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Senator Ervin on Congressional Discipline and Speech or Debate

I have previously explained that the Speech or Debate Clause does not protect members from discipline by their legislative body, up to and including expulsion. Since the subject arose again in the last couple of days (in the course of a Glenn Greenwald initiated thread on Twitter), it may be worth adverting to Senator Ervin’s argument before the Supreme Court in Gravel v. United States.

Senators Ervin and Saxbe represented the Senate as amicus curiae in the case, and the Court gave the Senate time during oral argument. Ervin’s argument stressed that the Senate “holds no brief” for Senator Gravel or his actions (i.e., reading of the classified Pentagon Papers in a subcommittee meeting). He acknowledged that Gravel’s actions may have been improper and/or in violation of Senate rules, but he contended that the Constitution places these questions exclusively within the jurisdiction of the Senate.

Senator Ervin stressed that a member of Congress is “not accountable” to the executive or judicial branches for his legislative activity, whether that activity is “regular or irregular under the rules of the legislative body of which he is a member.” In Gravel’s case, those questions were the business only of the Senate itself. In response to a justice who asked “That inquiry or discipline or both is something exclusively for the Senate?,” Ervin responded, “That’s right.”

Pointing out that the Rules of Proceedings and Discipline Clauses are in the section of Article I immediately preceding the section in which the Speech or Debate Clause appears, Ervin reiterated: “Our position is that . . . even though Senator Gravel may have violated Senate rules and even though he may have acted improperly, that is a matter for the judgment of the Senate and no other power in our government has the right to make any official pronouncement on that subject.”

Greenwald and his ilk argue that senators who believe (or claim to believe) that classified information should be released should put their money where their mouth is by reading the information on the floor of the Senate, where they would be protected by Speech or Debate immunity from legal punishment (though not from congressional discipline). Whatever one thinks about such congressional “civil disobedience” as a normative matter, I am puzzled that anyone would advocate it when the senators have not yet used, or attempted to use, the established Senate procedure for releasing classified information.

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