[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7.  The Members]
[D. Immunities of Members and Aides]
[Â§ 16. For Speech and Debate]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 792-802]
 
                               CHAPTER 7
 
                              The Members
 
                   D. IMMUNITIES OF MEMBERS AND AIDES
 
Sec. 16. For Speech and Debate

    At article I, section 6, clause 1, the Constitution states that 
``for any speech or debate in either House, they [Senators and 
Representatives] shall not be questioned in any other place.'' That 
prohibition, approved at the Constitutional Convention with little if 
any discussion or debate,(16) was

[[Page 793]]

drawn directly from the English parliamentary privilege, as embodied in 
the English Bill of Rights of 1689:
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16. See 5 Elliott's Debates 406 (1836 ea.) and 2 Records of the Federal 
        Convention 246 (Farrand ed. 1911). See also U.S. v Johnson, 383 
        U.S. 169 (1966) for the history of the incorporation of the 
        privilege into the United States Constitution, and for the 
        history of the constitutional clause in general.
            For the views of early constitutional commentators on the 
        origins and scope of the privilege, see Jefferson's Manual, 
        House Rules and Manual Sec. Sec. 287, 288, 301, 302 (1973) and 
        Story, Commentaries on the Constitution of the United States, 
        Sec. 863, Da Capo Press (N. Y. repute. 1970).
            For more recent commentary, see Comment, Brewster, Gravel 
        and Legislative Immunity, 73 Col. L. Rev. 125 (1973) 
        (hereinafter cited as 73 Col. L. Rev. 125); Cella, The Doctrine 
        of Legislative Privilege of Freedom of Speech or Debate: Its 
        Past, Present and Future as a Bar to Criminal Prosecutions in 
        the Courts, 2 Suffolk L. Rev. 1 (1968); Oppenheim, 
        Congressional Free Speech, 8 Loyola L. Rev. 1 (1955); Yankwich, 
        The Immunity of Congressional Speech Its Origin, Meaning and 
        Scope, 99 U. Pa. L. Rev. 960 (1951).
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        That the freedom of speech, and debates for proceedings in 
    Parliament, ought not to be impeached or questioned in any court or 
    place out of Parliament.(17)
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17. 1 W & M, Sess. 2, c. 2, art. 9.

The clause serves not only to insure the independence and unbridled 
debate of Members of the legislature,(18) but also to 
reinforce the constitutional doctrine of separation of 
powers.(19)
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18. The English parliamentary privilege developed from conflict over 
        the right of legislators to speak freely and to criticize the 
        monarchy. See Wittke, The History of the English Parliamentary 
        Privilege, Ohio State Univ. (1921).
            Not since 1797, during the administration of John Adams, 
        has the executive branch attempted imprisonment of dissenting 
        Congressmen (see 73 Col. L. Rev. 125, 127, 128). See also 
        Sec. 17.4, infra (Justice Department inquiry, where a Senator 
        obtained and disclosed classified materials).
19. U.S. v Johnson, 383 U.S. 169, 170 (1966).
            ``The immunities of the Speech or Debate Clause were not 
        written into the Constitution simply for the personal or 
        private benefit of Members of Congress, but to protect the 
        integrity of the legislative process by insuring the 
        independence of individual legislators.'' U.S. v Brewster, 408 
        U.S. 501, 507 (1972). See also Kilbourn v Thompson, 103 U.S. 
        168, 203 (1881) and Coffin v Coffin, 4 Mass. 1, 28 (1808).
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    As stated above,(20) the scope and application of the 
immunity for speech and debate has been principally fashioned not by 
Congress but by the courts. Immunity is usually raised as a defense to 
litigation challenging the activities of Congressmen or of Congress 
itself. The Supreme Court has relied heavily upon English parliamentary 
and judicial precedents in order to resolve issues related to the 
operation of the immunity in the United States Congress.(1)
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20. See Sec. 15, supra.
 1. See, for example, Gravel v U.S., 408 U.S. 606 (1972); U.S. v 
        Brewster, 408 U.S. 501 (1972); U.S. v Johnson, 383 U.S. 169 
        (1966); Tenney v Brandhove, 341 U.S. 367 (1951); Kilbourn v 
        Thompson, 103 U.S. 165 (1880).

