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cept Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their Respective Houses. ." In Williamson V. United States, 207 U. S. 425 (1908), this Court rejected a claim, made by a Member convicted of subornation of perjury in proceedings for the purchase of public lands, that he could not be arrested, convicted, or imprisoned for any crime that was not treason, felony, or breach of the peace in the modern sense, i. e., disturbing the peace. Mr. Justice Edward Douglass White noted that when the Constitution was written the term "breach of the peace” did not mean, as it came to mean later, a misdemeanor such as disorderly conduct but had a different 18th century usage, since it derived from breaching the King's peace and thus embraced the whole range of crimes at common law. Quoting Lord Mansfield, he noted, with respect to the claim of parliamentary privilege, "[t]he laws of this country allow no place or employment as a sanctuary for crime ...." Id., at 439.
The subsequent case of Long v. Ansell, 293 U. S. 76 (1934), held that a Member's immunity from arrest in civil cases did not extend to civil process. Mr. Justice Brandeis wrote for the Court:
“Clause 1 [of Art. I, § 6] defines the extent of the immunity. Its language is exact and leaves no room for a construction which would extend the priv
ilege beyond the terms of the grant.” Id., at 82. We recognize that the privilege against arrest is not identical with the Speech or Debate privilege, but it is closely related in purpose and origin. It can hardly be thought that the Speech or Debate Clause totally protects what the sentence preceding it has plainly left open to prosecution, i. e., all criminal acts.
(d) MR. JUSTICE WHITE suggests that permitting the Executive to initiate the prosecution of a Member of Con
gress for the specific crime of bribery is subject to serious potential abuse that might endanger the independence of the legislature-for example, a campaign contribution might be twisted by a ruthless prosecutor into a bribery indictment. But, as we have just noted, the Executive is not alone in possessing power potentially subject to abuse; such possibilities are inherent in a system of government that delegates to each of the three branches separate and independent powers.16 In The Federalist
16 The potential for harassment by an unscrupulous member of the Executive Branch may exist, but this country has no tradition of absolute congressional immunity from criminal prosecution. See United States v. Quinn, 141 F. Supp. 622 (SDNY 1956) (motion for acquittal granted because the defendant Member of Congress was unaware of receipt of fees by his law firm); Burton v. United States, 202 U. S. 344 (1906) (Senator convicted for accepting compensation to intervene before Post Office Department); United States v. Dietrich, 126 F. 671 (CC Neb. 1904) (Senator-elect's accepting payment to procure office for another not covered by statute); May v. United States, 84 U. S. App. D. C. 233, 175 F. 2d 994, cert. denied, 338 U. S. 830 (1949) (Congressman convicted of receiving compensation for services before an agency); United States v. Bramblett, 348 U. S. 503 (1955) (Congressman convicted of defrauding government agency). Bramblett concerned a Congressman's misuse of office funds via a "kick-back” scheme, which is surely "related” to the legislative office.
A strategically timed indictment could indeed cause serious harm to a Congressman. Representative Johnson, for example, was indicted while campaigning for re-election, and arguably his indictment contributed to his defeat. On the other hand, there is the classic case of Mayor Curley who was re-elected while under indictment. See N. Y. Times, Nov. 8, 1945, p. 12, col. 5; 4 New Catholic Encyclopedia 541 (1967). Moreover, we should not overlook the barriers a prosecutor, attempting to bring such a case, must face. First, he must persuade a grand jury to indict, and we are not prepared to assume that grand juries will act against a Member without solid evidence. Thereafter, he must convince a petit jury beyond a reasonable doubt, with the presumption of innocence favoring the accused. A prosecutor who fails to clear one of these hurdles faces serious practical consequences when the defendant is a Congressman. The Legislative Branch is not
No. 73, Hamilton expressed concern over the possible hazards that confronted an Executive dependent on Congress for financial support.
“The Legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion
his judgment to their inclinations." Yet Hamilton's "parade of horribles” finds little real support in history. The check-and-balance mechanism, buttressed by unfettered debate in an open society with a free press, has not encouraged abuses of power or tolerated them long when they arose. This may be explained in part because the third branch has intervened with neutral authority. See, e. g., United States v. Lovett, 328 U. S. 303 (1946). The system of divided powers was expressly designed to check the abuses England experienced in the 16th to the 18th centuries.
Probably of more importance is the public reaction engendered by any attempt of one branch to dominate or harass another. Even traditional political attempts to establish dominance have met with little success owing to contrary popular sentiment. Attempts to "purge” uncooperative legislators, for example, have not been notably successful. We are not cited to any cases in which the bribery statutes, which have been applicable to Members of Congress for over 100 years,"?
without weapons of its own and would no doubt use them if it thought the Executive were unjustly harassing one of its members. Perhaps more important is the omnipresence of the news media whose traditional function and competitive inclination afford no immunities to reckless or irresponsible official misconduct.
17 The first bribery statute applicable to Congressmen was enacted in 1853. Act of Feb. 26, 1853, c. 81, § 6, 10 Stat. 171.
Opinion of the Court
have been abused by the Executive Branch. When a powerful Executive sought to make the Judicial Branch more responsive to the combined will of the Executive and Legislative Branches, it was the Congress itself that checked the effort to enlarge the Court. 2 M. Pusey, Charles Evans Hughes 749–765 (1951).
We would be closing our eyes to the realities of the American political system if we failed to acknowledge that many non-legislative activities are an established and accepted part of the role of a Member, and are indeed “related” to the legislative process. But if the Executive may prosecute a Member's attempt, as in Johnson, to influence another branch of the Government in return for a bribe, its power to harass is not greatly enhanced if it can prosecute for a promise relating to a legislative act in return for a bribe. We therefore see no substantial increase in the power of the Executive and Judicial Branches over the Legislative Branch resulting from our holding today. If we underestimate the potential for harassment, the Congress, of course, is free to exempt its Members from the ambit of federal bribery laws, but it has deliberately allowed the instant statute to remain on the books for over a century.
We do not discount entirely the possibility that an abuse might occur, but this possibility, which we consider remote, must be balanced against the potential danger flowing from either the absence of a bribery statute applicable to Members of Congress or a holding that the statute violates the Constitution. As we noted at the outset, the purpose of the Speech or Debate Clause is to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process. But financial abuses by way of bribes, perhaps even more than Executive power, would gravely undermine legislative integrity and defeat the right of the
public to honest representation. Depriving the Executive of the power to investigate and prosecute and the Judiciary of the power to punish bribery of Members of Congress is unlikely to enhance legislative independence. Given the disinclination and limitations of each House to police these matters, it is understandable that both Houses deliberately delegated this function to the courts, as they did with the power to punish persons committing contempts of Congress. 2 U. S. C. $ 194.
It is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts. So expressed, the privilege is broad enough to insure the historic independence of the Legislative Branch, essential to our separation of powers, but narrow enough to guard against the excesses of those who would corrupt the process by
ipting its Members. We turn next to determine whether the subject of this criminal inquiry is within the scope of the privilege.
An examination of the indictment brought against appellee and the statutes on which it is founded reveals that no inquiry into legislative acts or motivation for legislative acts is necessary for the Government to make out a prima facie case. Four of the five counts charge that appellee "corruptly asked, solicited, sought, accepted, received and agreed to receive” money “in return for being influenced ... in respect to his action, vote, and decision on postage rate legislation which might at any time be pending before him in his official capacity.” This is said to be a violation of 18 U. S. C. § 201 (c), which provides that a Member who "corruptly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value ... in