public question, he cannot be held for defamation unless they can show that he was actuated by malice.

Mr. COOPER. Mr. President, I raise the point because I think it is basic to the issue before us in the whole matter. The Senator from Alaska will agree, I am sure, that whatever took place, if it took place, as the Constitution says, in the House-and that means in the body of which he is a Member, in a proper meeting in the Senate or House of Representatives or in one of its committees or subcommittees-would be covered by article I, section 6.

The Senator from North Carolina would argue then, if he is one of those appointed-and I am sure he will be, because he ought to be-before the Supreme Court that a Member only has immunity if the actions complained of are taken in the House, meaning the body of which he is a Member, as the words "in the House" are the words contained in the Constitution.

The PRESIDING OFFICER. The time of the Senator has expired.

Mr. SAXBE. Mr. President, I yield 2 additional minutes to the Senator from Kentucky.

Mr. ERVIN. I would accept what Justice Frankfurter said in the case of Tenney against Brandhove, that is a legislator is immune when he is acting in the field where legislators traditionally have power to act. That would include acting in a meeting of the legislative body of which he is a member or acting in a committee.

As Justice Parsons of the Supreme Judicial Court of Massachusetts said in the case of Coffin against Coffin, which is a decision reported by Justice Frankfurter, it secures every member immunity for every statement by him made in the exercise of the function of that office without inquiring whether the exercise was regular and according to the rules of the office or irregular and against their rules.

In other words, my position is simply this: As long as a Senator is acting within the legislative field of a Senator, whether he does wrong or abuses his privilege, is something to be judged by the Senate and not by the executive or judicial branch of the Government.

Mr. COOPER. The Constitution says that at least the actions complained of must take place in the House. It does not mean, I am sure in this building, but also wherever he is acting as a Member of the Senate or House. Would the Senator be prepared to say to what extent his position could go? For example, if some uniawful act were committed, unlawful under the rules of the Senate and committed outside of the Senate or outside of a committee or a room and where no business was being transacted, and if two or three assistants were engaged in that same activity, would all be cov

ered. If we are not careful, we could have unlimited immunity applied in almost every case.

I think the position of the Senate ought to be heard before the Supreme Court. It ought to be inquired into before the Supreme Court, in justice to us, and in justice to the Senator from Alaska, whether the meeting was one which falls within the protection of article I, section 6.

I feel that is very important. Would the Senator from North Carolina ask that the case be remanded to determine the facts.

Mr. ERVIN. No. I think the facts are already determined. I do not think there is any dispute on the facts.

Mr. COOPER. As I understand it, the ruling of the district court did not go into the facts as to whether or not the case actually fell within the protection of the Constitution.

Mr. ERVIN. The petition of the Department of Justice for their writ of certiorari implies to my mind that the facts were found. I do not think the facts are in dispute at all. I think it is a question of law.

Mr. SAXBE, I agree. The facts are not in dispute. They have been laid to rest. Mr. ERVIN. Mr. President, I yield back the remainder of my time.

Mr. SAXBE. I yield back the remainder of my time.

The PRESIDING OFFICER. All time having expired, the question is on agreeing to the amendment of the Senator from Ohio to the third resolving clause of the substitute offered by the Senator from North Carolina. On this question the yeas and nays have been ordered, and the clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

Mr. GRAVEL (when his name was called). Present.

Mr. BYRD of West Virginia. I announce that the Senator from Alabama (Mr. ALLEN), the Senator from Indiana (Mr. BAYH), the Senator from Oklahoma (Mr. HARRIS), the Senator from Iowa (Mr. HUGHES), the Senator from Michigan (Mr. HART), the Senator from Indiana (Mr. HARTKE), the Senator from Minnesota (Mr. HUMPHREY), the Senator from Hawaii (Mr. INOUYE), the Senator from Washington (Mr. JACKSON), the Senator from Arkansas (Mr. MCCLELLAN), the Senator from Wyoming (Mr. MCGEE), the Senator from South Dakota (Mr. McGOVERN), the Senator from New Hampshire (Mr. MCINTYRE), the Senator from Maine (Mr. MUSKIE), and the Senator from Alabama (Mr. SPARKMAN), are necessarily absent.

