Constitution of the United States/Art. I/Sec. 6/Clause 1 Pay, Privileges, and Immunities
Article I Legislative Branch
Section 6 Rights and Disabilities
Clause 1 Pay, Privileges, and Immunities
|The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.|
Compensation of Members of Congress[edit | edit source]
The Compensation Clause of Article I, Section 6, Clause 1 provides for the national government to compensate Members of Congress for their services in amounts set by congressional legislation. With the ratification of the Twenty-Seventh Amendment on May 7, 1992, congressional legislation "varying"--decreasing or increasing--the level of Members' compensation may not take effect until an intervening election has occurred.
The Framers' decision that Members of Congress should be paid from the Treasury of the United States reflected their view that Members of Congress worked for the nation as a whole and should be compensated accordingly. In his Commentaries on the Constitution of the United States, Justice Joseph Story reasoned, "If it be proper to allow a compensation for services to the members of congress, there seems the utmost propriety in its being paid out of the public treasury of the United States. The labor is for the benefit of the nation, and it should properly be remunerated by the nation." Conversely, if states or constituents compensated their specific Members of Congress, the Members might be more loyal to those interests than to the good of the nation as a whole. Justice Story observed: "[I]f the compensation were to be allowed by the states, or by the constituents of the members, if left to their discretion, it might keep the latter in a state of slavish dependence, and might introduce great inequalities in the allowance." Concern that state frugality in compensating Members of Congress would reduce the pool of candidates to serve in Congress also drove the Framers' decision to have the Federal Government compensate Members of Congress. As George Mason of Virginia commented during the Constitutional Convention: "[T]he parsimony of the States might reduce the provision so low that . . . the question would be not who were most fit to be chosen, but who were most willing to serve."
From the Founding to 1967, Congress passed legislation setting its rates of pay. In 1967, Congress passed a law that created a quadrennial commission to propose to the President salary levels for top officials of the Government, including Members of Congress. In 1975, Congress legislated to bring Members of Congress within a separate commission system authorizing the President to recommend annual increases for civil servants to maintain pay comparability with private-sector employees. Dissenting Members of Congress attacked the use of commissions to set congressional compensation as violating the Compensation Clause mandate that compensation be "ascertained by Law." Courts, however, rejected these challenges. In the Ethics Reform Act of 1989, Congress provided for a formula to make adjustments to its compensation on an annual basis. Congress, however, has declined to accept the annual adjustment more often than it has accepted the adjustment. Following ratification of the Twenty-Seventh Amendment in 1992, which made pay increases effective only after an intervening election, a federal court of appeals panel ruled that Congress's cost-of-living mechanism did not violate the Twenty-Seventh Amendment, and that a challenge to the quadrennial pay raise provision was not ripe.
Privilege from Arrest[edit | edit source]
In Article I, Section 6, Clause 1, the Framers provided for Members of Congress to be free from arrest when attending or traveling to and from Congress except in cases of treason, felony, or breaches of the peace. In interpreting this provision, the Supreme Court has held that the phrase "treason, felony, and breach of the peace" encompasses all criminal offenses. Consequently, Members are only privileged from arrests arising from civil suits, which were common in America at the time the Constitution was ratified.
In providing for Members to "be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same," the Framers followed English parliamentary and colonial practices as well as precedent established by the Articles of Confederation. The Articles provided that "the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance on, Congress, except for treason, felony or breach of the peace." In his Commentaries on the Constitution of the United States, Justice Joseph Story discussed the practice of privileging members of Parliament and colonial legislatures from arrest, reasoning that privilege from arrest reflected the "superior duties" of members of legislative bodies to the legislative process and the representation of their constituents. Justice Story stated:
When a representative is withdrawn from his seat by a summons, the people whom he represents, lose their voice in debate and vote, as they do in his voluntary absence. When a senator is withdrawn by summons, his state loses half its voice in debate and vote, as it does in his voluntary absence. The enormous disparity of the evil admits of no comparison. The privilege, indeed, is deemed not merely the privilege of the member, or his constituents, but the privilege of the house also.Id.
Whether the provision in Article I, Section 6, excluding "Treason, Felony, and Breach of the Peace" offenses from the privilege from arrest applied to all criminal offenses or only criminal offenses involving violence and public disturbance has been subject to debate. After examining the historical meaning of the provision, the Supreme Court in Williamson v. United States, concluded that the qualifying language encompassed all criminal offenses. The Williamson Court adopted the government's position, which was summarized by the Court as follows:
[T]he words "breach of the peace" should not be narrowly construed, but should be held to embrace substantially all crimes, and therefore as in effect confining the parliamentary privilege exclusively to arrests in civil cases. And this is based not merely upon the ordinary acceptation of the meaning of the words, but upon the contention that the words "treason, felony, and breach of the peace," as applied to parliamentary privilege, were commonly used in England prior to the Revolution, and were there well understood as excluding from the parliamentary privilege all arrests and prosecutions for criminal offenses; in other words, as confining the privilege alone to arrests in civil cases, the deduction being that when the framers of the Constitution adopted the phrase in question they necessarily must be held to have intended that it should receive its well-understood and accepted meaning.Williamson v. United States, 207 U.S. 425, 436 (1908). See also Coxe v. M'Clenachan & Houston, Special Bail, 3 U.S. (3 Dall.) 478, 478 (1798) (noting the privilege applies when Congress is in session).
Consequently, under Supreme Court precedent, the privilege from arrest applies only to civil cases. As one commentator has noted: "In practice, since the abolition of imprisonment for debt, this particular clause has lost most of its importance."
