s asserted interest. priations bill.9 Brief of the States Senate as Amicus Curiae at 9-10 & Nor is the asserted facilitating interest in Second, 10 n. 6. repeal United States con- by amendment legislative procedure tends that the dictat- Council sufficient to allow the Armstrong ed Amendment was Amendment to scrutiny survive under the facilitating aimed at repeal future Indeed, the First Amendment. we find this specified amendment to the Human specious. interest As the United Act. Since the Council concedes, has no nothing States authority modify history or override sug passed by Congress, laws requiring gests was motivated to enact the end. Appellant See Brief for at 38. Fur preserved right thermore, repeal Council’s it borders on inconceivable that a amendment at the year, piece end the fiscal defended as necessary objective principles protect harmonious rights First Amendment home rule. Appellant See Brief for the religious institutions in the District of Co lumbia simultaneously could be defended points 8. The legitimate United States out that O'Brien’s (quot- ment's interest.’” Id. at 3034 requirement regulation Ward, that an incidental ing 2758). 109 S.Ct. at Because the Arm- essential,” speech greater be "no than is strong substantially Amendment does burden 88 S.Ct. at has been construed necessary more than is to further demanding Court to be less than interests, necessarily the asserted fails to satis- the “Ieast-restrictive-ineans" test used to evalu- ate content-based restrictions of fy demanding either the less O’Brienstandard or speech. demanding content-based-regulation more Fox, Fox, e.g., 109 S.Ct. at 3034 n. 3. standard. explained regulation that a of conduct incidentally long affects is valid so supra. 9. See note 3 as it speech substantially does "not ‘burden more necessary govern- than is to further the degree scrutiny the relaxed of face no obli that even repeal.10 Courts easy to under O’Brien is too strict in this case. asserted “sham” interests gation to credit analysis, this line of the United lib Under of constitutional justify restrictions to that, purposes Jaffree, 38, v. contends for the of erties. See Wallace States 472 U.S. to the specified amendment Human 75, 86 L.Ed.2d 29 105 S.Ct. obligatory character of the (O’Connor, J., concurring). But even (1985) Armstrong the relation- Amendment makes interest at face value accepted if we this Congress ship between and the Council impor or deemed it to be substantial analogous superior to one between a tant, Congress could the fact remains that reason, subordinate. For that the United amendment and passed argues, we should assess whatever States repeal by the affirmatively authorized its Armstrong has on effect Amendment Thus, an indicated date.11 Council after of the Council members under too, theory, under this Pickering v. the standard established in abridge be deemed to Amendment must Education, 391 U.S. 563, Board 88 S.Ct. speech than is essential substantially more 1731, (1968), evaluating 20 L.Ed.2d 811 for furtherance Government’s to the restrictions interest, and hence to be invalid.12 asserted employees. reject position We this 2. Test Pickering plainly existing untenable under law. argument aban- States’ final United Pickering on conventional standards examined the First Amend- dons all reliance public-school suggests ment claim of a teacher who of First Amendment review suggestion Congress Congress may delegate agencies broad The United States' 10. compel spec- legislative powers the Council to enact the decided to the exercise of which is not legislation in order to accommodate home subject procedural compre- ified mechanisms rule, being paradoxical, directly is in addition to Congress hended in article I. If were to autho- legisla- refuted Amendment’s repeal specified rize the Council to acts of Con- (daily history. e.g., 134 S9106 tive Cong.Rec. gress, analyze grant we would 8, 1988) (remarks Armstrong) July ed. Sen. power under the flexible dictates of the "non- ("I rule is the issue. We do not think home doctrine," delegation see Mistretta v. quite regularly make decisions which are con- — U.S.-, 647, States, 109 S.Ct. 654- trary general presumption in favor of to our 102 L.Ed.2d 714 not under Chadha. rule."); (daily July ed. home id. at S9176 1988) (“There (remarks Armstrong) are of Sen. Yonkers, City F.2d 12.In United States v. today want to dismiss this as a some here who (2d 1988), granted part Cir. cert. sub nom. issue, anything of the home rule and it is not States,-U.S.-, Spallone v. United 30, 1988) sort.”); (daily Sept. id. at ed. H9188 denied,-U.S.-, cert. 103 L.Ed.2d 808 (remarks Dornan) Rep. (expressing "hope (1989), the Sec 103 L.Ed.2d 810 over the [debate Amendment] finding contempt is ond Circuit affirmed a going couched in terms of home not against city council members who refused sued rule”). directing comply with a court order them housing project. Because the authorize a suggests that the 11. The United States on a decree in court order was based consent Chadha, v. Court's decision in INS city agreed to construct hous which the (1983), would ing remedy past acts of racial discrimi as a authorizing Congress have barred from nation, housing city’s provide failure repeal if Council to Thus, illegal held itself an act. the court was directly. Congress had enacted the amendment if the refusal of the council members that even case, quite differently. In that We read Chadha comply speech, was such with the court order reserve the Court held that could not Ohio, Brandenburg speech, 444, 447, under disapprove power unilaterally to itself 1827, 1829, 23 L.Ed.2d 430 regulations administrative or orders issued curiam), protected by (per be would not mechanism, agencies. "legislative This veto” Yonkers, F.2d at Amendment. See the First reasoned, presentment violated the the Court However, appel- because refusal I, under which Con- clause of article section legislation con in this case to enact lees obliged gress to the Pres- to submit would not tained in approval disapproval. id. at