NORTH CAROLINA LAW REVIEW Volume 57 | Number 2 Article 3 2-1-1979 The pS eech or Debate Clause: Bastion of Congressional Independence Or Haven for Corruption Craig M. Bradley Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Craig M. Bradley, The Speech or Debate Clause: Bastion of Congressional Independence Or Haven for Corruption, 57 N.C. L. Rev. 197 (1979). Available at: http://scholarship.law.unc.edu/nclr/vol57/iss2/3 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. THE SPEECH OR DEBATE CLAUSE: BASTION OF CONGRESSIONAL INDEPENDENCE OR HIAVEN FOR CORRUPTION? CRAIG M. BRADLEYt As the popular concern gradually shifts away from the problem of a corrupt presidency to the more familiar problem of the corrupt con- gressman, it seems appropriate to reconsider the principles of congres- sional privilege. While the constitutionally guaranteed congressional privileges, such as the freedom of speech or debate, may tend to protect Congress from overreaching by the executive, they may also have the effect of shielding corrupt congressmen from legitimate efforts to inves- tigate and prosecute their transgressions. Indeed, in the investigation of the Korean corruption of the United States Congress the investiga- tive efforts of the Justice Department were frequently impaired and trial preparation hampered because many, if not most, of the "official acts" that must be proven to make a case under the federal bribery statute' are also "legislative Acts" under the speech or debate clause of the Constitution.2 According to the courts, these "acts" cannot be in- troduced into evidence (or made the subject of a subpoena or grand jury inquiry) despite the express inclusion of congressmen in the cover- age of the bribery statute.' Further, the clause has been construed to prohibit evidence of the motivations for legislative acts, as well as the acts themselves, and one court has even extended the coverage of the t Visiting Assistant Professor of Law, The University of North Carolina; A.B. 1967, The Uni- versity of North Carolina at Chapel Hill; J.D. 1970, The University of Virginia. From July 1976 to July 1978, the author served as a Senior Trial Attorney with the Criminal Division of the United States Department of Justice investigating the "Koreagate" bribery scandal. The views expressed herein are solely those of the author. 1. 18 U.S.C. § 201 (1976) ("Bribery of public officials and witnesses"). Section 201(c) provides: "Whoever, being a public official or person selected to be a public official, directly or indirectly, corruptly asks, demands, ... receives, or agrees to receive anything of value . .in return for. (1) being influenced in his performance of any official act... [shall be guilty of an offense]." 2. "[F]or any Speech or Debate in either House [Senators and Representatives] shall not be questioned in any other Place." U.S. CoNsT. art. I, § 6, cl.3. 3. See text accompanying notes 125-151 infra. 4. United States v. Johnson, 383 U.S. 169, 183 (1966). 198 NORTH CAROLINA LAW REVIEW [Vol. 57 clause to bar proof of the motivations for "purported" legislative acts.5 It is the purpose of this article to examine the historical back- ground of the congressional privilege of free speech and debate and to determine whether the scope given the privilege by the courts has been appropriate in light of that background. Far from having interpreted the clause too narrowly, as some commentators have argued,6 the courts of the United States have taken too broad a view of the coverage of the clause and, in doing so, have created a serious impediment to the successful investigation and prosecution of congressional corruption. The concept of congressional privilege finds its roots in five hun- dred years of struggle between the Crown and Parliaments in England. By the time the American Constitution was ratified in 1789, Parliament had gained the upper hand,7 and its privileges were not only extensive,' but largely unfettered by formal definition.9 At the Constitutional Convention, the delegates considered a proposal of Mr. Pinckney's to 5. United States v. Dowdy, 479 F.2d 213, 224-26 (4th Cir. 1973) (excluding evidence of congressman's contact with executive branch officials because it was "purportedly" a legislative act), discussed in note 150 infra. 