Speech and Debate Clause of U.S. Constitution



The exclusion of Congress from various Federal laws has been partially explained in terms of both policy and constitutional considerations. Obviously, the legal and policy rationale will vary depending on the particular law at issue. However, the constitutional bases most often cited for excluding Congress from the coverage of some employment and labor legislation includes the speech or debate clause immunity of Members and the separation of powers doctrine.

The speech and debate clause, art. I, sec. 6, cl. 1, protects Members from being ``questioned in any other place'' for their legislative acts. In Davis v. Passman,4 a divided Supreme Court held that an aide of a Member, discharged because the Member preferred a male for the job, had a cause of action under the due process clause of the Fifth Amendment to sue the Member for monetary damages.5 Because the lower court had not passed on the contention that the speech or debate clause precluded the suit, the Supreme Court declined to do so at that stage. The Court did hold that the speech and debate clause was the only source of immunity for Members of Congress under the separation of powers doctrine. Chief Justice Burger, dissenting along with Justices Powell and Rehnquist, argued that separation of powers in combination with the speech or debate clause, both sharing common roots, did not permit the suit to go forward.6 Justice Stewart, dissenting, thought the speech or debate clause issue was ``far from frivolous'' and would have remanded so that the court of appeals could decide.7

In two decisions, the United States Court of Appeals for the District of Columbia Circuit attempted to formulate a standard for applying the clause to congressional employment decisions. The discharge of the manager of the House of Representatives' restaurant was the issue in Walker v. Jones.8 Essentially, the court focused its inquiry on whether the employee's duties could be viewed ``as work that significantly informs or influences the shaping of our nation's laws'' or whether an employee's duties were ``peculiar to a Congress Member's work as legislator,'' and ``intimately cognate . . . to the legislative process.''9 Under that standard, the clause did not apply to the employee. In Browning v. Clerk, U.S. House of Representatives,10 the discharge of an Official Reporter for the House of Representatives was challenged. The court held the congressional defendants to be immune under the speech or debate clause. The standard was ``whether the employee's duties were directly related to the due functioning of the legislative process.''11 If the employee's duties are ``such that they are directly assisting members of Congress in the `discharge of their functions,' personnel decisions affecting them are legislative and shielded from judicial scrutiny.''12

However, some reconsideration of this developing case law may be called for in light of Forrester v. White.13 This case unanimously held that a State court judge did not have judicial immunity in a suit for damages brought by a probation officer whom he had fired. The Court explained that in determining whether immunity attaches to a particular official action it applies a ``functional'' approach: ``Under that approach, we examine the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and we seek to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions. Officials who seek exemption from personal liability have the burden of showing that such an exemption is justified by overriding considerations of public policy . . . .''14

Thus, it is ``the nature of the function performed, not the identity of the actor who performed it, that inform[s] our immunity analysis.''15

Judges have absolute immunity from liability for the performance of judicial function.16 But when a judge acts in an administrative or legislative capacity, he enjoys no judicial immunity. In the Court's view. ``Judge White was acting in an administrative capacity when he demoted and discharged Forrester. Those acts . . . may have been quite important in providing the necessary conditions of a sound adjudicative system. The decisions at issue, however, were not themselves judicial or adjudicative.''17 Employment decisions, like many others, ``are often crucial to the efficient operation of public institutions,'' yet they are not entitled to absolute immunity ``even though they may be essential to the very functioning of the courts . . . .''18

Forrester v. White was, of course, not a case governed by the speech or debate clause; it was brought under 42 U.S. Code 1983, which affords persons who have been denied their constitutional rights under color of State law a cause of action against State and local defendants. Nonetheless, the Court has adverted to speech or debate principles when passing on questions of legislative immunity in 1983 action, emphasizing that the clause is one aspect of the common law principle of legislative freedom of speech.19 The Court has said ``we generally have equated the legislative immunity to which state legislators are entitled under 1983 to that accorded Congressmen under the Constitution.''20

