*1 501 v. BREWSTER STATES UNITED 20, 1972 March Reargued 18, Argued October 70-45. No. June Decided J., Court, in opinion which Stew- C. delivered Burger, JJ., joined. Rehnquist, art, Marshall, BlachmuN, Powell, J., J., joined, dissenting opinion filed a in which Brennan, Douglas, Douglas post, p. J., dissenting opinion, in 529. filed a which White, post, JJ., joined, p. 551. Brennan, Solicitor General Griswold reargued the cause for the United States. With him on the briefs on the original *2 argument Attorney Wilson, were Assistant General Feit, Jerome M. Beatrice Rosenberg. and him With on the brief on the reargument Attorney Assistant were General Petersen and Mr. Feit.
Norman Ramsey P. reargued appellee. the cause for him Waxier, Jr., on the were Thomas With briefs and H. Thomas Howell. Buegee
Me. Chief opinion delivered the Justice the Court.
This direct appeal from the presents District Court the question may whether a Member of Congress be prosecuted under 18 U. C. (c)(1), 201(g), §§201 S. a bribe in accepting exchange promise for a relat- ing an official to act. a Appellee, former United States Senator, was charged five counts of a 10-count indictment.1 one, three, five, Counts and seven alleged that on four separate occasions, while he was appellee, a Senator and member of the Senate on Committee Post Office and Civil Service, and
“directly indirectly, corruptly solicited, asked, sought, accepted, received and agreed receive ... in return for being influenced in [sums] his performance of official in respect acts to his action, vote, and decision on postage rate legislation which might at time be any pending before him in his capacity official ... violation of Sections 201 (c)(1) 2, and Title United 18, States Code.”2 remaining charged five alleged counts bribers with offer ing giving and bribes violation of (b). 18 U. C.S. §201 (c) provides: Title 18 U. S. C. 201 “Whoever, being public § of person ficial or public selected official, directly indirectly, corruptly asks, demands, exacts, solicits, seeks, accepts, receives, Count nine charged appellee and
“directly indirectly, asked, demanded, exacted, solicited, accepted, received sought, agreed and receive ... [a because official sum] performed by acts him in respect action, vote and decision postage rate which legislation had been before him in pending capac- his official ity .. . in violation Sections 201 Title (g) 18, United States Code.”3
Before a trial date was appellee set, moved to dismiss indictment on the ground immunity under the Speech or Debate Clause, I,Art. 6,§ of the Consti- tution, which provides: *3 any or Speech
“[F]or Debate in they House, either or Representatives] [Senators ques- shall not be in tioned any other Place.”
After hearing argument, the District Court ruled from the bench:
“Gentlemen, based on the facts of this case, agrees or to receive anything of any value for himself or for other person entity, or in return for: “(1) being performance influenced in his of any official act . . . guilty of an [shall offense].” (a) Title 18 U. S. C. 201 “public defines § official” to include “Mem- “ ber Congress.” The same provides: subsection 'official act’ means any a.ny decision or question, action on matter, cause, suit, proceeding controversy, or may any which at pending, time be may by or which brought law be any public official, before in capacity, his official or in place of profit.” trust or Title 18 U. 2 S. C. aiding is the § abetting or statute. 3Title 18 U. (g) S. C. 201 provides: “Whoever, § being public of ficial, public official, former person or selected to public official, be a otherwise than provided as by law for the proper discharge of duty, directly official indirectly or asks, demands, exacts, solicits, seeks, accepts, receives, agrees or to receive anything of value for himself for or any because of performed official act per to be by formed him .. . be guilty of an [shall offense].”
504 the five by the Government admitted charge which Senator of the indictment
counts in con- acceptance of bribes Brewster to the relate func- of a performance nection with the tion of the United' States. Senator immunity this Court that opinion “It is the of the Con- under Debate Clause [sic] interpretation particularly view of the stitution, Supreme Court John- given that Clause constitutionally son, Brewster, Senator shields bribery any prosecution alleged shields him from act. perform legislative “I dismiss the odd counts will, therefore, they apply to indictment, 1, 3, 5, 7 and Sen- ator Brewster.” this appeal filed a direct United States Supp. V).4
Court, pursuant (1964 ed., to 18 C. 3731 § U. S. jurisdiction We until hear- postponed consideration of (1971). ing the case on the merits. U. S. I juris- The United States asserts that this Court has diction (1964 Supp. V) under 18 ed., § U. S. C. part: provided
4Title 18 U. S. C. relevant §3731 *4 may appeal by “An be taken and on behalf of the United States the Supreme from district courts direct to the of the United Court in following States all criminal in cases instances: judgment setting aside, dismissing any “From a decision or or in- information, any thereof, dictment or or count where such decision judgment or upon invalidity is based or the stat- construction of upon ute which the indictment or is information founded.
“From judgment bar, the decision or sustaining a in when motion the defendant has not put jeopardy.” been in The statute has since been ap- amended the direct to eliminate peal provision on which the United States relies. 18 U. 3731. S. C. § appeal, however, This perfected under the old statute.
505 indictment of the review the District Court’s dismissal urges States against appellee. Specifically, United or “a decision was either that the District Court decision .. indictment. dismissing or judgment setting aside, [an] judgment or decision or any count where such thereof, or construction upon invalidity is based founded” is upon statute which the indictment ... bar, in motion judgment sustaining a “decision or put jeopardy.” when the defendant has not been correctly characterized If the District Court decision jurisdic- has by descriptions, Court either those this appeal. to hear the United States’ tion under the statute Knox, 77 we In United States (1969), U. S. from appeal direct the United States considered appellee charged dismissal of an indictment that 1001, general in that with C. violating § case U. S. fraudulent statements made provision punishing criminal any appellee, Knox, federal had been agency. the number of em- understating accused willfully ployees accepting on his behalf when filed wagers he persons accept- a form that in the engaged business of were The District ing wagers required law file. of 1001 Court violations charging § dismissed counts ground appellee prosecuted could not be correctly form since wagering failure answer the Fifth privilege against Amendment self-incrimina- prevented prosecution tion to file the form failure any respect. jurisdiction We found under § in Knox on the appeal theory to hear the passed validity had District Court on the of the statute on which the indictment rested. 396 2. S.,U. at 79 n. The District Court that case held “§ applied cases, constitutionally to this class of invalid.” Ibid.
The counts of the indictment involved in the instant § case were based on 18 C. 201, U. S. a bribery statute. *5 201 applies "public Section officials,” and that term is defined to include Members explicitly employees as well as other and officers of the United States. (c)(1) Subsections (g) prohibit the ac- of a cepting bribe in return influenced in being performing an official act. The ruling of the District Court here was that “the Debate Clause [or] the Constitution, particularly interpre- in view of the tation given ... in Johnson, shields Senator Brewster . . . from prosecution any for alleged bribery to perform a legislative act.” Since 201 only § applies bribery performance acts, official the District Court’s ruling is that, applied to Members of Congress, § is constitutionally invalid.
Appellee argues that the action of the Court District was not “a decision or judgment setting aside, or dis- missing” the but indictment, a summary was instead judgment on the Appellee merits. also argues that District Court did not rule that § 201 could never be constitutionally applied to a Member of but Congress, that “based on the facts of this case” the statute could not be constitutionally applied. Under United States Sisson, 399 U. S. 267 (1970), appeal an does not lie from a decision that rests, upon the sufficiency of the indictment alone, upon but extraneous facts. If an indictment is dismissed as a result of stipulated fact or the showing evidentiary facts outside the indictment, which facts would constitute defense on the merits at no appeal trial, is available. United See States v. Findley, 439 F. 2d (CA1 1971). Appellee claims that the District Court relied on factual matter other than facts alleged in the indictment.
An examination of the record, however, discloses that, with exception of a letter in which the United States briefly outlined theory of its ease against appellee, there were no “facts” which the District Court could *6 Appellee act other than those recited in the indictment. of this contends that the “based on the facts statement by used the his case,” Judge announcing District in decision, outline shows reliance on the Government’s of its case. We read the reference to Judge’s District in “facts,” alleged as reference to the facts context, in indictment, the and his that Mem- ruling holding as of Congress totally prosecution bers are from immune e., i. performance official, for bribes for the of accepting acts of Debate legislative, Speech virtue the or Clause. interpretation applied Under of § that it cannot be ato Member of relate accepts who bribes that in way his office. any therefore, We conclude, the District Court only alleged was facts relying in the indictment and the of the indict- dismissal ment was based on a the determination statute on which the indictment was drawn invalid under the Speech or Debate Clause. As a this consequence, jurisdiction Court has to hear appeal. the
II
The immunities
Speech
of the
were
Debate Clause
not written into the
per-
Constitution
simply
private
sonal or
benefit of
of
but
Congress,
Members
protect
integrity
process
the legislative
insuring
independence
legislators.
individual
genesis of the
at
Clause
common law
well
known.
Johnson,
United States opinion
for the
in
Court
“was culmination of a long struggle parliamentary supremacy. simple Behind these phrases lies a history of conflict between the Com- mons and the Tudor and Stuart monarchs during which successive monarchs utilized criminal and suppress civil law to and intimidate critical legisla- Britain, and Revolution tors. Since Glorious has history, privilege United throughout States of the important protection an recognized been Id., legislature.” independence integrity omitted). (footnote at 178 historic roots or Debate Clause’s
Although interpreted light history, are in English must experience, the American the context *7 of government American constitutional scheme rather system. parliamentary than the We should bear English system in mind that the differs from ours in that English supreme authority, their Parliament is the not a co- speech ordinate branch. Our or debate privilege preserve to not su- designed legislative independence, premacy.5 task, therefore, apply Our is to the Clause in such a to of independence insure the way the legislature without historic altering the balance three co-equal branches of Government.