I further announce that, if present and voting, the Senator from Michigan (Mr. HART), the Senator from Iowa (Mr. HUGHES), the Senator from Washington. (Mr. JACKSON), and the Senator from

Minnesota (Mr. HUMPHREY), would each' vote "nay."

Mr. GRIFFIN. I announce that the Senator from Delaware (Mr. BOGGS) and the Senator from Oregon (Mr. HATFIELD) are necessarily absent.

The Senator from South Dakota (Mr. MUNDT) is absent because of illness.

If present and voting, the Senator from Delaware (Mr. BOGGS) and the Senator from Oregon (Mr. HATFIELD) would each vote "yea."

The result was announced-yeas 34, nays 47, as follows:

So Mr. SAXBE'S amendment to the third resolving clause of the substitute resolution proposed by Senator ERVIN was rejected.

The PRESIDING OFFICER. The question now recurs on the amendment of the Senator from North Carolina in the nature of a substitute (putting the question).

The amendment in the nature of a substitute was agreed to.

The PRESIDING OFFICER. The question now occurs on the adoption of Senate Resolution 280, as amended.

Mr. DOMINICK. Mr. President, I ask for the yeas and nays.

The yeas and nays were ordered. The PRESIDING OFFICER. The clerk will call the roll.

Mr. DOMINICK. Mr. President, do we still have some time left on the resolution?

there is time on the resolution. Mr. DOMINICK. Mr. President, I seek recognition, then.

The PRESIDING OFFICER. The Senator from Colorado is recognized. There are 29 minutes remaining.

Mr. DOMINICK. Mr. President, I yield myself 5 minutes, and I probably will not take that long.

For the benefit of my colleagues, however, I thought it was worthwhile putting this issue into proper context.

There is not any doubt in my mind that, at least from the monetary point of view, and from some of the language changes that have been made, the resolution now before us is better than the one that we had submitted to us initially.

Mr. President, may I have some order? The PRESIDING OFFICER. The Senate will be in order.

Mr. DOMINICK. But there is also no doubt that what we are doing in this matter is asking the taxpayers to pay for at least a portion of the cost of both sides of the argument. They will be paying it through the briefs that have been filed by the Justice Department, which, in the opinion of the Senator from North Carolina, are too narrow in their interpretation of immunity; and they will be paying it, under this resolution, on behalf of the Senator from Alaska, who, in my opinion and in the opinion of many of us, goes far too wide in his grant of immunity.

Mr. President, I still do not have any order. There is not a soul listening.

The PRESIDING OFFICER. The Senator will suspend. The Chair will endeavor to get order.

Senators will please take their seats and refrain from audible conversation. It will expedite the business of the Senate if Senators will take their seats and refrain from conversation.

The Senator from Colorado.

Mr. DOMINICK. We are left, as I have said, in a very untenable position, whereby we are being asked as a body to vote taxpayers' funds for a brief which I hope will be between the two, but in the process also voting taxpayers' funds for both sides of the argument, in which we are not agreeing with either side.

I find it extremely difficult, as far as I am concerned, to justify this type of resolution of the problem. It is not even what has been said about the making of a camel; namely, that it is a horse created by a committee. We do not even have a committee on this one to create this kind of camel. What we have done is do it ourselves.

We have a very, very poor situation from the point of view of the facts, because what we are being asked to do is to pay for the printing costs and the filing fees of the Senator from Alaska,

⚫ who, on his own, released classified information, in violation at least of the spirit of the Senate, and voluntarily intervened in a suit. There was not even a suit, for that matter; but merely a grand jury investigating a possible violation. The aide brought a suit to quash the subpena, and the Senator from Alaska intervened.