If Forrester v. White hinges on the question of congressional immunity for labor or employment decisions, it strongly suggests that Members of Congress may have no immunity. The Forrester principle was applied by the D.C. Circuit in Gross v. Winter,21 a case involving legislative immunity in a suit filed against a member of the D.C. City Council. However, the court in Gross declined to address the question of whether special considerations applicable to Members of Congress might warrant the continuing application of the Browning standard, a matter left equally obscure in Forrester.22 It is also uncertain whether Congress could, by statute, waive any speech or debate immunity that may pertain to personnel actions by a Member.23

The other constitutional concern, separation of powers, arises since administrative enforcement of Federal EEO and labor laws is generally vested in executive agencies. Allowing an executive agency to enforce these laws against Members of Congress might, in some situations, violate the Court's separation of powers standards by ``disrupt[ing] the proper balance between the coordinate branches by prevent[ing]. . . [Congress] from accomplishing its constitutionally assigned functions.''24



4 442 U.S. 228 (1979).
5 In Bivens v. Six Unknown Named Agents of the Bureau of Narcotics, 403 U.S. 388 (1971), the Court held that a person, alleging violation of his fourth amendment search and seizure protection, in the absence of a statutory remedial cause of action, could sue individual officers for damages under an implied cause of action premised directly upon the constitutional provision in question. Davis v. Passman extended the ruling, by basing the implication of a cause of action upon the fifth amendment's due process clause, which contains an equal protection component when the Federal Government or one of its agents is the actor.
6 442 U.S. at 249.
7 Ibid. at 251. The case was settled after the Supreme Court remanded it for further proceedings, and no speech or debate clause resolution was reached.
8 733 F.2d 923 (D.C. Cir.), cert. denied, 469 U.S. 1036 (1984).
9 Ibid. at 931.
10 1A 789 F.2d 923 (D.C. Cir.), cert. denied, 479 U.S. 996 (1986).
11 Ibid. at 929 (emphasis in original).
12 Ibid.
13 108 S.Ct. 538 (1988).
14 Ibid. at 542.
15 Ibid. at 545.
16 See Stump v. Sparkman, 435 U.S. 349 (1978).
17 108 S.Ct. at 545.
18 Ibid. at 544-45.
19 e.g., Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 732 (1980).
20 Ibid. at 733.
21 76 F.2d 165 (D.C. Cir. 1989).
22 At one point, the Forrester Court observed that its ``functional'' approach is followed in all cases save for those that are governed ``by express constitutional or statutory enactment'' (108 S.Ct. at 542). Paramount of the express constitutional provisions, it then noted, is the legislative immunity created by the speech and debate clause. ``Even here, however, the Court has been careful not to extend the scope of the protection further than its purposes require'' (Ibid.) The Court then refers to Davis v. Passman, supra, for its holding that except for speech and debate clause immunity, a Member of Congress may be liable for his or her employment decisions. But when, later in the opinion, the Court observed that, no less than a judge's ability to hire and fire employees as bearing on his ability to carry out his judicial functions is the similar ability of executive branch officials to hire and fire, the Court made no reference to employment decisions by legislators, and executive officials have no such immunity as the judge was claiming (Ibid. at 545).
23 cf., United States v. Helstoski, 442 U.S. 477, 492 (1979).
24 e.g., Morrison v. Olson, 487 U.S. 654 (1988).

Section 6. Rights and Disabilities of Members

Clause 1. 

Privilege From Arrest

This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted. 376 It does not apply to service of process in either civil 377 or criminal cases. 378 Nor does it apply to arrest in any criminal case. The phrase ''treason, felony or breach of the peace'' is interpreted to withdraw all criminal offenses from the operation of the privilege. 379

Privilege of Speech or Debate

Members .--This clause represents ''the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature.'' 380 So Justice Harlan explained the significance of the speech-and-debate clause, the ancestry of which traces back to a clause in the English Bill of Rights of 1689 381 and the history of which traces back almost to the beginning of the development of Parliament as an independent force. 382 ''In the American governmental structure the clause serves the additional function of reinforcing the separation of powers so deliberately established by the Founders.'' 383 ''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.'' 384

