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Vanderbilt Law Review

First Page

327

Abstract

The institution of criminal charges against critical or disfavored legislators by the King of England was the prime factor prompting the long struggle for parliamentary privilege and, in the context of the American system of separation of powers, is the predominant thrust of the speech or debate clause. If the privilege of legislative immunity is to perform its traditional function of permitting legislators to carry out their legislative functions without fear of prosecution or harrassment from the executive and judicial branches, it should be applied broadly to effectuate its intended purpose of preserving the independence of the legislature and public good that such independence fosters. To hold, however, that the privilege of legislative immunity is a bar to a legislator's criminal prosecution in a given case does not mean necessarily that he will not be punished for his transgressions, because Congress has the power to reprimand or expel misbehaving members." The power to punish members is broad in scope, extending to all cases in which the offense is, in the judgment of the House or Senate, inconsistent with the trust and duty of a member.' Congressional discipline for misconduct,however, has been rare and, as a practical matter, cannot be relied upon with certainty to vindicate those injured by congressional malfeasance. Nevertheless, safeguards for the public against improper use of the privilege accorded legislators are placed by the Constitution in the hands of the electorate, because the electorate can refuse to return a dishonest legislator to office. The combination of the congressional corrective and the possibility of public disgrace should deter legislators from criminal conduct as effectively as criminal penalties

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