The Speech or Debate Clause Shields Lawmakers' Votes, Not Their Bribes

A congressman takes an envelope of cash in exchange for a vote. He is indicted. His lawyer stands up in court and announces, with a perfectly straight face, that the Constitution forbids the prosecution, because the case is about a vote, and votes are protected by the Speech or Debate Clause. You might think no lawyer would try it. Lawyers have tried it, more than once, all the way to the Supreme Court. And the Supreme Court has said no.

The Speech or Debate Clause is one of the least known and most important protections in the Constitution. It exists so that a president, a prosecutor or a hostile court cannot intimidate the people's representatives for what they say and do as legislators. It is a shield for the legislature's independence, which means it is a shield for the people's liberty. It is not, and has never been, a license to sell a vote. Here is where it came from, what it covers, and where its edges are.

The text in full

Article I, Section 6, Clause 1 reads:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

That one clause holds three separate things.

1. Pay from the national Treasury. Members are paid by the United States, not by their states, so that no state legislature can starve its delegation into obedience.
2. The arrest privilege. Members cannot be arrested while attending a session or traveling to and from it, except for treason, felony and breach of the peace.
3. The speech or debate privilege. For any speech or debate in either House, members "shall not be questioned in any other Place." No court, no grand jury, no executive agency can call them to account for it.

The second and third are different protections with different histories, and confusing them is the first mistake most people make.

A privilege written in English blood

The privilege was won in a struggle between Parliament and the Crown that lasted most of the seventeenth century.

The Stuart kings did not accept that members of Parliament could criticize royal policy without consequence. In 1629, Sir John Eliot, a leader of the opposition in the House of Commons, was imprisoned for speeches made in the House. He died in the Tower of London in 1632, still a prisoner. On January 4, 1642, King Charles I entered the House of Commons with armed men to arrest five members he accused of treason. They had been warned and had fled. The Speaker, asked by the King where they were, answered that he had neither eyes to see nor tongue to speak in that place but as the House was pleased to direct him. Within months England was at civil war.

When the Glorious Revolution settled the question in Parliament's favor, the English Bill of Rights of 1689 wrote the principle into law:

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.

Americans adopted the principle early. Several state constitutions written during the Revolution protected legislative speech, and Article V of the Articles of Confederation protected freedom of speech and debate in Congress and freed members from arrest while going to, from and attending Congress, except for treason, felony or breach of the peace. The Constitution's clause passed the Convention with almost no debate. Nobody needed persuading. Everyone knew what happened to a legislature whose members could be jailed for their speeches.

James Wilson, a signer of the Constitution and an early Supreme Court justice, explained the reason in his law lectures of 1790 and 1791: a representative cannot discharge his public trust with firmness unless he enjoys the fullest liberty of speech, protected from the resentment of everyone, however powerful, whom his speech might offend. That is the moral heart of the clause. It protects the voters' agent from the people he is supposed to check.

The arrest privilege is narrower than it sounds

"Privileged from Arrest" sounds like a get-out-of-jail-free card. It is not. The Supreme Court held in Williamson v. United States (1908) that the exception for "Treason, Felony and Breach of the Peace" covers all crimes. The phrase had been read that way in English practice, where breach of the peace came to mean any indictable offense. So members can be arrested for any crime, at any time.

What the arrest privilege protects against is civil arrest, the old practice of arresting people to compel them to answer a civil lawsuit or pay a debt. Civil arrest has largely disappeared, so the privilege has little practical work left. It survives as a relic of a time when a creditor, or a creditor friendly to the government, could keep a member away from a crucial vote by having him locked up for debt.

If a member of Congress is ever pulled over for speeding on the way to the Capitol and tells the officer he is constitutionally immune, he is wrong, and the officer is entitled to smile.

What the speech or debate privilege covers

The speech or debate privilege is the strong one, and the courts have read its words broadly. "Speech or Debate" is not limited to speeches on the floor. It covers the whole range of legislative acts: voting, introducing bills, writing committee reports, conducting hearings, and issuing subpoenas in a legitimate investigation. The Supreme Court so held in Kilbourn v. Thompson (1881), its first case on the clause, and in Eastland v. United States Servicemen's Fund (1975), where it held that a Senate subcommittee's subpoena could not be challenged in court because issuing it was a legislative act.

"Questioned in any other Place" means more than freedom from conviction. Members cannot be sued, prosecuted or made to testify about their legislative acts, and evidence of those acts cannot be used against them. The protection is both an immunity and a rule of evidence.

That breadth is deliberate. If a prosecutor could haul a member before a grand jury to explain why he voted for a bill, every vote against the executive's wishes would carry a risk. The executive would not need to win a single case. It would only need to make legislators afraid. Montesquieu, whose maxim that liberty dies where the same hands make and enforce the law appears in Montesquieu Warned That Liberty Dies Where One Hand Makes and Enforces Law, would have recognized the danger at once.

Three cases that drew the line

United States v. Johnson (1966)

Thomas Johnson, a former congressman from Maryland, was convicted of conspiracy to defraud the United States. The government's evidence included a speech he had made on the House floor favoring certain savings and loan institutions, and it argued he had been paid to make it. The Supreme Court, in an opinion by Justice John Marshall Harlan, held that the prosecution violated the clause by questioning the speech and his motives for making it. The conviction on that count was set aside.

But the Court did not grant immunity for the scheme. It held that the government could retry him on that count without relying on the speech itself. The clause protects the legislative act; it does not protect conduct that can be proved without touching the legislative act.