The protection of this clause is not limited to words spoken in debate. ''Committee reports, resolutions, and the act of voting are equally covered, as are 'things generally done in a session of the House by one of its members in relation to the business before it.''' 385 Thus, so long as legislators are ''acting in the sphere of legitimate legislative activity,'' they are ''protected not only from the consequence of litigation's results but also from the burden of defending themselves.'' 386 But the scope of the meaning of ''legislative activity'' has its limits. ''The heart of the clause is speech or debate in either House, and insofar as the clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.'' 387 Immunity from civil suit, both in law and equity, and from criminal action based on the performance of legislative duties flows from a determination that a challenged act is within the definition of legislative activity, but the Court in the more recent cases appears to have narrowed the concept somewhat.

In Kilbourn v. Thompson, 388 Members of the House of Representatives were held immune in a suit for false imprisonment brought about by a vote of the Members on a resolution charging contempt of one of its committees and under which the plaintiff was arrested and detained, even though the Court found that the contempt was wrongly voted. Kilbournwas relied on in Powell v. McCormack, 389 in which the plaintiff was not allowed to maintain an action for declaratory judgment against certain Members of the House of Representatives to challenge his exclusion by a vote of the entire House. Because the power of inquiry is so vital to performance of the legislative function, the Court held that the clause precluded suit against the Chairman and Members of a Senate subcommittee and staff personnel, to enjoin enforcement of a subpoena directed to a third party, a bank, to obtain the financial records of the suing organization. The investigation was a proper exercise of Congress' power of inquiry, the subpoena was a legitimate part of the inquiry, and the clause therefore was an absolute bar to judicial review of the subcommittee's actions prior to the possible institution of contempt actions in the courts. 390 And in Dombrowski v. Eastland, 391 the Court affirmed the dismissal of an action against the chairman of a Senate committee brought on allegations that he wrongfully conspired with state officials to violate the civil rights of plaintiff.

Through an inquiry into the nature of the ''legislative acts'' performed by Members and staff, the Court held that the clause did not defeat a suit to enjoin the public dissemination of legislative materials outside the halls of Congress. 392 A committee had conducted an authorized investigation into conditions in the schools of the District of Columbia and had issued a report that the House of Representatives routinely ordered printed. In the report, named students were dealt with in an allegedly defamatory manner, and their parents sued various committee Members and staff and other personnel, including the Superintendent of Documents and the Public Printer, seeking to restrain further publication, dissemination, and distribution of the report until the objectionable material was deleted and also seeking damages. The Court held that the Members of Congress and the staff employees had been properly dismissed from the suit, inasmuch as their actions--conducting the hearings, preparing the report, and authorizing its publication--were protected by the clause. The Superintendent of Documents and the Public Printer were held, however, to have been properly named, because, as congressional employees, they had no broader immunity than Members of Congress would have. At this point, the Court distinguished between those legislative acts, such as voting, speaking on the floor or in committee, issuing reports, which are within the protection of the clause, and those acts which enjoy no such protection. Public dissemination of materials outside the halls of Congress is not protected, the Court held, because it is unnecessary to the performance of official legislative actions. Dissemination of the report within the body was protected, whereas dissemination in normal channels outside it was not. 393

Bifurcation of the legislative process in this way resulted in holding unprotected the republication by a Member of allegedly defamatory remarks outside the legislative body, here through newsletters and press releases. 394 The clause protects more than speech or debate in either House, the Court affirmed, but in order for the other matters to be covered ''they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.'' 395 Press releases and newsletters are ''[v]aluable and desirable'' in ''inform[ing] the public and other Members'' but neither are essential to the deliberations of the legislative body nor part of the deliberative process. 396