It validity does not undermine the of Framers’ the concern independence Legislative for the of Branch to the acknowledge catalogue that our history does not reflect a of abuses the at hands of the gave Executive that rise to the privilege England. There is in our nothing history, for example, comparable to imprisonment the of Mem- ber of Parliament in the Tower without hearing and, owing royal subservience of some judges the 17th and 18th century English kings, without meaningful recourse to writ corpus:6 of habeas In fact, only on one previous occasion has this Court ever
5 Celia, Legislative The Doctrine Privilege of of Speech Freedom of Past, and Debate: Its Present and Future as a Bar to Criminal Courts, Prosecutions in the 2 Suffolk 1,15 (1968); Note, L. Rev. The Congressman’s Bribed Immunity Prosecution, from 75 Yale L. J. 335, (1965). 337-338 6 Wittke, History See C. English of Parliamentary Privilege (1921). 23-32 context in the Clause or Debate Speech interpreted Congress. of a Member charge against criminal of a re- Court Johnson, supra, States United (a) Representative former of a conviction viewed conflict-of-interest federal violating the of seven counts count one and on ed.), (1964 §281 C. statute, 18 S.U. C. 18 U. S. States, United to defraud conspiracy of the convic- set aside Appeals had 371. The Court § violating defraud as conspiracy to tion on count Harlan, speak- Mr. Justice Debate Clause. or oft-quoted at cited S., 383 U. Court, ing for Wason, parte Ex L. R. Lush of Mr. Justice passage (1869): Q. B. 573 not ought that we clearly opinion
“I am mo- moment for a to be doubted allow it can- House either or intentions members tives with proceedings by criminal inquired into in the say may do anything they respect added). Id., House.” (emphasis at *8 (1881), Thompson, 103 U. S. In Kilbourn interpreted the Court in which this first case of view a similar expressed Clause, the Court or Debate the Court There privilege. American the ambit of any- broadly to include to be read the Clause is said one House done a session thing “generally before it.” the business in relation to members of its ap- with Id., was cited statement, too, This at 204. Johnson, conclu- 179. S., at Our U. proval Mem- protected in Johnson was privilege sion motivation or the legislative into acts inquiry from bers Id., at 185. acts. performance for actual Clause, Court Speech or Debate applying the Johnson prose- specific facts focused on an alleged count conspiracy-to-defraud cution. co- Johnson and three among Representative agreement defendants to obtain the dismissal of pending indict- ments against officials of savings loan institutions. For these services, which included speech made Johnson on the House floor, the Government claimed Johnson was paid a bribe. At trial, the Government questioned Johnson extensively, relative to con- spiracy-to-defraud count, concerning the authorship of the speech, the factual basis certain statements made in the speech, and his motives for giving the speech. The Court held that the use of evidence speech to support a count under a broad con- spiracy statute prohibited by the Speech or Debate Clause. The Government was, therefore, precluded from prosecuting the conspiracy count on retrial, insofar as it depended on inquiries speeches into made in the House.
It important to note very narrow scope of the Court’s holding in Johnson:
“We hold that
prosecution
under a general crim-
inal statute dependent on such inquiries [into the
speech or its preparation]
necessarily contravenes
the Speech or Debate Clause. We emphasize that
our holding is limited to prosecutions involving cir-
cumstances
such as those presented in the case
before us.”
prosecution which, though possibly entailing
ref-
some
erence to legislative acts, is founded upon a “narrowly
drawn”
passed
statute
by Congress in the exercise of
its power to regulate its Members’ conduct. Of more
relevance to this case, the
Court
Johnson emphasized
its decision did not affect a prosecution that,
though founded on a criminal statute of general appli-
*9
cation, “does not draw in question the legislative acts
of the defendant member of Congress or his motives
for performing them.”
Id., at 185. The Court did not
try Johnson
States to
of the United
power
question the
and it authorized
counts,
on the conflict-of-interest
ref-
that all
count, provided
conspiracy
on the
new trial
eliminated.7
were
speech
of the
making
the
erences to
affirmed
have
the Court would
Three members
joined
Warren,
Chief Justice
Mr.
conviction.
Johnson's
Douglas
Brennan,
and
Justice
Mr.
Justice
Mr.
stated:
part,
in
dissenting
part
in
and
concurring
my conclusion
it
record,
reading
“After
determining
erred
Appeals
the Court of
that
infected
speech
concerning the
the evidence
on the
judgment
[conflict-of-interest]
jury's
prosecu-
supports
amply
The evidence
counts.
counts—
on these
jury’s verdict
theory and the
tion's
for at-
$20,000
over
received
respondent
dismiss
Department
the Justice
to have
tempting
co-conspirators,
[present]
his
against
an indictment
This
enterprise.
his role in the
disclosing
without
by a
of 281§
example of
violation
classic
The arguments
. . .
Congress.
Member of
instructions
the court’s
and
counsel
government
the substantive
conspiracy from
separating the
speech was
unimpeachable.
seem
counts
noth-
There was
prosecution.
part
minor
respond-
to inflame
jury
ing
his
evidence of
it as
pride to
pointed with
ent
institutions
the financial
protecting
vigilance
reveals that
further
The record
his State.
a finding
well
were
aware
participants
trial
sim-
did not authorize
criminality
one count
conspiracy count
remand,
Court dismissed
the District
On
Johnson was then found
objection from the Government.
without
counts,
was affirmed.
remaining
conviction
guilty on the
denied,
(CA4 1969),
Johnson,
F. 2d 56
cert.
United States v.
(1970).
ilar conclusions as to other counts, and I believe this salutary principle was conscientiously fol- lowed. I Therefore, would affirm the convictions
the substantive Id., counts.” 188-189. (Foot- at note omitted.)
Johnson thus as stands a unanimous holding that a Member of Congress may prosecuted under a crim- inal statute provided that the Government’s case does not rely on legislative or acts the motivation for legislative A acts. legislative act has consistently been defined as an generally act done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House Senate performance official duties and into the motivation for those acts. It is well known, of course, that Members the Con- gress engage in many activities other than the purely legislative activities protected by the Speech or De- bate Clause. These include a wide range of legiti- mate “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, speeches de- livered outside the Congress. The range of these related activities grown has years. over the They are performed part because they have come to be expected by con- stituents, and because they are a means of developing continuing support for future elections. Although these are entirely legitimate activities, they are political nature rather than legislative, in the sense that term has been used by the Court in prior cases. But it has never been seriously contended that these political matters, however appropriate, have protection afforded by the Speech or Debate Clause. Careful examination of the decided cases reveals that the Court has regarded pro- tection as reaching only those things “generally done in a in relation members its one House session supra, Thompson, Kilbourn it,” before business to the representative, by him, or done “said things 204, or at *11 office,” of that functions the in exercise Coffin the (1808). 4 Mass. Coffin, ex- Johnson we in however, that argues, Appellee (b) or Speech the coverage of for the test a broader pressed Clause that we held the urged It is that Clause. Debate all conduct judicial inquiry or from executive protected proc- legislative the functioning to the due “related the in appear words the quoted that is true It ess.” of con- out takes them appellee but opinion, Johnson meaning different quite they reflect context in text; against indictment the Although urged. from that now count was one counts, only eight contained Johnson Speech of the in violation this Court as before challenged concerned seven counts The other Clause. or Debate of the Jus- members staff influence to attempts Johnson’s In ex- prosecutions. pending to dismiss Department tice Court, the not before were why those counts plaining wrote: Harlan Mr. Justice that think do nor we is made, argument
“No contended, that successfully be could in- as was conduct, such reaches Debate Clause Department influence attempt in volved related to no wise that Justice, due It process. legislative functioning of an conspiracy statute broad of this application con- raises the speech that motivated improperly S., we U. which deal.” with problem stitutional omitted.) added; footnote (Emphasis 172. at “in no wise related things those stating not were process” functioning due any did not sense Court by the privilege, covered “related” to corollary everything imply as office of a Member was shielded the Clause. Quite the contrary, in Johnson we held, citing Kilbourn v. Thompson, supra, that only acts generally done in the course of the process of enacting legislation protected. were
Nor can we give Kilbourn a more expansive inter-
pretation.
In citing with approval,
“[The Massachusetts legislative privilege] ought construed strictly, but liberally, that full design of it may be answered. I will not con- *12 fine it to an delivering opinion, uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written re- port, and to every other act resulting from the nature, and in the execution, of the office: and I would define the article, as securing every to mem- ber exemption from prosecution, every thing said or done by him, as a representative, in the exercise the of functions of without enquiring office whether the exercise was regular according to the rules of the house, or irregular and against their rules. I do not confine the member to his place in the house; I and am satisfied that there are cases, in which he is entitled to this privilege, when not within the walls of the representatives’ cham- ber.” Id., at 27 (emphasis added).
It is suggested that in citing these words, which were quoted also with approval in Tenney v. Brandhove, 341 U. S. 367, 373-374 (1951), the Court was interpreting the sweep of the Speech or Debate Clause to be broader than Johnson seemed to indicate or than we today hold. Emphasis placed on the statement that “there are privilege, to this entitled Member] in which [a cases cham- representatives’ the walls the not within when indicates v. context the But Coffin ber.” Coffin only referring was Parsons Justice Chief passage in this which meetings, as committee such acts, legislative to legislative the confines physical the outside place take clarified: meaning is passage, another In chamber. in sitting chamber, out of ... be member “If a house, the commission executing committee, is within member such me that appears considered ought article, reason of ais he of which body privilege. within of that member he, as a session, inis member, office. of his the duties discharging fact in body, is civil from protected to be therefore He ought or done said every thing prosecutions criminal repre- functions, as of his exercise in the by him in as- debating, committee, either sentative 8 Mass., report.” draughting inor to, senting at 28. Clause treated ever this Court has no case process.9 relating conduct
protecting all Court, this far before case thus In every which an act limited has been Clause or Debate Coffin, court to note important *13 especially is It Coffin of executing the duties was not the defendant concluded hence was plaintiff and the allegedly defamed when he office privilege. claim of to the entitled 9 attribute seeks to BrennaN Mr. Justice “concession1’ Court in the District argued case lawyer who the Government that court arguments in of the than failure no more reveals myriad acts and true between on the distinction focus The “con Congress. Member of a functions political related revealing that clearly question to a response came cession” the office “related” protected acts all treated Court District him, done is “said or to what limiting protection than rather that office.” the functions in the exercise representative, as a clearly part of the legislative process due func —the tioning the process.10 Appellee’s contention for a broader interpretation of the privilege draws essentially on the flavor of the rhetoric and the sweep of the lan guage used by courts, not on precise words used in any prior case, surely not on the sense of those cases, fairly read.
(c) We would not think it sound or wise, simply out
of an abundance of caution to doubly insure legislative in-
dependence, to extend the privilege beyond its intended
scope, its literal language, and its history, to include all
things in any way related to the legislative process.
Given such a sweeping
we
reading,
have no doubt that
there are few activities in which a legislator engages that
he would be unable somehow to “relate”
legisla-
process.
tive
Admittedly,
or Debate Clause
must be read broadly to effectuate its purpose of pro-
tecting the independence of the Legislative Branch, but
no more than the statutes we
apply,
its purpose to
make Members of Congress super-citizens,
immune from
criminal
responsibility.
In its narrowest
scope,
Clause
a very
large, albeit essential, grant of privilege.
It has enabled reckless men to slander and even destroy
others with impunity, but that was the conscious choice
of the Framers.11
10See
Kilbourn
ment of
witness
legislator
state
during legislative
hearing; not a
Speech or Debate Clause case); United
v. Johnson,
States
383 U. S.
(1966)
(making
speech
on House floor); Dombrowski v.
