March 11, 2011 – Article I, Section 06, Clause 1 of the United States Constitution – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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Article 1, Section 6, Clause 1
1:  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.6   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.

Under the Articles of Confederation, members of Congress were paid by the State they represented. In the Philadelphia Convention, there was some support for continuing this practice but the delegates opted instead to have national legislators receive uniform pay from the federal government.

In the ratification debate, the example of Rhode Island was invoked because it had failed to pay its representative in the Confederation Congress, thus effectively recalling them from service and leaving the state unrepresented. Under the Confederation, this was perhaps not too risky since the national government had so little power that it was unlikely to do much damage to the state’s interests. Under the new, more robust, national government created by the Constitution, lack of representation would be more impactful. The very real possibility that states would be added from the Ohio territory; states which would likely be poor and unable to pay legislators much; was also a relevant consideration in determining to pay members of Congress from the public fisc.

In both cases, the plan of representation on the national government might be frustrated if states and citizens were left unrepresented for lack of state money to pay salaries or unwillingness to appropriate it. (Although, on the other hand, there might be some value in having less representation from states that have bankrupted themselves through financial mismanagement.)

The other salient question for the Constitutional Convention was what the pay would be. An early draft suggested “liberal” compensation and Benjamin Franklin proposed “moderate.” The final decision was to proceed without a modifier. Congress could decide its own salary, though with the understanding that constituents would be watching. The check provided by voters was later strengthened by the adoption of the 27th Amendment which prevented any Congressional pay raise from going into effect before an intervening election allowed voters to weigh in on the vote for the raise.

The second part of the clause is referred to as the “Speech or Debate Clause.” It has an honorable pedigree stretching back at least to the English Bill of Rights of 1689. The Articles of Confederation (article 5) contained a similar provision. The clause “provides legislators with absolute immunity for their legislative activities relieving them from defending those actions in court.” United States v. Jefferson, 546 F.3d 300 (4th Cir. 2008).

The concern here is that the legislative branch of the new national government be protected from attempts to either intimidate or punish members for their expression in Congress. Thus, for instance, members cannot be sued for libel based on comments they make in debates in the House and Senate and are not subject to prosecution for those statements. This ensures not only a robust debate but the independence of the legislative branch.

The controversies related to this Clause have typically involved its scope. When a Senator placed classified government documents (the Pentagon Papers) into the public record and was reportedly trying to arrange private publication of the papers, a grand jury issued a subpoena to a member of the Senator’s staff. In the resulting case, the U.S. Supreme Court said the actions of Congressional aides in pursuance of duties that would be protected by the Clause if done by members of Congress were also protected. The court did not prevent the grand jury from investigating the private publication question since such was outside the scope of legislative duties. See Gravel v. United States, 408 U.S. 66 (1972).

Criminal conduct, such as corruption or accepting bribes is not legislative work (one can only hope) and is also not protected by the Clause. See United States v. Brewster, 408 U.S. 501 (1972). In another case, the Supreme Court said a defamation lawsuit based on statements in a Senator’s press release was not protected by the Clause. See Hutchinson v. Proxmire, 443 U.S. 111 (1979).

On the other hand, legislators are protected while “speaking on the House or Senate floor, introducing and voting on bills and resolutions, preparing and submitting committee reports, acting at committee meetings and hearings, and conducting investigations and issuing subpoenas.” Tod B. Tatelman, “The Speech of Debate Clause: Recent Developments,” CRS Report for Congress (2007) pp.2-3 at http://www.fas.org/sgp/crs/misc/RL33668.pdf.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

7 replies
  1. Joe Short
    Joe Short says:

    I have read, heard and seen comments by many people over the years that the “constitution is a short, easy to read” document. It may be easy to read, but 18th century language and the 21st century lack of comprehension of the circumstances of its creation make it hard to understand. This commentary and blog really help me to understand this marvelous document! Thank you Janine Turner and staff. I hope many people are following along.

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  2. Susan
    Susan says:

    I think that given the greed and mismanagement of the economy the compensation clause should given some consideration for adjustment placing some limiter such as GDP as in .001% of GDP shall be the total operating budget of Congress to include salaries of Senators & Representatives or that no member of Congress’s compensation shall exceed 20% above the national average. As I was reading the exemption from prosecution was wondering if violation of the oath to “protect, preserve and defend the Constitution”.

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  3. Barb Zakszewski
    Barb Zakszewski says:

    Joe – this is a GREAT site and I think a must-visit for ALL concerned Americans.. You cannot defend something you cannot understand.. I also followed along the 90=90 program last year where the Federalist Papers were examined in detail. I’ve learned so much about the History of our Great nation through this site. Be sure to share this with your family and friends.. I know I have several friends who visit this site regularly because I kept telling them they MUST do this. Knowledge is power!!

    Reply
  4. Cutler
    Cutler says:

    This was kind of a cool clause to analyze, a fascinating one that piques my curiosity for just how far this clause can be taken. As demonstrated in the essay, it can be taken a long way. And one can only hope that bribes are not part of the “legislative action”

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  5. Debbie Bridges
    Debbie Bridges says:

    “And one can only hope that bribes are not part of the “legislative action”’

    They do; they occur in the form of Lobbyists and Campaign Contributions.

    I too am learning so much from this site. I have read the Constitution many times but after studying it on this site I’ve come to the realization that there is so much more I need to understand. It is not as simple and straightforward as I had believed. Thank you for giving us the opportunity to study this. I too enjoyed the study of the Federalist Papers last year. I had coincidentally started reading them when I discovered this site. This site enabled me to comprehend and appreciate the Papers on such a higher level than I would have had I continued to read them on my own. And now I can understand the Constitution in as much detail.

    Reply
    • Ralph Howarth
      Ralph Howarth says:

      Another form of bribes is in the carrot and stick methods of federal government to induce behaviors of the states for affairs the federal government is not granted constitutional power to do. Money and debt is levied within states by the federal government, and then our statesmen are forced to go to Capitol Hill to lobby for money and investments that left their state to come back to their state to fund particular, municipal affairs. The federal government was never meant to reach so broadly into municipal affairs within states; but now it does.

      Reply
  6. Janine Turner
    Janine Turner says:

    Dear Mr Duncan,
    I thank you for your insightful essay today. It remains absolutely fascinating to me – this process of breaking down the Constitution bit by bit. It is interesting to know the background of the Articles regarding pay. The second part of the clause is equally as intriguing. I am sure this clause was based upon the experiences of the contemporaries of the convention, plus those throughout history, who were arrested or thrown out of the public houses when the King or Tyrant was not pleases with the sentiments expressed. Ia appreciate that you broke down the various aspects – when Representatives are protected and when they are not. There is a word that repeats quite often in the Constitution – Treason. Our founding fathers were obviously worried about the security of the country and Treason was not taken lightly. How I wonder how they would interpret such actions today.
    God bless,
    Janine

    Reply

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