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The opinions handed down by the Supreme Court in the Brewster, Gravel and McMillan cases, which came at a time when the committee staff was engaged in a general study of the legislative immunity question, prompted the Joint Committee to initiate this inquiry. It was undertaken in the spirit of constructive criticism of the restrictive definition of legislative activity announced by the Court, rather than to counsel disobedience to the rule of law defined in these decisions-so long as that rule remains unchanged.

The Vice Chairman of the Joint Committee, Representative Jack Brooks, in his opening statement for the hearings, indicated that the members of the committee were not quibbling with the jurisdiction of the courts to determine whether the action of a member was within the scope of the immunity of the Speech or Debate Clause. "However," he continued,

we are not bound to agree when the Court so narrowly
interprets the clause as to exclude from the immunity it
affords, important and substantial functions of the repre-
sentative role of a Member of Congress.99

The representative responsibility of a Member to his constituency was a recurrent subject of the comments and questions of Representative James C. Cleveland. Mr. Cleveland noted in his opening statement that the Court's definition of the legislative role of a congressman suggested that "the Court labors in abysmal ignorance of the real processes of representative government." 100

From the outset, members of the Joint Committee emphasized that it is the public's interest that is served by a free and independent legislative body, just as that interest is served by the privileges accorded other branches of government and the freedom of the press. Senator Robert Taft, Jr. cautioned the Joint Committee to keep this "public interest" objective in mind.

I think it important that we not lose sight of this basic objective and not find ourselves talking about trying to protect the legislative position or protect the executive position or protect the position of newsmen as such. Our goal and purpose must be to protect the public as we have traditionally in America by creating the freest flow of information possible to those responsible for action.101

Senator Jesse Helms expressed concern that any broadening of the scope of legislative immunity would have the effect of creating an "elite of privileged classes." In individual views he stated:

I am deeply disturbed by the present day tendency in many quarters to broaden the scope and make absolute the privilege of immunity from prosecution or proper inquiry. The ultimate effect of this tendency will be to create a certain elite of privileged classes who are above the law and beyond the scope of effective scrutiny and restraint. I apply this observation to all three branches of government, and to the so-called 'fourth estate' in which I have spent most of my professional career until I was elected to the Senate.102

Joint Committee hearings, Part 1, p. 9. 100 Joint Committee hearings, Part 1, p. 5. 101 Joint Committee hearings, Part 1, p. 9. 10 Joint Committee hearings, Part 2, p. 74.

Representative John Dellenback stressed that the objective of the committee's inquiry was "not to protect any one of us as an individual." Reiterating the view expressed by Senator Taft, Mr. Dellenback stated the justification for the inquiry as being a concern that the public interest is better served by a Congress free from pressures "without and within the Government to do what needs to be done for the body politic and for the public welfare." 103

Senator Mike Gravel echoed this concern for the so-called informing function of the Congress.

The central issue of these hearings is the public's right to be informed about the workings of its government. A dialogue between Congress and the people is a necessary element of a representative system. The Constitution presupposes an obligation on the part of a legislator to inform his constituents about vital matters concerning the administration of government.

The constitutional role of this Congress is that of an adversary for the people vis-a-vis the government. In order to perform this adversary function assigned by our forefathers, the Congress must be informed, but it must also be free of fear of retribution when it informs the public. This is the central importance of the doctrine of legislative immunity, derived from the 'Speech or Debate' clause of Article I, section 6 of the Constitution.104

LEGISLATIVE IMMUNITY AND THE ROLE OF A CONGRESSMAN

Most of the witnesses who appeared before the Joint Committee or submitted statements for the hearing record agreed that the Supreme Court had departed from the traditional broad reading of the Speech or Debate Clause in defining the scope of legislative immunity in the Brewster, Gravel and McMillan decisions.

Senator Sam J. Ervin, Jr., the lead-off witness at the hearings and one of the leading experts on constitutional law in the United States Senate, declared that "the Supreme Court can contrive no definition which will convince me that it is appropriate for any Federal court or grand jury to inquire into such legislative activity as obtaining information about the functioning of the executive branch and informing the public of the actions of its Government.” 105

Senator Ervin contrasted the definition of the scope of legislative activity announced in the Gravel case with the definition of legislative activity in the 1808 Massachusetts case of Coffin v. Coffin,106 which he described as "the unquestioned law of this land for almost two centuries."

In the Coffin case, Chief Justice Parsons of the Supreme Judicial Court of Massachusetts defined the scope of legislative activity in

these terms:

for everything said or done by him, as a representative, in the exercise of the functions of that office, without inquiring

Joint Committee hearings, Part 1, p. 51. Joint Committee hearings, Part 1, p. 122. Joint Committee hearings, Part 1, p. 16. 14 Mass. 1 (1808).

whether the exercise was regular according to the rules of
the House, or irregular and against their rules.107

Chief Justice Parsons' definition had been cited with approval in Supreme Court decisions involving the Speech or Debate Clause from Kilbourn through Dombrowski. However, in the Gravel case, Justice White, writing for the five-member majority, discarded this timehonored definition and drafted a new one for the Court-and for the Congress. Justice White defined legislative acts as being only those acts which are

an integral part of the deliberative and communicative
process by which Members participate in committee and
House proceedings with respect to the consideration and
passage or rejection of proposed legislation or with respect
to other matters which the Constitution places within the
jurisdiction of either House, 108

Senator Ervin commented on this new definition:

In other words, five of the Justices of the Supreme Court, none of whom has spent any time in Congress, have concluded that the acquisition of information for hearings and the communication of the results of hearings to the public are not 'integral' parts of the legislative process.