Eastland,
517 by no free from of the means history privilege The In one abuses by instance, grave legislators. abuses Parliament was England reached such level compelled legislation. to enact curative practice
“The
the
of freedom
granting
privilege
from
to
arrest and molestation
members’ servants
lib-
in time became a serious menace to individual
erty
to
form of
public
protection
and
and a
order,
by
they
which offenders often tried —and
were often
escape
penalties
successful —to
which their of-
ordinary
fences
and which the
courts would
deserved
to inflict.
the sale of
Indeed,
have hesitated
income
'protections’
proved
at one time
a source of
unscrupulous members,
parliamentary
and these
obtainable
'indulgences’ were
several occasions
price.”
Wittke,
History
at
fixed market
C.
Parliamentary Privilege
(1921).
39
English
aware
The authors of
Constitution were well
our
history
privilege
of both
need
sweeping safeguards.
could
from too
abuses that
flow
preserve
priv-
In order
other
wrote the
values,
they
protects
so that
behavior on
ilege
tolerates
done
part
protected
not tolerated and
when
Members
beyond
but
extend
citizens,
other
the shield does not
necessary
preserve
legis-
integrity
what
unlike
with no
process.
England
lative
Moreover,
mon-
written constitutional
limitations on the
formal,
branches, pro-
on the co-ordinate
arch,
defined limits
we
objection
recompense or satisfaction. The truth of the
is ad-
injury
reputation
private
of a
citizen is
mitted.
. . . The
importance
commonwealth,
of less
to the
than the free and un-
representative,
reserved exercise of
duties of a
unawed
legal prosecutions.”
Coffin, Mass.,
v.
fear of
at 28.
Coffin
783,
Couzens, App.
Cochran
2d
See
D. C.
F.
cert.
(1930)
denied,
(defamatory
viding country. in that experienced interpreted if we that, even suggested
It is also all matters inquiry from exempt as to broadly Clause so mis- process, relationship to the any having necessarily unpunished go Members would of conduct Mem- discipline its empowered is House because each each House to empower does indeed I, 5,§ bers. Article Mem- its punish Proceedings, of its the Rules “determine and, the Concurrence with disorderly Behavior, for bers ill-equipped Congress but expel Member,” thirds, two wide for a Members punish and its investigate, try, incidentally related loosely and behavior range English sense, In this process. to the legislative emphasis, place much the dissents on which analogy Wason, 573 Q. R. B. parte Ex L. the reliance Court High “The Parliament is itself inapt. (1869), are its court in the land-—-and highest of Parliament” —the tasks. judicial it for equips better judicial tradition say that exaggeration [the means an “It is no colored and characteristics judicial Parliament] [legisla- struggles over great some of the influenced very to the of Parliament in and privilege out tive] century. altogether is not It nineteenth of the close entirely forgotten been they have certain whether theory Parliament Nowhere has even now. realm, often court of highest is a court —the man- judicial in a capacity and judicial ain acting privilege history in the than longer persisted ner — 14. supra, at Wittke, of Parliament.” Eng- of Parliament supremacy very fact pre- long tradition explains tribunal highest land’s any of member official misconduct for cluding trial tribunal. and lesser other legisla- provision Canada, “where
In Australia tive speech free or debate exists but where the legislature may not claim a tradition as the highest court of the realm, courts have held that the privilege does not bar prosecution the criminal of legislators bribery.” Note, The Bribed Congressman’s Immunity from Prosecution, 75 Yale L. (1965) (footnote J. omitted). Con- gress has shown little inclination to exert itself in this area.12 if Moreover, lay did aside its normal *16 activities and take on responsibility itself the to police prosecute myriad of its re- activities Members directly lated to but not part function, of the legislative independence actually of Members might individual impaired. process The of a Member in the Con- disciplining gress is not without risks of abuse since countervailing it panoply protective surrounded with the of present shields are An a criminal case. by specifically accused Member is no articulated judged mercy standards13 and is at un- of an almost body bridled discretion of the charging functions accuser, at once as prosecutor, judge, jury from whose decision there is no of right established review. short, compelled a Member would be to defend in what comparable prosecution would be ato criminal without safeguards provided by the Constitution. More- it would be over, somewhat naive to assume that the triers wholly objective would be and free from considerations 12 Thomas, People Freedom of Debate: Protector of the See Criminal?, 74, (No. 3, Haven for the 3 The Harvard Rev. 80-81 Congressman’s Immunity Prosecution, 1965); Note, The Bribed from 335, (1965); Oppenheim, Congressional 75 Yale L. J. 349 n. 84 Free 1, Loyola Speech, (1955-1956). L. Rev. 27-28 g., See, Chapman, (1897): In re e. 166 U. 669-670 S. right expel “The extends all eases where the offence is such judgment as in the is inconsistent Senate with the trust and duty a member.” of party and politics passions and the of the moment.14
Strong arguments can be made trials conducted Congress with an entrenched majority from one political party could result in far greater harassment than a conventional criminal trial with range wide procedural protections for the in- accused, including dictment grand jury, trial jury under strict stand- proof ards of with fixed rules evidence, and extensive appellate review.
Finally, jurisdiction of Congress punish its Members is not all-embracing. For instance, is un clear to what extent would jurisdiction have over case such as this in which the alleged illegal activity occurred outside the chamber, while appellee was a Member, but was undiscovered or not brought before a grand jury until after he left office:15 claims sweeping appellee would render Mem- bers of Congress virtually immune from a wide range of crimes simply because acts question were peripherally related to their holding office. Such claims *17 are inconsistent with the reading this Court has given, not only to Speech the or Debate Clause, but also to the other legislative privileges embodied in Art. I, 6.§ The very sentence in which the Speech or Debate Clause appears provides that Members “shall in all Cases, ex- 14 the See account of impeachment the of President Andrew Johnson in Kennedy, J. in Courage Profiles (1955). 126-151 See also the account of the impeachment of Mr. Justice Samuel in Chase 3 A. Beveridge, The Life of John (1919). Marshall 169-220 15“. . English . Parliaments historically have reserved to themselves and still retain the sole and right exclusive punish their members for acceptance of a bribe discharge in the of their office. No member of may Parliament be tried for such an any offense in court of the Celia, land.” supra, n. at 15-16. obviously That this is not the case in country implicit this is in the Representa remand of tive Johnson to bribery charges. be retried on
521 priv- Felony Peace, be Treason, and Breach cept Attendance at the Session during from Arrest their ileged In Williamson v. . . .” Respective of their Houses. States, rejected (1908), 425 this Court United U. S. by a convicted of subornation claim, made Member public lands, for perjury proceedings purchase convicted, imprisoned be or arrested, he could not any crime that was not or breach treason, felony, for peace sense, e., disturbing in the modern i. Edward White noted that peace. Douglass Mr. Justice was written the term "breach of when the Constitution later, did not as it came to mean mis- peace” mean, different disorderly conduct but had a demeanor such as derived from century usage, breaching since it 18th of crimes range embraced the whole peace and thus King’s Mansfield, noted, Lord he with Quoting law. at common privilege, parliamentary the claim of respect “[t]he employment as a country place allow no laws of this Id., crime . . . .” at 439. sanctuary for Ansell, 293 Long U. S. subsequent case immunity from arrest held that a Member’s (1934), Jus- process. did not to civil Mr. civil cases extend Court: Brandéis wrote tice the extent of the Art. I, § 6] “Clause defines [of exact and leaves no room immunity. is language Its priv- would extend construction which Id., 82. at beyond grant.” the terms of the ilege against arrest privilege recognize We but privilege, Speech or Debate identical with hardly It can origin. closely purpose related totally pro- or Debate Clause that the thought *18 open left plainly preceding the sentence has tects what e., criminal acts. i. all prosecution, to (d) Me. permitting suggests White Justice Member of Con- of a prosecution initiate the Executive to 522 bribery for the
gress specific subject crime of to serious potential that might independence abuse endanger of the legislature example, campaign contribution —for might by prosecutor bribery be twisted a ruthless into a indictment. But, just noted, we have the Executive is not alone in power possessing potentially subject abuse; possibilities system such are inherent in a government that delegates each of the three branches separate and independent powers.16 In The Federalist
16The potential
by
unscrupulous
harassment
an
member of
may exist,
Executive Branch
country
but this
no
has
tradition
congressional
immunity
absolute
prosecution.
from criminal
See
United
Quinn,
v.
Supp.
(SDNY
States
141 F.
1956) (motion
622
acquittal granted because the
Member of
defendant
receipt
unaware of
of fees
firm);
States,
his law
Burton v. United
202
(1906) (Senator
U. S. 344
convicted for accepting compensation
to intervene before Post Office Department); United
Die
States v.
trich,
(CC
523 No. 73, Hamilton expressed concern possible over the hazards that confronted dependent an Executive on Con- gress for financial support.
“The Legislature, with a discretionary power over salary and emoluments of the Chief Magistrate, could render him obsequious to their will as they might proper think to make him. They might, in most cases, either by reduce him famine, or tempt him largesses, to surrender at discretion judgment their inclinations.” Yet Hamilton’s “parade of horribles” little real finds support history. The check-and-balance mechanism, buttressed unfettered open debate in an society with press, free has encouraged of power abuses or toler- ated them long they when arose. This be explained may part because the has third branch intervened with authority. neutral g., e. See, Lovett, United States v. 328 U. system S. (1946). powers divided expressly designed to check the England experi- abuses enced in the 16th to the 18th centuries.
Probably of importance more is the public reaction engendered by any attempt of one branch to dominate another. Even harass political traditional attempts to establish dominance have met with little owing success contrary popular Attempts sentiment. to “purge” uncooperative legislators, for example, have not been notably successful. We are not cited to any cases in which bribery statutes, which have been appli- cable to Members Congress for over 100 years,17 weapons without of its own and would no doubt use them if it thought the unjustly Executive were harassing one of its members. Perhaps important more omnipresence of the news media whose traditional function competitive inclination afford no immunities to irresponsible reckless or official misconduct. bribery The first applicable statute Congressmen was enacted in 1853. Act of 26, 1853, 81, Feb. c. 10 Stat. 171. § by Branch. When a
have been abused Executive powerful Executive to make the Branch sought Judicial responsive more to the combined will of the Executive *20 Branches, and Legislative Congress it was the that itself enlarge checked the effort the Pusey, to Court. M. Evans Hughes (1951). Charles 749-765 eyes We would be our to the closing of the realities American political system if we failed to acknowledge many non-legislative activities are an established accepted part and of the role of Member, a and are indeed “related” to process. the if legislative But the may prosecute Executive a attempt, Member’s as in Johnson, to influence another branch of the Government in return for a bribe, power its to harass is not greatly if enhanced it can for prosecute promise to a relating legislative act in return a bribe. We therefore see no substantial power increase in of the the Executive and Judicial Branches over the Legislative Branch resulting from our holding today. If we underestimate po- the tential harassment, the of Congress, is free course, to exempt its Members from the ambit of bribery federal laws, but has deliberately allowed the instant statute to remain on the books for over century.
