mitted unlimited freedom in speeches or debates. The provision to that end is, therefore, grounded on public policy, and should be liberally construed. Presumably legislators will be restrained in the exercise of such a privilege by the responsibilities of their office. Moreover, in the event of their failure in that regard, they will be subject to discipline by their colleagues.

The court cited on that last pointthat is, that Senators or Representatives who fail to restrain themselves as they should would be subject to discipline by their colleagues-article I, section 5 of the Constitution, which gives each House the power to discipline one of its Members for disorderly conduct.

I respectfully submit that the Senate has the power, under article I, section 5, to discipline a Senator for conduct which, in the eyes of the Senate, constitutes disorderly conduct. In other words, a Senator can be called upon by his colleagues to answer for his conduct and be questioned as to his conduct by his colleagues. But he cannot, I submit, under any possible interpretation of the speech or debate clause of the Constitution, be questioned elsewhere for his conduct in the execution of his office as Senator. To my mind, it is inconceivable that the speech or debate clause of the Constitution gives the executive branch of the Government or the judicial branch of the Government the power to make inquiry as to whether or not a meeting in which the Senator participated was regularly called in accordance with the rules of the Senate, or whether or not the Senator abused the rules of conduct which the Senate has the right to establish for its Members. If any such conclusion as that should be held, the speech or debate clause of article I, section 6 of the Constitution would be absolutely worthless.

Furthermore, I cannot conceive that the executive branch of the Government or the judicial branch of the Government can inquire as to whether or not the Senator's conduct was germane to some question then pending before the Senate, or germane or relevant to some question pending before a committee of the Senate. That is precisely the way I interpret the very vital opinion in the Couzens case, because here the allegation was that Senator Couzens was not acting in an oficial capacity, that his speech had no relevancy to any matter pending before the Senate, and that he made his speech for the purpose of slandering the plaintiff.

The court held that Senator Couzens was not liable, despite these allegations, because it said that the matter was governed by the averment of the complaint that the words which the plaintiff alleged to be slanderous were uttered in the course of a speech on the Senate floor.

This privilege is not confined to what happens on the Senate floor. We draw the necessity and some information about the scope of the privilege from the precedents of England. During the days of Queen Elizabeth, members of the House of Lords and members of the House of Commons were sometimes prosecuted by the Crown in the courts of England for seditious libel, based upon the allegation that the speeches they made in the House of Lords or in the House of Commons were punishable as seditious libels.

So this prerogative of Members of Congress secured to them by article I, section 6 of the Constitution, grew out of what transpired in respect of the Englishmen serving in the House of Lords or the House of Commons.

So in the Couzens case the court quotes with approval the opinion of Lord Denman in Stockdale v. Hansard, 9 Ad. and E. 1, as follows:

The privilege of having their debates unquestioned, though denied when the members began to speak their minds freely in the time of Queen Elizabeth, and punished in its exercise both by that princess and her two successors, was soon clearly perceived to be indispensable and universally acknowledged. By consequence, whatever is done within the walls of either assembly must pass without question in any other place....

I venture the assertion that the words "any other place" which appear in the Constitution were borrowed by the drafters of the Constitution from the Stockdale decision.

If the privilege created by article I, section 6, is to be of any value to a Senator, it must not only cover what he says on the floor of the Senate or what he does on the floor of the Senate but also must cover anything which he does within the ambit of the Senate-that is, within the walls of the Senate, within the walls of any committee meeting.

This is what I conceive to be the result of the opinion of the Supreme Court in the case of Tenney against Brandhove. This case expressly holds that it covers whatever is done in committee. It also says that they cannot inquire into the motives of this Senator. In that case, the opinion was written by Mr. Justice Frankfurter, who quoted with approval the statements of Chief Justice Parsons in the very famous case of Coffin against Coffin (4 Mass. 1, 27), which was decided in 1808, and which involved a provision of the constitution of the Commonwealth of Massachusetts similar to article I, section 6. I read from the Coffin opinion as it was quoted by Justice Frankfurter:

These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore

think that the article ought not to be construed strictiy, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate: but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution of the office; and I would define the article as securing to every member exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular According to the rules of the house, or irregular and against their rules.

I think it would be wise for the Senate, as an institution, to intervene in the Gravel case and to assert that the privilege certainly extends as far as set forth by Chief Justice Parsons in Coffin against Coffin.

I should like to call attention to why this is necessary. In the Tenney case, Justice Frankfurter said:

In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed. Courts are not the place for such controverstes. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses. The courts should not go beyond the narrow confines of determining that a committee's Inquiry may fairly be deemed within its province.

I invite the attention of the Senate to this significant statement:

To find that a committee's investigation has exceeded the bounds of legislative power it must be obvious that there was a usurpation of functions exclusively vested in the Judiciary or the Executive.

In concluding this opinion, Justice Frankfurter said:

We conclude only that here the individual defendants and the legislative committee were acting in a field where legislators traditionally have power to act, and that the statute of 1871

That is, the Civil Rights Act

Does not create civil liability for such conduct.

I contend that it would be wise for the Senate to join in the intervention in this case and assert that the Senator has this privilege, that the Senator has this privilege regardless of whether his conduct is regular or irregular according to the procedures of the Senate, and that this privilege also extends to any aide who assists the Senator in doing the things which the Senator honestly believes to be within the execution of his office.

Certainly, if anything has become a tradition in the Senate, or if we can cite recent things as traditions, it has been for Senators to stand on the floor of the Senate or to rise in the meetings of the Senate committees and express

Mr. MATHIAS. I do not think that here we are dealing with the question of whether, if the law is violated, the violator may be a Member of the National Legislature, but I think that what we are dealing with here is who shall call him to task, whether it shall be the legislature itself or whether it shall be, as the Constitution expresses, "at some other place."

