Compensation and Immunities of Members
SECTION 6. Clause 1. 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.
With the surprise ratification of the Twenty-Seventh Amendment,429 it is now the rule that congressional legislation “varying”— decreasing or increasing—the level of legislators’ pay may not take effect until an intervening election has occurred. The only real controversy likely to arise in the interpretation of the new rule is whether pay increases that result from automatic alterations in pay are subject to the same requirement or whether it is only the initial enactment of the automatic device that is covered. That is, from the founding to 1967, congressional pay was determined directly by Congress in specific legislation setting specific rates of pay. In 1967, a law was passed that created a quadrennial commission with the responsibility to propose to the President salary levels for top officials of the Government, including Members of Congress.430 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.431 These devices were attacked by dissenting Members of Congress as violating the mandate of clause 1 that compensation be “ascertained by Law.” However, these challenges were rejected.432 Thereafter, prior to ratification of the Amendment, Congress, in the Ethics Reform Act of 1989,433 altered both the pay-increase and the cost-of-living-increase provisions of law, making quadrennial pay increases effective only after an intervening congressional election and making cost-of-living increases dependent upon a specific congressional vote. A federal court of appeals panel ruled that the cost-of-living-increase provision did not violate the Twenty-Seventh Amendment, and that a challenge to the quadrennial pay raise provision was not ripe.434
Privilege From Arrest
This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted.435 It does not apply to service of process in either civil436 or criminal cases.437 Nor does it apply to arrest in any criminal case. The phrase “treason, felony or breach of the peace” is interpreted to withdraw all criminal offenses from the operation of the privilege.438
Privilege of Speech or Debate
Members.—This clause represents “the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conﬂict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature.”439 So Justice Harlan explained the significance of the Speech or Debate Clause, the ancestry of which traces back to a clause in the English Bill of Rights of 1689440 and the history of which traces back almost to the beginning of the development of Parliament as an independent force.441 “In the American governmental structure the clause serves the additional function of reinforcing the separation of powers so deliberately established by the Founders.”442 “The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators.”443
The protection of this clause is not limited to words spoken in debate. “Committee reports, resolutions, and the act of voting are equally covered, as are ‘things generally done in a session of the House by one of its members in relation to the business before it.’”444 Thus, so long as legislators are “acting in the sphere of legitimate legislative activity,” they are “protected not only from the consequence of litigation’s results but also from the burden of defending themselves.”445 But the scope of the meaning of “legislative activity” has its limits. “The heart of the clause is speech or debate in either House, and insofar as the clause is construed to reach other matters, they must be 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.”446 Immunity from civil suit, both in law and equity, and from criminal action based on the performance of legislative duties ﬂows from a determination that a challenged act is within the definition of legislative activity, but the Court in the more recent cases appears to have narrowed the concept somewhat.
In Kilbourn v. Thompson,447 Members of the House of Representatives were held immune in a suit for false imprisonment brought about by a vote of the Members on a resolution charging contempt of one of its committees and under which the plaintiff was arrested and detained, even though the Court found that the contempt was wrongly voted. Kilbourn was relied on in Powell v. McCormack,448 in which the plaintiff was not allowed to maintain an action for declaratory judgment against certain Members of the House of Representatives to challenge his exclusion by a vote of the entire House. Because the power of inquiry is so vital to performance of the legislative function, the Court held that the clause precluded suit against the Chairman and Members of a Senate subcommittee and staff personnel, to enjoin enforcement of a subpoena directed to a third party, a bank, to obtain the financial records of the suing organization. The investigation was a proper exercise of Congress’s power of inquiry, the subpoena was a legitimate part of the inquiry, and the clause therefore was an absolute bar to judicial review of the subcommittee’s actions prior to the possible institution of contempt actions in the courts.449 And in Dombrowski v. Eastland,450 the Court affirmed the dismissal of an action against the chairman of a Senate committee brought on allegations that he wrongfully conspired with state officials to violate the civil rights of plaintiff.