We do not discount entirely the possibility that an abuse might occur, but this possibility, which we consider remote, must be balanced against the po- tential danger flowing from either the absence of bribery statute applicable to Members of a holding that the statute violates the Constitution. As we noted at the outset, of purpose or Debate Clause is protect to the individual legislator, not simply for his sake, own but preserve to the inde- pendence and thereby the integrity of the legislative process. But financial abuses by way of bribes, perhaps even more than Executive power, would gravely under- mine legislative integrity and defeat the right of the the Execu- Depriving public representation. honest to prosecute investigate to power of the tive of bribery of Members power punish to Judiciary independence. legislative to enhance unlikely Congress is House each and limitations Given the disinclination both it is understandable police matters, these deliberately courts, this function to delegated Houses punish persons committing they power did with the 194. U. S. C. contempts Congress. § Speech or Debate beyond doubt It that occur inquiry acts protects against Clause into and into process course regular priv- expressed, for those acts. So motivation independence the historic ilege enough broad insure separation Branch, essential our Legislative *21 against enough guard of but narrow powers, by corrupt process excesses of those would who determine We turn next corrupting its Members. is within subject inquiry criminal whether the this scope of the privilege. Ill against brought An examination of the indictment founded re- it is on which appellee and the statutes or motivation legislative into acts inquiry veals that no for the Government is necessary acts Four of the five counts a case. prima make out facie sought, “corruptly asked, solicited, appellee charge money “in to receive” agreed received and accepted, action, respect in to his influenced being return for ... which legislation rate postage vote, and decision official him in his any pending time be before at might C. 18 U. S. is said to be a violation capacity.” This Member who “cor- provides that a (c), which § re- demands, solicits, accepts, ruptly asks, seeks, exacts, in of value anything to receive ... ceives, agrees or return (1) for . . . being influenced performance of any official act” is guilty of an offense.
The question whether it is necessary to inquire into appellee how spoke, how he debated, how voted, he anything he in the did chamber or in committee in order to make a out violation of this statute. The illegal con- duct is taking or agreeing to take money for promise act a certain way. There is no need the Govern- ment to show that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise.
Taking a bribe is, obviously, no part of the legisla-
process
tive
or function;
a legislative act.
It is
not,
any conceivable interpretation, an
performed
act
part
of or even incidental
to the role of
legislator.
It is not an “act resulting from the nature, and in the
execution,
the office.” Nor is it a “thing said or
done
him, as a representative,
in the exercise of the functions of
that office,”
Nor does it matter if the Member defaults on his illegal bargain. To make prima facie case under this indict- ment, Government need not show any act of appellee subsequent to the corrupt promise for payment, for it taking the bribe, not performance of the illicit compact, that is a criminal act. If, for example, there were un- disputed evidence that Member took a bribe in exchange to vote for bill and if there were agreement given for an he, fact, against evidence that voted undisputed also can it be that alters nature bill, thought this from the bribery wrongdoing or it area removes make a crime? sought to Congress appellee al- against count of the indictment Another solicited, “asked, demanded, exacted, that he leges money accepted, to receive” sought, agreed received him performed “for and because official acts to rate respect action, postage vote and decision on him in his pending which had been before legislation of- ...This count on 18 U. C. capacity ficial is founded S. provides which that a Member of (g), §201 re- accepts, “asks, demands, exacts, solicits, seeks, who him- to agrees anything or receive of value ceives, any performed self for or because of official or to act by him” performed guilty Although of an offense. the indictment that for an alleges given bribe was actually act was it once un- performed, is, again, necessary inquire into the To act or its motivation. necessary appellee sustain a conviction it is to show that money or solicited, received, agreed to with receive, knowledge compensa- the donor him paying an tion for official act. Inquiry per- into the legislative formance itself is not necessary; evidence of Mem- knowledge ber’s of the alleged briber’s illicit reasons for paying money carry is sufficient to the case to the jury. heavily
Mb. rests on the fact Justice White charges the offense part being indictment linked Brewster’s “action, vote and decision postage leg- rate true, course, This is islation.” but our in John- holding precludes any son showing of how he acted, voted, decided. The dissenting position on the fragile stands proposition that “would take the Government at its respect word” with wanting prove agree what we all *23 protected are acts that cannot be shown evidence. Perhaps the Government would make a more appealing case if it so, could do but here, as in that evidence case, acts protected the Clause is inadmissible. The Government, we prove any have need not noted, spe- cific act, speech, debate, or decision to establish viola- tion of the statute under appellee which was indicted. accept arguments To of the dissent would be to retreat from position the Court’s in Johnson that a Member may be convicted if no of legislative showing act required.
Mr. Justice Brennan suggests inquiry into the alleged bribe is into the inquiry motivation for act, and it is urged very inquiry this was condemned as impermissible in Johnson. That argument miscon- strues the concept of motivation for legislative acts. The or Debate Clause does prohibit not inquiry into conduct illegal simply because it has nexus some to legislative Johnson, functions. the Court held that, on remand, Johnson could be retried on the con- spiracy-to-defraud count, so long as evidence concerning speech on the House floor was not admitted. The Court’s opinion plainly implies that had the Government chosen retry Johnson on that count, he could not have obtained immunity prosecution from by asserting that the matter being inquired into was related to the motiva- tion for his speech. House See n. 7, supra. only reasonable reading of the Clause, consistent
with its history and purpose, is that it does not pro- hibit inquiry into activities that are casually or inci- dentally related to legislative affairs but not part the legislative process itself. Under this indictment and these statutes no proof such is needed.
We hold that under these statutes and this indictment, prosecution of appellee is prohibited by the Speech *24 the judgment the Accordingly, Clause.18 Debate or for remanded case is and is reversed Court District opinion. this with consistent proceedings further remanded. Reversed Justice whom Brennan, with Mr. Justice Mr. Douglas dissenting. joins, I had Court, before came case first this When is, issue —that well-defined presented single, it thought narrowly by a authorize could Congress whether Repre- of a Senator prosecution statute the drawn prosecu- from immune otherwise for sentative conduct of the Con- Clause or Debate Speech tion under charged 7 the indictment 5, and of 3,1, Counts stitution. “in return $19,000 receiving with Brewster Senator acts of official performance his influenced being rate postage on decision action, vote, and to his respect before pending any time be at might which legislation Senate a member capacity his official [as him in the Senator charged 9 Count Committee].” Post Office already performed for acts $5,000 of another receipt with and decision” vote “action, respect with him fell me, seemed to it These charges, legislation. on that or Debate prohibition the clear within par- Court, of this interpreted decisions Clause (1966). Johnson, 169 S.U. ticularly United States Con ruling Member of that a reversing District Court’s of the federal constitutionally for a violation tried may be gress question open in left statutes, express no views bribery we probes into inquiry that constitutionality of an to the Johnson as legislative if acts the motivation acts or narrowly statute. Should in a drawn authorizes such specifically sustained, then a conviction inquiry and should be made an such inquiry legislative acts into question whether face we would narrowly drawn statute. under such permissible motivation if For the indictment did not into call question “speeches or debates” of the Senator, certainly laid open scrutiny motives for his legislative acts; and those I motives, had supposed, were more no sub- ject judicial executive and inquiry than the acts themselves, unless, course, the Congress could dele- gate inquiry such to the other branches.
That, apparently, was the Government’s view of the case as well. At the hearing before the District Court *25 the prosecutor was asked point blank whether “the in- dictment any in wise allege that any- [d] Brewster did thing not related to his purely legislative functions.” The prosecutor responded:
“We are not contending that what is being charged here, is, that the activity by Brewster, any- thing other than a legislative act. We are not ducking the question; it is squarely presented. They are legislative acts. areWe not going quibble over that.” App. 28. in Government, other did words, not challenge the
applicability the Clause to these charges, but argued only that prohibitions its could be avoided, “waived” as it were, through congressional authorization in the form of a narrowly drawn bribery statute. The District Court accepted the Government’s of the reading indictment and held that the Senator could prosecuted not be for this conduct even under the allegedly provisions narrow of 18 U. C. §201: S.
“Gentlemen, based on the facts of this case, it is by admitted the Government that the five counts of the indictment which charge Senator Brewster relate to the acceptance of bribes in connection with performance of a legislative by function a Senator of the United States.
“It the im- opinion this Court Debate Clause munity Speech under particularly view Constitution, interpretation by Supreme given that Clause Court shields con- Johnson, Brewster, Senator stitutionally any prosecution him from shields bribery act.” alleged perform for App. 33. initial brief this
Furthermore, the Government’s Johnson recognition its Court, reflecting doubtless today, Court rejected analysis adopted had acceptance prosecution did not that a argue of. falls promise way in return for a to vote a certain bribe Debate Clause. prohibition outside the least conceded or at Rather, the Government’s brief “Speech or assumed that such conduct does constitute may statute, enact a Debate,” urged but judicial trial of providing § such 18 TJ. S. C. crime. alleged Given these admissions the Government and *26 District Court’s construction of which indictment, Court, settled doctrine United binding makes this only Jones, States v. 377, (1953), 345 U. S. properly empow before was issue us whether ered to Branches delegate the Executive Judicial protected the trial a member for conduct otherwise un Today, the Court finds it however, Clause. necessary it indict issue, to reach that for finds that the receipt of a ment, though charging legislative bribe “no into acts or motiva acts, legislative entails inquiry ante, acts,” at and thus is not tion permits the Court doing covered the Clause. so from its firm admissions, the Government to recede binding the District Court’s construction ignores indictment, and —most important repudiates prin- —it ciples of legislative freedom developed over past century in a line of cases culminating Johnson. Those which principles, are vital to the right of the people represented by Congressmen of independence and integrity, deserve more than the hasty burial given them by the Court today. I must therefore dissent.
I I would dispel at the outset any notion that Senator Brewster’s asserted immunity strains outer limits of the Clause. The Court writes at length in an effort to show that "Speech or Debate” does not cover “all conduct relating to the legislative process.” Ante, at 515. Even assuming the validity of that I conclusion, fail to see its relevance to the instant case. Senator Brewster is not charged with conduct merely “relating to the legislative process,” but with a crime proof whose calls into question very motives behind his legisla- tive acts. The indictment, then, lies not at the periphery but at the very center of the protection that this Court has said provided a Congressman under the Clause.