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[[Page 794]]

    The speech and debate that is protected from inquiry either by the 
judicial branch or by the executive branch includes all things done in 
a session of the House by one of its Members in relation to the 
business before it.(2) All speech, debate, and remarks on 
the floor of the House are privileged,(3) as is material not 
spoken on the floor of the House but inserted in the Record by a Member 
with the consent of the House.(4) Republication and 
unofficial circulation of reprints of the Congressional Record are not, 
however, absolutely privileged, either under American law or under 
English law.(5) Such reprints enjoy a qualified privilege, 
so that in a suit for defamation actual malice on the part of the 
Congressman circulating the reprint would have to be 
shown.(6)
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 2. Powell v McCormack, 395 U.S. 486, 502 (1969), quoting from Kilbourn 
        v Thompson, 103 U.S. 168, 204 (1881).
            For the scope of the immunity as to other legislative 
        activities, see Sec. 17, infra.
 3. ``I will not confine it [the Speech and Debate Clause] 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 
        am satisfied that there are cases in which he [the legislator] 
        is entitled to this privilege when not within the walls of the 
        Representatives' chamber.'' Coffin v Coffin, 4 Mass. 1, 27 
        (1808).
 4. See Sec. 16.3, infra.
 5. For the English rule on the subject of unofficial reports and 
        reprints, see Story, Commentaries on the Constitution of the 
        United States, Sec. 863, Da Capo Press (N.Y. repute. 1970) and 
        1 Kent's Commentaries 249, note (8th ed. 1854). It should be 
        noted, however, that publication or republication of speeches 
        made on the floor of Parliament was not in itself lawful at the 
        time of the American Constitutional Convention (see 73 Col. L. 
        Rev. 125, 147, 148).
            For the American rule, see the cases cited at Sec. 16.3, 
        infra. See also Restatement of Torts Sec. Sec. 590 and 611, 
        American Law Institute (St. Paul 1938).
 6. See Story, Commentaries on the Constitution of the United States, 
        Sec. 866 and Restatement of Torts Sec. 590, comment b. See also 
        New York Times Co. v Sullivan, 376 U.S. 254 (1964) (defamatory 
        statement must have been made either with knowledge that it was 
        false or with reckless disregard as to whether it was false or 
        not); Murray v Brancato, 290 N.Y. 52, 48 Northeast 2d 257 
        (1943); Coleman v Newark Morning Ledger Co., 29 N.J. 357, 149 
        A.2d 193 (1959).
            In Trails West, Inc. v Wolff, 32 N.Y. 2d 207 (1973), the 
        New York Court of Appeals held that an allegedly defamatory 
        press release by a Congressman, on a matter of public interest 
        and concern, was entitled to the qualified privilege enunciated 
        in New York Times Co. v Sullivan. Since the plaintiff had not 
        proved actual malice, the case was dismissed.

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[[Page 795]]

    Protected speech and debate on the floor includes voting records 
and reasons therefore,(7) introducing bills and resolutions, 
and passing bills and resolutions.(8) As early as 1810, 
Chief Justice Marshall refused to inquire into the motives of a state 
legislature whose Members were allegedly bribed to secure passage of an 
act.(9)
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 7. Smith v Crown Publishers, 14 F.R.D. 514 (1953) (oral deposition of 
        Senator limited as to voting record and motives).
 8. Powell v McCormack, 395 U.S. 486 (1969), and Kilbourn v Thompson, 
        103 U.S. 165 (1880) (participation of Members in passing 
        resolution protected by Speech and Debate Clause).
 9. Fletcher v Peck, 10 U.S. (6 Cranch) 87, 130 (1810).
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    Controversies relating to the scope of the Speech and Debate Clause 
have arisen in three different types of court proceedings: (1) criminal 
charges, principally bribery, against Members in relation to their 
legislative duties; (10) (2) civil actions for defamation 
against Congressmen: (11) and (3) litigation claiming 
private damage from allegedly unconstitutional resolutions and orders 
of Congress.(12) In the third category is Kilbourn v 
Thompson, where false imprisonment by an order of the House was 
alleged.(13) The Court in that case held that the 
participation of Members in passing a resolution was protected by the 
Speech and Debate Clause, although employees of the House charged with 
the execution of the resolution could be held personally liable for 
enforcing an unconstitutional congressional act.(14) Since 
Kilbourn, the courts have protected Members from civil liability, 
citing their speech and debate immunity, but have held congressional 
employees liable in some cases for executing unconstitutional orders of 
the House or Senate.(15)
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10. The bribery case of U.S. v Johnson, 383 U.S. 169 (1966) was of 
        first impression for the Supreme Court.
11. The House has in the past censured Members for unparliamentary 
        language (see 2 Hinds' Precedents Sec. 1259).
12. For litigation alleging private damage from committee reports and 
        activities, see Sec. 17, infra.
13. 103 U.S. 165 (1880) (imprisonment for contempt of congressional 
        committee).
14. 103 U.S. at 200-205.
15. See, e.g., Sec. 17.1, infra. The naming of congressional employees 
        as defendants in a case seeking a declaratory judgment has been 
        used as a basis for jurisdiction to entertain the suit, when 
        the claim against House Members was dismissed due to the 
        immunity of speech and debate (see Sec. 16.5, infra).