United States v. Brewster (1972)

Daniel Brewster, a former senator from Maryland, was charged with accepting money in exchange for being influenced in his actions on postal rate legislation. He argued that because the charge concerned his votes, the clause barred the prosecution.

Chief Justice Warren Burger, writing for the Court, rejected the argument. Taking a bribe, he wrote in substance, is not a legislative act. It is not part of the process of making law. The crime is complete when the member accepts money in exchange for a promise to act, whether or not he ever performs the act. The government need not prove how he voted, or even that he voted at all. The prosecution could go forward.

Burger added a point worth framing. The clause was designed to protect the integrity of the legislative process by securing the independence of individual legislators. A member who sells his vote is the one undermining that integrity. It would be perverse to read a clause written to protect the legislature from corruption of its independence as a shield for corruption of its members.

Gravel v. United States (1972)

On June 29, 1971, Senator Mike Gravel of Alaska convened a subcommittee hearing late at night and read into the record portions of the Pentagon Papers, the classified history of the Vietnam War. He then arranged for the material to be published by a private press. A grand jury investigating the release sought testimony from one of his aides.

The Court held that the clause covers a member's aides when they perform work that would be a legislative act if the member did it himself, because modern legislating is impossible without staff. Reading the papers at the hearing was protected. But the private publication was not; republishing material outside Congress is not part of the legislative process. Nor could the clause shield anyone from questions about possible crimes by third parties in obtaining the documents, so long as the questions did not probe protected legislative acts.

The edges, sharpened by later cases

Later decisions fill in the line. In Hutchinson v. Proxmire (1979), the Court held that press releases and newsletters are not protected. Senator William Proxmire's speech on the Senate floor giving a "Golden Fleece" award for wasteful spending was immune; repeating the charge in a newsletter and a press release was not. Telling voters about your work is valuable, but it is not legislating. The senator's long campaign against waste is told in A Democratic Senator Spent Thirteen Years Handing Out Awards for Waste.

And in 2006, when the FBI searched a sitting congressman's office in the Rayburn House Office Building in a bribery investigation, the federal appeals court in Washington held in 2007 that the search violated the clause to the extent agents reviewed legislative materials without giving the member a chance to identify and protect them. The court did not hold that the office was off limits to a warrant. It held that the executive must not rummage through legislative papers.

Put it together and the rule is clear. The clause protects legislative acts. It does not protect political acts, campaign acts, private acts or crimes. Selling a vote is a crime. Voting is a legislative act. The first can be prosecuted without proving the second.

The best objection, answered

Some critics argue the clause goes too far, and they have a point worth hearing. Because evidence of legislative acts cannot be used, they say, corruption cases against members are harder to prove than cases against anyone else. A member who takes money and then votes the way he was paid can keep the vote out of evidence. Why should the people who write the laws enjoy protections no ordinary citizen has? Isn't this exactly the kind of special privilege for the political class that conservatives should oppose?

Here is the answer, in four parts.

1. The privilege belongs to the people, not the member. It exists so that the legislature, the branch closest to the voters, can check the executive without fear. Its beneficiaries are the citizens whose representatives can speak freely. The Court has said as much in Johnson and Brewster: the point is the independence of the legislature, not the comfort of the legislator.
2. Brewster already removed the bribery shield. The crime of accepting a bribe is complete without proof of the vote. Prosecutors convict members under that rule. The clause makes cases harder at the margin, not impossible.
3. The alternative is worse. Remove the privilege, and an attorney general hostile to a member's votes could open investigations into why he voted as he did. History tells us how that ends. The Stuarts did not need to convict Eliot of anything. They only needed to hold him.
4. Congress can police its own. Article I, Section 5 lets each House punish its members for disorderly behavior and expel a member with the concurrence of two-thirds. The House and Senate are not barred from disciplining corruption. They are only shielded from the other branches deciding what legislation is.

Why it matters to you

If you care about limited government, you should care about this clause, because a legislature afraid of the executive cannot limit anything. Every hearing that exposes an agency, every vote against a president's priority, every investigation that embarrasses the powerful depends on members who cannot be punished for doing their jobs. The oversight tools that a minority keeps in a closely divided Congress are described in The Seven Member Rule and Other Oversight Tools a Congressional Minority Keeps, and every one of them rests on this clause.

But the clause only works if the public understands its limits too. When a member under indictment claims the Constitution protects his bank account, the answer should be immediate and unanimous: the Constitution protects your vote, not your price. For the other constitutional limits on what government may do to any person, see Article I, Section 9 Lists the Things Congress May Never Do to You. You can follow what Congress is investigating on our oversight page.

The case in brief

1. Article I, Section 6 protects members from being "questioned in any other Place" for any speech or debate, a rule drawn from the English Bill of Rights of 1689 after a century of royal attempts to punish legislators.
2. The arrest privilege is narrow: Williamson v. United States (1908) read "Treason, Felony and Breach of the Peace" to cover all crimes.
3. The speech or debate privilege covers legislative acts broadly, including votes, hearings, reports and subpoenas, and extends to aides doing legislative work, as Gravel v. United States (1972) held.
4. It does not cover bribes: United States v. Brewster (1972) held that taking money for a vote is not a legislative act, and United States v. Johnson (1966) allowed prosecution without the protected speech.
5. Press releases, newsletters and private publication are outside the clause, as Hutchinson v. Proxmire (1979) and Gravel show.

What you can do: read Article I, Sections 5 and 6 side by side, then watch one congressional oversight hearing in full and note which members use the protections the clause gives them to question the executive.