[Congressional Record (Bound Edition), Volume 153 (2007), Part 5]
[Senate]
[Pages 7544-7545]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     DIRECTING SENATE LEGAL COUNSEL

  Mr. REID. Mr. President, I ask unanimous consent that the Senate 
proceed to the consideration of S. Res. 121 that was submitted earlier 
today.
  The PRESIDING OFFICER. The clerk will report the resolution by title.
  The legislative clerk read as follows:

       A resolution (S. Res. 121) to direct the Senate Legal 
     Counsel to appear as amicus curiae in the name of the Senate 
     in support of the appellee in Office of Senator Mark Dayton 
     v. Brad Hanson.

  There being no objection, the Senate proceeded to consider the 
resolution.
  Mr. REID. Mr. President, this resolution concerns an appeal pending 
before the Supreme Court of the United States in an action brought by a 
former Senate employee against his employing office, the Office of 
former Senator Mark Dayton. In 2003, the former employee sued the 
office under the Congressional Accountability Act of 1995. As a defense 
to the suit, the office asserted that the Speech or Debate Clause of 
the Constitution barred a suit by the employee, because during his time 
with the office his job included legislative duties.
  The lower courts denied this argument and refused to dismiss the suit 
on that ground. The office has now appealed this case to the Supreme 
Court, placing directly before the High Court the question of the 
application of the Speech or Debate Clause to suits brought under the 
Congressional Accountability Act.
  As the scope of the Speech or Debate Clause will now be considered in 
the merits of an appeal by the Supreme Court for the first time in 
almost 30 years, it is important that the Senate as an institution have 
a voice in those proceedings to protect the Senate's interests in that 
important constitutional privilege that secures the independence of 
this body from the other branches of Government.
  It is also important that the legal counsel appear on the Senate's 
behalf in this action so that the Court can be presented with the 
Senate's understanding of the proper application of the Speech or 
Debate Clause to the Congressional Accountability Act. Congress passed 
the act to apply to Congress the same Federal workplace and employment 
laws that applied to the private sector and the executive branch, 
giving our employees the same protections enjoyed by employees 
elsewhere. That was done with the understanding that suits by 
congressional employees, even employees with legislative duties, were 
not automatically barred by the Speech or Debate Clause privilege of 
Members.
  Accordingly, as the Supreme Court is now being urged to bar all 
Congressional Accountability Act suits that are brought for adverse 
personnel actions by employees with any legislative duties, it is 
important that the Senate present to the Court the position that suits 
under the Congressional Accountability Act can proceed consistent with 
the Speech or Debate Clause. While that Clause would provide Members 
with a robust evidentiary and testimonial privilege concerning their 
legislative activities in these lawsuits and may limit permissible 
relief, it does not automatically block all such suits at the outset.
  In addition, the Supreme Court has directed the parties to brief the 
additional questions of whether the case 


[[Page 7545]]


has become moot because 
Senator Dayton has left office, and whether the office of Senator 
Dayton could appeal the case directly to the Supreme Court. On these 
questions, the legal counsel will describe why suits brought under the 
Congressional Accountability Act against the office of a Member of 
Congress do not become moot after the Member departs from Congress. 
Indeed, the contrary position would undermine the act's important 
protections for employees whose Members are soon to end their 
congressional service. The legal counsel will also argue that the 
appeal is not within the jurisdiction of the Supreme Court as the 
provision of the Congressional Accountability Act that provides for 
direct appeal to the Supreme Court is not satisfied here.
  In sum, this resolution would direct the Senate legal counsel to 
appear in this action on behalf of the Senate to protect the Senate's 
interests in the proper application of the Speech or Debate Clause to 
civil suits brought under the Congressional Accountability Act.
  Mr. President, I ask unanimous consent that the resolution be agreed 
to, the preamble be agreed to, and the motion to reconsider be laid 
upon the table; and that any statements be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The resolution (S. Res. 121) was agreed to.
  The preamble was agreed to.
  The resolution, with its preamble, reads as follows:

                              S. Res. 121

       Whereas, in the case of Office of Senator Mark Dayton v. 
     Brad Hanson, No. 06-618, pending in the Supreme Court of the 
     United States, the application of the Speech or Debate 
     Clause, Article I, section 6, clause I of the Constitution to 
     suits brought under the Congressional Accountability Act, 
     Pub. L. No. 104-1, 109 Stat. 3 (1995), has been placed in 
     issue; and
       Whereas, pursuant to sections 703(c), 706(a), and 713(a) of 
     the Ethics in Government Act of 1978,2 U.S.C. 288b(c), 
     288e(a), and 288l(a), the Senate may direct its counsel to 
     appear as amicus curiae in the name of the Senate in any 
     legal action in which the powers and responsibilities of 
     Congress under the Constitution are placed in issue: Now, 
     therefore, be it
       Resolved, That the Senate Legal Counsel is directed to 
     appear as amicus curiae on behalf of the Senate in support of 
     Appellee Brad Hanson in Office of Senator Mark Dayton v. Brad 
     Hanson, to protect the Senate's interest in the proper 
     application of the Speech or Debate Clause to civil actions 
     brought under the Congressional Accountability Act.

                          ____________________