While the privilege prevents Members from being arrested in civil suits, it does not prevent them from being served with subpoenas. In United States v. Cooper, Thomas Cooper, a newspaper publisher, was indicted under the Sedition Act of 1798 for libeling President John Adams. Cooper sought to compel several members of Congress to testify as witnesses at his trial. In allowing Cooper to subpoena Members of Congress, Justice Samuel Chase, in a Circuit Court decision, stated: "I do not know of any privilege to exempt members of congress from the service, or the obligations of a subpoena . . . ." Over a hundred years later, Justice Louis Brandeis reached a similar conclusion in Long v. Ansell, holding that the privilege from arrest was limited to arrests in civil cases and did not encompass service of process. Writing for the Court, Justice Brandeis stated: "History confirms the conclusion that the immunity is limited to arrest."
Speech or Debate[edit | edit source]
Overview of Speech or Debate Clause[edit | edit source]
The Supreme Court has described the Speech or Debate Clause as a provision that cannot be interpreted literally, but instead must be construed "broadly" in order to effectuate the Clause's vital role in the constitutional separation of powers. "Deceptively simple" phrases--such as "shall not be questioned," "Speech or Debate," and even "Senators and Representatives"--have therefore been accorded meanings that extend well beyond their literal constructions. Arguably, this purpose-driven interpretive approach has given rise to some ambiguity in the precise scope of the protections afforded by the Clause. Despite uncertainty at the margins, it is well established that the Clause serves to secure the independence of the federal legislature by providing Members of Congress and their aides with immunity from criminal prosecutions or civil suits that stem from acts taken within the legislative sphere. As succinctly described by the Court, the Clause's immunity from liability applies "even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes." This general immunity principle forms the core of the protections afforded by the Clause.
Once it is determined that the Clause applies to a given action, the resulting protections from liability are "absolute," and the action "may not be made the basis for a civil or criminal judgment against a Member." In such a situation, the Clause acts as a jurisdictional bar to the legal claim. But this immunity is also complemented by two component privileges (an evidentiary privilege and a testimonial privilege) that emanate from the Clause and can be asserted to prevent certain compelled disclosures. Even if absolute immunity is inappropriate, the evidentiary component of the Clause prohibits the introduction of evidence of legislative acts for use against a Member, while the testimonial privilege protects Members from compelled testimony on protected acts. The Supreme Court has not explicitly framed the protections of the Clause by reference to these two independent component privileges, but has instead implicitly recognized their existence. As a result, these privileges are neither clearly established nor described, and may further contribute to the unsettled aspects of the Clause.
Historical Background on Speech or Debate Clause[edit | edit source]
The text and purpose of the Speech or Debate Clause can be traced to Parliament's historic struggles for supremacy with the English monarch. Prior to 1689, the English Crown had repeatedly used both the power of prosecution, and its control over the courts, to punish, suppress, or intimidate Members of Parliament who had made statements critical of the Crown during parliamentary debates. The common law of seditious libel "was interpreted with the utmost harshness against those whose political or religious tenets were distasteful to the government," and used to imprison "disfavored" Members of the House of Commons. Following the Glorious Revolution and the new ascension of parliamentary power, the English Bill of Rights of 1689 sought to combat these past abuses by ensuring parliamentary independence through the establishment of a legislative privilege. That seminal document provided that "the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament."
Although English history and practice is essential to a complete understanding of the Clause, the Court has noted that the Clause must nevertheless be "interpreted in light of the American experience, and in the context of the American constitutional scheme of government . . . ." The early American "experience" began with colonial charters and early state constitutions, many of which included some form of legislative privilege that generally tracked the language of the English Bill of Rights. Following the American Revolution, the Articles of Confederation adopted language explicitly enshrining legislative privilege into the Federal Government structure, providing that "[f]reedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress. . . ."
The current text, which draws its key terms "[s]peech," "[d]ebate," and "questioned" directly from the English Bill of Rights, was adopted at the Constitutional Convention without significant discussion or debate. In light of the absence of any contrary intent, and despite the fact that early American history did not "reflect" the same "catalogue of abuses at the hands of the Executive that gave rise to the privilege in England," it may nonetheless be "reasonably inferred that the framers of the Constitution meant" to incorporate the principles underlying the legislative privilege established in England through the English Bill of Rights "by the use of language borrowed from that source." James Wilson, one of the few Members of the Constitutional Convention to comment on the Clause, called the provision "indispensably necessary" to the "discharge" of the "publick [sic] trust." His view was that Members of Congress must be clothed with the "fullest liberty of speech" so as to "be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense." The Clause, therefore, appears to have been adopted for the same basic purpose that undergirded its English and early American ancestors: to preserve the independence and integrity of individual Members of the legislative body by "prevent[ing] intimidation by the executive and accountability before a possibly hostile judiciary." As such, it represents a key pillar of the American separation of powers.
Preventing such intimidation is not "the sole function of the Clause." The Clause also serves a good governance role, effectively barring judicial or executive processes that may "disrupt" or "distract[ ]" from a Member's representative or legislative obligations. Consistent with this anti-distraction rationale, the Clause's broad proscription that Members not be "questioned in any other place" has been interpreted as limiting not only actions initiated by the Executive Branch--which clearly implicate the separation of powers--but also private civil suits initiated by members of the public--which generally implicate the separation of powers only to a lesser degree.
Activities to Which Speech or Debate Clause Applies[edit | edit source]
A series of decisions from the Supreme Court address the general scope of the Speech or Debate Clause. These cases elucidate the distinction between legislative acts, such as voting or debating, which are accorded protection under the Clause and are not subject to "inquiry," and political or other nonlegislative acts, which are not protected by the Clause and therefore may serve as the basis for a legal action. The cases suggest at least three noteworthy themes. First, despite the text, the protections afforded by the Clause extend well beyond "speeches" or "debates" undertaken by "Senators and Representatives." Second, otherwise legitimate political interactions external to the legislative sphere--for example, disseminating information outside of Congress--are generally not considered protected legislative acts. Third, the Clause does not immunize criminal conduct that is clearly not part of the "due functioning" of the legislative process.
