Constituents v. Congress The good, the bad and the crazy

Dr. Frederick Lannak was sure he had discovered the cure for scoliosis. All he needed was permission from his representatives in Congress to untangle the twisted backs of the nation’s schoolchildren.

But, as Lannak told the tale in February, he had spent 13 years fruitlessly asking Delaware Rep. Michael Castle (R) and Sens. Thomas Carper (D) and Joseph Biden (D) to formally request government research for his scoliosis cure. So Lannak, like a small number of ordinary and aggrieved citizens each year, decided to sue his lawmakers.

“The Defendants are discriminating against the Plaintiff because they use the money he pays in taxes to run the Department of Health and Human Services (HHS),” Lannak wrote in his petition to a Delaware federal court. “At the same time, the Defendants will not give HHS written permission to analyze, diagnose and prove his [cure] because the Plaintiff is 73 years old.”

Lannak never could produce any proof of his age-discrimination claims, let alone details on his scoliosis cure, but his lawsuit received the dubious honor of a Senate resolution authorizing the chamber’s counsels to represent the congressional defendants. Complaints filed each year against members range from the bizarre to the coherent, but most are quickly dismissed thanks to a broad immunity shield in Article I of the Constitution that is known as the “speech and debate” clause.

Speech-and-debate privileges protect legislators from facing civil action any time a business or individual objects strongly enough to a strict bill or a critical floor speech. If the thick docket of voters trying in vain to sue their member is any guide, however, speech-and-debate is hardly a household name.

“This sort of thing happens all the time, a person saying, ‘I didn’t get my Social Security check, so I’m going to sue my congressman,’” said Stephen Hess, a bestselling author and congressional scholar at the Brookings Institution. “There are too many people who don’t understand that you don’t in a court of law hold the representative liable for those things.”

Lannak is now battling his former employers at Sears Hardware in court, charging them with conspiring with Congress to block his quixotic medical quest concerning scoliosis.

Another defendant, Anthony Keyter, named Arizona’s two senators, John McCain (R) and Jon Kyl (R), as defendants in a case alleging crimes so numerous and vague that Senate counsels avoided discussing their specifics. Some he called obstruction of justice; others conspiracy. Most stemmed from his assertion that lawmakers refused to help him. Keyter did not stop there, adding 14 more senators and launching a website to publicize his theories fit for the latest Tom Clancy novel.

In a September 2005 response to congressional counsels’ motion to dismiss, Keyter stated that the lawmakers he accused “were presented with prima facie evidence of serious and numerous crimes” and did not follow up, thus “act[ing] to obstruct the course of justice.”

Keyter sent a 1,017-page dossier to the Senate Judiciary Committee outlining those numerous crimes – 1.6 million alleged violations, according to court documents. Keyter had hoped the officials would overturn his divorce settlement, which largely benefited his ex-wife, and turned to the judiciary after Congress failed to launch an investigation.

“This trial will disclose the cover-up of innumerable criminal acts involving the defendants in collusion with President Bush and numerous other senior officials,” Keyter wrote in his original complaint. Unfortunately for Keyter, his case never made it to a jury.

The House and Senate did not begin using their own in-house lawyers until the 1970s, inspired by the surprising suit by behavioral scientist Ronald Hutchinson, whose government-funded studies of aggression in monkeys won a “Golden Fleece” award from former Sen. William Proxmire (D-Wis.), a pork-barrel critic who would make Sen. Tom Coburn (R-Okla.) proud.

When Proxmire publicly mocked Hutchinson’s work in a floor speech and a newsletter sent to nationwide subscribers, saying the professor had “made a monkey out of the American people,” Hutchinson struck back with a defamation lawsuit. The case made it all the way to the Supreme Court, which found Proxmire’s speech outside the Capitol was not covered by constitutional immunity.

“It was a bit of a shock when that happened,” said Don Ritchie, the Senate’s associate historian. “Speech-and-debate is a very important issue; it does put a large blanket over members because you want them to be able to speak their minds. But it’s not 100 percent guaranteed.”

Neither is the Eleventh Amendment, according to Californian Zakariah LaFreniere. In his lawsuit against the entire Congress, LaFreniere asked the U.S. District Court in San Francisco to strike down one of the Constitution’s 27 corollaries because it conflicted with another section of the nation’s highest law.

In addition to striking down the amendment — a historically hot topic for scholars who question its limits on federal power — LaFreniere’s complaint requested a modest 30 percent share of the “total pecuniary damage” wreaked by the Eleventh. LaFreniere’s estimate of those fees: $90 million.

Unsurprisingly, LaFreniere’s case was closed in October after the Senate and House counsels’ offices joined forces for a three-part motion to dismiss. While suits as quirky as his seem unlikely to ever win a hearing, Ritchie said a few of the many lawsuits filed in past years against the Senate chaplain have slipped through the cracks.

“They file laws against the chaplain, saying it is violating the separation of church and state,” Ritchie said. “Most of the time judges will dismiss them, but every now and then it gets to a judge.”

Another rare successful case against a lawmaker came in 1960, when former Rep. Adam Clayton Powell Jr. (D-N.Y.) blasted a constituent on a New York City television show for alleged links to police corruption, calling the local voter a “bag woman” for organized crime. Though Powell had made similar comments on the House floor, protected by the speech and debate clause, his constituent sued Powell for slander based on the televised remarks and won her case.

Powell stayed out of his district for months to avoid receiving a subpoena or a penalty in the suit.