It was not a question of a Senator being sued; it is not a case where a Senator is being questioned. The two lower courts have already held in favor of the defendant, if in fact Dr. Rodberg is a defendant, and that apparently is not being questioned in the suit. He is asking for immunity to be extended to members of the Beacon Press and members of the Massachusetts Institute of Technology Press, and every other person involved, not just aides in his office, or employees, but everybody he has been in contact with.

If we extend immunity that far in this day and age, as I said last night, with the publicity we get and with the media coverage that there is, anybody who is in touch with a Member of the Senate would be granted immunity regardless of whether he had been guilty of a criminal act or not.

I do not see how we can possibly go that far, and yet, as I read the Senator's brief, that is exactly what he is alleging. And here we are in the Senate as a body, saying that this is what we ought to underwrite.

Mr. President, we ought to take a middle course. We should be taking a course in which we say we are going to defend the rights of the Senate in our own brief, and pay our own costs, but not to favor a side and say we are going to spend the taxpayers' money in favor of either side.

The PRESIDING OFFICER. The Senator's time has expired.

Who yields time?

Mr. DOMINICK. I yield myself 1 additional minute.

Without going into the facts once again, I presume that my colleague has brought up the point that Dr. Rodberg has never been on the Senate payroll; and as far as the records show, has never taken an oath of office as an employee of the Senate. He may be an aide; I do not know. But he is certainly not an aide within the definition as we usually assign it.

In view of the facts presented, I find myself unable to support even the modified resolution that is now before us, and wish to say that I intend to vote against

The PRESIDING OFFICER. All remaining time having been vielded back, the question is on agreeing to the resolution, as amended. On this question, the yeas and navs have been ordered, and the clerk will call the roll.

The assistant legislative clerk called the roll.

Mr. BYRD of West Virginia. I announce that the Senator from Alabama (Mr. ALLEN), the Senator from Indiana (Mr. BAYH), the Senator from Oklahoma (Mr. HARRIS), the Senator from Mich!gan (Mr. HART), the Serator from Indiana (Mr. HARTKE), the Senator from Iowa (Mr. HUGHES), the Senator from Minnesota (Mr. HUMPHREY), the Senator from Hawaii (Mr. INOUYE), the Senator from Washington (Mr. JACKSON), the Senator from Arkansas (Mr. McCLELLAN), the Senator from South Dakota (Mr. McGOVERN), the Senator from New Hampshire (Mr. MCINTYRE), the Senator from Maine (Mr. MUSKIE), and the Senator from Alabama (Mr. SPARKMAN) are necessarily absent.

I further announce that. If present and voting, the Senator from Michigan (Mr. HART), the Senator from Iowa (Mr. HUGHES), the Senator from Washington (Mr. JACKSON), the Senator from South Dakota (Mr. McGOVERN), and the Senator from Minnesota (Mr. HUMPHREY) would each vote "yea."

Mr. GRIFFIN. I announce that the Senator from Delaware (Mr. BOGGS) and the Senator from Oregon (Mr. HATFIELD) are necessarily absent.

The Senator from South Dakota (Mr. MUNDT) is absent because of illness.

If present and voting, the Senator from Delaware (Mr. BOGGS) and the Senator from Oregon (Mr. HATFIELD) would each vote "yea."

The result was announced-yeas 55, nays 27, as follows:

*

* OFFICER.

* *

Who

Mr. SAXBE. Mr. President, I yield back the remainder of my time.

Mr. ERVIN. I yield back the remainder of my time.

Pastore

NAYS-27

Packwood
Pearson
Schweiker

Smith
Taft

Tower

Griffin

Thurmond

So the resolution (S. Res. 280), as amended. was agreed to.

Mr. ERVIN. Mr. President, I send an amendment to the preamble to the desk.

The PRESIDENT pro tempore. The amendment will be stated.

The assistant legislative clerk proIceeded to read the amendment.