The Supreme Court adopted a broad interpretation of "Speech or Debate" from its first assessment of the Clause in the 1881 case Kilbourn v. Thompson. In Kilbourn, the Court considered whether a civil action could be maintained against Members who were responsible for initiating and approving a contempt resolution ordering an arrest. The Members defended themselves on the ground that their acts were protected by the Clause. The Court agreed, determining that the Members were not subject to suit for their actions.
The Court adopted a constitutional construction of the Clause that extended its protections beyond mere legislative deliberation and argument, holding that "it would be a narrow view of the constitutional provision to limit it to words spoken in debate." Instead, the Court determined that the Clause applied to "things generally done in a session of the House by one of its members in relation to the business before it," including the presentation of reports, the offering of resolutions, and the act of voting. Accordingly, the Court concluded that although the arrest itself may have been unlawful, the Members were immune from suit and could not be "brought in question" for their role in approving the resolution "in a court of justice or in any other place," as that act was protected by the Clause.
The Court only rarely addressed the Clause after Kilbourn. It was not until the 1966 case United States v. Johnson that the Court embarked on an attempt to define the protections afforded by the Clause in the context of a criminal prosecution of a Member. In Johnson, a former Member challenged his conviction for conspiracy to defraud the United States that arose from allegations he had agreed to give a speech defending certain banking interests in exchange for payment. In prosecuting the case, the government relied heavily on the former Member's motive for giving the speech, introducing evidence that the speech had been made solely to serve private, rather than public, interests. Focusing on the admission of this protected evidence, the Court overturned the conviction. "However reprehensible such conduct may be," the Court concluded that a criminal prosecution, the "essence" of which requires proof that "the Congressman's conduct was improperly motivated," was "precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry." The opinion noted that the Clause must be "read broadly to effectuate its purposes," ultimately concluding that it prohibits a prosecution that is "dependent" upon the introduction of evidence of "the legislative acts" of a Member or "his motives for performing them." Although it overturned the conviction, the Court remanded the case to the district court for further proceedings, holding that the government should not be precluded from bringing a prosecution "purged of elements offensive to the Speech or Debate clause" through the elimination of all references to the making of the speech.
The Johnson case stands for at least two important propositions. First, the opinion demonstrated that the government is not prohibited from prosecuting conduct that merely relates to legislative duties, but is not itself a legislative act. When a legislative act is not an element of the offense, the government may proceed with its case by effectively "purg[ing]" the introduction of evidence offensive to the Clause. Second, though not explicitly articulating such a privilege, the opinion impliedly introduced the evidentiary component of the Clause by holding that even though a case may go forward, a Member may invoke the Clause to bar admission of specific protected evidence.
The evidentiary privilege component of the Clause was reaffirmed in United States v. Helstoski. There, the Court expressly held that any "references to past legislative acts of a Member cannot be admitted [into evidence] without undermining the values protected by the Clause." The Court acknowledged that "without doubt the exclusion of such evidence will make prosecutions more difficult," but reasoned that such a limitation was consistent with a constitutional provision that was "designed to preclude prosecution of Members" entirely when legislative acts form the basis of the claim.
In the 1972 decision of United States v. Brewster, which involved a Member's challenge to his indictment on a bribery charge, the Court reaffirmed Johnson and clarified that "a Member of Congress may be prosecuted under a criminal statute provided that the Government's case does not rely on legislative acts or the motivation for legislative acts." The Court made clear that the Clause does not prohibit inquiry into illegal conduct simply because it is "related" to the legislative process or has a "nexus to legislative functions," but rather, the Clause protects only the legislative acts themselves. By adhering to such a limitation, the Court reasoned that the result would be a Clause that was "broad enough to insure the historic independence of the Legislative Branch, essential to our separation of powers, but narrow enough to guard against the excesses of those who would corrupt the process by corrupting its Members."
Brewster also drew an important distinction between legislative and political acts. The opinion labeled a wide array of constituent services, though "entirely legitimate," as "political in nature" rather than legislative. As a result, the Court suggested that "it has never been seriously contended that these political matters . . . have the protection afforded by the Speech or Debate Clause."
Turning to the terms of the bribery indictment, the Court framed the fundamental threshold question for any prosecution of a Member of Congress as "whether it is necessary to inquire into how [the Member] spoke, how he debated, how he voted, or anything he did in the chamber or in committee in order to make out a violation of this statute." With regard to bribery, the Court reasoned that because acceptance of the bribe is enough to prove a violation of the statute, there was no need for the government to present evidence that the Member had later voted in accordance with the illegal promise, "[f]or it is taking the bribe, not performance of the illicit compact, that is a criminal act." Because "taking the bribe is, obviously, no part of the legislative function" and was therefore "not a legislative act," the government would not be required to present any protected legislative evidence in order to "make out a prima facie case." In that sense, the Court distinguished the case before it from Johnson. Whereas the prosecution in Johnson relied heavily on showing the motive for Johnson's floor speech, the prosecution in Brewster need not prove any legislative act, but only that money was accepted in return for a promise.
Distraction Rationale and Speech or Debate Clause[edit | edit source]
Two cases from the late 1960s reveal the Court's view that the Clause embodies a desire to prevent the "distractions" associated with compelling a Member to participate in a legal proceeding. In Dombrowski v. Eastland, the Court affirmed the dismissal of a civil action against a Senator for allegedly conspiring with Louisiana state officials to violate the petitioner's Fourth Amendment rights. In doing so, the Court noted broadly, and without additional discussion, that a Member "should be protected not only from the consequences of litigation's results but also from the burden of defending themselves."
Similarly, in Powell v. McCormack, the Court suggested that "the purposes of the Speech or Debate Clause are fully protected if legislators are relieved of the burden of defending themselves." The Court further described its underlying reasoning, noting that "[t]he purpose of the protection afforded legislators is not to forestall judicial review of legislative action but to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions." The Court's brief and indefinite articulation of the anti-distraction rationale in these and subsequent cases has given rise to a significant debate among the lower courts regarding whether the principle justifies prohibitions on the disclosure of protected documents, even when not for evidentiary use.