Decisions of this Court dating as far back as 1881
have consistently refused to limit
concept
of “legis-
lative acts” to the “Speech or Debate” specifically men-
tioned in Art. I, § 6.
In Kilbourn v.
“It would be a narrow view of the constitutional
provision to limit it to
spoken
words
in debate. The
reason of the rule is as forcible in its application to
written reports presented in that body by its com-
mittees,
to resolutions offered, which,
though
*27
writing, must be reproduced in speech, and to the
act of voting, whether it is done vocally
byor
passing
between the tellers.
In short,
to things generally
by one of members
in session of the House
its
done
Id.,
in
before it.”
at 204.
to the business
relation
adopted
the Court
what was
reaching
conclusion,
its
Massachusetts in
by
Supreme
said
Judicial Court of
Kilbourn held to
Coffin,
(1808),
Mass.
which
Coffin
perhaps
country
“the
in this
most authoritative case
in
freedom of
provision
regard
construction of the
S.,
debate in
. . . .” 103
at 204.
bodies
U.
Chief
Parsons,
Justice
speaking
the Massachusetts
Kilbourn
court, expressed what
and later decisions saw
generous
properly
legislative privilege:
view
privileges
“These
are
not with the in-
secured,
thus
tention of
the members
protecting
against prosecu-
for their own benefit,
support
tions
but to
the rights
people,
enabling
representatives
their
execute the functions of their office without fear of
I
prosecutions, civil or criminal.
therefore think
the article ought
strictly,
not to be construed
but
liberally,
may
the full
of it
design
be an-
swered.
I will not confine it to
an
delivering
opin-
ion, uttering a
speech,
haranguing
debate; but
will extend it to the giving of a
to the
vote,
making
every
a written report, and to
other act resulting
from the
and in
nature,
of the office:
execution,
and I would define
article,
every
as securing to
member exemption from
prosecution,
every thing
said or done
him, as a
exer-
representative,
cise of the functions of that office; without enquiring
whether the exercise was regular
according
of the house, or
irregular
against
rules
their
I do
rules.
not confine
place
the member to his
I
house;
and am satisfied that there are cases,
in which he is entitled to this privilege, when not
within the walls of the representatives’ chamber.”
534
There can be no that Senator Brew- doubt, therefore, postal legislative on new rates constituted ster’s vote The activity of the Clause. Sen- meaning within prosecuted ator could not or called to answer for his any judicial or But proceeding. vote executive beyond I the vote immunity, submit, goes Senator’s scrutiny as precludes extra-congressional itself and all vote why cast, to how and he or would have cast, Brandhove, 341 way. Tenney a certain U. S. a plaintiff state (1951), charged proper legisla- not for a hearing being conducted of him. purpose solely harassing tive but means lie held no action would Nevertheless the Court against rights the committee members under federal civil statutes. Mr. Justice Frankfurter stated: unworthy purpose
“The claim of an does not destroy the immune from privilege. Legislators are deterrents to the uninhibited of their discharge private not for legislative duty, indulgence their but public good. expect One must not uncom- mon courage even in legislators. privilege would be of if they subjected little value could be to the cost and inconvenience and of trial distractions upon a conclusion or to the pleader, hazard of a judgment against upon jury’s them based speculation as to motives. The holding this Peck, Court in Fletcher v. 87, 130, Cranch was not consonant with our scheme government inquire a court to into the of legislators, motives has remained unquestioned. . . . . In political
“. . times passion, dishonest or readily vindictive motives are attributed to legisla- tive readily conduct and as believed. Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for dis- Id., 377- at abuses.” such correcting couraging 378. prose- this to authorize power
Barring congressional sufficient seem far would *29 thus has said been what cution, neither for dismissal, of order of the affirmance require to how- voting, for motives nor his vote Brewster’s Senator or crim- civil of a subject the may be dishonorable, ever There the halls of Senate. the outside proceeding inal follows It conclusion. this complicated about nothing Court, of this prior decisions from inescapably and simply legisla- of elements most basic the forth supra, setting those apply to declines Court the immunity. Yet tive the finds that somehow for it case, this principles the referring without its case prove can Government the According or motives. acts official Senator’s Counts on proof limit its can Government the Court, Brewster’s concerning Senator 7 to and evidence I, 3, to act promise for a money to take agreeing or “taking appellee “that show need not way,” a certain the of acceptance bargain; illegal alleged the fulfilled performance not statute, violation is the bribe Similarly, Ante, at 526. promise.” illegal of the merely by show- proved be 9 can that Count finds Court “with money or received solicited the Senator that ing compensation him paying donor that knowledge legis- “into the any inquiry without act,” an official Ante, These 527. evi- at itself.” performance lative to avoid sufficient deemed are limitations dentiary Clause. Debate prohibitions adopted has Court I think respect, all With us. before charges view artificial wholly but money, receipt mere alleges, indictment vote Senator’s exchange money receipt as these way. Insofar certain in a vote promise can- Government cast, the already votes bear charges not avoid proving performance of the bargained-for acts, for it is the acts themselves, together with the motivating bribe, form the basis of 9 of Count the indictment. Proof of “knowledge that the donor was paying ... for an official act” may be enough for conviction under § 201(g). But assuming it is, Government still must demonstrate the “official act” referred to was actually performed, for that is what the indictment charges. Count 9, in other words, calls into question both the performance of official acts the Senator and his reasons for voting as he did. Either inquiry violates the Speech or Debate Clause.
The counts charging only corrupt promise to vote are equally repugnant to the Clause. The may Court correct that only receipt of the bribe, and not perform- *30 ance of the bargain, is needed to prove these counts. But proof of agreement an to be “influenced” in the performance of legislative acts by is definition an in- into quiry their motives, whether or not the acts them- selves or the circumstances surrounding them ques- are tioned at trial. Furthermore, judicial inquiry into an alleged agreement of this kind carries with same the dangers to legislative independence that are held to bar accountability for official conduct itself. As our Brother White cogently states, post, at 556:
“Bribery is most often carried out by prearrange- if ment; that part of the transaction may be plucked from its context and made the basis of criminal charges, the Speech or Debate Clause loses its force. It will be small comfort for a Congressman to know that he cannot prosecuted for his vote, what- ever it may be, but he can be prosecuted for an alleged agreement even if he votes contrary to the asserted bargain.” I impression, first if were an issue even this
Thus, an extra- being prosecution, hold that this would motives, and acts into inquiry congressional Clause. Speech or Debate by is barred re- Court’s disturbing about especially is What of first im- an issue is that this however, sult, years ago in United six but one that was settled pression, a former States Johnson, (1966). There 383 U. S. federal violating with charged was Congressman (1964 ed.), statute, 18 U. C. 281§ conflict-of-interest S. 18 U. C. States, S. conspiring
with to defraud United exchange agreement a bribe in accepting § against pending dismissal federal indictments seek companies. loan Part savings officers of several speech delivered Johnson conspiracy alleged companies loan House, floor favorable at speech The Government relied on generally. extensively about its con- questioned trial and Johnson tents, authorship, delivering and his reasons it. conviction, Appeals conspiracy set aside the Court of barred such or Debate Clause holding promise prosecution corrupt based on an allegedly that deci- congressional speech. appealing deliver a very argument sion the same Government th'e made appears persuade today: Court applicable rationale of the Clause]
“[The content upon legislator’s speech suits based of a *31 immunity necessary prevent or where action, to public impediments discharge to the free of his duties. But him im- justify granting it does not munity from prosecution for or accepting agreeing accept money speech Congress. make a poses reasonably latter case no threat which could cause a Congressman to restrain himself in his speech, official because no speech, such, is being questioned. It only the antecedent conduct of accepting or agreeing to accept the bribe which is attacked in such prosecution. ‘Whether party taking the bribe up lives to his promise corrupt is immaterial. The agreement is the essence of the offense; when that is consummated, the of- fense is complete.’ 3 Wharton, Criminal Law and Procedure, § (Anderson ed. 1957) Thus, .... if respondent, after accepting the bribe, had failed to carry out his bargain, he could still prosecuted for the same offense charged here, but could not be argued any speech was ‘questioned’ being prosecution. his The fact respondent ful- filled his bargain and delivered the corrupt speech should not render the entire course of conduct con- protected.” stitutionally Brief for the United States in United States Johnson, No. 25, O. T. 1965, pp. 10-11.
The Johnson opinion answered this argument
in two
places. After emphasizing that
the prosecution at issue
upon
“based
an allegation that a member of Congress
abused
position
by conspiring
give
particular
speech in return for remuneration
private
from
interests,”
the Court stated,
“However such conduct may be, we believe the Speech or Debate Clause extends at least so far as prevent it from being made the basis of a criminal charge against a member of Congress of conspiracy to defraud the United States impeding the due discharge government functions. The essence such a charge in this context is that Congressman’s conduct was improperly motivated, and . . . that is precisely what or Debate Clause generally forecloses executive and ju- from dicial inquiry.” (Emphasis supplied.)
539 id., 182-183: at stated, Court the Again, meant was clause the that argues Government “The ‘con- the upon based only prosecutions prevent to those not but actions, libel as such speech, of tent’ of conduct unlawful antecedent ‘the on founded of Brief bribe.’ a accept to agreeing or accepting historically sedi- Although 11. at States, United the instrument frequent most the was libel tious sole the been never has this legislators, intimidating the employed, so proceedings legal of form broad- in the framed Constitution language terms.” est rejected Court Johnson doubt any Finally, the Government forward put argument B.Q.4 Wason, L. R. parte Exof citation by its dispelled moved citizen private case (1869). mem- several prosecute to magistrate require to prevent to conspiring Lords House of bers court floor. heard being from petition made “statements holding motion, denied places their of Parliament House of either members foundation made not be . could .. House in the they injurious however proceedings, criminal civil con- And a person. third of a interest to the be might make not would statements such make spiracy Id., law.” criminal to the it amenable guilty persons added, Blackburn Mr. Justice J.).C. (Cockburn, at did information thinking that entirely concur “I statements make agreement an charge only any indict- charge not did therefore Lords, and
House Ibid. offence.” able holding that read only be Johnson, can then, if acts, even perform agreement corrupt may themselves, the acts reference without provable prosecution. conspiracy general aof subject *33 In the face of that holding and Johnson’s rejection of reasoning identical to its own, the Court finds support in the fact that Johnson “authorized a new trial on the conspiracy count, provided that all references making of the speech were eliminated.” Ante, at 511.