Parallel developments may be discerned with respect to the application of a general criminal statute to call into question the legislative conduct and motivation of a Member. Thus, in United States v. Johnson, 397 the Court voided the conviction of a Member for conspiracy to impair lawful governmental functions, in the course of seeking to divert a governmental inquiry into alleged wrongdoing, by accepting a bribe to make a speech on the floor of the House of Representatives. The speech was charged as part of the conspiracy and extensive evidence concerning it was introduced at a trial. It was this examination into the context of the speech--its authorship, motivation, and content--which the Court found foreclosed by the speech-or-debate clause. 398

However, in United States v. Brewster, 399 while continuing to assert that the clause ''must be read broadly to effectuate its purpose of protecting the independence of the Legislative branch,'' 400 the Court substantially reduced the scope of the coverage of the clause. In upholding the validity of an indictment of a Member, which charged that he accepted a bribe to be ''influenced in his performance of official acts in respect to his action, vote, and decision'' on legislation, the Court drew a distinction between a prosecution that caused an inquiry into legislative acts or the motivation for performance of such acts and a prosecution for taking or agreeing to take money for a promise to act in a certain way. The former is proscribed, the latter is not. ''Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator . . . Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. 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 or, as in Johnson, for use of a Congressman's influence with the Executive Branch.'' 401 In other words, it is the fact of having taken a bribe, not the act the bribe is intended to influence, which is the subject of the prosecution and the speech-or-debate clause interposes no obstacle to this type of prosecution. 402

Applying in the criminal context the distinction developed in the civil cases between protected ''legislative activity'' and unprotected conduct prior to or subsequent to engaging in ''legislative activity,'' the Court in Gravel v. United States, 403 held that a grand jury could validly inquire into the processes by which the Member obtained classified government documents and into the arrangements for subsequent private republication of these documents, since neither action involved protected conduct. ''While the Speech or Debate Clause recognizes speech, voting and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts.'' 404

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, in Kilbourn 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. Eastland 407 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 in Powell 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, in Gravel 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 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

The Gravel holding, 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 in Kilbournwere 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. 412 Dombrowski was 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.'' 413 And Powell was 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


[Footnote 370] See infra.

[Footnote 371] P. L. 90-206, Sec. 225, 81 Stat. 642 (1967), as amended, P. L. 95-19, Sec. 401, 91 Stat. 45 (1977), as amended, P. L. 99-190, Sec. 135(e), 99 Stat. 1322 (1985).

[Footnote 372] P. L. 94-82, Sec. 204(a), 89 Stat. 421.

[Footnote 373] Pressler v. Simon, 428 F.Supp. 302 (D.D.C. 1976) (three- judge court), affd. summarily, 434 U.S. 1028 (1978); Humphrey v. Baker, 848 F.2d 211 (D.C.Cir.), cert. den. 488 U.S. 966 (1988).

[Footnote 374] P.L. 101-194, 103 Stat. 1716, 2 U.S.C. Sec. 31(2), 5 U.S.C. Sec. 5318 note, and 2 U.S.C. Sec. Sec. 351-363.

[Footnote 375] Boehner v. Anderson, 809 F.Supp. 138 (D.D.C. 1992) (holding Amendment has no effect on present statutory mechanism).

[Footnote 376] Long v. Ansell, 293 U.S. 76 (1934).

[Footnote 377] Id., 83.

[Footnote 378] United States v. Cooper, 4 U.S. (4 Dall.) 341 (C.C. Pa. 1800).

[Footnote 379] Williamson v. United States, 207 U.S. 425, 446 (1908).

[Footnote 380] United States v. Johnson, 383 U.S. 169, 178 (1966).

[Footnote 381] ''That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.'' 1 W. & M., Sess. 2, c. 2.

[Footnote 382] United States v. Johnson, 383 U.S. 169, 177 -179, 180-183 (1966);Powell v. McCormack, 395 U.S. 486, 502 (1969).

[Footnote 383] United States v. Johnson, 383 U.S. 169, 178 (1966).

[Footnote 384] United States v. Brewster, 408 U.S. 501, 507 (1972). This rationale was approvingly quoted from Coffin v. Coffin, 4 Mass. 1, 28 (1808), in Kilbourn v. Thompson, 103 U.S. 168, 203 (1881).

