|United States v. Brewster
[ Burger ]
[ Brennan ]
[ White ]
United States v. Brewster
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS joins, dissenting.
When this case first came before the Court, I had thought it presented a single, well defined issue -- that is, whether the Congress could authorize by a narrowly drawn statute the prosecution of a Senator or Representative for conduct otherwise immune from prosecution under the Speech or Debate Clause of the Constitution. Counts 1, 3, 5, and 7 of the indictment charged Senator Brewster with receiving $19,000
in return for being influenced in his performance of official acts in respect to his action, vote, and decision on postage rate legislation which might at any time be pending before him in his official capacity [as a member of the Senate Post Office Committee].
Count 9 charged the Senator with receipt of another $5,000 for acts already performed by him with respect to his "action, vote and decision" on that legislation. These charges, it seemed to me, fell within the clear prohibition of the Speech or Debate Clause as interpreted by decisions of this Court, particularly United States v. Johnson, 383 U.S. 169 (1966). [p530] For if the indictment did not call into question the "speeches or debates" of the Senator, it certainly laid open to scrutiny the motives for his legislative acts; and those motives, I had supposed, were no more subject to executive and judicial inquiry than the acts themselves, unless, of course, the Congress could delegate such inquiry to the other branches.
That, apparently, was the Government's view of the case as well. At the hearing before the District Court, the prosecutor was asked point blank whether "the indictment in any wise allege[d] that Brewster did anything not related to his purely legislative functions." The prosecutor responded:
We are not contending that what is being charged here, that is, the activity by Brewster, was anything other than a legislative act. We are not ducking the question; it is squarely presented. They are legislative acts. We are not going to quibble over that.
App. 28. The Government, in other words, did not challenge the applicability of the Clause to these charges, but argued only that its prohibitions 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 reading of the indictment and held that the Senator could not be prosecuted for this conduct even under the allegedly narrow provisions of 18 U.S.C. § 201:
Gentlemen, based on the facts of this case, it is admitted by the Government that the five counts of the indictment which charge Senator Brewster relate to the acceptance of bribes in connection with the performance of a legislative function by a Senator of the United States. [p531]
It is the opinion of this Court that the immunity under the Speech and Debate Clause of the Constitution, particularly in view of the interpretation given that Clause by the Supreme Court in Johnson, shields Senator Brewster, constitutionally shields him, from any prosecution for alleged bribery to perform a legislative act.
App. 33. Furthermore, the Government's initial brief in this Court, doubtless reflecting its recognition that Johnson had rejected the analysis adopted by the Court today, did not argue that a prosecution for acceptance of a bribe in return for a promise to vote a certain way falls outside the prohibition of the Speech or Debate Clause. Rather, the Government's brief conceded, or at least assumed, that such conduct does constitute "Speech or Debate," but urged that Congress may enact a statute, such as 18 U.S.C. § 201 providing for judicial trial of the alleged crime.
Given these admissions by the Government and the District Court's construction of the indictment, which settled doctrine makes binding on this Court, United States v. Jones, 345 U.S. 377, 378 (1953), the only issue properly before us was whether Congress is empowered to delegate to the Executive and Judicial Branches the trial of a member for conduct otherwise protected by the Clause. Today, however, the Court finds it unnecessary to reach that issue, for it finds that the indictment, though charging receipt of a bribe for legislative acts, entails "no inquiry into legislative acts or motivation for legislative acts," ante at 525, and thus is not covered by the Clause. In doing so, the Court permits the Government to recede from its firm admissions, it ignores the District Court's binding construction of the [p532] indictment, and -- most important -- it repudiates principles of legislative freedom developed over the past century in a line of cases culminating in Johnson. Those principles, which are vital to the right of the people to be represented by Congressmen of independence and integrity, deserve more than the hasty burial given them by the Court today. I must therefore dissent.
I would dispel at the outset any notion that Senator Brewster's asserted immunity strains the 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 conclusion, I 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 whose proof calls into question the very motives behind his legislative acts. The indictment, then, lies not at the periphery, but at the very center, of the protection that this Court has said is provided a Congressman under the Clause.
Decisions of this Court dating as far back as 1881 have consistently refused to limit the concept of "legislative acts" to the "Speech or Debate" specifically mentioned in Art. I, § 6. In Kilbourn v. Thompson, 103 U.S. 168 (1881), the Court held that:
It would be a narrow view of the constitutional provision to limit it to words spoken in debate. The reason of the rule is as forcible in its application to written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, whether it is done vocally or by passing between the tellers. In short, to things generally [p533] done in a session of the House by one of its members in relation to the business before it.
