CRS Annotated Constitution

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Congressional Employees.—Until the most recent decision, it was seemingly the basis of the decisions that while Members of Congress may be immune from suit arising out of their legislative activities, legislative employees who participate in the same activities under the direction of the Member or otherwise are responsible for their acts if those acts be wrongful.405 Thus, inKilbourn v. Thompson,406 the sergeant at arms of the House was held liable for false imprisonment because he executed the resolution ordering Kilbourn arrested and imprisoned.Dombrowski v. Eastland407 held that a subcommittee counsel might be liable in damages for actions as to which the chairman of the committee was immune from suit. And inPowell v. McCormack,408 the Court held that the presence of House of Representative employees as defendants in a suit for declaratory judgment gave the federal courts jurisdiction to review the propriety of the plaintiff’s exclusion from office by vote of the House. Upon full consideration of the question, however, the Court, inGravel v. United States,409 accepted a series of contentions urged upon it not only by the individual Senator but by the Senate itself appearing by counsel asamicus:“that it is literally impossible, in view of the complexities of the modern legislative process, with[p.133]Congress almost constantly in session and matters of legislative concern constantly proliferating, for Members of Congress to perform their legislative tasks without the help of aides and assistants; that the day–to–day work of such aides is so critical to the Members’ performance that they must be treated as the latters’ alter ego; and that if they are not so recognized, the central role of the Speech or Debate clause . . . will inevitably be diminished and frustrated.”410 Therefore, the Court held “that the Speech or Debate Clause applies not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.”411

TheGravelholding, however, does not so much extend congressional immunity to employees as it narrows the actual immunity available to both aides and Members in some important respects. Thus, the Court says, the legislators inKilbournwere immune because adoption of the resolution was clearly a legislative act but the execution of the resolution—the arrest and detention—was not a legislative act immune from liability, so that the House officer was in fact liable as would have been any Member who had executed it.412Dombrowskiwas interpreted as having held that no evidence implicated the Senator involved, whereas the committee counsel had been accused of “conspiring to violate the constitutional rights of private parties. Unlawful conduct of this kind the Speech or Debate Clause simply did not immunize.”413AndPowellwas interpreted as simply holding that voting to exclude plaintiff, which was all the House defendants had done, was a legislative act immune from Member liability but not from judicial inquiry. “None of these three cases adopted the simple proposition that immunity was unavailable to House or committee employees because they were not Representatives; rather, immunity was unavailable because they engaged in illegal conduct which was not entitled to Speech or Debate Clause protection. . . . [N]o prior case has held that Members of Congress would be immune if they execute an invalid resolution by themselves carrying out an illegal arrest, or if, in order to secure information for a hearing, themselves seize the property or invade the privacy of a citizen. Neither they nor their aides should be immune from liability or questioning in such circumstances.”414


Appointment to Executive Office

“The reasons for excluding persons from offices, who have been concerned in creating them, or increasing their emoluments, are to take away, as far as possible, any improper bias in the vote of the representative, and to secure to the constituents some solemn pledge of his disinterestedness. The actual provision, however, does not go to the extent of the principle; for his appointment is restricted only ‘during the time, for which he was elected’; thus leaving in full force every influence upon his mind, if the period of his election is short, or the duration of it is approaching its natural termination.”415As might be expected, there is no judicial interpretation of the language of the clause and indeed it has seldom surfaced as an issue.

In 1909, after having increased the salary of the Secretary of State,416 Congress reduced it to the former figure so that a Member of the Senate at the time the increase was voted would be eligible for that office.417The clause became a subject of discussion in 1937, when Justice Black was appointed to the Court, because Congress had recently increased the amount of pension available to Justices retiring at seventy and Mr. Black’s Senate term had still some time to run. The appointment was defended, however, with the argument that inasmuch as Mr. Black was only fifty–one years of age at the time, he would be ineligible for the “increased emolument” for nineteen years and it was not as to him an increased emolument.418In 1969, it was briefly questioned whether a Member of the House of Representatives could be appointed Secretary of Defense because, under a salary bill enacted in the previous Congress, the President would propose a salary increase, including that of cabinet officers, early in the new Congress which would take effect if Congress did not disapprove it. The Attorney General ruled that inasmuch as the clause would not apply if the increase were proposed and approved subsequent to the appointment, it[p.135]similarly would not apply in a situation in which it was uncertain whether the increase would be approved.419