[Footnote 385] Powell v. McCormack, 395 U.S. 486, 502 (1969), quoting Kilbourn v. Thompson, 103 U.S. 168, 204 (1881).

[Footnote 386] Tenney v. Brandhove, 341 U.S. 367, 376 -377 (1972);Dombrowski v. Eastland, 387 U.S. 82, 85 (1967);Powell v. McCormack, 395 U.S. 486, 505 (1969);Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503 (1975).

[Footnote 387] Gravel v. United States, 408 U.S. 606, 625 (1972). The critical nature of the clause is shown by the holding in Davis v. Passman, 442 U.S. 228, 235 n. 11 (1979), that when a Member is sued under the Fifth Amendment for employment discrimination on the basis of gender, only the clause could shield such an employment decision, and not the separation of powers doctrine or emanations from it. Whether the clause would be a shield the Court had no occasion to decide and the case was settled on remand without a decision being reached.

[Footnote 388] 103 U.S. 168 (1881). But see Gravel v. United States, 408 U.S. 606, 618 -619 (1972).

[Footnote 389] 395 U.S. 486 (1969). The Court found sufficient the presence of other defendants to enable it to review Powell's exclusion but reserved the question whether in the absence of someone the clause would still preclude suit. Id., 506 n. 26. See also Kilbourn v. Thompson, 103 U.S. 168, 204 (1881).

[Footnote 390] Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975).

[Footnote 391] 387 U.S. 82 (1967). But see the reinterpretation of this case inGravel v. United States, 408 U.S. 606, 619 -620 (1972).And see McSurely v. McClellan, 553 F. 2d 1277 (D.C.Cir. 1976)(en banc), cert. dismd. as improvidently granted, sub nom. McAdams v. McSurely, 438 U.S. 189 (1978).

[Footnote 392] Doe v. McMillan, 412 U.S. 306 (1973).

[Footnote 393] Difficulty attends an assessment of the effect of the decision, inasmuch as the Justices in the majority adopted mutually inconsistent stands, id., 325 (concurring opinion), and four Justices dissented. Id., 331, 332, 338. The case leaves unresolved as well the propriety of injunctive relief. Compare id., 330 (Justice Douglas concurring), with id., 343-345 (three dissenters arguing that separation of powers doctrine forbade injunctive relief). Also compare Davis v. Passman, 442 U.S. 228, 245 , 246 n. 24 (1979), with id., 250-251 (Chief Justice Burger dissenting).

[Footnote 394] Hutchinson v. Proxmire, 441 U.S. 111 (1979).

[Footnote 395] Id., 126, quotingGravel v. United States, 408 U.S. 606, 625 (1972).

[Footnote 396] Hutchinson v. Proxmire, 443 U.S. 111, 130 , 132-133 (1979). The Court distinguished between the more important ''informing'' function of Congress, i.e., its efforts to inform itself in order to exercise its legislative powers, and the less important ''informing'' function of acquainting the public about its activities. The latter function the Court did not find an integral part of the legislative process. See also Doe v. McMillan, 412 U.S. 306, 314 -317 (1973). But compare id., 325 (concurring). For consideration of the ''informing'' function in its different guises in the context of legislative investigations, see Watkins v. United States, 354 U.S. 178, 200 (1957);United States v. Rumely, 345 U.S. 41, 43 (1953);Russell v. United States, 369 U.S. 749, 777 -778 (1962) (Justice Douglas dissenting).

[Footnote 397] 383 U.S. 169 (1966).

[Footnote 398] Reserved was the question whether a prosecution that entailed inquiry into legislative acts or motivation could be founded upon ''a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members.'' Id., 185. The question was similarly reserved in United States v. Brewster, 408 U.S. 501, 529 n. 18 (1972), although Justices Brennan and Douglas would have answered negatively. Id., 529, 540.

[Footnote 399] 408 U.S. 501 (1972).

[Footnote 400] Id., 516.

[Footnote 401] Id., 526.