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[[Page 796]]

    A similar rule has been followed in cases involving criminal 
charges against Members of Congress. United States v Johnson 
(16) and Brewster v United States (17) 
established the principle that a criminal prosecution could not inquire 
into the motivation, preparation, or content of a Member's speech and 
that the speech could not be made the basis of a bribery or conspiracy 
charge. However, a Member may be convicted for accepting a bribe to 
perform legislative acts, if the prosecution does not inquire into the 
legislative acts themselves but only into the offering and acceptance 
of the bribe. And a Member may be convicted of bribery in relation to 
conduct that is not related to the legislative function.(18)
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16. 383 U.S. 169 (1966) (for analysis, see Sec. 16.1, infra).
17. 408 U.S. 501 (1972) (for analysis, see Sec. 16.2, infra).
18. See Burton v U.S., 202 U.S. 344 (1906) (conviction of attempt to 
        influence Post Office Department); May v U.S., 175 F2d 994 
        (D.C. Cir. 1949) (conviction of accepting compensation for 
        services before governmental departments).
            The Supreme Court has reserved the question whether 
        prosecution of a Congressman, based upon a narrowly drawn 
        statute to regulate congressional conduct, could inquire into 
        legislative acts without violating the Speech and Debate 
        Clause. See U.S. v Johnson, 383 U.S. 169, 180-185 (1966); U.S. 
        v Brewster, 408 U.S. 501, 521, 529 (1972).
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    The Speech and Debate Clause immunity precludes any inquiry into 
whether remarks were made in the discharge of official duties, or made 
with malice or ill will. The Supreme Court stated in Tenney v 
Brandhove: (19)
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19. 341 U.S. 367 (1951). Tenney involved the immunity of state 
        legislators, which the Court found to be on the same footing as 
        the constitutional privilege. The Court refused to inquire into 
        the motives of a state legislative committee which was 
        allegedly violating the civil rights of a citizen.
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        The claim of an unworthy purpose does not destroy the 
    privilege. Legislators are immune from deterrence 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 from legislators. The privilege would be of 
    little value if they could be subjected to the cost and 
    inconvenience and distractions of a trial upon conclusion of the 
    pleader, or to the hazard of a judgment against them based upon a 
    jury's speculation as to motive.(20)
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20. 341 U.S. at 377.
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    The immunity of speech and debate would appear to apply to 
Delegates and Resident Commissioners as well as to Members, because of 
its purpose of insuring

[[Page 797]]

the independency and integrity of the legislative body in 
general.(1)
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 1. In Doty v Strong, 1 Pinn. 84 (Wis. Territ. 1840), the 
        constitutional privilege from arrest was held applicable to 
        Delegates. Delegates and Resident Commissioners, as 
        governmental officials, have at least the common law privilege 
        from suit enunciated in Barr v Mateo, 360 U.S. 564 (1959). For 
        the common law privilege in general, see Sec. 15, supra.
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                            Cross References
Committee reports, activities, and employees protected by the Speech 
    and Debate Clause, see Sec. 17, infra.
Legislative activities protected by the Speech and Debate Clause, see 
    Sec. 17, infra.

