To continue our discussion of Congress’s contempt power (sometimes referred to as the inherent contempt power), let us examine the first case in which the U.S. Supreme Court had occasion to consider the existence and scope of this power. The case arose from an attempt by Colonel John Anderson, who had numerous claims pending against the federal government, to bribe Representative Lewis Williams of North Carolina, the chairman of the Committee on Claims. See Donald G. Morgan, Congress and the Constitution: A Study of Responsibility 102 (1966). When this came to the House’s attention in early 1818, it was understandably enraged and unanimously authorized the Speaker (Henry Clay) to issue a warrant for Colonel Anderson’s arrest. 31 Annals of Congress 581.
The Congressional Debate
After the Sergeant-at-Arms took Anderson into custody, the House proceeded to spend more than a week debating whether it had the power to punish him. The House “retraced the excellent arguments” made in the prior Randall/Whitney and Aurora contempts (see here for details) but, according to Professor Currie, “added little of importance.” David P. Currie, The Constitution in Congress, The Jeffersonians, 1801-1829 315 n. 214 (2001). Be that as it may, Professor Morgan praises the House for conducting a high quality legal argument that “not only provided a guidepost to the Court” but educated its own members and the public on the relevant constitutional principles. Morgan, Congress and the Constitution 119.
The debate was long and often repetitive (or, as one member remarked, “tedious”). It did, however, cover all the key arguments that would subsequently be addressed by the Supreme Court and did so more thoroughly than the Court would. Morgan summarizes the “anti-contempt” side of the argument as taking “the strict constructionist line in the interest of individual liberty, state reserved powers, and an exclusive judicial cognizance of contempts.” Morgan, Congress and the Constitution 104. The major points of this side included: (1) the framers were well acquainted with the undefined and encroaching nature of parliamentary privilege in Britain; (2) by carefully enumerating certain privileges in the Constitution, they evinced an intent to exclude others historically claimed by Parliament or the state legislatures; (3) recognizing unenumerated privileges would be inconsistent with the limited nature of congressional power under a written constitution, separation of powers principles (which prohibit Congress from exercising judicial powers), and specific constitutional protections of individual liberties; and (4) once unenumerated privileges are recognized, there is no logical stopping point in terms of the House’s authority to define the scope of contempt/breach of privilege or to impose punishment therefor.
On the other side, the “[s]upporters of the power relied on broad construction, congressional precedents, and practical necessities.” Morgan, Congress and the Constitution 104. Typically, they acknowledged that British parliamentary privileges were not inherited by Congress in any direct sense. However, they also denied that British practices were simply a product of unique historical circumstances or a feature of the unlimited sovereignty enjoyed by Parliament. Instead, they contended that the precedents of Parliament, as well as of the colonial and state legislatures, were evidence that the power to punish for contempt was an inherent and necessary attribute of any legislative body.
A critical aspect of the debate was the concession by most (though not all) of those on the “anti-contempt” side that the House could punish nonmembers for contempts committed within the walls of the House. Seizing on this concession, their opponents pointed out, somewhat ad nauseam, that they had undermined their own enumeration argument. If the House had some unenumerated power to punish contempt, why should that power not extend to Anderson’s flagrant attempt to corrupt the institution? No good answer to this question was offered. (As we shall see, this point would also play a key role in the Supreme Court’s decision).
Another major point of contention was the “anti-contempt” side’s claim that contempt was an inherently judicial power. In response, it was pointed out that “[b]oth Houses of Congress have powers strictly judicial in their nature and application.” 31 Annals of Congress 638 (Rep. Mercer); see also id. at 697 (Rep. Smyth points out the House is a court “with authority to try certain causes”). As noted in my last post, impeachment was offered as a prime example of a judicial process for which the House needed the contempt power. See also 31 Annals of Congress 701-02 (Rep. Settle). In particular, it was noted that the House needed a power of punishment independent of the executive, which might be the source of corruption it was trying to investigate in the first place. Id. at 634 (Rep. Tucker). Again, the “anti-contempt” camp seemed to have no rejoinder to this argument.
There was also some discussion of what punishments could be inflicted for contempt (with opponents of contempt suggesting they might include indefinite detention, corporal punishment, or worse). Supporters of contempt asserted because the power was one of self-protection, punishment was limited to imprisonment while the House was in session. 31 Annals of Congress 691 (Rep. McLane); id. at 703 (Rep. Settle). No one directly stated that the House had the power to fine, but there were occasional approving references to the fact that courts could impose fines for contempt. See, e.g., id. at 697 (Rep. Smyth). And one contempt opponent accused supporters of wanting to authorize the House “to fine and imprison at discretion.” Id. at 760 (Rep. Beecher).
At the end of the lengthy debate, the House rejected the arguments against recognizing the contempt power. 31 Annals of Congress 776. Anderson was tried and found guilty of contempt. Id. at 789. He was then brought to the bar of the House, reprimanded by the Speaker, and discharged from custody. Id. at 789-90. Continue reading “Colonel Anderson’s Contempt”