This definition of legislative activity' reflects a lack of appreciation of the things essential to the legislative process. As we all know, the formulation, consideration and passage of legislation involves much more than the introduction of a bill, a few speeches and a vote.109

Yet another congressional witness, Senator J. W. Fulbright, agreed that the Court had "impaired the constitutional prerogatives of every Member of Congress and of each body as a whole to carry out the public's business with candor and with independence."

Senator Fulbright commented, also, on the narrowed interpretation of the doctrine of legislative immunity by the Court.

In handing down these rulings, the High Court has, for the first time, placed a restrictive interpretation on the traditionally broad protection of legislative immunity afforded Members of Congress since the adoption of the Constitution. I share the view expressed by Senator Ervin to this committee that in doing so, the new majority on the Court has 'tinkered with the very heart of the Constitution'-the doctrine of separation of powers between the coequal branches of Government.110

The direct ramifications of the Court's action on the separation of powers concepts governing relationships between the Congress and the other two branches of government were discussed at length during the course of the hearings.

Two of the congressional witnesses, Senators Ervin and Fulbright, expressed their concern for the vitality of separation of powers be

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tween coordinate and coequal governmental branches today and the resulting imbalance of power.

Senator Ervin stated:

Americans of every ideological persuasion are greatly concerned that the principle of separation of powers, one of the fundamental doctrines incorporated in our Constitution, is on its deathbed. The search for a cure has become absolutely essential if the form of government established under our Constitution is to be preserved. . . .

This clause [Article I, section 6] is a vital part of the doctrine of separation of powers inasmuch as it protects Members of Congress from intimidation by the executive and judiciary through the use of judicial inquiry into legislative activity.Ill

Senator Fulbright cited the "judicial restraint" previously exercised by the Court in reviewing allegations of congressional improprieties as being "entirely consistent with the doctrine of separation of powers." He continued:

Courts, apparently recognizing the need for comity among the three branches of Government, were able to do this by exercising judicial restraint with respect to the speech or debate clause. In affirming a broad scope of legislative acts. deemed to be included in the terms of the constitutional provision, the courts necessarily restrained themselves and chose not to enter the legislative arena nor extend their jurisdiction over the actions of Members immediately associated with the legislative process. 112

Senator Ervin described the question of the jurisdiction of the Court as being the "fundamental" question with which it was faced in these cases. He stated that question as "whether the inquiry into certain behavior of Members of Congress could be conducted by the executive and judicial branches or whether the separation of powers concept and the 'speech or debate' clause require that the inquiry remain the exclusive responsibility of the legislative branch." 113 Justice Goldberg characterized this basic issue before the Court by summarizing the dissenting views expressed by the minority in the Brewster and Gravel cases.

The problem involved is the independence of the Congress and the necessity for Congress to perform its legislative duties free from restraint, coercion, or intimidation by the executive branch of the Government or even of undue scrutiny by the judicial branch of the Government. This is the essence of our constitutional provisions relating to the functioning of Congress. Congress, a coequal branch of the Government, is to be independent and not subject to matters which represent or potentially could represent pressure and coercion by the Congress on the part of other branches of Government.114

Joint Committee hearings, Part 1, p. 11.
Joint Committee hearings, Part 1, p. 76.
Joint Committee hearings, Part 1, p. 14.
Joint Committee hearings, Part 1, p. 55.

The position of those who believe the Court has not narrowed past interpretations of the legislative activities encompassed by the constitutional language of the Speech or Debate Clause was advanced by representatives of the Department of Justice. Ms. Mary Lawton, Assistant Attorney General in the Office of Legal Counsel, was careful to distinguish between the Court's interpretation of the scope of the Speech or Debate Clause and its understanding of what constitutes. the legislative process or the legislative role of a Member of Congress. [I]t seems to me that the Court does understand the role of Congress," Ms. Lawton told the committee during its roundtable discussion, "but it is saying the Speech or Debate Clause covers less than that, it covers the function of legislating, which is only one function of the Congress....

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" 115

The drawing of this distinction between the so-called legislative function and the representative function-or any other term used to describe the multitude of other functions for which an elected Member is responsible to his electorate-prompted a discussion between Ms. Lawton and the committee members.

Representative Cleveland noted that no Member can "legislate without facts" and suggested as an example of a Member's factfinding activity his or her representative casework function. "Oftentimes, he stated, "when a constituent complains to you, it may be the beginning of a chain of events which puts that legislation in motion. But that is excluded from this immunity as I understand the SupremeCourt decision." 116

Defining legislative immunity by interpreting "Speech or Debate" as coextensive with the "legislative function" requires, in turn, a. definition of that function. Ms. Lawton equated it to the "formal process of legislating." Chairman Metcalf suggested the Court's definition to be geographic, rather than substantive, that "[t]he Court is constricting the definition of what is a legislative act to activities. within the very Halls of this building." Representative Giaimo concluded that the "formal manner of legislating is not so easily defined." 9 117

Professor Alexander Bickel also argued that the Court had not "launched itself upon some authoritative definition of the legislativeprocess," but had merely been deciding two cases in the Gravel and Brewster instances.

In my judgment, they came out pretty well right, I think, and if more needs to be done by way of protecting Congressman Doe of State X, then it seems to me that Congress is in a position to do it. Far from having given to itself the function of defining for Congress the legislative function and the immunities attendant upon it, it seems to me the Court quite properly through the decision threw the ball back to Congress, having told Congress what the Constitution itself does 118

The impracticability of attempting to apply the Court's delineation. of the scope of the Speech or Debate Clause was shown in two in

115 Joint Committee hearings, Part 2, p. 89. 118 Joint Committee hearings, Part 2, p. 89. 117 Joint Committee hearings, Part 2, p. 90. 119 Joint Committee hearings, Part 2, p. 91.

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