Through an inquiry into the nature of the “legislative acts” performed by Members and staff, the Court held that the clause did not defeat a suit to enjoin the public dissemination of legislative materials outside the halls of Congress.451 A committee had conducted an authorized investigation into conditions in the schools of the District of Columbia and had issued a report that the House of Representatives routinely ordered printed. In the report, named students were dealt with in an allegedly defamatory manner, and their parents sued various committee Members and staff and other personnel, including the Superintendent of Documents and the Public Printer, seeking to restrain further publication, dissemination, and distribution of the report until the objectionable material was deleted and also seeking damages. The Court held that the Members of Congress and the staff employees had been properly dismissed from the suit, inasmuch as their actions—conducting the hearings, preparing the report, and authorizing its publication—were protected by the clause. The Superintendent of Documents and the Public Printer were held, however, to have been properly named, because, as congressional employees, they had no broader immunity than Members of Congress would have. At this point, the Court distinguished between those legislative acts, such as voting, speaking on the ﬂoor or in committee, issuing reports, which are within the protection of the clause, and those acts which enjoy no such protection. Public dissemination of materials outside the halls of Congress is not protected, the Court held, because it is unnecessary to the performance of official legislative actions. Dissemination of the report within the body was protected, whereas dissemination in normal channels outside it was not.452
Bifurcation of the legislative process in this way resulted in holding unprotected the republication by a Member of allegedly defamatory remarks outside the legislative body, here through newsletters and press releases.453 The clause protects more than speech or debate in either House, the Court affirmed, but in order for the other matters to be covered “they must be 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.”454 Press releases and newsletters are “[v]aluable and desirable” in “inform[ing] the public and other Members,” but neither are essential to the deliberations of the legislative body nor part of the deliberative process.455
Parallel developments may be discerned with respect to the application of a general criminal statute to call into question the legislative conduct and motivation of a Member. Thus, in United States v. Johnson,456 the Court voided the conviction of a Member for conspiracy to impair lawful governmental functions, in the course of seeking to divert a governmental inquiry into alleged wrongdoing, by accepting a bribe to make a speech on the ﬂoor of the House of Representatives. The speech was charged as part of the conspiracy and extensive evidence concerning it was introduced at a trial. It was this examination into the context of the speech—its authorship, motivation, and content—that the Court found foreclosed by the Speech or Debate Clause.457
However, in United States v. Brewster,458 while continuing to assert that the clause “must be read broadly to effectuate its purpose of protecting the independence of the Legislative branch,”459 the Court substantially reduced the scope of the coverage of the clause. In upholding the validity of an indictment of a Member, which charged that he accepted a bribe to be “inﬂuenced in his performance of official acts in respect to his action, vote, and decision” on legislation, the Court drew a distinction between a prosecution that caused an inquiry into legislative acts or the motivation for performance of such acts and a prosecution for taking or agreeing to take money for a promise to act in a certain way. The former is proscribed, the latter is not. “Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator. . . . Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legislative act as here or, as in Johnson, for use of a Congressman’s inﬂuence with the Executive Branch.”460 In other words, it is the fact of having taken a bribe, not the act the bribe is intended to inﬂuence, which is the subject of the prosecution, and the Speech or Debate Clause interposes no obstacle to this type of prosecution.461
Applying in the criminal context the distinction developed in the civil cases between protected “legislative activity” and unprotected conduct prior to or subsequent to engaging in “legislative activity,” the Court in Gravel v. United States,462 held that a grand jury could validly inquire into the processes by which the Member obtained classified government documents and into the arrangements for subsequent private republication of these documents, since neither action involved protected conduct. “While the Speech or Debate Clause recognizes speech, voting and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts.”463
Congressional Employees.—Until recently, the Court distinguished between Members of Congress, who were immune from suit arising out of their legislative activities, and legislative employees who participate in the same activities under the direction of a Member.464 Thus, in Kilbourn v. Thompson,465 the sergeant at arms of the House was held liable for false imprisonment because he executed the resolution ordering Kilbourn arrested and imprisoned. Dombrowski v. Eastland466 held that a subcommittee counsel might be liable in damages for actions as to which the chairman of the committee was immune from suit. And, in Powell v. McCormack,467 the Court held that the presence of House of Representative employees as defendants in a suit for declaratory judgment gave the federal courts jurisdiction to review the propriety of the plaintiff’s exclusion from office by vote of the House.