Communications Outside the Legislative Process[edit | edit source]
The Supreme Court's opinion in Gravel v. United States establishes that communications outside of the legislative process are generally not protected by the Clause. Gravel involved a Speech or Debate challenge to a grand jury investigation into the disclosure of classified documents by a Senator and his aides. After coming into possession of the "Pentagon Papers"--a classified Defense Department study addressing U.S. involvement in the Vietnam War--Senator Mike Gravel disclosed portions of the document at a subcommittee hearing and submitted the entire study into the record. The Senator and his staff had also allegedly arranged for the study to be published by a private publisher. A grand jury subsequently issued a subpoena for testimony from one of Senator Gravel's aides and the private publisher. Senator Gravel intervened to quash the subpoenas.
The Supreme Court rejected Senator Gravel's effort to shield his aide and the publisher from testifying. The Gravel opinion began by reasoning that "[b]ecause the claim is that a Member's aide shares the Member's constitutional privilege, we consider first whether and to what extent Senator Gravel himself is exempt from process or inquiry by a grand jury investigating the commission of a crime." In addressing the scope of the Senator's protections, the Court implied the existence of the testimonial component of the Clause, noting that the protections of the Clause protect a Member from compelled questioning. The Court did so by stating, without further discussion, that it had "no doubt" that "Senator Gravel may not be made to answer--either in terms of questions or in terms of defending himself from prosecution--for the events that occurred at the subcommittee meeting."
The Gravel opinion also drew a clear line of demarcation between protected legislative acts and other unprotected acts not "essential to the deliberations" of Congress. Although the Senator was protected for his actions at the hearing, the Senator's alleged arrangement for private publication of the Pentagon Papers was not "part and parcel of the legislative process" and was therefore not protected by the Clause. In reaching this determination, the Court established a working definition of "legislative act" that remains applicable today, holding that a legislative act is an
integral part of the deliberative and communicative processes 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.Id.
Private publication, as opposed to publication in the record, was "in no way essential to the deliberations of the Senate." Thus, the Clause provided no immunity from testifying before the grand jury relating to that arrangement.
The Court reaffirmed its views on internal and external distribution of legislative materials in its subsequent decisions in Doe v. McMillan and Hutchinson v. Proxmire. McMillan involved a civil suit brought by parents and students in which it was alleged that the disclosure and publication of "somewhat derogatory" personal information in a congressional committee report on the District of Columbia public school system violated the petitioner's right to privacy. The report was distributed within Congress and ordered printed and distributed by the Government Publishing Office (GPO). The complaint named a variety of defendants, including committee Members, congressional staff, the head of the GPO, and a number of non-congressional parties. The Court began by holding that the claims against the committee Members and their staffs for their activities, such as preparing and approving the report, were "plain[ly] . . . barred" by the Clause. However, the Court found that the public printer enjoyed no Speech or Debate Clause protections for the republication of the report to the public, even though that action was directed by Congress. Public republication of an otherwise protected legislative report, the Court reasoned, was not "an essential part" of the legislative or deliberative process. In reaching that conclusion, the Court rejected claims that Congress's public "informing function" should fall within the Clause's protections.
Similarly, in Hutchinson, the Court held that the Clause did not provide a Senator and his aide with immunity in a defamation suit arising from the Senator's public dissemination of his "Golden Fleece Award," a prize intended to draw attention to wasteful government spending. The suit alleged damages arising from the Senator publicizing the award nationwide through press releases and newsletters. In holding that the Clause did not provide the Member and his aide with immunity, the Court saw no reason "for departing from the long-established rule" that a Member may face liability for republication of legislative statements or reports. Whereas the Senator would be "wholly immune" for his efforts to publicize the award through a speech in the Senate, "neither the newsletters nor the press release was 'essential to the deliberations of the Senate'" and therefore they were not protected. The Court rejected arguments put forward by the Senator that public dissemination of the award came within the protections of the Clause either by advancing the "the duty of Members to tell the public about their activities," an argument previously rejected in McMillan, or as a means to influence other Senators. Neither activity, the Court concluded, was "part of the legislative function or the deliberations that make up the legislative process."
Subpoena Power and Congress[edit | edit source]
In Eastland v. U.S. Servicemen's Fund, the Supreme Court concluded that the Clause acts as a significant barrier to judicial interference in Congress's exercise of its subpoena power. The case involved a suit filed by a private non-profit organization against the Chairman of a Senate subcommittee seeking the Court to enjoin a congressional subpoena issued to a bank for the non-profit's account information. The subpoena was issued as part of an investigation into alleged "subversive" activities harmful to the U.S. military conducted by the organization. The Court held that because the "power to investigate and to do so through compulsory process plainly" constitutes an "indispensable ingredient of lawmaking," the Clause made the subpoena "immune from judicial interference." Eastland is generally cited for the proposition that the Clause prohibits courts from entertaining pre-enforcement challenges to congressional subpoenas. As a result, the lawfulness of a subpoena usually may not be challenged until Congress seeks to enforce the subpoena through either a civil action or contempt of Congress.
Persons Who Can Claim the Speech or Debate Privilege[edit | edit source]
Although the text of the Speech or Debate Clause refers only to "Senators and Representatives," and therefore clearly applies to actions by any Member of Congress, it is now well established that protections of the Clause apply equally to certain congressional staff. Initially, however, the Court seemed apprehensive about such an extension. For example, in early cases the Court held that while Members enjoyed immunity for their actions, the congressional staffers who were also named as defendants, and who were responsible for implementing the Member's directives, did not. Indeed, in Dombrowski v. Eastland, the Court relied on language in Tenney v. Brandhove in reasoning that the protection of the Clause "'deserves greater respect'" when a legislator is sued "'than where an official acting on behalf of the legislature is sued.'"
