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THE CONSTITUTIONAL IMMUNITY OF MEMBERS OF

CONGRESS: TESTIMONY AND ANALYSIS

JUNE 3, 1974.-Ordered to be printed

Mr. METCALF, from the Joint Committee on Congressional

Operations, submitted the following

REPORT

SUMMARY

а

The concept of an independent legislative body as the representative of the individual citizens of a nation is much older than our Republic, Centuries of often violent confrontation between Parliament and the Crown had preceded the victory for Parliament which freed it from royal intimidation in its proceedings, as proclaimed in the English Bill of Rights of 1689: "[T]he freedom of speech, and debates or proceedings in Parliament ought not be impeached or questioned in any court or place out of Parliament."

An independent Congress was considered so essential to the success of the Founding Fathers' new design for a Federal government that they incorporated language guaranteeing that independence in the charter for the new government. This guarantee in the Constitution,

cle I, section 6, is almost identical to the English proclamation and provides that "for any Speech or Debate in either House, they (the Senators and Representatives] shall not be questioned in any other Place."

Judicial interpretations of this constitutional immunity doctrinethroughout the almost two centuries of our history-had, until only recently, firmly established "that the legislative privilege will be read broadly to effectuate its purposes," as Justice Harlan wrote for the majority of the Court in its decision in the Johnson case. Now, however, in three recent decisions, the Supreme Court has narrowed this traditional breadth of interpretation, by which legislative immunity is defined.

Legislative immunity has never been strictly construed by the courts to be limited to the precise terms of the constitutional provision--to the "Speech or Debate" of a legislator. Rather, the courts

i tnited States v. Johnson, 383 U.S. 169, 180 (1966).

2

have recognized the immunity as attaching to such legislative activities as voting, the filing of written reports, “to things generally done in a session of the House ... in relation to the business before it," "to every other act resulting from the nature, and in the execution, of the office,” and, to "everything said or done . . . as a representative, in the exercise of the functions of that office.”' 3

Recent interpretations of the legislative immunity doctrine, as premised upon the Speech or Debate Clause-in cases involving past and present 5 members of the Senate and a standing committee of the House __have left the doctrine so diminished in scope as to protect few, if any, of the many legislative activities required to be performed by Members of Congress in the course of holding representative office.

The diminution in scope of legislative immunity was the result of the restrictive definition of what is encompassed by the "Speech or Debate" of a legislator. In an apparent departure from the precedents, the Court concluded that this language applied only to the formal act of legislating, with such acts being confined to the chambers and committees of the Halls of Congress. Disregarding completely the representative functions of a Member, all activities prefatory to the "formal” legislative process and all processes whereby a congressman and his constituency communicate freely with each other, the Court said simply: “The business of Congress is to legislate; congressmen and aides are absolutely immune when they are legislating." ;

Such an attempt by the Court to tell the Congress what is its business reflects an unreasonable, if not an unknowing, point of view. It likely reflects, as well, the fact that no Justice now sitting on the Court has ever held elective, legislative office.

The people's representation in the legislative branch is solely dependent upon the legislators who make up that body. Their freedom to act on behalf of their constituencies is what is intended to be assured by the immunity afforded legislators under the Speech or Debate Clause.

The consequences and implications of these judicial delimitations on the historic scope of the Speech or Debate Clause for both Congress and the people prompted the Joint Committee on Congressional Operations to undertake this inquiry into the "Constitutional Immunity of Members of Congress.'

The hallmark of our inquiry was constructive criticism of these recent decisions of the Court, undertaken with due respect for the law of the land as the Court interprets it to be-until that rule of law is changed by subsequent legal challenges or legislative action.

The focus of the inquiry was on the latter: What, if anything, can the Congress do to restore the doctrine of constitutional immunity for legislators to its appropriate place in the law, where it serves as the bulwark for the Congress against challenges to its independence and integrity of action?