                         Collateral References
Brewster, Gravel and Legislative Immunity, 73 Col. L. Rev. 125 
    (comment) (1973).
Bribed Congressman's Immunity from Prosecution, 75 Yale L. Jour. 335 
    (1965).
Cella, The Doctrine of Legislative Privilege of Freedom of Speech or 
    Debate: Its Past, Present and Future as a Part of Criminal 
    Prosecutions in the Courts, 2 Suffolk L. Rev. 1 (1968).
Constitutional Privilege of Legislators: Exemption from Arrest and 
    Action for Defamation, 9 Minn. L. Rev. 442 (comment) (1925).
Defamation--Publication of Defamatory Statements Made by U.S. Senator 
    at Press Conference is Qualifiedly Privileged, 28 Fordham L. Rev. 
    363 (1959).
Ervin (Senator, N.C.), The Gravel and Brewster Cases: An Assault on 
    Congressional Independence, 59 Va. L. Rev. 175 (Feb. 1973).
Immunity Under the Speech or Debate Clause for Republication and From 
    Questioning About Sources, 71 Mich. L. Rev. 1251 (note) (May 1973).
Oppenheim, Congressional Free Speech, 8 Loyola L. Rev. 1 (1955).
``They Shall Not Be Questioned . . .''--Congressional Privilege to 
    Inflict Verbal Injury, 3 Stan. L. Rev. 486 (comment) (1951).
U.S. v Johnson, 337 F2d 180 (4th Cir. 1964), 78 Harv. L. Rev. 1473 
    (comment) (1965).
United States Constitution Annotated, Library of Congress, S. Doc. No. 
    92-82, 117-122, 92d Cong. 2d Sess. (1972).
Veeder, Absolute Immunity in Defamation: Legislative and Executive 
    Proceedings, 10 Col. L. Rev. 131 (1910).
Yankwich, The Immunity of Congressional Speech: Its Origin, Meaning and 
    Scope, 99 U. Pa. L. Rev. 960 
    (1951).                          -------------------

As Defense to Bribery or Conspiracy

Sec. 16.1 The Supreme Court held a Member of the 86th Congress immune 
    from conviction for conspiracy to defraud the government, where the 
    prosecution was based upon a speech made by the Member on the floor 
    of the House.(2)
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 2. U.S. v Johnson, 383 U.S. 169 (1966), in which the court affirmed 
        the voidance of the conviction by a United States Court of 
        Appeals, 337 F2d 180 (4th Cir. 1964). The Supreme Court opinion 
        is reprinted at 117 Cong. Rec. 32456, 92d Cong. 1st Sess., 
        Sept. 20, 1971.

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[[Page 798]]

    On June 30, 1960, Mr. Thomas F. Johnson, of Maryland, was 
recognized under a previous order to speak on the floor of the House. 
He delivered a speech repudiating critical attacks on the independent 
savings and loan industry of Maryland.(3)
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 3. 106 Cong. Rec. 15258, 15259, 86th Cong. 2d Sess.
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    Mr. Johnson was subsequently indicted and convicted for conspiracy 
to defraud the United States, among other charges. The conspiracy count 
was based upon alleged payment to Mr. Johnson to deliver a speech in 
the House favorable to savings and loan institutions and to influence 
the Justice Department to dismiss criminal charges against these 
institutions.(4)
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 4. See 383 U.S. at 170, 171.
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    During prosecution of the charges against Mr. Johnson, extensive 
inquiry was made into the manner of preparation of the June 30 speech, 
the precise ingredients and phrases of the speech, and the motive in 
delivering the speech.(5)
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 5. See 383 U.S. at 173-177 and notes 4-6.
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    The Supreme Court voided the conviction of Mr. Johnson, and held 
that the Speech and Debate Clause of the Constitution precluded 
judicial inquiry into the motivation for a Congressman's speech and 
prevented such a speech from being made the basis of a criminal charge 
against him for conspiracy to defraud the government.(6)
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 6. U.S. v Johnson, 383 U.S. 169, 184, 185 (1966).
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Sec. 16.2 The Supreme Court upheld the conviction of a former Senator 
    for accepting bribes to act in a certain way on legislation before 
    his committee, where the prosecution did not require inquiry into 
    legislative acts or motivation.(7)
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 7. U.S. v Brewster, 408 U.S. 501 (1972). The Court overruled the U.S. 
        District Court for the District of Columbia, which had 
        dismissed the indictment on the ground that Senator Brewster 
        was immune from conviction under the Supreme Court's 
        interpretation of the Speech and Debate Clause in U.S. v 
        Johnson, 383 U.S. 169 (1966) (see Sec. 16.1, supra).
            See also U.S. v Dowdy, 479 F2d 213 (4th Cir. 1973), cert. 
        denied, 414 U.S. 823 (1973), where a United States Court of 
        Appeals found an infringement of the Speech and Debate Clause 
        as to some but not all of the counts of an indictment against a 
        former Member of the House.
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    Where a former United States Senator was indicted for asking