Id. at 204. In reaching its conclusion, the Court adopted what was said by the Supreme Judicial Court of Massachusetts in Coffin v. Coffin, 4 Mass. 1 (1808), which Kilbourn held to be perhaps "the most authoritative case in this country on the construction of the provision in regard to freedom of debate in legislative bodies. . . ." 103 U.S. at 204. Chief Justice Parsons, peaking for the Massachusetts court, expressed what Kilbourn and later decisions saw as a properly generous view of the legislative privilege:
Thee privileges are thus secured not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate, but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office, and I would define the article as securing to every member exemption from prosecution for everything said or done by him as a representative in the exercise of the functions of that office, without enquiring 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, and I am satisfied that there are cases in which he is entitled to this privilege when not within the walls of the representatives' chamber.
4 Mass. at 27. [p534]
There can be no doubt, therefore, that Senator Brewster's vote on new postal rates constituted legislative activity within the meaning of the Clause. The Senator could not be prosecuted or called to answer for his vote in any judicial or executive proceeding. But the Senator's immunity, I submit, goes beyond the vote itself and precludes all extra-congressional scrutiny as to how and why he cast, or would have cast, his vote a certain way. In Tenney v. Brandhove, 341 U.S. 367 (1951), the plaintiff charged that a state legislative hearing was being conducted not for a proper legislative purpose, but solely as a means of harassing him. Nevertheless the Court held that no action would lie against the committee members under federal civil rights statutes. Mr. Justice Frankfurter stated:
The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty not for their private indulgence, but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives. The holding of this Court in Fletcher v. Peck, 6 Cranch 87, 130, that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned. . . .
. . . In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct, and as readily believed. Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging [p535] or correcting such abuses.
Id. at 377-378.
Barring congressional power to authorize this prosecution, what has been said thus far would seem sufficient to require affirmance of the order of dismissal, for neither Senator Brewster's vote nor his motives for voting, however dishonorable, may be the subject of a civil or criminal proceeding outside the halls of the Senate. There is nothing complicated about this conclusion. It follows simply and inescapably from prior decisions of this Court, supra, setting forth the most basic elements of legislative immunity. Yet the Court declines to apply those principles to this case, for it somehow finds that the Government can prove its case without referring to the Senator's official acts or motives. According to the Court, the Government can limit its proof on Counts 1, 3, 5, and 7 to evidence concerning Senator Brewster's "taking or agreeing to take money for a promise to act in a certain way," and need not show "that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise." Ante at 526. Similarly, the Court finds that Count 9 can be proved merely by showing that the Senator solicited or received money "with knowledge that the donor was paying him compensation for an official act," without any inquiry "into the legislative performance itself." Ante at 527. These evidentiary limitations are deemed sufficient to avoid the prohibitions of the Speech or Debate Clause.
With all respect, I think that the Court has adopted a wholly artificial view of the charges before us. The indictment alleges not the mere receipt of money, but the receipt of money in exchange for a Senator's vote and promise to vote in a certain way. Insofar as these charges bear on votes already cast, the Government cannot [p536] avoid proving the performance of the bargained-for acts, for it is the acts themselves, together with the motivating bribe, that form the basis of Count 9 of 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, the Government still must demonstrate that 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 by the Senator and his reasons for voting as he did. Either inquiry violates the Speech or Debate Clause.
The counts charging only a corrupt promise to vote are equally repugnant to the Clause. The Court may be correct that only receipt of the bribe, and not performance of the bargain, is needed to prove these counts. But proof of an agreement to be "influenced" in the performance of legislative acts is, by definition, an inquiry into their motives, whether or not the acts themselves or the circumstances surrounding them are questioned at trial. Furthermore, judicial inquiry into an alleged agreement of this kind carries with it the same 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 prearrangement; if 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 be prosecuted for his vote, whatever it may be, but he can be prosecuted for an alleged agreement even if he votes contrary to the asserted bargain. [p537]
Thus, even if this were an issue of first impression, I would hold that this prosecution, being an extra-congressional inquiry into legislative acts and motives, is barred by the Speech or Debate Clause.