However, the Court later shifted course. In Gravel, the Court held that the Clause protects an aide's action when the Clause would have protected the same action if it were done by a Member. An aide, the Court reasoned, should be viewed as the "alter ego" of the Member he or she serves. The Gravel Court recognized that the Member and his or her aide must be "treated as one," noting:
[I]t is literally impossible, in view of the complexities of the modern legislative process, with Congress almost constantly in session and matters of legislative concern constantly proliferating, for Members of Congress to perform their legislative tasks without the help of aides and assistants; that the day-to-day work of such aides is so critical to the Members' performance that they must be treated as the latter's alter egos; and that if they are not so recognized, the central role of the Speech or Debate Clause--to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary--will inevitably be diminished and frustrated.Id. at 616-17 (internal citations omitted).
The opinion distinguished its earlier decisions on the ground that in those cases, the aides did not themselves engage in legislative acts. Whereas, in Gravel, and a number of subsequent cases, the Court was willing to extend the protections of the Clause so long as the act of the aide was itself a legislative act, and therefore would have been protected had it been performed by the Member.
At issue in Gravel were the actions of a Member's personal staff, but the Clause applies to others as well. Decisions of the Court have extended the protections of the Clause to committee staff, including those in the position of chief counsel, clerk, consultant, staff director, and investigator.
However, it should be noted that any protections under the Clause that are enjoyed by congressional or legislative staff flow from the Member. They do not inhere personally to the individual. As a result, an "aide's claim of privilege can be repudiated and thus waived by the [Member]." Moreover, the fact that a legislative aide is carrying out a directive from the Member, or even has specific authorization from the House or Senate to take the act in question, "is not sufficient to insulate the act from judicial scrutiny." This principle was underscored in Kilbourn, in which the Court denied Speech or Debate Clause immunity for the Sergeant at Arms for carrying out an arrest pursuant to a House resolution, and Powell v. McCormack, in which the Court similarly held that a suit could be maintained against the House Sergeant at Arms, Doorkeeper, and Clerk for implementing the House's exclusion of Representative Adam Clayton Powell.
- Twenty-Seventh Amendment Congressional Compensation ("No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened."). See Twenty-Seventh Amendment discussion at . On September 25, 1789, James Madison proposed text that would become the Twenty-Seventh Amendment to Congress as one of twelve amendments, ten of which the states quickly ratified and comprise the Bill of Rights. The states would ultimately ratify the Twenty-Seventh Amendment on May 7, 1992. See 2 Mark Grossman, Constitutional Amendments 1029, 1031 (2012).
- 2 Joseph Story, Commentaries on the Constitution of the United States § 854 (1833).
- 1 The Records of the Federal Constitution 216 (Max Farrand ed., 1911) (statement of George Mason). See also id. at 372 (with respect to states compensating Members of Congress, Nathanial Gorham stated that he "wished not to refer the matter to the State Legislatures who were always paring down salaries in such a manner as to keep out of offices men most capable of executing the functions of them."); id. at 373 ("those who pay are the masters of those who are paid") (statement of Alexander Hamilton).
- Pub. L. No. 90-206, § 225, 81 Stat. 642 (1967), as amended, Pub. L. No. 95-19, § 401, 91 Stat. 45 (1977), as amended, Pub. L. No. 99-190, § 135(e), 99 Stat. 1322 (1985).
- Pub. L. No. 94-82, § 204(a), 89 Stat. 421.
- Pressler v. Simon, 428 F. Supp. 302 (D.D.C. 1976) (three-judge court), aff'd summarily, 434 U.S. 1028 (1978); Humphrey v. Baker, 848 F.2d 211 (D.C. Cir.), cert. denied, 488 U.S. 966 (1988).
- Pub. L. No. 101-194, § 704(a)(1), 103 Stat. 1769, 2 U.S.C. § 4501.
- Ida A. Brudnick, Cong. Rsch. Serv., No. 97-615, Salaries of Members of Congress: Congressional Votes, 1990-2022 (2022), .
- Boehner v. Anderson, 30 F.3d 156, 163 (D.C. Cir. 1994). For additional information on how Members of Congress are compensated, see Ida A. Brudnick, Cong. Rsch. Serv., No. 97-1011, Salaries of Members of Congress: Recent Actions and Historical Tables (2022), ; Ida A. Brudnick, Cong. Rsch. Serv., No. 97-615, Salaries of Members of Congress: Congressional Votes, 1990-2022 (2022), .
- Art. I, Sec. 6, Clause 1 Pay, Privileges, and Immunities.
- Williamson v. United States, 207 U.S. 425, 446 (1908).
- Long v. Ansell, 293 U.S. 76, 82 (1934) (citing Williamson, 207 U.S. 425).
- Art. I, Sec. 6, Clause 1 Pay, Privileges, and Immunities.
- Articles of Confederation of 1781, art. V. See Williamson, 207 U.S. 425. See also Bolton v. Martin, 1 U.S. (1 Dall.) 296, 316 (1788) (recognizing the privilege as covering members of the Pennsylvania Convention on ratifying the Constitution and noting that members "ought not to be diverted from the public business by law-suits, brought against them during the sitting of the House; which, though not attended with the arrest of their persons, might yet oblige them to attend to those law-suits, and to bring witnesses from a distant county, to a place whither they came, perhaps solely, on account of that public business."); Geyer's Lessee v. Irwin, 4 U.S. (4 Dall.) 92, 92 (1790) ("A member of the general assembly is, undoubtedly, privileged from arrest, summons, citation, or other civil process, during his attendance on the public business confided to him. And we think, that upon principle, his suits cannot be forced to a trial and decision, while session of the legislature continues."); Joseph Story, Commentaries on the Constitution of the United States § 856 (1833); 1 William Blackstone, Commentaries on the Laws of England 160-61 (1765) ("Neither can any member of either house be arrested and taken into custody, nor served with any process of the courts of law . . . . These privileges however, which derogate from the common law, being only indulged to prevent the member's being diverted from the public business, endure no longer than the session of parliament, save only as to the freedom of his person: which in a peer is for ever sacred and inviolable, and in a commoner for forty days after every prorogation, and forty days before the next appointed meeting . . . . But this privilege of person does not hold in crimes of such public malignity as treason, felony, or breach of the peace; or rather perhaps in such crimes for which surety of the peace may be required.").
