vant to either prosecution or defense. In the trial of a Congressman for making a corrupt promise to vote, on the other hand, proof that his vote was in fact contrary to the terms of the alleged bargain will make a strong defense. See United States v. Johnson, 383 U. S., at 176-177. A Congressman who knows he is under investigation for a corrupt undertaking will be well advised to conduct his affairs in a manner wholly at odds with the theory of the charge which may be lodged against him. As a practical matter, to prosecute a Congressman for agreeing to accept money in exchange for a promise to perform a legislative act inherently implicates legislative conduct. And to divine a distinction between promise and performance is wholly at odds with protecting that legislative independence that is the heart of the Speech or Debate Clause. Congress itself clearly did not make the distinction that the majority finds dispositive. The statute before us is a comprehensive effort to sanitize the legislative environment. It expressly permits prosecutions of members of Congress for voting or promising to vote in exchange for money. The statute does not concern itself with murder or other undertakings unrelated to the legislative process. Congress no doubt believed it consistent with the Speech or Debate Clause to authorize executive prosecutions for corrupt voting. Equally obvious is the fact that Congress drew no distinction in legislative terms between prosecutions based upon voting and those based upon motivations underlying legislative conduct. The arguments that the majority now embraces were the very contentions that the Government made in United States v. Johnson, supra. In rejecting those arguments on the facts of that case, where legislative conduct as well as a prior conspiracy formed a major part of the Government's proof, the Court referred with approval to Ex parte Wason, L. R. 4 Q. B. 573 (1869), in which the question was whether members of the House of Lords could be prosecuted for a conspiracy to prevent presentation of a petition on the floor of Lords. Johnson, supra, at 183, sets out the reaction of the English court: "The court denied the motion, stating that state- The Wason court clearly refused to distinguish between promise and performance; the legislative privilege applied to both. Mr. Justice Harlan, writing for the Court in Johnson, took no issue with this position. Indeed, he indicated that the Speech or Debate Clause barred any prosecution under a general statute where there is drawn in question "the legislative acts of . . . the member of Congress or his motives for performing them." 383 U. S., at 185 (emphasis added). I find it difficult to believe that under the statute there involved the Johnson Court would have permitted a prosecution based upon a promise to perform a legislative act. Because it gives a begrudging interpretation to the clause, the majority finds it can avoid dealing with the position upon which the Government placed principal reliance in its brief in this Court. Johnson put aside the question whether an otherwise impermissible prosecution conducted pursuant to a statute such as we now have before us a statute specifically including congressional conduct and purporting to be an exercise of congressional power to discipline its Members-would be consistent with the Speech or Debate Clause. As must be apparent from what so far has been said, I am convinced that such a statute contravenes the letter and purpose of the Clause. True, Congress itself has defined the crime and specifically delegated to the Executive the discretion to prosecute and to the courts the power to try. Nonetheless, I fail to understand how a majority of Congress can bind an objecting Congressman to a course so clearly at odds with the constitutional command that legislative conduct shall be subject to question in no place other than the Senate or the House of Representatives. The Speech or Debate Clause is an allocation of power. It authorizes Congress to call offending members to account in their appropriate Houses. A statute that represents an abdication of that power is in my view impermissible. I return to the beginning. 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. BOARD OF REGENTS OF STATE COLLEGES ET AL. v. ROTH CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 71-162. Argued January 18, 1972-Decided June 29, 1972 Respondent, hired for a fixed term of one academic year to teach at a state university, was informed without explanation that he would not be rehired for the ensuing year. A statute provided that all state university teachers would be employed initially on probation and that only after four years' continuous service would teachers achieve permanent employment "during efficiency and good behavior," with procedural protection against separation. University rules gave a nontenured teacher "dismissed" before the end of the year some opportunity for review of the "dismissal," but provided that no reason need be given for nonretention of a nontenured teacher, and no standards were specified for reemployment. Respondent brought this action claiming deprivation of his Fourteenth Amendment rights, alleging infringement of (1) his free speech right because the true reason for his nonretention was his criticism of the university administration, and (2) his procedural due process right because of the university's failure to advise him of the reason for its decision. The District Court granted summary judgment for the respondent on the procedural issue. The Court of Appeals affirmed. Held: The Fourteenth Amendment does not require opportunity for a hearing prior to the nonrenewal of a nontenured state teacher's contract, unless he can show that the nonrenewal deprived him of an interest in "liberty" or that he had a "property" interest in continued employment, despite the lack of tenure or a formal contract. Here the nonretention of respondent, absent any charges against him or stigma or disability foreclosing other employment, is not tantamount to a deprivation of "liberty," and the terms of respondent's employment accorded him no "property" interest protected by procedural due process. The courts below therefore erred in granting summary judgment for the respondent on the procedural due process issue. Pp. 569-579. 446 F. 2d 806, reversed and remanded. STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. BURGER, C. J., filed a concurring opinion, post, p. 603. DOUGLAS, J., filed a dissenting opinion, post, p. 579. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS, J., joined, post, p. 604. MARSHALL, J., filed a dissenting opinion, post, p. 587. POWELL, J., took no part in the decision of the case. Charles A. Bleck, Assistant Attorney General of Wisconsin, argued the cause for petitioners. With him on the brief were Robert W. Warren, Attorney General, and Robert D. Martinson, Assistant Attorney General. Steven H. Steinglass argued the cause for respondent. With him on the brief were Robert L. Reynolds, Jr., Richard Perry, and Richard M. Klein. Briefs of amici curiae urging reversal were filed by Robert H. Quinn, Attorney General, Walter H. Mayo III, Assistant Attorney General, and Morris M. Goldings for the Commonwealth of Massachusetts; by Evelle J. Younger, Attorney General of California, Elizabeth Palmer, Acting Assistant Attorney General, and Donald B. Day, Deputy Attorney General, for the Board of Trustees of the California State Colleges; by J. Lee Rankin and Stanley Buchsbaum for the City of New York; and by Albert E. Jenner, Jr., Chester T. Kamin, and Richard T. Dunn for the American Council on Education et al. Briefs of amici curiae urging affirmance were filed by David Rubin, Michael H. Gottesman, George H. Cohen, and Warren Burnett for the National Education Association et al.; by Herman I. Orentlicher and William W. Van Alstyne for the American Association of University Professors; by John Ligtenberg and Andrew J. Leahy for the American Federation of Teachers; and by Richard L. Cates for the Wisconsin Education Association. |