[[Page 799]]

and accepting sums of money in exchange for acting a certain way on 
postage legislation before the Senate Committee on Post Office and 
Civil Service, of which he was a member, the Supreme Court held that 
the indictment was a proper one. The Court first stated that there were 
a variety of legitimate activities of Congressmen, political in nature 
rather than legislative, which were not protected by the Speech and 
Debate Clause of the Constitution.(8) The Court then stated:
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 8. 408 U.S. at 512. Federal courts have used the reasoning of Brewster 
        in order to question the use by Congressmen of their franking 
        privilege. In Hoellen v Annunzio, 468 F2d 522 (7th Cir. 1972), 
        cert. denied, 412 U.S. 953 (1973), the court held that the 
        Speech and Debate Clause did not prohibit inquiry into use of 
        the frank, since the mailings challenged were for political 
        purposes and only incidental to the legislative process. See 
        also Schiaffo v Helstoski, 350 F Supp 1076 (D.N.J. 1972).
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        Taking a bribe is, obviously, no part of the legislative 
    process or function; it is not a legislative act. . . . When a 
    bribe is taken, it does not matter whether the promise for which 
    the bribe was given was for the performance of a legislative act as 
    here. . . . And an inquiry into the purpose of the bribe ``does not 
    draw into question the legislative acts of the defendant Member of 
    Congress or his motives for performing them.'' (9)
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 9. 408 U.S. at 526, quoting from U.S. v Johnson, 383 U.S. 169, 185 
        (1966).
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As Defense to Defamation

Sec. 16.3 Where a citizen claimed defamation by a Congressman in 
    remarks inserted in the Congressional Record, a federal court held 
    that the Speech and Debate Clause protects material inserted in the 
    Record with the consent of the House, but that republished excerpts 
    are not protected.(10)
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10. McGovern v Martz, 182 F Supp 343 (D.D.C. 1960).
            Republication and unofficial circulation of reprints of the 
        Congressional Record, if libelous, are not protected by the 
        Speech and Debate Clause. See Long v Ansell, 69 F2d 386, aff., 
        293 U.S. 76 (1934) (indicating that circulated reprints of 
        Record would be libel per se if allegations of petition proved) 
        and Gravel v U.S., 408 U.S. 606 (1972) (private republication 
        of classified study disclosed at Senate subcommittee hearing 
        not privileged from grand jury inquiry).
            If a public official claims to have been libeled by 
        reprints of the Congressional Record, it would appear that he 
        would have to prove ``actual malice'' on the part of the 
        Congressman sought to be sued, under New York Times Co. v 
        Sullivan, 376 U.S. 254 (1964). A state court held a Congressman 
        qualifiedly privileged from libel for remarks made during a 
        press conference by applying the Times rule, in Trails West, 
        Inc. v Wolff, 32 N.Y. 2d 207, ---- N.E. 2d ---- (1973).

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[[Page 800]]

    In the course of a suit by Mr. George S. McGovern, of South Dakota, 
against a newspaper publisher, for falsely reporting Mr. McGovern as 
the sponsor of a Communist front organization, the publisher 
counterclaimed for defamation, based upon a Congressional Record insert 
by Mr. McGovern on Aug. 5, 1958. The insert mentioned the publisher by 
name.(11)
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11. 104 Cong. Rec. A-7032, 85th Cong. 2d Sess.
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    The United States District Court for the District of Columbia 
dismissed the counterclaim, holding that a Congressman's constitutional 
immunity from being questioned for speech and debate extends to all 
material inserted by him in the Congressional Record, with the consent 
of the House.(12)
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12. 182 F Supp at 347.
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    The court added that the absolute privilege to inform fellow 
legislators becomes a qualified privilege when portions of the 
Congressional Record are republished and unofficially disseminated. No 
allegation of republication had been made in the controversy before the 
court.(13)
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13. 182 F Supp at 347, 348.
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Sec. 16.4 A federal court dismissed charges of slander against a 
    Senator because the words complained of were delivered in a speech 
    in the Senate Chamber and were protected by the Speech and Debate 
    Clause, despite allegations they were not spoken in discharge of 
    official duties.(14)
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14. Cochran v Couzens, 42 F2d 783 (D.C. Cir. 1930), cert. denied, 282 
        U.S. 874 (1930).
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    On Apr. 12, 1928, Senator James Couzens, of Michigan, delivered a 
speech on the Senate floor in which he discussed a large additional tax 
assessment made against him by the Internal Revenue Service when he was 
a member of a special committee investigating Internal Revenue Service 
abuses.(15)
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15. 69 Cong. Rec. 6253-60, 70th Cong. 1st Sess. Senator Couzens had 
        been appointed on Mar. 24, 1924, to a special committee to 
        investigate the Internal Revenue Service. 66 Cong. Rec. 4023.
            S. Res. 213, to investigate the tax assessment against 
        Senator Couzens and the threatened intimidation by the Internal 
        Revenue Service, was introduced in the Senate and referred to 
        the Committee on the Judiciary in the 70th Congress. 69 Cong. 
        Rec. 7379, 70th Cong. 1st Sess., Apr. 28, 1928.
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    In the course of his remarks, Senator Couzens mentioned the name of 
Mr. Cochran, a former clerk of the Internal Revenue