But the Court ignores the fact that, with the speech and its motives excluded from consideration, this new trial was for nothing more than a conspiracy inter- vene before an Executive Department, <?., i. the Justice Department. And such executive intervention has never been considered legislative conduct entitled to protection of the Speech or Debate Clause. See infra, at 542. The Court cannot camouflage its de- parture from the holding of Johnson by referring a collateral ruling having little relevance to the funda- mental issues of legislative privilege involved in that case. I would follow Johnson and hold that Senator Brew- ster’s alleged promise, like the Congressman’s there, immune from executive or judicial inquiry.
II The only issue for me, then, is the one left open in Johnson —that is, the validity of a “prosecution which, though possibly entailing inquiry into legislative acts or motivations, is founded upon [not a general con- spiracy statute upon but] a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members.” S.,U. at 185. Assuming that 18 U. S. C. § 201 is such a “narrowly drawn statute,” I do not believe that it, any more than a general enactment, can serve as the instru- ment for holding a Congressman accountable for his legislative acts outside the confines of his own cham- ber. The Government offers several reasons why such a “waiver” of legislative immunity should be allowed. None of these, it seems to me, is sufficient to override secured independence, in legislative interest public’s Clause.1 or Debate principles does the Government matter, preliminary As a provided no it, nor can forum contend, if punished have been might Brewster which Senator provides of the Constitution 5,§ Article I, guilty. its Rules of may determine the House that “[e]ach Behavior, disorderly Members punish its Proceedings, a Mem- expel thirds, of two with the Concurrence and, *34 all “to extending reach, a broad power This has ber.” of judgment in the offence such as where the cases the trust with is inconsistent Senate [House or] 661, Chapman, In 166 U. re S. duty a member.” of Chapman, concerned example, for (1897). 669-670 had members of charges Senate investigation Senate pending in a companies of interested in speculated stocks in Representatives of Similarly, House tariff bill. to forestall stock accepting members for censured two 1873 There Mobilier. into inquiry the Credit a congressional expulsion imprisonment of many instances are also accepted bribes.2 members who by of Parliament are Congress of conceding that Houses Though 5, §I, under Art. members punish their empowered enact may also urges the Government judicial 201, providing C. § such 18 U. S. statute, as position, of this support power. of that enforcement lan- following primarily relies the Government States, 202 Burton United opinion from the guage (1906): 344, 367 U. S. intended Constitution
“While the framers many issue, adopts it this Although does not reach the Court Speech or Debate arguments to show that of the Government's My dis wholly to this case. inapplicable Clause is or should equally to their use applies these contentions agreement with position. support its the Court accompanying text. 4, infra, n. See
that each Department keep ap- should within its pointed sphere public action, was never contem- plated authority to admit Senate to a seat body in its duly one who had been elected as a Senator, or power its him expel after being admitted, should, any degree, limit or restrict the authority of Congress to enact such statutes, forbidden the Constitution, public interests required for carrying effect the into powers granted to it.”
However, Burton was not a case that involved conduct protected by the Speech or Debate Clause. Senator Bur- ton prosecuted money accepting to influence the Post Department Office in a mail fraud case in violation of Rev. Stat. § 13 Stat. 123. That was nonlegislative Johnson, and as conduct, we said in supra, at 172 argument “[n]o nor do made, we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt the Department influence of Justice, that *35 is in no wise related to the due functioning of the legis- lative process.” Such a prosecution, as the quoted excerpt from Burton specifically said, is “not forbidden by the Constitution,” but that holding has little relevance to a case, such as this one, involving legislative and acts motives.
The Government, however, cites additional considera- tions to support the authority of Congress provide judicial trials of corrupt Members; press the of con- gressional business, possibility the of moti- politically judgments vated by fellow Members, and procedural the safeguards of a judicial trial are all cited as why reasons Congress should be allowed to transfer the trial of a corrupt Member from the Houses of Congress to the courts. Once again, these arguments are urged and found unpersuasive in Johnson. I find them no more matter general aas may assume I now. persuasive suited not so well is Branch “Legislative the of task to the juries and judges independent politically appro- levying of, and blameworthiness the upon ruling United persons.” specific upon, punishment priate it does Yet (1965). 437, 445 Brown, U. S. States juries and judges, prosecutors, follow necessarily not kinds the make legislators than equipped are better and here. Senators required judgments political of pres- political free of entirely never are Congressmen from or constituents own their from whether sures, pressures, these Submission lobbies. special-interest the or support, financial and political hope of the it neces- is uncommon, nor is not withdrawal, of its fear influence legitimate line between sarily unethical.3 emphasis of matter amore may be outright bribe and the may turn end in the and fact, objective than of context in the proper was what of trier’s view office. political of necessities realities everyday process judicial of competence special Whatever of Service, Association Federal Interest Conflict of Cf. (1960): 14-15 York City New Bar of heart at lies status representative congressman’s “The represent supposed often he is representative, aAs matter. economic own his many instances group, and economic particular why precisely That group. closely tied to self-interest Bloc, Farm to talk It is common him. it selected congressman fishing state odd think We would Senators. Silver industry— fishing of the interests mindful who though himself, and fishing business may be in though he kind This this source. from part come funds campaign ap- generally indeed, and, inevitable is considered representation acting in against rule abstract of an application plauded. Sterile *36 senator farmer prevent would involving self-interest situations from congressman Negro legislation farm voting on from attitude purist point a some At bills. rights civil speaking afoul Congress runs interest of conflicts evils toward government.” representative American premises basic in other areas, members of Congress themselves are likely to be in the better position to judge the issue of bribery relating to legislative acts. The observation of Mr. Jus- tice Frankfurter bears repeating here: “Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses.” Tenney v. Brandhove, 341 U. S., at 378. Nor is the Member at the mercy of his free colleagues, to adjust they wish his rights to process due free expression. It is doubtful, for example, punish could a Member for the mere expression
of unpopular views otherwise protected by the First
Amendment.
See Bond v. Floyd,
Finally, the Government relies on the history of the Clause to support a congressional power of delegation. While agreeing that the Speech or Debate Clause was a “culmination of a long struggle for parliamentary supremacy” and a reaction against the Crown’s use of “criminal and civil law to suppress and intimidate critical legislators,” Johnson, supra, at 178, the Government urges that this is not story. whole It points out that while a large part of British history was taken up with Parliament’s struggles to free itself from royal domination, the balance power was not always ranged against it. Once Parliament succeeded in asserting rightful dominion over its members and the conduct of its business, Parliament sought to extend its reach *37 only be labeled that can purposes into areas and for abuses, these of Aware power. an abuse of mean did submits, Framers, the Government which, by but one power, have exclusive Ex- with the be shared might delegation, congressional Branches. and Judicial ecutive abused indeed was Parliamentary privilege
That century, 17th of the By the close fact. is historical free of obtaining rights had succeeded Parliament punish power and as well speech debate good order contravening the members offenses of its years five 1694, processes. of its integrity and Clause or Debate incorporation after was found Lord Falkland Rights, Bill of English pounds 2,000 of accepting in Commons of bribe guilty pleasure during imprisoned and was Crown, from the Commons, of of the House Speaker of House. following bribery censured Trevor, Sir John year.4 over mere control not content with
But Parliament was an asser- brought Independence conduct. members’ its in- reach of and definition power of absolute over the tion and of Commons House privileges. “[T]he stitutional author- plenary absolute and of Lords claimed the House independent body was an This ity privileges. over their Only Par- parliaments lex by Coke as law, described or what were privileges those declare what liament could Parliament could only and occasioned, new were privileges privilege.” a breach of constituted what conduct judge States, (1957). 354 U. S. Watkins v. United its members privilege basic established the Thus, having Legislative (1924). 401-402 Another nota Luce, Assemblies 4R. expelled Walpole, in 1711 was who instance was that of Robert ble charges corruption. T. Taswell- by the House on imprisoned (11th ed., History English 583-584 Langmead’s Constitutional Plucknett, 1960). T.
to be free from civil arrest or punishment, House ex- tended the privilege its members’ servants, pun- ished trespass on the of its estates members, theft *38 their their goods. servants’ House The went so far toas declare its members’ servants to be the reach outside of the common-law courts during the Par- time that liament was sitting. This led to the sale of “protec- tions” providing that named persons were servants aof particular member and should be free from arrest, imprisonment, and molestation during the term of Parliament.5 These in turn were abuses brought to By America. 1662, for example, the Virginia House Burgesses had succeeded in exempting only not its mem- bers, but their servants as from well, arrest and molestation.6
The Government is correct in pointing out that the Framers, aware of these abuses, were determined to guard against them. Madison stated that the “legis- department lative every where extending the sphere of its activity, and drawing power all into impetuous its 7 vortex.” And Jefferson looked on the “tyranny of the 5 Wittke, C. History The English Parliamentary Privilege 39-47 (1921); Taswell-Langmead, supra, at 580. The abuse of the privilege lay as much arbitrary in its contraction as extension. 1763 the House of angrily Commons reacted to a tract written one of its members, own Wilkes, John and withdrew privilege from him permit in order to prosecution for seditious libel. The House expelled also Wilkes, and he fled to as France an outlaw. Upon his return England to 1768, he was re-elected Parliament, to again expelled, tried for libel, seditious and 22 sentenced to months’ imprisonment. The House refused to seat him on three further occasions, and it not until 1782 that expelling resolutions Wilkes declaring and incapable him of re-election expunged were from the records of the House. Taswell-Langmead, supra, 584-585; at McCormack, Powell v. 395 U. S. (1969). 527-528 Clarke, M. Parliamentary Privilege in the American Colonies 99 (1943). 7The Federalist No. 48. and present, at dread formidable most “the
legislatures” refused Framers Therefore long years.” will be allowed have would which parliamenti, lex adopt to im- numerous enjoy to servants their Congressmen does But restraints. ordinary legal from munities authorized further went Framers follow not the Ju- takers of bribe discipline to transfer nothing us to refers The Government dicial Branch. Framers writings inor debates Convention there Indeed argument. remotely supports even way, other point Clause history of the much in the subject privilege a personalized toward delegation congressional aby specific even defeasance the courts. Clause The history. details opinion Johnson *39 Style, Committee Convention's by the formulated
was of Articles of the V Article by revising it phrased which speech of “Freedom provided: had which Confederation ques- or impeached be not shall in and debate (Em- Congress.” of court, out place or any in tioned from in turn derived wording This supplied.) phasis 1689 of Rights Bill of English of provision Par- in Proceedings or and Debates Speech, of “Freedom any in questioned or impeached not to be ought liament, sup- (Emphasis Parliament.” out or Place Court of it, appeared of or variations wording, The same plied.) Maryland of the Article VIII constitutions. in state declared that (1776) Rights of Declaration court other any impeached be “ought freedom (Art. Rights of Bill Massachusetts judicature.” or deliberation, of “freedom provided 1780) XXI, legislature, house either debate, in speech, it cannot the people, rights so essential prosecution, any accusation the foundation 8 (1951). 4 n. Brandhove, 375 341 U. S. Tenney v.