What is especially disturbing about the Court's result, however, is that this is not an issue of first impression, but one that was settled six years ago in United States v. Johnson, 383 U.S. 169 (1966). There, a former Congressman was charged with violating the federal conflict of interest statute, 18 U.S.C. § 281 (1964 ed.), and with conspiring to defraud the United States, 18 U.S.C. § 371 by accepting a bribe in exchange for his agreement to seek dismissal of federal indictments pending against officers of several savings and loan companies. Part of the alleged conspiracy was a speech delivered by Johnson on the floor of the House, favorable to loan companies generally. The Government relied on that speech at trial and questioned Johnson extensively about its contents, authorship, and his reasons for delivering it. The Court of Appeals set aside the conspiracy conviction, holding that the Speech or Debate Clause barred such a prosecution based on an allegedly corrupt promise to deliver a congressional speech. In appealing that decision, the Government made the very same argument that appears to persuade the Court today:
[The rationale of the Clause] is applicable in suits based upon the content of a legislator's speech or action, where immunity is necessary to prevent impediments to the free discharge of his public duties. But it does not justify granting him immunity from prosecution for accepting or agreeing to accept money to make a speech in Congress. The latter case poses no threat which could reasonably cause a Congressman to restrain himself in his official speech, because no speech, as such, is being [p538] questioned. It is only the antecedent conduct of accepting or agreeing to accept the bribe which is attacked in such a prosecution.
Whether the party taking the bribe lives up to his corrupt promise or not is immaterial. The agreement is the essence of the offense; when that is consummated, the offense is complete.
3 Wharton, Criminal Law and Procedure, § 1383 (Anderson ed. 1957). . . . Thus, if respondent, after accepting the bribe, had failed to carry out his bargain, he could still be prosecuted for the same offense charged here, but it could not be argued that any speech was being "questioned" in his prosecution. The fact that respondent fulfilled his bargain and delivered the corrupt speech should not render the entire course of conduct constitutionally protected.
Brief for the United States in United States v. 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 was
based upon an allegation that a member of Congress abused his position by conspiring to give a particular speech in return for remuneration from private interests,
the Court stated, 383 U.S. at 180:
However reprehensible such conduct may be, we believe the Speech or Debate Clause extends at least so far as to prevent it from being made the basis of a criminal charge against a member of Congress of conspiracy to defraud the United States by impeding the due discharge of government functions. The essence of such a charge in this context is that the Congressman's conduct was improperly motivated, and . . . that is precisely what the Speech or Debate Clause Generally forecloses from executive and judicial inquiry.
(Emphasis supplied.) [p539] Again, the Court stated, id. at 182-183:
The Government argues that the clause was meant to prevent only prosecutions based upon. the "content" of speech, such as libel actions, but not those founded on "the antecedent unlawful conduct of accepting or agreeing to accept a bribe." Brief of the United States, at 11. Although historically seditious libel was the most frequent instrument for intimidating legislators, this has never been the sole form of legal proceedings so employed, and the language of the Constitution is framed in the broadest terms.
Finally, any doubt that the Johnson Court rejected the argument put forward by the Government was dispelled by its citation of Ex parte Wason, L.R. 4 Q.B. 573 (1869). In that case, a private citizen moved to require a magistrate to prosecute several members of the House of Lords for conspiring to prevent his petition from being heard on the floor. The court denied the motion, holding that
statements made by members of either House of Parliament in their places in the House . . . could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third person. And a conspiracy to make such statements would not make the persons guilty of it amenable to the criminal law.
Id. at 576 (Cockburn, C.J.). Mr. Justice Blackburn added,
I entirely concur in thinking that the information did only charge an agreement to make statements in the House of Lords, and therefore did not charge any indictable offence.
Johnson, then, can only be read as holding that a corrupt agreement to perform legislative acts, even if provable without reference to the acts themselves, may not be the subject of a general conspiracy prosecution. [p540] 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 to the 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 to intervene before an Executive Department, i.e., the Justice Department. And such executive intervention has never been considered legislative conduct entitled to the protection of the Speech or Debate Clause. See infra at 542. The Court cannot camouflage its departure from the holding of Johnson by referring to a collateral ruling having little relevance to the fundamental issues of legislative privilege involved in that case. I would follow Johnson and hold that Senator Brewster's alleged promise, like the Congressman's there, is immune from executive or judicial inquiry.
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 [not upon a general conspiracy statute, but] upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members.
