mont, Tex., on a matter of concern in the Congress, then wisdom might dictate that I not share that information.

If, before I speak outside the Halls of Congress, I must first consider whether I may offend someone in the executive branch who may prefer that the public not know how he is botching up his job, or that I may be called to account before a judicial body of inquiry, is it not the better role for me not to say anything?

But what happens then to my representative responsibility to keep my constituents informed about their Government?

These concerns bring us here this morning. We are considering what the response of the Congress should be to this challenge from our coequal partners in Government which threatens to cut off the Congress from the American people in the exchange of information.

Thank you, Mr. Chairman. I shall extend my remarks in a little further detail.

Chairman METCALF. Without objection, it is so ordered. [The statement follows:]

OPENING STATEMENT OF REP. JACK BROOKS (D-TEX.), VICE CHAIRMAN, JOINT COMMITTEE ON CONGRESSIONAL OPERATIONS, AT HEARINGS ON THE LEGISLATIVE ROLE OF CONGRESS IN GATHERING AND DISCLOSING INFORMATION, WEDNESDAY, MARCH 21, 1973

Mr. Chairman, I want to associate myself with the comments you have made in your statement. You have ably put down the foundation on which we can set out to build a solid hearing record.

I want to commend, as well, the leadership you have shown in calling these hearings on this critical constitutional issue, of interest to every Member of Congress and to their constituencies.

The Joint Committee is a most appropriate forum for the consideration of the definition of the legislative role of congressional representatives.

The Legislative Reorganization Act of 1970 established the Joint Committee on Congressional Operations and directed it to "study. . the organization and operation of the Congress . . . and . . . recommend improvements . . . with a view toward strengthening Congress . . . [and] improving its relationships with other branches of the United States Government

The Joint Committee was also directed to "identify any court proceeding or action. . . of vital interest to the Congress . . . as a constitutionally established institution of the Federal Government . . ."

During the 92nd Congress, the committee--which I was honored to serve as its first chairman-began work to carry out these statutory mandates.

We initiated a series of cumulative reports to both houses of the Congress in October, 1971, containing case briefs and the current status of court actions identified by the committee. Six such reports were issued during the 92nd Congress, identifying more than 60 court actions involving Members of Congress or Congress as an institution. In addition, two special reports were prepared on issues of general interest which had become the subject of significant controversy in the courts.

This identification and reporting activity of the committee carried with it a number of lessons. Most significantly, we were made aware that the courtroom has become the arena today, in too many instances, for the airing and settling of disputes about what are essentially legislative matters.

The Congress, its Members, officers and employees are being called into court to defend their official actions by an increasing number of legal complaints filed against them-some well-intentioned and others merely of a nuisance variety. And, Members of Congress and their aides, frustrated by their inability to obtain specifically identified information or action from executive departments and agencies have sought it by means of legal actions.

The most troubling of these legal battles and courtroom confrontations have involved questions of the scope of legislative immunity, as determined by the courts' interpretations of what are the legislative functions of congressional office.

As the Chairman stated in his opening remarks, we do not quibble with the courts' exercise of jurisdiction to define the scope of Speech or Debate Clause immunity by interpreting what is to be considered "speech or debate."

However, we are not bound to agree when the court so narrowly interprets the clause as to exclude from the immunity it affords, important and substantial functions of the representative role of a Member of Congress. It can be argued that such action by the court is a seizure of jurisdiction and an invasion of the territory of the legislative body. When that happens, the court is exercising legislative power. They have no business doing that-practically or constitutionally. We are concerned with recent interpretations of legislative immunity by the Supreme Court, interpretations so restrictive as to almost make a mockery of the intent of the constitutional language, defining separation of powers and enforcing that separation for the legislative branch.

We are concerned, also, with the isolation of the Congress from all sources of information, other than those available through official channels established by the executive branch. In today's world, the Congress cannot realistically do its job if it must be dependent on information garnered from public information officers and tight-lipped press secretaries.

We are equally concerned with the determinations by the court that we are performing no official legislative function, when we try to share information about the operations of the Federal government with the American people.

If I am acting at my peril every time I send a news release to my congressional district or give an interview or make a speech in Beaumont, Texas-on a matter of concern in the Congress-then wisdom might dictate that I not share that information.

If, before I speak outside the halls of Congress, I must first consider whether I may offend someone in the executive branch-who may prefer that the public not know how he is botching up his job-or that I may be called to account before a judicial body of inquiry, is not the better role for me not to say anything?

But, what happens then to my representative responsibility to keep my constituents informed about their government?

These concerns bring us here this morning. We are considering what the response of the Congress should be to this challenge from our coequal partners in government, which threatens to cut off the Congress from the American people in the exchange of information.

Thank you, Mr. Chairman.

Chairman METCALF. Senator Taft.

Senator TAFT. I shall not make any prepared statement.

I think it important to point out at this time, in getting into these hearings, that the interest involved in both the executive privilege and the legislative privilege to the extent it any longer exists after the Gravel case, and in the privileges of newsmen alike, is a public interest. It is not a sacrosanct position of the particular bodies or particular professions that are involved. The purpose is to bring about a free flow of information among the men who have the responsibility for acting upon legislative matters, for carrying out the laws under the executive direction of the Constitution, and for carrying out the constitutional protections of freedom of the press and freedom of information in the case of the newspaper media professions.