[Footnote 402] The holding was reaffirmed in United States v. Helstoski, 442 U.S. 477 (1979). On the other hand, the Court did hold that the protection of the clause is so fundamental that, assuming a Member may waive it, a waiver could be found only after explicit and unequivocal renunciation, rather than by failure to assert it at any particular point. Similarly, Helstoski v. Meanor, 442 U.S. 500 (1979), held that since the clause properly applied is intended to protect a Member from even having to defend himself he may appeal immediately from a judicial ruling of nonapplicability rather than wait to appeal after conviction.

[Footnote 403] 408 U.S. 606 (1972).

[Footnote 404] Id., 626.

[Footnote 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). In Wheeldin 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, after Bivens v. Six Unknown Named Agents of the Bureau of Narcotics, 403 U.S. 388 (1971).

[Footnote 406] 103 U.S. 168 (1881).

[Footnote 407] 387 U.S. 82 (1967).

[Footnote 408] 395 U.S. 486 (1969).

[Footnote 409] 408 U.S. 606 (1972).

[Footnote 410] Id., 616-617.

[Footnote 411] Id., 618.

[Footnote 412] Id., 618-619.

[Footnote 413] Id., 619-620.

[Footnote 414] Id., 620-621.


  • Bribery and Conspiracy


  • Wharton's Rule does not preclude a charge under 18 U.S.C. 371 of conspiring to commit bribery. For one thing, the agreement may involve more participants than were necessary for the commission of the substantive offense. See, e.g., United States v. Benter, 457 F.2d 1174 (2d Cir.), cert. denied, 407 U.S. 842 (1972). Moreover, the Rule has been held not to apply in any event because the gratuity provision (in this particular case, but the observation is also true of the bribery provisions) does not require the culpable participation of two persons. United States v. Previte, 648 F.2d 73 (1st Cir. 1981).


  • Coercion


  • Economic coercion is a factor that bears on the existence of specific intent under the bribery provisions. United States v. Barash, 365 F.2d 395 (2d Cir. 1966). It is irrelevant to a gratuity charge. United States v. Barash, 412 F.2d 26 (2d Cir.), cert. denied, 396 U.S. 832 (1969).


  • Knowledge of Federal Status


  • It is not necessary to prove that the offender knew he was paying a Federal official. Although the Government must prove that the payee was a Federal official and that the offender believed the person he attempted to bribe had official authority to act in a particular matter, it is not necessary to prove that the offender believed the official was exercising Federal authority. United States v. Jennings, 471 F.2d 1310 (2d Cir.), cert. denied, 411 U.S. 935 (1973) (FBI agents posing as local police officers bribed by defendant, who did not know they were Federal officials).


  • Campaign Contributions
  • A bribery charge can be premised on a campaign contribution. But be careful. It is problematical that a gratuity charge under 201(c) can rest on a bona fide campaign contribution, unless the contribution was a ruse that masqueraded for a gift to the personal benefit of the public officer as was the case in Brewster, supra. This is because campaign contributions represent a necessary feature of the American political process, they normally inure to the benefit of a campaign committee rather than directly to the personal benefit of a public officer, and they are almost always given and received with a generalized expectation of currying favor with the candidate benefitting therefrom. For these reasons, recent Federal jurisprudence on the subject suggests substantial judicial reluctance to extend the Federal crime of gratuities under section 201(c) to bona fide campaign donations.


    PRACTICE TIP: Where the transaction represents a bona fide campaign contribution, prosecutors must normally be prepared to prove that it involved a quid pro quo understanding and thereby constituted a "bribe" offense actionable under section 201(b).


    COMMENT: This same distinction between bribes, gratuities and lawful campaign contributions has recently been applied to some of the Federal prosecutive theories that are currently used to address bribery and corruption by state and local public officials. For example, in McCormick v. United States, 500 U.S. 257 (1991) the Supreme Court held that the Hobbs Act (18 U.S.C. 1951) did not apply to a series of campaign contributions that were made with a general intent to curry favor with a state senator and to thank him for his support. Noting that campaign contributions are a necessary part of the American political process, the Court held that when an allegedly corrupt payment represents a bona fide campaign contribution, the prosecution must prove the existence of a quid pro quo. This principle was thereafter affirmed shortly thereafter in Evans v. United States, 504 U.S. 255 (1992).