383 U.S. at 185. 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 instrument for holding a Congressman accountable for his legislative acts outside the confines of his own chamber. 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 [p541] the public's interest in legislative independence, secured to it by the principles of the Speech or Debate Clause. [n1]
As a preliminary matter, the Government does not contend, nor can it, that no forum was provided in which Senator Brewster might have been punished if guilty. Article I, § 5, of the Constitution provides that
[e]ach House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.
This power has a broad reach, extending
to all cases where the offence is such as in the judgment of the [House or] Senate is inconsistent with the trust and duty of a member.
In re Chapman, 166 U.S. 661, 669-670 (1897). Chapman, for example, concerned a Senate investigation of charges that Senate members had speculated in stocks of companies interested in a pending tariff bill. Similarly, the House of Representatives in 1873 censured two members for accepting stock to forestall a congressional inquiry into the Credit Mobilier. There are also many instances of imprisonment or expulsion by Parliament of members who accepted bribes. [n2]
Though conceding that the Houses of Congress are empowered to punish their members under Art. I, § 5, the Government urges that Congress may also enact a statute, such as 18 U.S.C. § 201 providing for judicial enforcement of that power. In support of this position, the Government relies primarily on the following language from the opinion in Burton v. United States, 202 U.S. 344, 367 (1906):
While the framers of the Constitution intended [p542] each Department should keep within its appointed sphere of public action, it was never contemplated that the authority of the Senate to admit to a seat in its body one who had been duly elected as a Senator, or its power to expel him after being admitted, should, in any degree, limit or restrict the authority of Congress to enact such statutes, not forbidden by the Constitution, as the public interests required for carrying into effect the powers granted to it.
However, Burton was not a case that involved conduct protected by the Speech or Debate Clause. Senator Burton was prosecuted for accepting money to influence the Post Office Department in a mail fraud case in violation of Rev.Stat. § 1782, 13 Stat. 123. That was nonlegislative conduct, and as we said in Johnson, supra, at 172,
[n]o argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative 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 acts and motives.
The Government, however, cites additional considerations to support the authority of Congress to provide for judicial trials of corrupt Members; the press of congressional business, the possibility of politically motivated judgments by fellow Members, and the procedural safeguards of a judicial trial are all cited as reasons why Congress should be allowed to transfer the trial of a corrupt Member from the Houses of Congress to the courts. Once again, these are arguments urged and found unpersuasive in Johnson. I find them no more [p543] persuasive now. I may assume as a general matter that the
Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.
United States v. Brown, 381 U.S. 437, 445 (1965). Yet it does not necessarily follow that prosecutors, judges, and juries are better equipped than legislators to make the kinds of political judgments required here. Senators and Congressmen are never entirely free of political pressures, whether from their own constituents or from special interest lobbies. Submission to these pressures, in the hope of political and financial support or the fear of its withdrawal, is not uncommon, nor is it necessarily unethical. [n3] The line between legitimate influence and outright bribe may be more a matter of emphasis than objective fact, and in the end may turn on the trier's view of what was proper in the context of the everyday realities and necessities of political office. Whatever the special competence of the judicial process [p544] 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. Justice 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 colleagues, free to adjust as they wish his rights to due process and free expression. It is doubtful, for example, that the Congress could punish a Member for the mere expression of unpopular views otherwise protected by the First Amendment. See Bond v. Floyd, 385 U.S. 116 (1966). And judicial review of the legislative inquiry is not completely foreclosed; the power of the House and Senate to discipline the conduct of Members is not exempt from the "restraints imposed by or found in the implications of the Constitution." Barry v. United States ex rel. Cunningham, 279 U.S. 597, 614 (1929), quoted in Powell v. McCormack, 395 U.S. 486, 519 n. 40 (1969).
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 the whole story. 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 of 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 [p545] into areas and for purposes that can only be labeled an abuse of legislative power. Aware of these abuses, the Framers, the Government submits, did not mean Congress to have exclusive power, but one which, by congressional delegation, might be shared with the Executive and Judicial Branches.
That the Parliamentary privilege was indeed abused is historical fact. By the close of the 17th century, Parliament had succeeded in obtaining rights of free speech and debate as well as the power to punish offenses of its members contravening the good order and integrity of its processes. In 1694, five years after incorporation of the Speech or Debate Clause in the English Bill of Rights, Lord Falkland was found guilty in Commons of accepting a bribe of 2,000 pounds from the Crown, and was imprisoned during the pleasure of the House. The Speaker of the House of Commons, Sir John Trevor, was censured for bribery the following year. [n4]
But Parliament was not content with mere control over its members' conduct. Independence brought an assertion of absolute power over the definition and reach of institutional privileges.