? Kilbourn v. Thompson, 103 U.S. 168, 204 (1880). 3 Coffin v. Coffin, 4 Mass. 1 (1808), cited with approval in Kilbourn, 103 U.S. at 203, and in Tenney y. Brandhore, 341 U.S. 367, 373-374 (1951). 4 United States v. Brewster, 408 U.S. 501 (1972). & Grard v. United States, 408 U.S. 606 (1972). 6 Doe v. McMillan, 412 U.S. 306 (1973). 7 412 U.S. 306, 324 (1973).

The Joint Committee held three days of hearings in March 1973 and invited a distinguished panel of experts on constitutional law to meet with it for a roundtable discussion in July 1973. Witnesses and contributors to the hearing record included present and former members of the House of Representatives, members of the United States Senate, a former Associate Justice of the United States Supreme Court, eminent legal scholars and practitioners and spokesmen for the Executive Branch from the Department of Justice.

Any consideration of the doctrine of constitutional immunity of Members of Congress must necessarily involve inquiry into such complex areas as the basic grants of powers to the coequal branches of the Federal government, the separation of powers doctrine and theory of checks and balances on which the exercise of those powers depends, and the capacity and willingness of the Congress to discharge its disciplinary function for legislative misconduct.

Mindful of all these aspects of the subject of our inquiry, the Joint Committee has concluded that the historic immunity of Members of Congress to be free from inquiry into their official actions by any individual or agency of the government outside the Congress—which operates in the interests of those they represent-must be reaffirmed by legislative action defining the scope of that immunity.

S.R. 896_2

INTRODUCTION

The Constitution of the United States, in Article I, section 1, vests "[a]ll legislative Powers herein granted : : . in a Congress of the United States. : .,.” Similar vesting provisions for the powers of the

. executive and judicial branches of the Federal government are set out in Articles II and III, respectively. These grants of powers also serve as limits on the respective powers of these three branches. From this constitutional design for a new and unique form of government for the newly-independent former colonies---drafted by the Founding Fathers in Philadelphia almost 200 years ago-derives the doctrine of separation of powers, without which the successful functioning of our government of coordinate and coequal branches would have long ago proved to have been impossible.

Section 6 of Article I protects those who are engaged in the exercise of legislative powers by providing, inter alia, that "for any Speech or Debate in either House, they (the Senators and Representatives) shall not be questioned in any other Place.”

This language is unique to the legislative branch in the constitutional provisions; such language is not duplicated in either of Articles II or III. The Speech or Debate Clause, as it is commonly designated, serves as the basis not only for the doctrine of legislative immunity, but as the bulwark of the separation of powers for the Congress in its relations with the executive and the judiciary.

THE HISTORY OF SPEECH OR DEBATE FREEDOM FOR LEGISLATORS

The concept of immunity for legislators from judicial process, for actions undertaken by them in discharging the functions of their representative office, can be traced to parliamentary declarations of independence from the English Crown as early as the Fourteenth Century. 8

Freedom of speech as a privilege of the members of the English Parliament was first embodied in the Speaker's Petition in 1541.9 This petition was presented to the ruling monarch at the opening of a new parliamentary session and prayed his or her indulgence of certain privileges for the members. Having gained an indulgence from the Crown for freedom of speech, the members were to be free from being called to account outside their meeting hall for anything said or done during the course of debate.

The inclusion of this privilege in the Speaker's Petition was an attempt to protect members from royal displeasure for positions taken during debates. Such displeasure was often manifested in the arrest and imprisonment of the offending member, on the order of the Crown, admittedly an effective means of halting a debate on a * A. Cella, The Doctrine of Legislative Privilege of Freedom of Speech and Debate: Its Past, Present and Future as a Bar to Criminal Prosecutions in the Courts, 2 Suffolk L. Rev. 1, 5 (1968). *C. Wittke, The History of English Parliamentary Privilege, p. 23 (1921).

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