action or complaint, any other court or place whatso- ever.” The New Hampshire Constitution (Art. XXX, 1784) contained provision virtually identical to Massa- chusetts’. In short “[fjreedom speech and action in the legislature was taken as a matter of course those who severed the Colonies from the Crown and founded our Nation.” Tenney v. Brandhove, S.,U. at 372. Despite his fear of “legislative excess,” Tenney Brandhove, supra, at 375, when Jefferson, confronted with criticism of certain Congressmen by the Richmond, Virginia, grand jury, said:
“[T]hat order to give to the will of the people the influence it ought to have, and the information which may enable them to exercise it usefully, was part of the common law, adopted as the law of this land, that their representatives, in the dis- charge of their .functions, should be free from the cognizance or coercion of the coordinate branches, Judiciary and Executive.” 8 The Works Thomas Jefferson (Ford ed. 1904). Jefferson’s point of view contemporaries shared judicial found 9 expression early as 1808, in opinion, supra. Coffin It was there stated: “In considering this article, it appears to me that the privilege secured by it is not so much the privi- lege of the house as an organized body, as of each *40 individual member composing it, who is entitled to 9James Wilson, a member of the Convention committee respon sible for Clause, the stated: “In order to enable and encourage a representative of the publick to discharge his publick trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he protected should be from the resentment of every one, however powerful, to whom the exercise of liberty that may occasion offence.” 1 The Works of James (R. Wilson 421 McCloskey 1967). ed.
this privilege,
against
even
will
declared
of
house. For he does not hold this privilege at the
pleasure of the house; but derives it from the will
of the
expressed
people,
in the constitution, which
is paramount
to the will of either or both branches
of the
legislature.
respect
this
here
privilege
secured resembles other privileges attached to each
member by
part
another
of the
by
constitution,
which he is exempted from arrests on mesne (or
original) process, during his going to, returning from,
or attending the general court. Of these privileges,
thus secured to each member, he
be deprived,
cannot
by a resolve of
or
house,
an
act
legis-
lature.”
Ill this yield I in conviction nothing to the Court by if conduct, committed reprehensible and outrageous But unpunished. gone should not have Senator, only might a undertake whether court or the Senate portentous significance, task issue of constitutional by the which uninfluenced must of course be resolved no answer that magnitude perfidy of the It is alleged. enacting in judiciary assigned task duty 18 U. is to Nation and Constitu- § S. C. 201. Our tion, not disservice Congress. grave are guilty We permit both Nation and Constitution when we Con- gress responsibility shirk its of the courts. favor The Framers’ judgment people was that the American only could have a Congress independence integrity if alleged misbehavior in performance functions solely was accountable own to a Member’s House and never to the judiciary. executive or years passing justified have of that amply wisdom judgment. duty It is the Court’s to enforce the letter of the Speech or Debate spirit. Clause We did inso deciding Johnson. In turning its back on that deci- sion today, the Court arrogates judiciary to the an authority committed the Constitution, in Senator Brewster’s case, exclusively to the Senate United States. Yet provides the Court principled justifica- no tion, and I can think of none, for its denial that United States v. Johnson compels affirmance of tíie District Court. That only decision is six years old and bears imprint indelible of the distinguished constitutional scholar who wrote opinion the Court. Johnson surely merited longer life. any takes undue reward to influence his behaviour office.” Blackstone, W. regarded bribery Commentaries *139. Coke also
as a judges. crime Coke, committed Third Institute e. 1-2. IT *42 Douglas White, with whom Justice Mr. Justice Mr. dissenting. Brennan join, Mr. Justice and not whether by this case is question presented Mem- part on the bribery offensive conduct or other No one unpunished. go must or should Congress bers of insulates or Debate Clause suggests that accountability for from their Congressmen and Senators is but one of several the Clause itself Indeed, misdeeds. that that make clear provisions constitutional Members: try punish to powers its has broad House empowers each expressly Constitution “[T]he disorderly behavior. own members punish to its punishment this to doubt no reason We see and that imprisonment, may proper in a case be subject obey rule on that to some may be for refusal order. preservation of by House for the made au- each House is also, penalty which “So, compel the attendance to inflict in order to thorized this may imprisonment, members be of absent rule standing may be for a violation of some order subject. on made
“Each House is the Constitution mem- of its qualification of the election and judge undoubted on these it has an deciding bers. papers, sub- inspect to examine witnesses and right in cases; of witnesses such ject rights to the usual subject to like may and it that a witness would be body punishment engaged at the hands testify, election, refusing a contested trying if before a pending that he would the case were judicature. court of Representatives right
“The House of the sole has impeach officers of the and the government, try question them. Where the of such Senate body impeachment ap- is before either in its acting propriate sphere on that we see no reason subject, to doubt the right compel attendance of and their witnesses, proper answer to questions, the same manner and the use of the same means justice that courts of can like cases.” Kilbourn Thompson, (1881). U. 189-190 S. The sole issue here inis forum the what must accounting place take prosecution the Govern- —whether proposes ment is consistent with the command that *43 any "for Speech or Debate House, they in either [Mem- bers of Congress] shall be questioned in other any Place.” Const., U. I, 6, S. Art. § cl. 1.
The disposes of majority this issue by distinguishing promise between performance. and Even if a Senator or Congressman may prosecuted not be for corrupt legislative act, Speech or the Debate Clause does not prohibit prosecution for a corrupt promise perform that act. If a Member of Congress promises to vote for or against a bill in return for money, casts his vote in accordance with promise the accepts the payment, majority’s view is that though may even he not be prosecuted voting did, he although the was vote corrupt, the executive may prosecute and the judiciary may try him for corrupt agreement the or for taking the money either under a narrowly drawn or statute one of general application. This distinction promise between a and an act will not scrutiny withstand in terms of the values that the Speech or Debate Clause was designed to secure.
The majority agrees that in order to assure the inde- pendence integrity of the legislature and to reinforce separation powers deliberately so established the Founders, Speech Debate or Clause prevents a legislative act from being the basis of criminal or civil liability. Concededly, a Member of Congress may not prosecuted or sued making speech or voting in committee or on floor, paid whether he was to do so not. majority or appears also to embrace the holding Johnson, United States v. 383 U. 169 (1966), S. that a Member of could not be convicted of a conspiracy to defraud the pur Government where poses or motives underlying his conduct legislator as a are called question. If into one follows the mode of the majority’s present analysis, prosecution in Johnson was not for speaking, voting, any performing other particular act in a manner; criminal act charged was conspiracy to defraud the United States any anterior legislative performance. prove To crime, however, prosecution introduced evidence that money paid to make a speech, among other things, and that the speech was made. This, the Court held, violated or Debate Clause, because it called question into the motives and purposes underlying Con gressman performance Johnson’s of his legislative duties.
The same infirmity inheres in present indictment, which was upon founded two separate statutes. Title 18 U. C. § S. 201 (g) requires proof of a defendant’s receipt, *44 agreement an or attempt to receive, anything of value “for or because of any official performed act or to be performed by him . . . .” Of course, not all, or even many, official acts would legislative acts protected by Speech the or Debate Clause; but whatever act, the the Government identify must it to prove its case. Here we are left in no doubt whatsoever, for the official acts expressly charged in the indictment were in respect to action, “his vote and decision on postage rate legislation.” Similarly, there is no for basis arguing that the indict- ment did not contemplate proof performance of act,, for the indictment so many charged words the arrangement was “for and of because official per- acts by him in respect to his action, formed vote and decision on postage rate legislation which had been pending before 'It is added.) (Emphasis capacity.”
him in his official chal- that was charge, indictment, not some other this Like that District Court. dismissed lenged I word: it alleged take the Government at its court, would and im- prove questioned to facts and intended specified purposes underlying the motives and pugned intended to use these legislative acts of the Senator and facts as a for conviction of the himself. basis Senator Thus, taking charge value, at face the indictment represents an attempt prosecute and convict a Mem- ber only for Congress taking money but also for performing Moreover, act. whatever proof might be, indictment on its a cor- charged face rupt undertaking respect performance to the legis- with already lative conduct that had occurred and so, without more, “questioned other Place” speech [some] debate of a Congress. Member of a charge pre- Such cisely the kind that the Senator should not have been upon called if answer or Debate Clause is purpose. to fulfill its stated
Insofar it charged crimes under 18 U. C. 201§ S. (c)(1), the indictment fares little better. That section requires proof of corrupt arrangement receipt money and proof also was in return arrangement for the defendant “being performance influenced in his any official may act....” Whatever the prove official act be, Government prove cannot its case without call into ing question the motives of the Member in perform ing that act, prove for it must that the Member undertook money to be performance. influenced Clearly, if the Government sought prove its case against Member of evidence of a legislative act, *45 conviction could not in survive the face of the holding in Johnson. But even if an offense under the statute could be merely by established proof of an undertaking to cast a vote, which is not in the alleged indictment or other, way or the one place have taken at shown trial with his duties performing in the legislator motives of would undertaking subject matter to the respect charging inevitably implicated. be nevertheless cor alleged indictment (c)(1), under § offense influenced being “in return for made rupt arrangement action, respect in of official acts performance in his might which at postage legislation and decision on vote, capacity.” before him in his official any pending time I at its word: would take the Government Again, that could not fail prove and intended to facts charged legis of his implicate performance Senator Brewster’s lative duties.* critical or dis- charges “against
The use of criminal judicial forum favored the executive legislators long struggle parlia- was the chief fear prompting Johnson, mentary United v. privilege,” S., States 383 U. (1966), privilege at 182 “we look applying particularly prophylactic purposes to the clause.” in- suppose Ibid. us the Executive Branch Let private formed that are a Member of paying interests oppose administration-sponsored legislation. The Congressman key is chairman of a committee where A representative a vote is pending. from the Executive Branch informs the Congressman of the allegations against him, hopes the charges expresses are not true, confidence that the report committee will the bill and that the Member support will it on the floor. pressure on the Congressmen, corrupt or not, undeniable. He States, post,
*In p. 606, Gravel United it is held that the or Debate Clause performed prep- does not immunize criminal acts legislative unprotected aration for or execution of acts act. But themselves, provable referred to there were criminal in without ref- legislative putting Member erence to a act and without the defendant legislative performance. defending integrity to the task of of his Here, necessarily the Mem- stated, charged implicates the crime ber’s duties. *46 clearly
will any fare better in future prosecution criminal if he the charge corruption answers with evidence that he contrary voted the alleged bargain. to more Even is the compelling likelihood that he will prosecuted not be if at all he follows the suggestion administration’s supports the bill. Putting potential aside the for abuse in ill-conceived, mistaken, or false accusations, Speech or Debate Clause designed prevent just such an exercise of executive power. It no answer to main- tain potential abuse does not inhere in a prosecution for completed a where bribery transaction the legislative already act has occurred. A corrupt vote may not be made object prosecution a criminal because otherwise the Executive would be armed with power to control the vote if question, forewarned, or in any event to control other legislative conduct.