Now, whenever the Senate is in session-and the same is true in the House-the desk is open and any Member of the Senate can file a resolution of censure or any other disciplinary action he feels is required under the circumstances. I think that the Senate bears a heavy responsibility for the upright behavior of its own Members. I do not think that we should condone, either by silence or otherwise, things with which we disagree. It is healthy to discuss them. The point here is, as I have expressed it, not that one is excused from the observance of the law by being a Member of the National Legislature, but to whom he shall be responsible for any violations or alleged violations.

Mr. BROCK. I fully agree with that. I think there is a second question, if the Senator from Maryland will permit me to pursue the matter, and that is the question of how far this immunity can extend. In the New York Times case he was given immunity under freedom of the press. The Senator from Alaska was given immunity under section 1. subsection 6 of the resolution. Then the immunity is extended to a purported member of his staff-to wit, Dr. Rodberg, and then, apparently, the request is made to extend immunity further to the printing operation.

I think at some point it is relevant for the Senate itself and perhaps for the Supreme Court to consider what the absolute limits of immunity are. I do not really think that matter has been adequately debated in this body. Do we have the right as Senators to anoint those on whom we want to confer immunity? Is this simply the principle as indicated by some?

Let me pose to the Senator from Maryland another question, if I may. What if a friend or member of a staff of a Congressman-House or Senate-went into another Member's office and stole private documents and, on the basis of those documents, he prepared a speech for that particular Congressman, a political speech, which could be used in a campaign against that person who was offended?

I assume that under the rules being proposed, both the Senator and his staff member would be fully exempted from the operation of the law, unless the Senate or the House took action against him personally. But what action could be levied against the staff member for theft?

Mr. MATHIAS. Let me first of all say that I am sure the Senator from Tennessee agrees fully on this, that we would hope, if such a hypothetical circumstance should actually occur

The PRESIDING OFFICER (Mr. GAMBRELL). The time of the Senator from North Carolina has expired. Who yields time?

Mr BROCK. Mr. President, will the Senator from Ohio permit the Senator from Maryland to answer?

Mr. SAXBE. I yield 2 minutes to the Senator from Maryland.

The PRESIDING OFFICER. The Senator from Maryland is recognized for 2 minutes.

Mr. MATHIAS. If this hypothetical fact situation should occur-and I would hope that the good sense of the people who elected us would in itself be a sufficient guarantee that that kind of thing would never happen-but if it did, I would expect that the Senate would rise up in righteous wrath and strike down any Member who would condone that kind of activity, on his own part, or on the part of anyone else who stood in a confidential relationship with him.

Mr. BROCK. So would I.

Mr. MATHIAS. And so face a disciplinary tribunal of the Senate itself.

Mr. BROCK. What if the man who did it was a friend of the Senator's and he did not tell him that the documents were, in fact, stolen, and the speech was delivered in all honor and good conscience? Who prosecutes the friend?

Mr. MATHIAS. The part on which Mr. Justice Rehnquist expounded to the Subcommittee on Separation of Powers, clearly indicates that it has to be someone who is within the realm of being an adviser, someone who stands in a confidential relationship. I do not think that some volunteer who goes out without instructions and does not stand in a confidential relationship with respect to this transaction, but goes out, as they say in law school, on a frolic of his own and commits a crime, is within the protection that we are talking about here.

Mr. BROCK. That is the concern I have. The point I make is that the Senator from North Carolina has asked the Senate to file a brief presenting the most liberal possible presentation of the Constitution in this matter. I am deeply disturbed with the kind of case I have mentioned which would extend the prerogatives and privileges of an individual who happens to be an occasional adviser and personal friend and who had, in fact, committed a crime.

I think that there must be a more severe limit upon the constitutional privilege, so important to the freedom of debate in this body. The rights of the people are terribly important, too. I do not think the Constitution itself was ever intended to extend to that degree.

I am very conscious about how this privilege is presented and with what it concerns. It is a matter of great personal concern to me.

Mr. GOLDWATER. I do not want the Gravel resolution to pass or fail to pass without making known my basic feelings about the whole matter. I do not think we are on the right track when we appeal to the Supreme Court relative to the freedom of debate. The real problem has been the abuse of classified material. I imagine that every Senator has been cleared by the FBI for secret and top secret matters, and I have always thought that every Senator understood the nature of these pepers. We can question the validity of a particular classification but the fact remains that if it is classified, it should not be discussed with anyone unless that other person is also cleared for the same level of classification. This to me, is the root of the Senator GRAVEL problem, and I will say here I dislike bringing his name into it but he is a Senator who made public papers called "The Pentagon Papers" which carried high classification at that time. This is not only a problem that has been brought up by the Senator's action, but we have seen a man named Ellsberg do the same thing, and we see a columnist named Anderson engaged in this practice almost daily. The question then comes down to this: How long will the Government tolerate these abuses? How long will it be before someone is placed before a court to test the laws which prohibit the divulging of classified material? The major point to my mind in this resolution is that portion which calls for the payment of all court costs, printing, and so forth. I will have a difficult time explaining to Arizona taxpayers why the costs involved in a case brought on himself by a Senator from another State should be borne in part by Arizona taxpayers. The language of the resolution is practically limitless and having experienced court costs quite recently, I know we are talking about something in six figures and if it becomes known that the Government is going to pay these costs, it could well go higher. I sincerely hope this resolution is defeated and then if the Senate is truly concerned about preserving its right to debate, I would suggest that a wiser, more sensible approach be made to it. To me, this is a very high priced can of whitewash.

AMENDMENT NO. 1080

Mr. SAXBE. Mr. President, I call up my amendment No. 1080.

65-728 - 76-34