- Joseph Story, Commentaries on the Constitution of the United States § 856 (1833).
- Id. at § 857.
- Williamson, 207 U.S 425. See also Gravel v. United States, 408 U.S. 606, 614-15 (1972) (noting that the privilege only applies to arrests in civil cases).
- Edward S. Corwin, The Constitution and What It Means Today 23 (Harold W. Chase & Craig R. Ducat eds., 1973) (1958).
- United States v. Cooper, 4 U.S. (4 Dall.) 341, 341 (Chase, Cir. J., Dist. Pa. 1800),
- Long v. Ansell, 293 U.S. 76, 80 (1934) (holding that Senator Huey P. Long was not exempt from service of civil process). Justice Brandeis further clarified that: "The constitutional privilege here asserted must not be confused with the common-law rule that witnesses, suitors, and their attorneys while in attendance in connection with the conduct of one suit, are immune from service in another. That rule of practice is founded upon the needs of the court, not upon the convenience or preference of the individuals concerned. And the immunity conferred by the court is extended or withheld as judicial necessities require." Id. (citing Lamb v. Schmitt, 285 U.S. 222 (1932)).
- Hutchinson v. Proxmire, 443 U.S. 111, 124 (1979) (noting that the "Court has given the Clause a practical, rather than a strictly literal, reading . . .").
- Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 501 (1975) ("Without exception, our cases have read the Speech or Debate Clause broadly to effectuate its purposes.").
- Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 415 (D.C. Cir. 1995).
- Kilbourn v. Thompson, 103 U.S. 168, 204 (1881).
- Eastland, 421 U.S. at 510-11 (noting that the Clause should be "construed to provide the independence which is its central purpose"); United States v. Johnson, 383 U.S. 169, 182 (1966) ("There is little doubt that the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominate thrust of the Speech or Debate Clause.").
- Doe v. McMillan, 412 U.S. 306, 312-13 (1973).
- Eastland, 421 U.S. at 503 ("[O]nce it is determined that Members are acting within the 'legitimate legislative sphere' the Speech or Debate Clause is an absolute bar to interference."); McMillan, 412 U.S. at 324 ("The business of Congress is to legislate; Congressmen and aides are absolutely immune when they are legislating.").The Court has gone so far as to say that legislative acts may not even be the subject of "inquiry" by either the executive or Judicial Branches. United States v. Brewster, 408 U.S. 501, 509 (1972) ("The privilege protect[s] Members from inquiry into legislative acts or the motivation for actual performance of legislative acts.").
- McMillan, 412 U.S. at 312.
- See McMillan, 412 U.S. at 318; see also Fields v. Off. of Johnson, 459 F.3d 1, 13 (D.C. Cir. 2006) (quoting McMillan and explaining that "[t]he Speech or Debate Clause operates as a jurisdictional bar when 'the actions upon which [a party seeks] to predicate liability [are] 'legislative acts.'").
- United States v. Helstoski, 442 U.S. 477, 487 (1979) (noting that the Court's previous holdings "leave no doubt that evidence of a legislative act of a Member may not be introduced by the Government"); Brewster, 408 U.S. at 527 (holding that "evidence of acts protected by the Clause is inadmissible").
- Gravel v. United States, 408 U.S. 606, 616 (1972) ("We have no doubt that Senator Gravel may not be made to answer--either in terms of questions or in terms of defending himself from prosecution--for the events that occurred at the subcommittee meeting.").
- Indeed, the Supreme Court has never used the phrase "testimonial privilege" or "evidentiary privilege" in discussing the Speech or Debate Clause. In United States v. Gillock, the Court referenced an evidentiary privilege for state legislators "similar in scope" to the Clause. 445 U.S. 360, 366 (1980).
- United States v. Johnson, 383 U.S. 169, 178-79 (1966) (describing the Clause as "the culmination of a long struggle for parliamentary supremacy" in which "successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators."). For a thorough discussion of the historical evolution of the legislative privilege associated with the Clause see Josh Chafetz, Congress's Constitution: Legislative Authority and the Separation of Powers 201-10 (2017).
- Johnson, 383 U.S. at 177-79.
- VI Holdsworth, A History of English Law 214 (1927).
- 1 W. & M., Sess. 2, c.2.
- United States v. Brewster, 408 U.S. 501, 508 (1972).
- Kilbourn v. Thompson, 103 U.S. 168, 201-02 (1881); Tenney v. Brandhove, 341 U.S. 367, 372-73 (1951).
- Articles of Confederation of 1781, art. V; Johnson, 383 U.S. at 177.
- Johnson, 383 U.S. at 177 (citing V Elliot's Debates 406 (1836 ed.)).
- Brewster, 408 U.S. at 508.
- Kilbourn, 103 U.S. at 202.
- 1 The Works of James Wilson 421 (R. McCloskey ed., 1967); see also 1 Joseph Story, Commentaries on the Constitution of the United States § 866 (1833) ("The next great and vital privilege is the freedom of speech and debate, without which all other privileges would be comparatively unimportant or ineffectual.").
- 1 The Works of James Wilson 421 (R. McCloskey ed., 1967).