[T]he House of Commons and the House of Lords claimed absolute and plenary authority over their privileges. This was an independent body of law, described by Coke as lex parliamenti. Only Parliament could declare what those privileges were or what new privileges were occasioned, and only Parliament could judge what conduct constituted a breach of privilege.
Watkins v. United States, 354 U.S. 178, 188 (1957). Thus, having established the basic privilege of its members [p546] to be free from civil arrest or punishment, the House extended the privilege to its members' servants, and punished trespass on the estates of its members, or theft of their or their servants' goods. The House went so far as to declare its members' servants to be outside the reach of the common law courts during the time that Parliament was sitting. This led to the sale of "protections" providing that named persons were servants of a particular member and should be free from arrest, imprisonment, and molestation during the term of Parliament. [n5] These abuses in turn were brought to America. By 1662, for example, the Virginia House of Burgesses had succeeded in exempting not only its members, but their servants as well, from arrest and molestation. [n6]
The Government is correct in pointing out that the Framers, aware of these abuses, were determined to guard against them. Madison stated that the "legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex." [n7] And Jefferson looked on the "tyranny of the [p547] legislatures" as "the most formidable dread at present, and will be for long years." [n8] Therefore the Framers refused to adopt the lex parliamenti, which would have allowed Congressmen and their servants to enjoy numerous immunities from ordinary legal restraints. But it does not follow that the Framers went further and authorized Congress to transfer discipline of bribe takers to the Judicial Branch. The Government refers us to nothing in the Convention debates or in writings of the Framers that even remotely supports the argument. Indeed, there is much in the history of the Clause to point the other way, toward a personalized legislative privilege not subject to defeasance even by a specific congressional delegation to the courts.
The Johnson opinion details the history. The Clause was formulated by the Convention's Committee on Style, which phrased it by revising Article V of the Articles of Confederation which had provided: "Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress." (Emphasis supplied.) This wording derived, in turn, from the provision of the English Bill of Rights of 1689 that
Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.
(Emphasis supplied.) The same wording, or variations of it, appeared in state constitutions. Article VIII of the Maryland Declaration of Rights (1776) declared that legislative freedom "ought not to be impeached in any other court or judicature." The Massachusetts Bill of Rights (Art. XXI, 1780) provided that the
freedom of deliberation, speech, and debate, in either house of the legislature, i.e., so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, [p548] action or complaint, in any other court or place whatsoever.
The New Hampshire Constitution (Art. 408, 1784) contained a provision virtually identical to Massachusetts'. In short
[f]reedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation.
Tenney v. Brandhove, 341 U.S. at 372.
Despite his fear of "legislative excess," Tenney v. Brandhove, supra, at 375, Jefferson, when confronted with criticism of certain Congressmen by the Richmond, Virginia, grand jury, said:
[T]hat in 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, it was a part of the common law, adopted as the law of this land, that their representatives, in the discharge of their functions, should be free from the cognizance or coercion of the coordinate branches, Judiciary and Executive.
8 The Works of Thomas Jefferson 322 (Ford ed.1904). Jefferson's point of view was shared by his contemporaries [n9] and found judicial expression as early as 1808, in the Coffin opinion, supra. It was there stated:
In considering this article, it appears to me that the privilege secured by it is not so much the privilege of the house as an organized body, as of each individual member composing it, who is entitled to [p549] this privilege, even against the declared will of the house. For he does not hold this privilege at the pleasure of the house, but derives it from the will of the people, expressed in the constitution, which is paramount to the will of either or both branches of the legislature. In this respect, the privilege here secured resembles other privileges attached to each member by another part of the constitution, by 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 cannot be deprived, by a resolve of the house, or by an act of the legislature.