6. See, ag., Reinstein & Silverglate, Legislative Privilege and the Separation of Powers, 86 HARV. L. REV. 1113, 1146 (1973). This article is by no means entirely at loggerheads with the excellent exposition offered by Messrs. Reinstein and Silvergiate since they recognize, id. at 1158, that there are special problems in the area of congressional bribery. See also Note, The Bribed Congressman's Immunity From Prosecution, 75 YALE L.J. 335, 348 (1965). Nevertheless, while there are areas of agreement, the basic conclusions of this article on the correct application of the speech or debate clause to prosecutions under the federal bribery statute are contrary to theirs. See also Celia, The Doctrine ofLegislative Privilegeof Speech or Debate"The New Interpretationas a Threatto Legislative Coequality, 8 SUFFOLK U.L. REV. 1019 (1974); Ervin, The GravelandBrew- ster Caes:.AnAssaulton CongressionalIndependence, 59 VA. L. Rav. 175 (1973); Kaye, Congres- sional Papers,Judicial Subpoenas, and the Constitution, 24 U.C.L.A. L. REv. 523 (1977). 7. See 2 T. ERSKINE MAY, THE CONSTITurioNAL HISTORY OF ENGLAND 364 (4th ed. 1912) (n.p.n.d.). 8. See text accompanying notes 82-89 infra. 9. 1 W. BLACKSTONE, COMMENTARIES *164. The privileges of parliament are likewise very large and indefinite .... [When a ques- tion was put to the courts concerning the scope of the privileges it was declared that] "the justices should [not] in any wise determine the privileges of the high court of parliament. For it is so high and mighty in its nature, that it may make law: and that which is law, it may make no law: and the determination and knowledge of that privilege belongs to the lords of parliament, and not to the justices." Privilege of parliament was principally established, in order to protect its members, not only from being molested by their fel- low-subjects, but also more especially from being oppressed by the power of the Crown. If therefore all the privileges of parliament were once to be set down and ascertained, and no privilege to be allowed but what was so defined and determined, it were easy for the executive power to devise some new case, not within the line of privilege, and under the pretence thereof to harass any refractory member and violate the freedom of parlia- ment. The dignity and independence of the two houses are therefore in great measure preserved by keeping their privileges indefinite. Id. Blackstone went on to point out that one of the more "notorious" of the privileges, the privi- lege of speech, had been enacted into law. Id. (citing An Act declareing the Rights and Liberties of the Subject and Seteing the Succession of the Crowne, 1688, 1 W. & M., sess. 2, c. 22). 1979] SPEECH OR DEBATE CLA USE make Congress the judge of its own privileges, as in the British sys- tem,'0 but the proposal was rejected, apparently because of the strong opposition of Madison, who felt that it was necessary to define the scope of congressional privilege narrowly.1 Consequently, what must be thought to be the full extent of the congressional privilege was set forth in three clauses of the Constitu- tion:12 the publication clause;13 the immunity from arrest clause;' 4 and the speech or debate clause.' 5 Of these, only the speech or debate clause ever has been, or could appropriately be, invoked to protect a congressman from criminal prosecution.' 6 Accordingly, this article will be limited to the background of the speech or debate clause and the manner in which that clause has been interpreted by the courts. I. HISTORY While the history of the clause has been discussed in some detail in prior articles,'7 there are certain facets of the history that require fur- ther elaboration. The most definite aspect of the early development of 10. See note 9 supra. 11. The clause in Pinckney's draft declared that "[e]ach House shall be the judge of its own privileges, and shall have authority to punish by imprisonment every person violating the same." 3 THE PAPERS OF JAMES MADISON 1365 (J. & H.G. Langley ed. 1841) (containing Madison's reports on debates of Federal Constitutional Convention). For Madison's objections to this pro- posal, see id. at 1285-86, 1493-94. See note 92 infra. See also Kilbourn v. Thompson, 103 U.S. 168, 182, 189 (1880) (House of Representatives has authority to punish its own members for disor- derly conduct, to decide contested elections, and to determine qualifications of its members, to impeach, to fine or imprison a contumacious witness, but has no generalpower to punish for contempt). 12. Kilbourn v. Thompson, 103 U.S. 168, 200-05 (1890). In CongressionalPapers, Judicial Subpoenas andthe Constitution,supra note 6, Professor Kaye presents a thorough discussion of all aspects of constitutionally mandated congressional privileges, including the inappropriateness of a claim under U.S. CONST. art. I, § 5, cL 2, which pertains to Congress' rulemaking and disciplinary power to resist a judicial subpoena for congressional papers. 13. "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their judgment require secrecy.