- See Johnson, 383 U.S. at 180-81 (noting that "it is apparent from the history of the clause that the privilege was [ ] born primarily of a desire . . . to prevent intimidation by the executive and accountability before a possibly hostile judiciary.").
- Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 502 (1975).
- Id. at 503 ("Just as a criminal prosecution infringes upon the independence which the Clause is designed to preserve, a private civil action, whether for an injunction or damages, creates a distraction and forces Members to divert their time, energy, and attention from their legislative tasks to defend the litigation. Private civil actions also may be used to delay and disrupt the legislative function."); Brewster, 408 U.S. at 507 (noting that the Clause exists to "protect the integrity of the legislative process by insuring the independence of individual legislators"); Powell v. McCormack, 395 U.S. 486, 505 (1969) (stating that "[t]he purpose of the protection afforded legislators is . . . to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions"); Tenney v. Brandhove, 341 U.S. 367, 377 (1951) ("Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good . . . The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial. . . .").
- Eastland, 421 U.S. at 503 (emphasis added). Even civil suits implicate the separation of powers principles that underlie the Clause as any court order directed at a Member could be viewed as a clash between the judicial and legislative powers. See id. ("[W]hether a criminal action is instituted by the Executive Branch, or a civil action is brought by private parties, judicial power is still brought to bear on Members of Congress and legislative independence is imperiled.").
- Gravel v. United States, 408 U.S. 606, 616 (1972).
- See, e.g., id. at 613-29; United States v. Brewster, 408 U.S. 501, 507-29 (1972); United States v. Johnson, 383 U.S. 169, 174-85 (1966); Kilbourn v. Thompson, 103 U.S. 168, 201-05 (1881).
- Kilbourn, 103 U.S. at 204 (extending the protections of the Clause beyond speeches and debates); Gravel, 408 U.S at 616-17 (extending the protections of the Clause to acts of aides).
- See Gravel, 408 U.S. at 625-26.
- See Johnson, 383 U.S. at 172.
- Kilbourn, 103 U.S. at 200-05.
- Id. at 200.
- Id. at 201. In reaching its holding, the Court noted that if the Members had ordered the unlawful arrest "in any ordinary tribunal" they would have been liable for the act. Id. The Court concluded, however, that the Constitution and the Clause make clear that Congress "is not an ordinary tribunal." Id.
- Id. at 204.
- Id. at 201.
- See Philip Mayer, An Uncertain Privilege: Reexamining the Scope and Protections of the Speech or Debate Clause, 50 Colum. J.L. & Soc. Probs. 229, 233 (2017) ("After Kilbourn, the Supreme Court did not substantively address the Clause until almost a century later.").
- Johnson, 383 U.S. at 170-85.
- Id. at 170-73. The Member also allegedly agreed to "exert influence" over Department of Justice enforcement decisions. Id. at 171. With regard to that aspect of the claim, the Court suggested that an "attempt to influence the Department of Justice" was not legislative. Id. at 172.
- Id. at 177.
- Id. at 180.
- Id. at 185.
- Johnson, 383 U.S. at 185.
- Id. at 185.
- Id. at 173 ("The language of the Speech or Debate Clause clearly proscribes at least some of the evidence taken during trial.").
- 442 U.S. 477, 487 (1979).
- Id. at 489. The Helstoski opinion interpreted Johnson as "leav[ing] no doubt that evidence of a legislative act of a Member may not be introduced by the Government in a prosecution . . ." Id. at 487.
- Id. The Helstoski opinion also evidenced the Court's unwillingness to address the important question of the proper means by which the protections of the Clause may be waived. Id. at 490-94. The waiver question hinges on whether the protections of the Clause inhere to Members as individuals, or to the House and Senate as institutions. If the Clause creates an individual privilege, waiver would need to be made by the individual Member and arguably could not be made by the institution without the Member's consent. If, however, the privilege is institutional, waiver would need to be made by the institution, and arguably could not be made by the individual member without the institution's consent. With regard to individual waiver, the Court saw no need to determine whether an individual Member can waive the Clause's protections, but "assuming that is possible, we hold that waiver can be found only after explicit and unequivocal renunciation of the protection." Id. at 490-91. With regard to institutional waiver, the opinion noted that "[t]his Court has twice declined to decide" whether Congress could waive a Member's privilege through a "narrowly drawn statute." Id. at 492. The Court again, however, saw "no occasion to resolve" the question. Id. The opinion nonetheless "recognize[d] that an argument can be made from precedent and history that Congress, as a body, should not be free to strip individual Members of the protection guaranteed by the Clause from being 'questioned' by the Executive in the courts," but ultimately reiterated that "[w]e perceive no reason to undertake, in this case, consideration of the Clause in terms of separating the Members' rights from the rights of the body." Id. at 492-93.
- United States v. Brewster, 408 U.S. at 512.
- Id. at 513, 528.
- Id. at 525.
- These unprotected activities include "a wide range of legitimate 'errands' performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called 'news letters' to constituents, news releases, and speeches delivered outside the Congress." Id. at 512. Similarly, in Hutchinson v. Proxmire, the Court held that informing the public of legislative activities is not protected by the Clause. 443 U.S. 111, 133 (1979) ("Valuable and desirable as it may be in broad terms, the transmittal of such information by individual Members in order to inform the public and other Members is not a part of the legislative function or the deliberations that make up the legislative process. As a result, transmittal of such information by press releases and newsletters is not protected by the Speech or Debate Clause.").
- Brewster, 408 U.S. at 512.
- Id. at 526.
- Id. at 525.
- Dombrowski v. Eastland, 387 U.S. 82, 83 (1967). The petitioners were civil rights lawyers alleging that the Chairman and counsel of the Internal Security Subcommittee of the Senate Judiciary Committee conspired with Louisiana State officials to "seize property and records of petitioners by unlawful means." Id.
- Id. at 85.
- Powell v. McCormack, 395 U.S. 486, 505 (1969).