  • The Speech and Debate Clause
  • The Federal offenses of bribery and gratuities apply to payments made in consideration for, or to thank or curry favor with, Members of Congress and their legislative staffs. However, where an official of the Legislative Branch is the intended recipient, the task of proving the "official act" element can present prosecutors with unique challenges rooted in the Speech and Debate Clause of the U.S. Constitution. U.S. Constit. Art I, sec 6, cl 1.


    The Speech and Debate Clause provides the "legislative acts" of a Senator or a Representative "shall not be questioned in any place." It applies in criminal as well as civil litigation involving the Senator or Representative, and provides absolute immunity to United States Senators and Representatives while they are engaged in legislative acts. United States v. Brewster, 408 U.S. 501 (1972); United States v. Helstoski, 442 U.S. 477 (1976). Its purpose is to assure the Congress a wide and unfettered latitude of freedom of speech in the deliberative process surrounding enacting legislation, and to shield that process from potential intimidation from the Executive and Judicial Branches. Gravel v. United States, 408 U.S. 606 (1972); Powell v. McCormick, 395 U.S. 486 (1969).


    While the Speech and Debate Clause has been expressly held not to shield Senators or Representatives against bribery charges, Johnson v. United States, 383 U.S. 169 (1964), it does impose significant limits on the type of evidence that can be used to prove such an offense. The Clause broadly protects members of Congress "against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts," United States v. Brewster, 408 U.S. 501, 525 (1972), and "precludes any showing of how [a member of Congress], acted, voted, or decided." Id. at 527. The Supreme Court has declared that "past legislative acts of a Member cannot be admitted without undermining the values protected by the Clause," including speeches in committee as well as those on the Floor of the Chamber, the Senator or Representative's votes, and his or her explanations for them. A somewhat wider latitude has been allowed insofar as the admissibility of activities that took place occurred prior to a legislative act. United States v. Helstoski, 442 U.S. 477, 489 (1979). However, the parameters of what constitutes a "legislative act" are quite broad, and can severely impair the ability of prosecutors to prove bribery and gratuity cases where the recipient is an elected Member of the Legislative Branch.


    When evidence embraced by this privilege is introduced--either in trial or in grand jury proceedings--the effect can be as troubling to the prosecution as introducing the fruits of an illegal search. See United States v. Durenburger, 1993 WL 738477 (D.Minn 1993); Helstoski, supra; compare Johnson.


    In addition, both the House and the Senate consider that the Speech and Debate Clause gives them an institutional right to refuse requests for information that originate in the Executive or the Judicial Branches that concern the legislative process. Thus, most requests for information and testimony dealing with the legislative process must be presented to the Chamber affected, and that Chamber permitted to vote on whether or not to produce the information sought. This applies to grand jury subpoenas, and to requests that seek testimony as well as documents. The customary practice when seeking information from the Legislative Branch which is not voluntarily forthcoming from a Senator or Member is to route the request through the Clerk of the House or the Secretary of the Senate. This process can be time-consuming. However, bona fide requests for information bearing on ongoing criminal inquiries have been rarely refused.


    PRACTICE TIP: The Public Integrity Section of Criminal Division has significant expertise in addressing and overcoming Speech and Debate issues. Prosecutors are encouraged to contact Public Integrity when the official acts of an elected Member of the Legislative Branch become the focus of a criminal inquiry. Public Integrity can be reached at (202) 514-1412 (phone) or (202) 514-3003 (fax).


  • Included offenses
  • The offense of soliciting, giving, accepting and receiving a gratuity is a lesser included offense within the greater crime of soliciting, giving, accepting or receiving a bribe. See United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974); and United States v. Anderson, 509 F.2d 312 (D.C. Cir. 1974).



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