Legislative Privilege and the Courts in America

At the time that the Constitution was ratified, it was unclear to what extent the Congress would enjoy the inherent privileges of the British Parliament.  Writing around 1800, Thomas Jefferson noted the arguments for and against recognizing congressional privileges beyond those explicitly conferred by the Constitution (such as the Speech or Debate privilege).  In favor of such recognition, it was argued “that all public functionaries are essentially invested with the powers of self-preservation; that they have an inherent right to do all acts necessary to keep themselves in a condition to discharge the trusts confided to them; that whenever authorities are given, the means of carrying them into execution are given by necessary implication; that thus we see the British Parliament exercise the right of punishing contempts; all the State Legislatures exercise the same power, and every court does the same.” 

On the other side, it was argued “that Congress have no such natural or necessary power, nor any powers but such as are given them by the Constitution; that that has given them, directly, exemption from personal arrest, exemption from question elsewhere for what is said in their House, and power over their own members and proceedings; for these no further law is necessary, the Constitution being the law.”  For any other protections Congress might deem necessary, however, it would have to enact a new law in the manner provided for by the Constitution.  In the interim, Congress would not be unprotected as “the ordinary magistrates and courts of law [were] open and competent to punish all unjustifiable disturbances or defamations.”

As this latter argument suggests, the idea that the legislature might have to rely on the courts for protection or assistance was more acceptable in the United States than it traditionally had been in Britain (see post of April 8).  For example, in 1798 the Congress enacted a law permitting a person who wished to contest a congressional election to make application to any federal, state or local court for assistance in obtaining evidence.  Under this statute, the judge or magistrate was required to issue his warrant or summons to witnesses designated by the applicant, question the summoned witnesses, and then transmit the transcription of the witness’s testimony to the Clerk of the House.  Thus, the law gave the courts a direct role in obtaining evidence for the House to use in fulfilling its constitutional responsibilities in judging elections.

               The question of whether the House and Senate could exercise inherent but unenumerated privileges was settled by the Supreme Court in Anderson v. Dunn, 19 U.S. 204 (1821), in which the Court held that the House could exercise its contempt power to punish a private citizen who attempted to bribe a Member.  Echoing the pro-privilege position articulated by Jefferson, the Court stated that failure to recognize the House’s inherent power to punish for contempt would result in “the total annihilation of the power of the House of Representatives to guard itself from contempts, and leave[] it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it. This result is fraught with too much absurdity not to bring into doubt the soundness of any argument from which it is derived.”           

The Anderson Cout noted, however, that the House’s power to punish was not unlimited; thus, it could not imprison a contumacious individual beyond the time of legislative adjournment.  The Court acknowledged that the exercise of legislative privilege entailed a risk of the “caprice which has sometimes disgraced deliberative assemblies, when under the influence of strong passions or wicked leaders” but observed that “American legislative bodies have never possessed, or pretended to the omnipotence which constitutes the leading feature in the legislative assembly of Great Britain, and which may have led occasionally to the exercise of caprice, under the specious appearance of merited resentment.”  

In Kilbourn v. Thompson, 103 U.S. 168 (1881), the House exercised its inherent contempt powers to arrest and imprison a witness who refused to respond to questions posed by a committee investigating a real estate financing partnership that had gone bankrupt.  The witness brought a false imprisonment suit against the Sergeant at Arms of the House, as well as several members.  The Supreme Court rejected the argument that Congress enjoyed the same powers to judge its own privileges as the British Parliament, holding instead that the House’s claim of legislative privilege could be reviewed by the courts.  (It concluded that the House had exceeded its authority because the investigation in question was beyond its jurisdiction). Although much of Kilbourn’s reasoning (which reads much like Jefferson’s anti-privilege argument) has been overruled by later cases, its holding that the courts may review the exercise of the contempt power by Congress remains the law, and has not been seriously challenged since. 

Anderson, Kilbourn and later cases establish that the House and Senate may exercise the inherent power to punish for contempt, including contempt by witnesses who refuse to testify or provide information demanded by either body, but that this power is subject to judicial review.  In Britain, each House of Parliament was, at least historically, the sole judge of its own privileges, and the courts had no role to play with regard legislative contempt proceedings.  In the United States, however, the courts have the final say with regard to the scope of inherent legislative privilege and the exercise of the power to enforce such privilege may be challenged by way of an application for a writ of habeas corpus or an action for false imprisonment.   

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