- Disagreement among the lower federal courts over whether the Clause prohibits any compelled disclosure of legislative act documents, regardless of purpose, or instead prevents only the evidentiary use of such documents, represents perhaps the chief ongoing dispute over the scope of the Clause's protections. Compare United States v. Rayburn House Off. Bldg., 497 F.3d 654, 655 (D.C. Cir. 2007) (holding that the testimonial component of the Clause includes a documentary nondisclosure privilege) with United States v. Renzi, 651 F.3d 1012, 1034 (9th Cir. 2011) (holding that the testimonial component of the Clause does not create the documentary nondisclosure privilege outlined in Rayburn) and In re Fattah, 802 F.3d 516, 529 (3rd Cir. 2015) ("The Speech or Debate Clause does not prohibit the disclosure of privileged documents. Rather, it forbids the evidentiary use of such documents.").
- Gravel v. United States, 408 U.S. 606, 622-27 (1972). Gravel also exemplifies that the Speech or Debate protections can extend to a Member's personal aides. Id. at 616-22.
- Id. at 608-10.
- Id. at 608.
- Id. at 610.
- Id. at 608.
- Id. at 609.
- Gravel, 408 U.S. at 613.
- Id. at 626; Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 418 (D.C. Cir. 1995) (holding that "the Supreme Court recognized the testimonial privilege in Gravel v. United States"). Gravel involved questioning before a grand jury. 408 U.S. at 613. The D.C. Circuit has suggested, however, that the prohibition extends to questions asked "in a deposition, on the witness stand, and so forth . . ." Fields v. Off. of Johnson, 459 F.3d 1, 14 (D.C. Cir. 2006).
- Gravel, 408 U.S. at 616.
- Id. at 625.
- Id. at 626.
- 412 U.S. 306, 308-17 (1973); 443 U.S. 111, 114-133 (1979).
- McMillan, 412 U.S. at 308 n.1.
- Id. at 308-09.
- Id. at 309.
- Id. at 312.
- Id. at 313-18.
- Id. at 314-15
- Id. at 317.
- Hutchinson v. Proxmire, 443 U.S. 111, 114 (1979). Senator Proxmire had given the award to federal agencies that funded the petitioner's research. Id.
- Id. at 115-16.
- Id. at 128.
- Id. at 130 (quoting Gravel v. United States, 408 U.S. 606, 625 (1972)).
- Id. at 131-33. The opinion drew a clear distinction between the legislative act of a Member informing himself, and the generally non-legislative act of informing the public. Id. at 132.
- Id. at 133.
- 421 U.S. 491, 501 (1975).
- Id. at 494-96.
- Id. at 493.
- Id. at 501.
- See In re Grand Jury, 821 F.2d 946, 957 (3d Cir. 1987) ("The Supreme Court has held analogously that the Speech or Debate Clause shields Congressmen from suit to block a Congressional subpoena because making the legislators defendants 'creates a distraction and forces Members [of Congress] to divert their time, energy, and attention from their legislative tasks to defend the litigation.'") (citing Eastland, 421 U.S. at 503).
- United States v. Ryan, 402 U.S. 530, 532 (1971) (noting that in the judicial context that "one who seeks to resist the production of desired information [has a] choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal"); Eastland, 421 U.S. at 515-16 (Marshall, J., concurring). While it is generally true that courts will not interfere in valid congressional attempts to obtain information, especially through the exercise of the subpoena power, Justice Thurgood Marshall's concurrence in Eastland suggests that the restraint exercised by the courts in deference to the separation of powers is not absolute. Id. at 513-18 (Marshall, J., concurring) (clarifying that the Clause "does not entirely immunize a congressional subpoena from challenge," but instead requires only that a Member "may not be called upon to defend a subpoena against constitutional objection"). Justice Marshall thus implied that a challenge to the legitimacy of a subpoena may proceed if it is not directed at Congress or its Members. Id. at 517. He did not speculate as to what such a case may look like or "who might be the proper parties defendant." Id.
- The Clause may be asserted not only by a current Member but also by a former Member in an action implicating his conduct while in Congress. See United States v. Brewster, 408 U.S. 501, 502 (1972).
- Gravel v. United States, 408 U.S. 606, 616-17 (1972).
- See Kilbourn v. Thompson, 103 U.S. 168, 200 (1881) (distinguishing between a claim against the Sergeant-at-Arms and a claim against a Member); Dombrowski v. Eastland, 387 U.S. 82, 84-85 (1967) (permitting a claim against an aide, but not the Member); Powell v. McCormack, 395 U.S. 486, 504 (1969) (noting that "although an action against a Congressman may be barred by the Speech or Debate Clause, legislative employees who participated in the unconstitutional activity are responsible for their acts").
- Dombrowski, 387 U.S. at 85 (quoting Tenney v. Brandhove, 341 U.S. at 367, 378 (1951).
- Gravel, 408 U.S. at 628 (holding that an aide's "immunity, testimonial or otherwise, extends only to legislative acts as to which the Senator himself would be immune").
- Id. at 617.
- Id. at 616 (quoting United States v. Doe, 455 F.2d 753, 761 (1972)).
- Id. at 618-21.
- Id. at 620 (noting that in Kilbourn, Dombrowski, and Powell "immunity was unavailable because [the aide] engaged in illegal conduct that was not entitled to Speech or Debate Clause protection").
- See Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 507 (1975); Doe v. McMillan, 412 U.S. 306, 309 (1973).
- Gravel, 408 U.S. at 621-22 (noting that the "privilege applicable to the aide is viewed, as it must be, as the privilege of the Senator, and invocable only by the Senator or by the aide on the Senator's behalf . . . .").
- Id. at 622 n.13.
- McMillan, 412 U.S. at 315 n.10.
- Kilbourn v. Thompson, 103 U.S. at 199-200.
- Powell v. McCormack, 395 U.S. at 504.