Upon full consideration of the question, however, the Court, in Gravel v. United States,468 accepted a series of contentions urged upon it not only by the individual Senator but by the Senate itself appearing by counsel as amicus: “that it 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-today work of such aides is so critical to the Members’ performance that they must be treated as the latter’s alter ego; and that if they are not so recognized, the central role of the Speech or Debate Clause . . . will inevitably be diminished and frustrated.”469 Therefore, the Court held “that the Speech or Debate Clause applies not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.”470
The Gravel holding, however, does not so much extend congressional immunity to employees as it narrows the actual immunity available to both aides and Members in some important respects. Thus, the Court said, the legislators in Kilbourn were immune because adoption of the resolution was clearly a legislative act but the execution of the resolution—the arrest and detention—was not a legislative act immune from liability, so that the House officer was in fact liable as would have been any Member who had executed it.471 Dombrowski was interpreted as having held that no evidence implicated the Senator involved, whereas the committee counsel had been accused of “conspiring to violate the constitutional rights of private parties. Unlawful conduct of this kind the Speech or Debate Clause simply did not immunize.”472 And Powell was interpreted as simply holding that voting to exclude plaintiff, which was all the House defendants had done, was a legislative act immune from Member liability but not from judicial inquiry. “None of these three cases adopted the simple proposition that immunity was unavailable to House or committee employees because they were not Representatives or Senators; rather, immunity was unavailable because they engaged in illegal conduct that was not entitled to Speech or Debate Clause protection. . . . [N]o prior case has held that Members of Congress would be immune if they executed an invalid resolution by themselves carrying out an illegal arrest, or if, in order to secure information for a hearing, themselves seized the property or invaded the privacy of a citizen. Neither they nor their aides should be immune from liability or questioning in such circumstances.”473
429 See discussion under Twenty-Seventh Amendment, infra.
430 Pub. L. 90–206, § 225, 81 Stat. 642 (1967), as amended, Pub. L. 95–19, § 401, 91 Stat. 45 (1977), as amended, Pub. L. 99–190, § 135(e), 99 Stat. 1322 (1985).
431 Pub. L. 94–82, § 204(a), 89 Stat. 421.
432 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).
433 Pub. L. 101–194, 103 Stat. 1716, 2 U.S.C. § 31(2), 5 U.S.C. § 5318 note, and 2 U.S.C. §§ 351–363.
434 Boehner v. Anderson, 30 F.3d 156, 163 (D.C. Cir. 1994).
435 Long v. Ansell, 293 U.S. 76 (1934).
436 293 U.S. at 83.
437 United States v. Cooper, 4 U.S. (4 Dall.) 341 (C.C. Pa. 1800).
438 Williamson v. United States, 207 U.S. 425, 446 (1908).
439 United States v. Johnson, 383 U.S. 169, 178 (1966).
440 “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.” 1 W. & M., Sess. 2, c. 2.
441 United States v. Johnson, 383 U.S. 169, 177–79, 180–83 (1966); Powell v. Mc-Cormack, 395 U.S. 486, 502 (1969).
442 United States v. Johnson, 383 U.S. 169, 178 (1966).
443 United States v. Brewster, 408 U.S. 501, 507 (1972). This rationale was approvingly quoted from Coffin v. Coffin, 4 Mass. 1, 28 (1808), in Kilbourn v. Thompson, 103 U.S. 168, 203 (1881).
444 Powell v. McCormack, 395 U.S. 486, 502 (1969), quoting Kilbourn v. Thompson, 103 U.S. 168, 204 (1881).
445 Tenney v. Brandhove, 341 U.S. 367, 376–377 (1972); Dombrowski v. Eastland, 387 U.S. 82, 85 (1967); Powell v. McCormack, 395 U.S. 486, 505 (1969); Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503 (1975).
446 Gravel v. United States, 408 U.S. 606, 625 (1972). The critical nature of the clause is shown by the holding in Davis v. Passman, 442 U.S. 228, 235 n.11 (1979), that when a Member is sued under the Fifth Amendment for employment discrimination on the basis of gender, only the clause could shield such an employment decision, and not the separation of powers doctrine or emanations from it. Whether the clause would be a shield the Court had no occasion to decide and the case was settled on remand without a decision being reached.
447 103 U.S. 168 (1881). But see Gravel v. United States, 408 U.S. 606, 618–19 (1972).