4 Mass. at 27. (Emphasis supplied.)
In short, if the Framers contemplated judicial inquiry into legislative acts, even on the specific authorization of Congress, that intent is not reflected in the language of the Speech or Debate Clause or contemporary understanding of legislative privilege. History certainly shows that the Framers feared unbridled legislative power. That fact, however, yields no basis for an interpretation that in Art. I, §§ 1 and 8, the Framers authorized Congress to ignore the prohibition against inquiry in "any other place" and enact a statute either of general application or specifically providing for a trial in the courts of a member who takes a bribe for conduct related to legislative acts. [n10] [p550]
I yield nothing to the Court in conviction that this reprehensible and outrageous conduct, if committed by the Senator, should not have gone unpunished. But whether a court or only the Senate might undertake the task is a constitutional issue of portentous significance, which must of course be resolved uninfluenced by the magnitude of the perfidy alleged. It is no answer that Congress assigned the task to the judiciary in enacting 18 U.S.C. § 201. Our duty is to Nation and Constitution, not Congress. We are guilty of a grave disservice to both Nation and Constitution when we permit Congress to shirk its responsibility in favor of the courts. The Framers' judgment was that the American people could have a Congress of independence and integrity only if alleged misbehavior in the performance of legislative functions was accountable solely to a Member's own House and never to the executive or judiciary. The passing years have amply justified the wisdom of that judgment. It is the Court's duty to enforce the letter of the Speech or Debate Clause in that spirit. We did so in deciding Johnson. In turning its back on that decision today, the Court arrogates to the judiciary an authority committed by the Constitution, in Senator Brewster's case, exclusively to the Senate of the United States. Yet the Court provides no principled justification, and I can think of none, for its denial that United States v. Johnson compels affirmance of the District Court. That decision is only six years old, and bears the indelible imprint of the distinguished constitutional scholar who wrote the opinion for the Court. Johnson surely merited a longer life. [p551]
1. Although the Court does not reach this issue, it adopts many of the Government's arguments to show that the Speech or Debate Clause is or should be wholly inapplicable to this case. My disagreement with these contentions applies equally to their use by the Court in support of its position.
2. See n. 4, infra and accompanying text.
3. Cf. Conflict of Interest and Federal Service, Association of the Bar of the City of New York 115 (1960):
The congressman's representative status lies at the heart of the matter. As a representative, he is often supposed to represent a particular economic group, and in many instances his own economic self-interest is closely tied to that group. That is precisely why it selected him. It is common to talk of the Farm Bloc, or the Silver Senators. We would think odd a fishing state congressman who was not mindful of the interests of the fishing industry -- though he may be in the fishing business himself, and though his campaign funds come in part from this source. This kind of representation is considered inevitable and, indeed, generally applauded. Sterile application of an abstract rule against acting in situations involving self-interest would prevent the farmer senator from voting on farm legislation or the Negro congressman from speaking on civil rights bills. At some point a purist attitude toward the evils of conflicts of interest in Congress runs afoul of the basic premises of American representative government.
4. R. Luce, Legislative Assemblies 401-402 (1924). Another notable instance was that of Robert Walpole, who in 1711 was expelled and imprisoned by the House on charges of corruption. T. Taswell-Langmead's English Constitutional History 583-584 (11th ed., T. Plucknett, 1960).
5. C. Wittke, The History of English Parliamentary Privilege 39-47 (1921); Taswell-Langmead, supra, at 580. The abuse of the privilege lay as much in its arbitrary contraction as extension. In 1763, the House of Commons reacted angrily to a tract written by one of its own members, John Wilkes, and withdrew the privilege from him in order to permit his prosecution for seditious libel. The House also expelled Wilkes, and he fled to France as an outlaw. Upon his return to England in 1768, he was reelected to Parliament, again expelled, tried for seditious libel, and sentenced to 22 months' imprisonment. The House refused to seat him on three further occasions, and it was not until 1782 that the resolutions expelling Wilkes and declaring him incapable of reelection were expunged from the records of the House. Taswell-Langmead, supra, at 584-585; Powell v. McCormack, 395 U.S. 486, 527-528 (1969).
6. M. Clarke, Parliamentary Privilege in the American Colonies 99 (1943).
7. The Federalist No. 48.
8. Tenney v. Brandhove, 341 U.S. 367, 375 n. 4 (1951).
9. James Wilson, a member of the Convention committee responsible for the Clause, 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 should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence.
1 The Works of James Wilson 421 (R. McCloskey ed.1967).
10. While it is true that Congress has made the acceptance of a bribe a crime ever since 1853, it should be noted that the earliest federal bribery statute, passed by Congress in 1790, applied only to judges who took bribes in exchange for an "opinion, judgment or decree." Act of April 30, 1790, 1 Stat. 112, 117. It also appears that the common law did not recognize the charge of bribe-taking by a legislator. Blackstone, for example, defined bribery as "when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behaviour in his office." 4 W. Blackstone, Commentaries *139. Coke also regarded bribery as a crime committed by judges. Coke, Third Institute c. 68, ¶¶ 1-2.