Mr. ERVIN. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.

The PRESIDENT pro tempore. Without objection, it is so ordered; and, without objection, the amendment will be printed in the RECORD.

The amendment is as follows:

Whereas the Supreme Court of the United States on Tuesday, February 22, 1972, issued writs of certiorari in the case of Gravel against United States; and

Whereas this case involves the activities of the junior Senator from Alaska, Mr. Gravel; and

Whereas in deciding this case the Supreme Court will consider the scope and meaning of the protection provided to Members of Congress by article 1, section 6, of the United States Constitution, commonly referred to as the "Speech or Debate" clause, including the application of this provision to Senators, their aides, assistants, and associates, and the types of activity protected;

and

Whereas this case necessarily involves the right of the Senate to govern its own internal affairs and to determine the relevancy and propriety of activity and the scope of a Senator's duties under the rules of the Senate and the Constitution; and

Whereas this case therefore concerns the constitutional separation of powers between legislative branch and executive and Judicial branches of Government; and

Whereas a decision in this case may impair the constitutional independence and prerogatives of every individual Senator, and of the Senate as a whole; and

Whereas the United States Senate has a responsibility to insure that its interests are properly and completely represented before the Supreme Court: Now, therefore, be it

Mr. ERVIN. Mr. President, this is a technical amendment to adjust the preamble. It was read to the Senate previously. All it does is to provide that the preamble read to the Senate shall be the preamble to the resolution as passed.

The PRESIDENT pro tempore. The question is on agreeing to the amendment.

The amendment was agreed to.

The resolution as amended, with its amended preamble, reads as follows:

RESOLUTION

Authorizing Senate intervention in the Supreme Court proceedings on the issue of the scope of article I. section 6, the socalled speech and debate clause of the Constitution

Whereas the Supreme Court of the United States on Tuesday, February 22, 1972, issued writs of certiorari in the case of Gravel against United States; and

Whereas this case involves the activities of the junior Senator from Alaska, Mr. Gravel; and

Whereas in deciding this case the Supreme Court will consider the scope and meaning of the protection provided to Members of Congress by article 1, section 6. of the United States Constitution, commonly referred to as the "Speech or Debate" clause, including the application of this provision to Senators, their aldes, assistants, and associates, and the types of activity protected; and

Whereas this case necessarily involves the right of the Senate to govern its own internal affairs and to determine the relevancy and propriety of activity and the scope of a Senator's duties under the rules of the Senate and the Constitution; and

Whereas this case therefore concerns the constitutional separation of powers between legislative branch and executive and judicial branches of Government; and

Whereas a decision in this case may impair the constitutional independence and prerogatives of every individual Senator, and of the Senate as a whole; and

Whereas the United States Senate has a responsibility to insure that its interests are properly and completely represented before the Supreme Court: Now, therefore, be it

Resolved. That the President pro tempore of the Senate is hereby authorized to appoint a bipartisan committee of Senators to seek permission to appear as amicus curiae before the Supreme Court and to file a brief on behalf of the United States Senate; and be it further

Resolved, That the members of this bipartisan committee shall be charged with the responsibility to establish limited legal fees for services rendered by outside counsel to the committee, to be paid by the Senate pursuant to these resolutions; be it further

Resolved. That any expenses incurred by the Committee pursuant to these resolutions including the expense incurred by the Junior Senator from Alaska as a party in the above mentioned litigation in printing records and briefs for the Supreme Court shall be paid from the contingent fund of the Senate on vouchers authorized and signed by the President pro tempore of the Senate and approved by the Committee on Rules and Administration; be it further

Resolved, That these resolutions do not express any judgment of the action that precipitated these proceedings; and be it further

Resolved, That the Secretary of the Senate transmit a copy of these resolutions to the Supreme Court.

Mr. MANSFIELD. Mr. President, there are some recommendations relative to the counsel to be appointed from the Democratic side and three associate counsel to assist the chief counsel. Would