448 395 U.S. 486 (1969). The Court found sufficient the presence of other defendants to enable it to review Powell’s exclusion but reserved the question whether in the absence of someone the clause would still preclude suit. Id. at 506 n.26. See also Kilbourn v. Thompson, 103 U.S. 168, 204 (1881).
449 Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975).
450 387 U.S. 82 (1967). But see the reinterpretation of this case in Gravel v. United States, 408 U.S. 606, 619–20 (1972). See also McSurely v. McClellan, 553 F.2d 1277 (D.C. Cir. 1976) (en banc), cert. dismissed as improvidently granted, sub nom. McAdams v. McSurely, 438 U.S. 189 (1978).
451 Doe v. McMillan, 412 U.S. 306 (1973).
452 It is difficult to assess the effect of the decision because the Justices in the majority adopted mutually inconsistent stands, 412 U.S. at 325 (concurring opinion), and four Justices dissented. Id. at 331, 332, 338. The case also leaves unresolved the propriety of injunctive relief. Compare id. at 330 (Justice Douglas concurring), with id. at 343–45 (three dissenters arguing that separation of powers doctrine forbade injunctive relief). And compare Davis v. Passman, 442 U.S. 228, 245, 246 n.24 (1979), with id. at 250–51 (Chief Justice Burger dissenting).
453 Hutchinson v. Proxmire, 443 U.S. 111 (1979).
454 443 U.S. at 126, quoting Gravel v. United States, 408 U.S. 606, 625 (1972).
455 Hutchinson v. Proxmire, 443 U.S. 111, 130, 132–33 (1979). The Court distinguished between the more important “informing” function of Congress, i.e., its efforts to inform itself in order to exercise its legislative powers, and the less important “informing” function of acquainting the public about its activities. The latter function the Court did not find an integral part of the legislative process. See also Doe v. McMillan, 412 U.S. 306, 314–17 (1973). But compare id. at 325 (concurring). For consideration of the “informing” function in its different guises in the context of legislative investigations, see Watkins v. United States, 354 U.S. 178, 200 (1957); United States v. Rumely, 345 U.S. 41, 43 (1953); Russell v. United States, 369 U.S. 749, 777–78 (1962) (Justice Douglas dissenting).
456 383 U.S. 169 (1966).
457 Reserved was the question whether a prosecution that entailed inquiry into legislative acts or motivation could be founded upon “a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members.” 383 U.S. at 185. The question was similarly reserved in United States v. Brewster, 408 U.S. 501, 529 n.18 (1972), although Justices Brennan and Douglas would have answered in the negative. Id. at 529, 540.
458 408 U.S. 501 (1972).
459 408 U.S. at 516.
460 408 U.S. at 526.
461 The holding was reaffirmed in United States v. Helstoski, 442 U.S. 477 (1979). On the other hand, the Court did hold that the protection of the clause is so fundamental that, assuming a Member may waive it, a waiver could be found only after explicit and unequivocal renunciation, rather than by failure to assert it at any particular point. Similarly, Helstoski v. Meanor, 442 U.S. 500 (1979), held that since the clause properly applied is intended to protect a Member from even having to defend himself, he may appeal immediately from a judicial ruling of nonapplicability rather than wait to appeal after conviction.
462 408 U.S. 606 (1972).
463 408 U.S. at 626.
464 Language in some of the Court’s earlier opinions had indicated that the privilege “is less absolute, although applicable,” when a legislative aide is sued, without elaboration of what was meant. Dombrowski v. Eastland, 387 U.S. 82, 85 (1967); Tenney v. Brandhove, 341 U.S. 367, 378 (1951). In Wheeldin v. Wheeler, 373 U.S. 647 (1963), the Court had imposed substantial obstacles to the possibility of recovery in appropriate situations by holding that a federal cause of action was lacking and remitting litigants to state courts and state law grounds. The case is probably no longer viable, however, after Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
465 103 U.S. 168 (1881).
466 387 U.S. 82 (1967).
467 395 U.S. 486 (1969).
468 408 U.S. 606 (1972).
469 408 U.S. at 616–17.
470 408 U.S. at 618.
471 408 U.S. at 618–19.
472 408 U.S. at 619–20.
473 408 U.S. at 620–21.