Abner J. Mikva

“ C. Failure to State a Cause of Action We affirm the order dismissing the complaint as to the private appellants on a more fundamental ground. There simply is no first amendment right to receive a verbatim transcript of the proceedings of Congress. That is, where a member of Congress instructs the Reporter and the [p547] Public Printer to publish his remarks with certain revisions or omissions, the publication of these revised remarks does not interfere with the right of an audience to receive information from a "willing speaker." Thus, appellants have failed to state a cause of action. ”

“ Even assuming that Congress can be considered a speaker in these circumstances, the interference with the speech of Congress, or, under appellants' second theory, the interference with the speech of the member who wishes to transmit an accurate record of his remarks in context, is so indirect that neither should be considered the willing speaker in this case. Rather, the willing speaker is the member who makes a speech and who wishes to revise or extend his remarks. The appellees' method of publishing the Congressional Record, of course, in no way interferes with that member's speech. ”

“ We recognize that changing the questions after the answers have been given can create distortions of meaning. But the first amendment concern for interference with a willing speaker is addressed to far worse problems than the ones presented here. We find appellants' theory of indirect interference with free speech an impermissible expansion of the right to receive information doctrine. ”

“ Notwithstanding the deference and esteem that is properly tendered to individual congressional actors, our deference and esteem for the institution as a whole and for the constitutional command that the institution be allowed to manage its own affairs precludes us from even attempting a diagnosis of the problem. ”

“ Prior to 1846, debates in Congress were not officially reported. Private publications, such as the National Intelligencer, the Register of Debates, and the Congressional Globe, however, began regularly publishing partial texts of debates. See 126 Cong. Rec. 18775, 18776 (1980) (statement of Sen. Byrd) (historical address) ; McPherson, Reporting the Debates of Congress, 28 Q.J. Speech 141, 142-46 (1942) .
The transition to official publication began in 1846, when the Senate authorized each member to subscribe for twelve copies of the Congressional Globe; the House followed suit in 1847. ”

“ How then to distinguish true debate from pages of remarks added later? They'll just have to guess.
Id. at 82-83.
II. ANALYSIS We offer neither criticism nor defense of the congressional practice. Like the philosophy [p542] of the Speech or Debate Clause used by the District Court, Gregg v. Barrett, 594 F. Supp. 108 (D.D.C. 1984) , to reject appellants' claims, our analysis precludes this Court from reviewing congressional practices and procedures when they primarily and directly affect the way Congress does its legislative business. ”

“ The instant case does not squarely present the issue. Although we affirm the dismissal of the private plaintiffs' action in this case, we do so on grounds of lack of a cause of action, not lack of standing. See Part II (C) , infra.
Since Riegle, the court has firmly established the doctrine of remedial discretion as the preferred method for coping with separation-of-powers concerns in suits by congressional plaintiffs where the ill in question could clearly be rectified by congressional action. In Vander Jagt v. O'Neill, 226 U.S. App. D.C. 14, 699 F.2d 1166 (D.C. Cir. 1982) , cert. ”

“ For these purposes, however, Judge McGowan found the standing, political question, and ripeness doctrines "notoriously difficult to understand and to apply, and [failing] in [p544] varying degrees to account for the underlying separation-of-powers concerns." Id. at 244. The solution in such cases, Judge McGowan's article suggested, was for the court to translate separation-of-powers concerns into practice by withholding injunctive or declaratory relief. Id. ”