[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7. The Members]
[D. Immunities of Members and Aides]
[§ 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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