ident for his 944-59, legal penalty illegal subject Thus, even Chadha 103 S.Ct. at 2780-88. —or clearly Armstrong Amendment —Yonkers Congress, agencies plainly cre- mandates that not Miller, apply F.2d case. present- does not to this by Congress, comply must with the ated Cf. Yonkers). Indeed, (distinguishing presupposes at 533 n. 14 the decision ment clause. publishing acting a letter crit- duct was dismissed of a civil servant at the behest ical school administration. of the superior expressive; of an elected is not that this claim and Court determined commonly such conduct is not attributed to public employees claims of like-situated the civil servant as a manifestation of her by balancing employ- should be decided beliefs, inner but rather is attributed to her citizen, “interests[,] ... as a in com- ee’s superior, elected the civil servant whom public menting upon matters of concern agent.” In con- acts as Id. at 1232. State, employ- and the interest of as an trast, members, they because er, efficiency promoting in of the legislators, presumed express are are through performs employ- services it its vote, personal they subject will when 1734-35; ees.” 391 U.S. at S.Ct. at only to electoral control their constitu- also, McPherson, see Rankin ents. 378, 388, 97 L.Ed.2d test, (1987). Applying Attempts by the Court in the United States to analo Pickering upheld teacher’s claim on the gize the Council members to ambassadors ground that the school had failed to show governmental and other “ministers” are disruption that his letter caused actual similarly unavailing. An ambassador is an operations. the school’s See 391 U.S. at agent Government, commissioned to 570-71, Nonetheless, 88 S.Ct. at 1735-36. represent the United States in the “transac pointing to numerous lower court decisions diplomatic tion of its business.” In re that have sustained restrictions of the Baiz, 403, 419, 854, 858, servants, civil of different the Unit- (1890). 34 L.Ed. 222 When an ambassador argues application ed States performs responsibilities, official is un she balancing in Pickering test this case would acting derstood to be for the Government. result vindication speaking Because on behalf of the Govern Amendment. ment is an “requirement essential for the suggestion The United States’ that Pick- performance effective of” an ambassador’s ering controls the outcome of this case is responsibilities, official removal of an am obviously wrong. The members of the political grounds bassador who refused on Congress’ employees; Council are not un- perform an assigned justi task would be Act, they indepen- der the Home Rule are fied the Government’s “vital interest in dent legislators, “respon- intended to be maintaining governmental effectiveness sible and accountable to the voters” of the efficiency.” Finkel, Branti v. Rep. District. H.R. 482 at reprinted 507, 518, 517, U.S. Legislative 1442. Al- HistoRY (1980); see also Elrod v. though Congress has the constitutional au- Burns, 347, 367-68, 427 thority change the character of the 2686-87, (1976) (plurality). Council, it did not do so in the interest, The Government has no similar already Amendment.13 As we have dis- however, cussed, controlling long political speech so Council members occupy legislators, popularly continue to the status of legislators. elected Conse Congress obliged respect the constitu- quently, Congress can no more demand protections position. tional that attend that partisan loyalty from the Council members than it can from the District’s de The cases that the United States cites fenders, Branti, see 445 U.S. at involving civil servants are inap- therefore process S.Ct. or from the servers posite. As the explained Seventh Circuit courts, Dinaso, bailiffs of the District’s (7th see Grossart v. 758 F.2d 1221 Cir.1985) Elrod, case on which the 427 U.S. at 2683- —the places primary States reliance—“the con- 89. Congress provided Congress That the District did not intend funding employment would lose its rather than that to establish an rela- tionship Council members would be terminated —the or- between and the Council dinary penalty for insubordination —confirms members. residents, leg- has vested the supply the District’s did Pickering if But even government case, power of we islative in this analysis line of appropriate govern- long So as this form Amendment Armstrong Council. hold the would still obtains, therefore, Congress must re- as we have ment Insofar be unconstitutional. that the First spect the latitude” votes of that the already “wide[] determined mem- guarantees the Council protected Amendment constitute members Council views express “to their reaching legislators as bers have little trouble speech, 136, Bond, at policy,” 385 U.S. by the issues of any vote conclusion that further 349, including “right to their amend- S.Ct. at on the Council members they Mil- freely on issues as arise.” Act would be Rights vote to the Human ment ler, the Arm- F.2d at 532-33. Because “matter of dealing with a speech the Council Rankin, strong Amendment coerces 483 U.S. concern.” particular piece a It is also votes on at 2896-98. 107 S.Ct. at none of the inter- legislation, mem- and because of the Council that the interest clear Amendment is justify any of their asserted avoiding restriction ests in bers First, of First any standard strong. as indi- extremely sufficient—under votes is abridg- justify the citizens, important review—to they possess the Amendment vidual members’ free in of the Council by the Court Barnette ment right, recognized 7, Armstrong Amendment rights, we find supra, not note Wooley, see Dis- judgment The message with which unconstitutional. as vehicles for used Second, is affirmed. legislators, Court therefore disagree.14 trict they dis- being free to interest in they have an Affirmed. positions to take charge “obligation their Bond, questions,” political on controversial BUCKLEY, concurring: Judge, Circuit 349, 136, and other- at at 87 S.Ct. teaching is clear: Supreme Court’s in accord represent their constituents