All of this comes to if naught may executive prosecute for promise though vote vote itself. The same hazards to legislative independence inhere two prosecutions. Bribery is most often carried out if prearrangement; part of the trans- may action be plucked from its context and made the basis of criminal charges, the Speech or Debate Clause loses its force. It will be small comfort for a Congress- man to know that he cannot prosecuted be for his vote, whatever may be, but can prosecuted he for an alleged agreement even if he votes contrary to the asserted bargain.
The realities of the American political system, of which the majority fails to take account, particu- render larly illusory or Debate Clause distinction be- tween promise to perform a legislative act and the act itself. Ours a representative government. Can- didates for office engage heated contests and the victor is he who receives the greatest number of votes from his constituents. These campaigns run are platforms include of intention and statements undertakings promote policies. prom- These certain ises are geared, part, at least in the interests may Congressman’s constituency. Members *47 be legally free from but there voters, dictation by is a residual they regard conviction that should have due for only the interests of their or if be- districts, States day cause on election for his a Member is answerable conduct.
Serving part constituents is a crucial of a legislator’s ongoing Congressmen duties. receive a constant stream of complaints and requests help Judged for or service. volume mail, of a Congressman’s content the right petition is neither theoretical nor ignored. It has never been thought unethical a Member of performance whose job on the determine may the success of only his next campaign listen to petitions of interest in groups his State or district, which may come every from conceivable group peo- ple, but also to support oppose or legislation serving or threatening those interests.
Against this background a second fact of American political life assumes importance considerable for the purposes of this case. Congressional are campaigns most often financed with contributions from those interested in particular supporting Congressmen and policies. their A legislator must maintain a working relationship with his only constituents not to garner votes to maintain office but to generate support financial for his campaigns. He must keep also in potential mind the effect of his upon conduct those from whom he has received financial support in past help those whose expects he or hopes to have the next campaign. An expectation or hope of future can arise assistance because constitu- ents have indicated support will be if forthcoming the Member of Congress champions point their of view. who later from those support may Financial also arrive expec- an and have approve of a conduct Congressman's mutuality support be- Thus, tation will continue. Constit- tween and constituent is inevitable. legislator support uent to a and his Congressman contributions repeatedly coincide time constituent interests will closely It will be rare Con- or follow one another. accepts who contributions gressman campaign never persons supported from or view he has interests whose support, speech making, voting, bargaining or will or with legislators. fellow may wholly
All of within this, it, most of politi- contemporary law and standards of consistent with cal Execu- Nevertheless, opportunities ethics. an prosecute the decision to tive, whose sole discretion rests under the to claim that us, statute before *48 conduct has been sold are and undeniable. obvious These opportunities, political process inherent exists, potential now create an enormous for executive control of legislative suggestions behavior threats or of criminal prosecution precisely the evil that — Speech prevent. or Debate designed Clause was majority opinion
Neither nor under statute which Brewster charged distinguishes between cam- paign payments put for or designed contributions to personal power use. To arm the Executive with the to prosecute political return taking contributions in for an agreement particular to introduce support legis- or lation or policies is to leverage enormous vest may Executive and the courts. of Congress Members find themselves in the of being dilemma forced to con- duct themselves to the interests of those who contrary provide support financial or declining support. may also They feel constrained to listen less often to the entreaties potential and demands of contributors. prosecution The threat of supposed missteps that of what the line are to define and fall close to difficult necessary, con- ordinarily permissible, even is considered scarcely independence legislative duct ensures that Speech is the root of the or Debate Clause. deemed if were
Even the statute and this indictment actually put clearly for, destined or payments limited to perform a exchange promise use in for a to, personal would Clause act, Debate legislative harass- for executive potential still be offended. The made conduct merely because the ment is not diminished Congress A Member of clearly criminal is more defined. prom- makes a time he becomes vulnerable to abuse each he has some ise over which to a constituent on a matter harass- possibility degree power, his power as well as ment can inhibit his exercise of prose- a addition, relations with such constituents. money ob- presents defining cution when difficulty put to tained is destined for or has been legislator personal personal both legislator use. For the who uses funds and contributions to maintain himself campaign may office, upon the choice of which draw have yet any bribery; more to do with than inter- bookkeeping certainly of funds render conduct change would keep suspect. who Even those Members of separate retain campaign accounts for contributions but open unrestricted remain drawing rights would money personal in fact for use. charge possibility bribery prosecution In both cases, *49 presents problem exactly pur- those determining poses legitimately for which contributions can campaign difficulty be used. The workable lines en- drawing hances the prospects for executive and corre- control diminishes spondingly congressional freedom of action. majority deny The potential does for executive prosecution. control sanctioning this inheres define the Instead, purports problem away by to assert- ing Speech that the or Debate only prose- Clause reaches cutions for promise conduct a to vote a bill, for as from the itself, does not distinguished vote amount to a legislative implication act. The is that a prosecution upon promise based corrupt no more of- fends the or Debate Clause prosecution than the of a Congressman for assault, robbery, or murder. The power prosecute may threaten legislative independence but the does not for Constitution that reason forbid it. I unpersuasive. find this
The fact that may Executive prosecute Members of Congress ordinary for criminal conduct, which surely he can despite potential for influencing legislative conduct, cannot itself prosecutions demonstrate that for corrupt promises perform legislative acts would be equally constitutional. The argument proves too much, for it would surely prosecutions authorize for the leg- islative act itself. Moreover, there is a fundamental difference in terms of potential abuse prosecu- between ordinary tions for crime and those upon promise based perform a legislative act. Even the most vocal de- tractor of Congress could not accurately maintain that the Executive would often have credible basis for accus- ing a member of Congress of murder, theft, rape, or other such crimes. But the prospects for asserting an argu- ably valid claim are far wider in scope an Executive prone to fish in legislative waters and to search for cor- relations between legislative performance and financial support. possibilities are indeed endless, as is the potential for abuse.
The majority ignores another vital difference between executive authority prosecute for ordinary crime and power to challenge undertakings or conspiracies to corrupt the legislative process. prosecution drunken driving or assault, the manner in which a Con- gressman performed his legislative tasks is quite irrele- *50 vant prosecution to either or defense. In the trial of a Congressman for making corrupt promise to vote, the other hand, proof that his vote was in fact contrary to the terms of the alleged bargain will make a strong defense. See United Johnson, States S., at U. A 176-177. Congressman who knows he is under in- vestigation for a corrupt undertaking will be well ad- vised to conduct his affairs a manner wholly at odds with the theory the charge may which be lodged against him. practical As a prosecute matter, a Congressman for agreeing to accept money in exchange for a promise to perform a legislative act inherently implicates legis- lative conduct. And to divine a distinction between promise performance is wholly at odds with protect- ing independence that heart of the Speech or Debate Clause.
Congress clearly itself did not make the distinction the majority dispositive. finds The statute be- fore us is a comprehensive effort to sanitize the legislative environment. It expressly permits prosecutions mem- bers of Congress for voting or promising in ex- vote change for money. The statute does not concern itself with murder or other undertakings unrelated to the legis- lative process. no doubt believed it consistent with the Speech or Debate Clause to authorize execu- prosecutions tive for corrupt voting. Equally obvious fact that Congress drew no distinction in legisla- tive terms between prosecutions based upon voting and those based upon motivations underlying legislative conduct.
The arguments that the majority now embraces were the very contentions the Government made in United States v. Johnson, supra. In rejecting those arguments on the facts of that case, where legislative conduct as well as prior conspiracy formed major part of the Government's proof, the Court referred with *51 (1869), Wason, Q. B. L. 4 573 R. parte Ex to approval members of whether question in which to conspiracy for a prosecuted could Lords House of Lords. floor of on the petition of a presentation prevent English reaction of out the Johnson, at sets supra, court: that state- stating motion, denied
“The court made not be House 'could made in the ments .... proceedings criminal of civil or foundation would statements make such conspiracy to And a to the it amenable person guilty make the Mr. Id., J.) (Cockburn, C. at 576. criminal law.’ clearly opinion that T added, am Lush Justice for a moment it to be doubted not to allow ought we of members of either or intentions the motives proceed- criminal inquired into House cannot be say in they may do or respect anything with ings Id., the House.’ at 577.” between clearly distinguish Wason court refused ap-
promise privilege performance; legislative for the Court plied Harlan, writing to both. Mr. Justice Johnson, position. Indeed, took with this no issue Speech he indicated that or D'ebate Clause barred any prosecution general under a statute where there in question drawn “the acts of . the member legislative .. them.” performing his motives S.,U. at I it difficult to (emphasis added). find believe that under the statute there the Johnson involved Court permitted prosecution upon would have based promise to perform a act. gives interpretation
Because it a begrudging to the clause, the finds can avoid majority dealing with the position upon which placed the Government principal reliance in brief in put its this Court. Johnson aside the question impermissible whether an otherwise prosecution have pursuant conducted to a statute such as we now specifically congressional before including us—a statute purporting congressional conduct and to be an exercise power discipline its Members —would be consistent with the or Debate apparent Clause. As must be from what so far has been I said, am convinced that such a statute purpose contravenes the letter of the Clause. True, Congress itself specifi- has defined the crime and cally delegated prose- to the Executive the discretion to cute and to the power try. courts the I Nonetheless, fail to understand majority how a of Congress can bind *52 an. objecting Congressman clearly to a course so at odds with the constitutional command that legislative conduct be subject shall question place no other than the Senate or the of Representatives. House Speech The Debate Clause is an power. allocation It authorizes Congress to call offending members to account in their appropriate Houses. A statute represents an abdi- power cation of that is in my impermissible. view I return to the beginning. or Debate Clause does not corrupt immunize Congressmen. It re- serves the power to discipline in the Houses of Congress. I would insist that those develop Houses their in- own procedures stitutions and for dealing with those their midst who prostitute would the legislative process.