[[Page 801]]

Service, who Senator Couzens stated had offered him ``inside'' 
information of the Service, for a contingent fee, which would enable 
him to have the assessment voided.(16)
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16. Id. at pp. 6258, 6259. Letters written by and about Mr. Cochran 
        were inserted in the Record id. at p. 6259.
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    Mr. Cochran subsequently sued Senator Couzens for slander, alleging 
that the remarks made in the Senate by the Senator were not spoken in 
discharge of his official duties. A United States Court of Appeals held 
that Senator Couzens' remarks in the Senate Chamber were absolutely 
privileged under the Speech and Debate Clause despite that 
allegation.(17)
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17. Cochran v Couzens, 42 F2d 783 (D.C. Cir. 1930), cert. denied, 282 
        U.S. 874 (1930).
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Defense to Suit by Excluded Member

Sec. 16.5 Where a Member-elect excluded from the 90th Congress 
    challenged the exclusion in court and named Members and officers of 
    the House as defendants, the Supreme Court declared the Members 
    immune from suit under the Speech and Debate Clause but upheld the 
    challenge as against the named officers.(18)
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18. Powell v McCormack, 395 U.S. 486 (1969). The court affirmed in part 
        and reversed in part the finding of the U.S. Court of Appeals, 
        395 F2d 577 (D.C. Cir. 1968) and remanded to the U.S. District 
        Court for the District of Columbia.
            Portions of the text of the opinion, relating to the Speech 
        and Debate Clause, appear at 117 Cong. Rec. 32459, 92d Cong. 
        1st Sess. For a complete synopsis of the House expulsion 
        proceedings in this case, see Sec. 9.3, supra.
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    On Mar. 1, 1967, the House excluded from membership Member-elect 
Adam C. Powell, of New York.(19)
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19. 113 Cong. Rec. 5038, 90th Cong. 1st Sess. (see H. Res. 278).
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    Mr. Powell subsequently filed suit in Federal District Court 
challenging the action of the House in excluding him; he named as 
defendants the Speaker of the House, certain named Members, and the 
Clerk, Sergeant at Arms, and Doorkeeper of the House.(20) 
The defendants as

[[Page 802]]

serted, among other claims, that the Speech and Debate Clause of the 
Constitution was an absolute bar to Mr. Powell's suit.(1)
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20. See the Speaker's announcement that the suit had been filed, 113 
        Cong. Rec. 6035, 90th Cong. 1st Sess., Mar. 9, 1967. Subpenas 
        to the Speaker and others, the complaint in the suit, and 
        application (with memorandum) for the convening of a three-
        judge federal court were inserted in the Record at 113 Cong. 
        Rec. 6036-40.
            See 113 Cong. Rec. 8729-62 for further briefs, memoranda, 
        and the opinion of the U.S. District Court Judge dismissing the 
        original complaint.
 1. See Point II (A) of Defendants' Memorandum of Points and 
        Authorities in Support of Defendants' Motion to Dismiss in 
        Powell v McCormack (No. 559-67, U.S. Dist. Ct. for D.C.), 
        reprinted at 113 Cong. Rec. 8743-45, 90th Cong. 1st Sess., Apr. 
        10, 1967.
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    When the litigation reached the Supreme Court, the Court held that 
the Speech and Debate Clause barred suit against the respondent 
Congressmen but did not bar action against the legislative officials 
charged with unconstitutional activity.(2)
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 2. The Court stated that the fact that the House officials were acting 
        pursuant to express orders of the House did not preclude 
        judicial review of the constitutionality of the underlying 
        legislative decision, 395 U.S. at 501-506, and applied the 
        doctrine that, ``although an action against a Congressman may 
        be barred by the Speech or Debate Clause, legislative employees 
        who participated in the unconstitutional activity are 
        responsible for their acts.'' 395 U.S. at 504.
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