wise imposes an regulating conduct a statute If public in- judgment their best with conduct, it expressive burden on incidental in interest re- The Government’s terest. scrutiny, subject to First Amendment mem- stricting the 697, Books, Inc., 478 U.S. v. Cloud Arcara hand, very weak. bers, on the other 702, 106 S.Ct. determined, Because, already as we O’Brien, 391 (citing United States justify asserted of the interests easily could Armstrong Amendment “important or sub- (1968)), including the action, the by congressional direct achieved government interest”/”restriction stantial credibly claim States cannot necessary” set than test greater ... of the Coun- power to coerce the votes O’Brien, in forth efficiency gov- members advances the cil Armstrong Amend- Although the significant operations ernmental such, it regulate conduct does not ment way. rationale. certainly falls within the O'Brien III. Conclusion by the required vote As the affirmative Council of the D.C. requirements Congress must observe the semblance has “at least it exercises its members when of the Constitution Arcara, U.S. at activity,” expressive structure discretion over the broad agree I Palmore, the District. See compelled Su- analysis is Through central at 1676. court’s 411 U.S. at Simply precedent. stated Act, preme has estab- Rule the Home summary this (and burdening for the without representative government lished speech imposed merit of suggests that because the United States 14. The rejected express Supreme free to Council members remain Amendment. Johnson, means n. argument views on S.Ct. at 2546 see voting, discount than we should other strength reject and we it here. avoiding abridg- of their interest in be found in the citations to the court’s the D.C. Human Act. While this opinion), it is this: As the require would participate members to require would one-time-only in a they vote with which District of Columbia Council to enact a fundamentally disagree, pur- the measure’s D.C.Code, particular amendment to pose is to amend the require not to Amendment; implicates and as give particu- members to voice to a Congress could have amended the Code on contrast, message. lar as the authority, its own Amend- in Wooley Maynard: Court noted of the relevant ment fails Here, Barnette, as in are faced places it Court tests because some burden a state measure which an individu- forces speech on the members’ whereas none is al, part daily as of his life—indeed' con- required. (Certainly justified none can be stantly while his in automobile is by the contrived reasons advanced fostering view—to be an instrument for government in sup- and the Senate amicus ideological adherence to an point port Congress’ require decision to unacceptable. of view he finds of Columbia enact the amend- 1428, 1435, achieving ment to its rather than Code (1977). congressional end direct action. See 414-15.) op. court only footnote is unfortunate not be- summary cause Barnette and Wooley clearly This constitutes both the basis are so my distinguishable, because, and the limits of concurrence because I context, purpose expanding see no the discussion implies a finding basis for the Armstrong (as does) opinion beyond the court’s the Amendment goes unconstitutional that be- required impor- limits to resolve what is an yond application of the standards de- impression. Thus, tant case first scribed in opinion. Part C.l. of the court’s example, paragraph I would delete the last op. is, Court at 413. itAs our decision of its discussion of Pickering test. today opens up enough territory new Having decided op. at potential judicial suggest pru- review to inapplicable Pickering because members limiting scope dence of its to essentials. of the District of Columbia Council are not virtually As or institution employees of the Congress, United States can today except act with the consent of its there engage is no need to in a discussion legislative governing body, suspect I might of what we gov- hold were this case this court may upon and others be called erned Pickering. questions answer a number of litigators I paragraph also delete the final would explore implications of our decision. of Part accompanying B. and its footnote. point, At what example, does a federal op. at 413. The first sentence of grant-in-aid program cross the line that paragraph suggests that the Arm- separates encouragement of state or strong Amendment violates the Constitu- municipal action from its coercion? Are just tion because it commands members of rights the constitutional corporate di- the Councilto cast a distasteful I vote. As rectors and university comparable trustees law, command, understand the relevant municipal those of state and legislators? alone, standing merely implicates the First (if ever) And when particular govern- is a Amendment. The important ment interest enough justify violates the Constitution because its com- any burden legislative speech? mand both burdens the Council members’ worse, and fails the tests set forth both For better or we may opened Perry op. court O’Brien. See at 413. litigation the door to more than we can now appreciate.

I equally inappropriate find footnote 7 appo- neither of the cases discussed in it is us,

site. In the infringe- case before

ment on the is incidental objective, Amendment’s bring

which is to about an amendment to

Case Details

Case Name: David A. Clarke v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 8, 1989

Citation: 886 F.2d 404

Docket Number: 88-5439

Court Abbreviation: D.C. Cir.