Can members of the US Congress lie during debate without penalty?

  • If a bill is being debated in the Senate or House, are there any rules or laws which prevent a member of congress from simply lying while making a speech for or against a bill?

    I'll propose this (deliberately absurd) example for the sake of discussion:

    The Senate is considering a bill which would require all Americans over the age of 10 to carry no less than 35 hand grenades at all times. Senator Joe Lyre is recognized by the presiding officer and, during his speech, makes the following statement:

    My home state has the world's largest stockpile of grenades, which makes it the safest state in America. In fact, never in the entire history of my state has any crime ever been committed.

    Naturally, there are plenty of other reasons one might not want to lie so boldly, not the least of which is giving your political opponents ample reason to call you a liar in campaign ads, or alienating other members of your own party who don't want to be identified as the friend of such a bold liar. But, neglecting these practical reasons and assuming that the statement is readily, demonstrably and undeniably false and is not in some other way a legal liability (for instance, by being slanderous), are there any formal consequences?

    "I wanna party with you, cowboy!" (in response to your absurd example)

    Is this absurd? This seems entirely plausible to me, under the present administration.

    I think your hypothetical senator was being sarcastic for dramatic effect. Humor is certainly not illegal.

    @RobertHarvey Well, given that I'm the one who made him up, and therefore can speak to the inner thoughts of my hypothetical person, I can confirm that no, he was not being sarcastic.

  • Generally speaking, anything that a member of Congress says during a speech or debate in Congress is protected by the U.S. Constitution from lawsuits and criminal prosecution.

    This immunity is covered in Article I, Section 6, and is known as the "Speech and Debate Clause".

    The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

    (emphasis mine)

    So a member of Congress can't go to jail for lying during a debate in Congress. However, the Constitution does say: "...shall not be questioned in any other Place." I read this to mean that a member of Congress can be punished (e.g. with expulsion) by his/her peers. The U.S. Supreme Court dove into this matter in Powell v. McCormack (1969).

    There is substantial case law elaborating on the Speech and Debate Clause. For example, in addition to the case noted above, Gravel v United States (1972) was another landmark case. It established that the clause's protections can, under certain circumstances, apply to Congressional staffers. More cases are listed below.

    A useful and detailed commentary of the clause can be found in this document provided by (pdf; the relevant section starts at page 137).

    Here are some excerpts:

    • The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators.

    • The protection of this clause is not limited to words spoken in debate. Committee reports, resolutions, and the act of voting are equally covered, as are things generally done in a session of the House by one of its members in relation to the business before it.

    • So long as legislators are acting in the sphere of legitimate legislative activity, they are protected not only from the consequence of litigation's results but also from the burden of defending themselves.

    • The scope of the meaning of "legislative activity" has its limits. The heart of the clause is speech or debate in either House, and insofar as the clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.

    • Immunity from civil suit, both in law and equity, and from criminal action based on the performance of legislative duties flows from a determination that a challenged act is within the definition of legislative activity, but the Court in the more recent cases appears to have narrowed the concept somewhat.

    Legal cases:

    Also, outside the Constitution, there's the Westfall Act (2007), a federal statute that "accords federal employees absolute immunity from tort claims arising out of acts undertaken in the course of their official duties". The statute was litigated in Wuterich v. Murtha (2009).

    Based on my reading of the quoted text, it sounds like so long as the speech occurs as part of the legislative process, even speech which would otherwise incur criminal or civil liability is protected, e.g. slander as mentioned in the question.

    What isn't entirely clear to me, and I unfortunately don't have time to research at the moment, is whether or not the *"Treason, Felony and Breach of the Peace"* exceptions, that clearly apply to the Arrest section, also apply to the Speech and Debate section. It doesn't look like it to me, based on the grammatical structure of the Clause. @IllusiveBrian

    But what if a member of Congress, recognized to speak in their chamber, discloses national security secrets (treason), or calls for an assassination and, for good measure, offers to pay the killer (felony), or falsely claims the presence of a bomb in, let's say, a school (breach of the peace?). Is that still punishable only by his/her peers? Or does that enter into the criminal justice system?

    @Michael_B The first case is covered by Gravel v. United States, I think. For the rest, I think the argument coudl be made that the speech is not " integral part of the deliberative and communicative processes..." and is therefore not protected.

    Can a Senator/Representative shout "Fire!" in a crowded House of Congress?

    The "felony" exception seems like a pretty huge one? If you lie in order to get representatives' votes (which is obviously something of value), is that not fraud, and if it is, is it not possible for it to be a felony?

    @Mehrdad Presumably the courts and Constitution would expect congresspeople to be responsible for doing their homework and not just taking someone’s word for it... which isn’t really realistic, but it seems unlikely that the judicial branch would be willing to risk the separation of powers by objecting to how the legislature does or doesn’t do its due diligence. See various recent votes on things that no one had time to read, votes in exchange for clearly-empty promises, and so on.

    @Barmar "They shall in all Cases, **except** Treason, Felony and **Breach of the Peace**, be privileged from Arrest during their Attendance at the Session of their respective Houses" - yelling "Fire" in a crowded room without due cause would probably qualify as "Breach of the Peace". Of course, this raises the question of whether deliberately lying during the debate consitutes Perjury, which is a Felony - and thus *also* something they are not exempt from

    @Chronocidal Perjury is specifically lying under oath. They have not taken any Oath to be truthful, so Perjury does not apply.

    RE: Expulsion, I would think that Censure would be the more normal (and more natural) punishment for the abuse of speech and debate privileges.

    @Chronocidal, also, the "**except**" condition is clearly superseded by the language of the final (Speech and Debate) clause: "***and for any Speech or Debate in either House, they shall not be questioned in any other Place***". Here, "any other place" clearly includes the courts.

    The "treason, felony, and breach of the peace" exception is an exception to the protection from *arrest* (which is an obsolete protection these days, since it's about the old procedure of arresting people for lawsuits). It's not an exception to the rule saying "no consequences in any other forum;" there are no exceptions to that rule.

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Content dated before 7/24/2021 11:53 AM