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Blame the Court--An Article by Josh Chafetz '07

BLAME THE COURT.
Privileged
by Josh Chafetz ‘07

This article was originally published at The New Republic Online on May 31, 2006

If there's one thing that can unite members of Congress across party lines, it's their privileges. Responding to the FBI's recent raid of Democrat William Jefferson's congressional offices, Republican Speaker Dennis Hastert and Minority Leader Nancy Pelosi issued a joint statement condemning this "violation of the constitutional principle of separation of powers, the speech or debate clause of the Constitution, and the practice of the last 219 years." They demanded the immediate return of all materials seized and a commitment to keep their contents secret. Last week, President Bush partially acceded to their demands, directing the Department of Justice to seal the materials for 45 days while Congress and the executive branch argue it out. Nary a House member has spoken out forcefully in support of the FBI's search.

But the fact that the congressional arguments are self-serving doesn't mean that they're wrong. In fact, the Speech or Debate Clause of the Constitution should be interpreted to prohibit searches like these. To allow such searches undermines the independence that the clause is meant to secure for Congress. Yet the Constitution cuts both ways--it gives Congress rights against the other branches, but it also gives it the responsibility to police itself, a responsibility Congress has neglected in recent decades. Much of Congress's failure to police itself adequately can be attributed to the Supreme Court losing sight of this delicate balance in the twentieth century.

In 1963, Thomas Johnson, a former congressman from Maryland, was convicted of violating the federal conflict of interest statute and conspiring to defraud the United States for, among other things, accepting money to give a floor speech. On appeal, the Supreme Court noted that the charges "depended upon a showing that the speech was made solely or primarily to serve private interests, and that Johnson in making it was not acting in good faith, that is, that he did not prepare or deliver the speech in the way an ordinary Congressman prepares or delivers an ordinary speech." In other words, the prosecution depended on inquiring into the motives for Johnson's official actions. The Speech or Debate Clause of the Constitution, which privileges senators and congressmen against questioning "in any other Place" for "any Speech or Debate in either House," was intended precisely to prevent such an inquiry. It was intended, that is, to give members of Congress freedom from intrusions into their internal processes by both the executive and the judicial branches. The Court thus overturned Johnson's conviction.

A mere six years later, however, the Court allowed a criminal prosecution against Senator Daniel Brewster for bribery. The Court held that bribery prosecutions did not involve inquiring into legislative behavior because bribery involved taking money in return for a promise to vote a certain way--whether or not Brewster actually voted that way was irrelevant. Chief Justice Warren Burger, writing for the Court, held that "[t]aking 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." The bribery prosecution therefore did not, according to Burger, violate Brewster's Speech or Debate Clause privilege.

But this rests on a very narrow conception of what constitutes a legislator's official duties. In Burger's conception, legislators are only privileged when they talk to one another. Thus, floor speeches, votes, and preparatory research for such speeches or votes are privileged. But when they talk to their constituents or interest groups, they are doing something else--something less worthy of protection. Effective legislation, apparently, does not require communication with the people.

Yet if We the People truly are sovereign, as the Constitution's opening words seem to proclaim, then shouldn't our conversations with our elected representatives--our public servants--be considered every bit as essential to their jobs as their conversations with one another? Indeed, in a 1797 petition to the Virginia House of Delegates, Thomas Jefferson--the great parliamentarian of the early republic--wrote that it was necessary to democratic government that "representatives, in the discharge of their functions, should be free from the cognizance or coercion of the coordinate branches, Judiciary and Executive; and that their communications with their constituents should of right, as of duty also, be free, full, and unawed by any."

Of course, as Chief Justice Burger glibly noted, taking a bribe is no part of a legislator's legitimate duties. But that phrasing puts the cart before the horse. Meeting with constituents most certainly is part of a legislator's legitimate duties. And any prosecution for bribery or similar offenses necessarily involves an inquiry into whether these meetings involved improper promises or representations--that is, it involves poking around in legislators' dealings with constituents and attempting to divine their true reasons for acting the way they did. The Speech or Debate Clause was intended precisely to prevent the executive and the judiciary from passing judgment on how members of a coequal branch perform their official duties. Indeed, in Britain--whose 1689 Bill of Rights codified the parliamentary privilege of free speech in language neatly tracked by the American Speech or Debate Clause--privilege has always been understood to preclude the prosecution of members of Parliament for bribery.

If senators and representatives should be privileged against bribery prosecutions in the courts, then it is even clearer that they should be privileged against searches like those of Congressman Jefferson's office. After all, such searches are not only in pursuit of an impermissible goal, they are also themselves significant infringements on legislative independence; and, as we have seen, it is the protection of legislative independence that underlies the Speech or Debate Clause. Moreover, because the Speech or Debate privilege was meant to be a shield against the judiciary, as well as the executive, it is irrelevant that the search of Jefferson's office was carried out pursuant to a warrant.

Does this mean that Jefferson and his colleagues are above the law? Not at all. The Constitution also provides that "[e]ach House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member." The Senate and House have the power to expel, to censure, to fine, and even to imprison for contempt. Indeed, in the Fourth Congress, the House of Representatives arrested two businessmen for attempting to bribe members of the House. They were tried at the bar of the House, and one was found guilty of contempt and breach of privilege. He was ordered into the custody of the House's sergeant "until further order of this House." Although he was released a week later, there is no doubt that he could have been held longer. Moreover, had the members accepted the bribes, rather than reporting them to the House, they could certainly have been arrested by the House as well.

It is commonplace to lament the lack of self-regulation by Congress and to claim that Congress's failure to police itself justifies the intervention of the other branches. But the British Parliament polices itself, and it is no more corrupt than Congress. If anything, Congress's failure today adequately to police itself stems from the courts' usurpation of this role. If the courts are going to deal with bribery, then why should members of Congress concern themselves with the unpleasant business of punishing their colleagues?

But self-regulation is the scheme contemplated by the Constitution, and it is the scheme that has served Anglo-American legislatures well for centuries. It has at least two important virtues. First, it prevents the other branches from using their power over members to get what they want from Congress. It is not hard to imagine a president using his prosecutorial powers to harass congressmen from the other party, for instance. (There is less of a concern about members of the congressional majority harassing members of the minority, both because the Constitution requires a two-thirds vote for expulsion from Congress and because legislators know that majorities are transient. Presidents, on the other hand, know that they're around for, at most, eight years, and they may therefore be less concerned about souring congressional relations.) Second, self-regulation promotes clear lines of accountability. If you think Congress is too corrupt, vote your congressman out, because even if your representative isn't corrupt, it's his job to police his colleagues, and he's obviously falling down on the job. Under our current system, it is unclear whether the fault lies with Congress itself, with the president, or with judges.

The House of Representatives should put Jefferson on trial. It can take testimony, subpoena witnesses and documents, and come to a verdict. If it finds that he has engaged in misconduct, it has a range of punishments available, from expulsion to fines to imprisonment. As Justice Byron White, joined by two of his colleagues, put it in his Brewster dissent, "The Speech or Debate Clause does not immunize corrupt Congressmen. It reserves the power to discipline in the Houses of Congress. I would insist that those Houses develop their own institutions and procedures for dealing with those in their midst who would prostitute the legislative process." Or, as Spider-Man put it, with great power comes great responsibility.

Josh Chafetz is the author of Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions, forthcoming from Yale University Press.