Incompatible Offices

This second part of the second clause elicited little discussion at the Convention and was universally understood to be a safeguard against executive influence on Members of Congress and the prevention of the corruption of the separation of powers.420 Congress has at various times confronted the issue in regard to seating or expelling persons who have or obtain office in another branch. Thus, it has determined that visitors to academies, regents, directors, and trustees of public institutions, and members of temporary commissions who receive no compensation as members are not officers within the constitutional inhibition.421Government contractors and federal officers who resign before presenting their credentials may be seated as Members of Congress.422

One of the more recurrent problems which Congress has had with this clause is the compatibility of congressional office with service as an officer of some military organization—militia, reserves, and the like.423Members have been unseated for accepting appointment to military office during their terms of congressional office,424 but there are apparently no instances in which a Member–elect has been excluded for this reason. Because of the difficulty of successfully claiming standing, the issue has never been a litigatible matter.425


405 Language in some of the Court’s earlier opinions had indicated that the privilege “is less absolute, although applicable,” when a legislative aide is sued, without elaboration of what was meant.Dombrowski v. Eastland, 387 U.S. 82, 85 (1967);Tenney v. Brandhove, 341 U.S. 367, 378 (1951). InWheeldin v. Wheeler, 373 U.S. 647 (1963), the Court had imposed substantial obstacles to the possibility of recovery in appropriate situations by holding that a federal cause of action was lacking and remitting litigants to state courts and state law grounds. The case is probably no longer viable, however, afterBivens v. Six Unknown Named Agents of the Bureau of Narcotics, 403 U.S. 388 (1971).
406 103 U.S. 168 (1881).
407 387 U.S. 82 (1967).
408 395 U.S. 486 (1969).
409 408 U.S. 606 (1972).
410 Id., 616–617.
411 Id., 618.
412 Id., 618–619.
413 Id., 619–620.
414 Id., 620–621.
415 2 J. Story, Commentaries on the Constitution of the United States(Boston: 1833), Sec. 864.
416 34 Stat. 948 (1907).
417 35 Stat. 626 (1909). Congress followed this precedent when the President wished to appoint a Senator as Attorney General and the salary had been increased pursuant to a process under which Congress did not need to vote to approve but could vote to disapprove. The salary was temporarily reduced to its previous level. 87 Stat. 697 (1975). See also 89 Stat. 1108 (1975) (reducing the salary of a member of the Federal Maritime Commission in order to qualify a Representative).
418 The matter gave rise to a case, Ex parte Albert Levitt, 302 U.S. 633 (1937), in which the Court declined to pass upon the validity of Justice Black’s appointment. The Court denied the complainant standing, but strangely it did not advert to the fact that it was being asked to assume original jurisdiction contrary toMarbury v. Madison, 1 Cr. (5 U.S.) 137 (1803).
419 42 Op. Atty. Gen. No. 36 (January 3, 1969).
420 The Federalist, No. 76 (Hamilton) (J. Cooke ed. 1961), 514; 2 J. Story, Commentaries on the Constitution of the United States(Boston: 1833), §§ 866–869.
421 1 A. Hinds’Precedents of the House of Representatives(Washington: 1907), Sec. 493; 6 C. Cannon’sPrecedents of the House of Representatives(Washington: 1936), §§ 63–64.
422 Hinds’, supra, §§ 496–499.
423 Cf.Right of a Representative in Congress To Hold Commission in National Guard, H. Rept. No. 885, 64th Congress, 1st sess. (1916).
424 Hinds’, supra, §§ 486–492, 494; Cannon’s, supra, §§ 60–62.
425 An effort to sustain standing was rebuffed in Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974).
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