I think it important that we not lose sight of this basic objective and not find ourselves talking about trying to protect the legislative position or protect the executive position or protect the position of newsmen as such. Our goal and purpose must be to protect the public as wo have traditionally in America by creating the freest flow of information possible to those responsible for action.

Chairman METCALF. Thank you very much. Mr. Giaimo.

Representative GIAIMO. I will not take the time of the committee at this point, but I do ask unanimous consent to include a statement in the record at a later time.

Chairman METCALF. We will all be permitted to extend our remarks.

Chairman METCALF. Mr. Dellenback.

Representative DELLENBACK. I will make one brief statement before we get to the witnesses who are to appear this morning.

As we start these inquiries, in my mind I am not prepared to equate the first amendment to the Constitution with article I, section 6. While there are similarities, as my colleague from Ohio has pointed out, we are talking about a different section of the Constitution, and I am not prepared to equate our responsibility and what ought to take place under the speech and debate clause with what necessarily follows under the first amendment. They are both pertinent, but I think the similarities ought to be kept in mind and the dissimilarities ought to be kept in mind.

Chairman METCALF. Thank you, Mr. Dellenback. Senator Gravel. Senator GRAVEL. I would like to say briefly that information is the very sustenance of a free people attempting self-government. The flow of information has been impaired by judicial action against the press and against our own legislative body. There also has been an overextended use of executive privilege by the present Executive and recent past Executives.

For that very simple reason, I think these hearings and the attention given the subject by this committee are one of the most important activities of this Congress.

Chairman METCALF. Thank you very much.

All members will have an opportunity to extend their remarks at the beginning of these hearings.

Now for the first witness we have the honor to have one of the most distinguished constitutional lawyers who ever has served in the Senate of the United States.

I say that, Senator Ervin, because I serve in that line that emanated from Senator Thomas J. Walsh, who was a leader in his time in matters of constitutional privilege in Montana.

We are confronted here with the strange and peculiar situation in which there is not anything in the Constitution about immunity for members of the court, and yet they have invented it and have continued to grow in their immunity, and now they are circumscribing the precise and stated immunity of the legislative body.

I do not think of anybody who is more qualified and more fitted to start off these hearings on this historic confrontation that we are going to have with the executive and judicial bodies than vou, Senator Ervin. We are delighted to have you here this morning. We welcome you with your experience, and your skill, and your long knowledge of the Constitution. We are looking forward to your testimony.

STATEMENT OF HON. SAM J. ERVIN, JR., A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA

Senator ERVIN. Mr. Chairman, I am deeply grateful to you for your remarks concerning myself.

I want to commend the Joint Committee on Congressional Operations for its initiative in scheduling these hearings. The statements made by members of the Joint Committee indicate that the Joint Committee is acutely aware of the problems involved. Americans of every ideological persuasion are greatly concerned that the principle of separation of powers, one of the fundamental doctrines incorporated in our Constitution, is on its deathbed. The search for a cure has become absolutely essential if the form of government established under our Constitution is to be preserved. I am confident that this committee's hearings will underline the imbalance of power that presently exists among the branches of the Federal Government and point us toward some remedies to this imbalance.

While there are many important issues currently associated with the principle of separation of powers-including such matters as Executive impoundment of appropriated funds, sweeping Presidential assertions as to the scope of executive privilege, and the troublesome relationship between Congress and the President in the conduct of foreign affairs-I want to concentrate today upon the issues in conflict with respect to the "speech or debate" clause of article I, section 6 of the Constitution. This clause is a vital part of the doctrine of separation of powers inasmuch as it protects Members of Congress from intimidation by the executive and judiciary through the use of judicial inquiry into legislative activity.

During its last term the Supreme Court decided two cases, United States v. Gravel, 408 U.S. 606 (1972), and United States v. Brewster, 408 U.S. 501 (1972), in which the Court set forth its interpretation of this clause. In my opinion, these decisions pose a dangerous threat to the independence and integrity of the legislative branch.

The Senate was properly alarmed about the threat to its independence posed by the judicial inquiry into the activities of Senator Mike Gravel. After the Supreme Court agreed to hear the case, the Senate on March 23, 1972, adopted S. Res. 280 authorizing the filing of an amicus curiae brief with the Court on its behalf. The Senate realized that the Supreme Court would interpret the "speech or debate" clause and, in the words of the resolution, feared that the Court thereby might "impair the constitutional independence and prerogatives of every individual Senator, and of the Senate as a whole."

The Senate's fears were well-founded, for on June 29, 1972, the Supreme Court did just that. In handing down its decisions in United States v. Gravel and United States v. Brewster, which also involved an interpretation of the "speech or debate" clause, the Court set forth significant restrictions as to the scope of the protection provided Members of Congress by the clause.

In these two cases the new majority on the Court tinkered with the very heart of the constitutional doctrine of separation of powers. These decisions impair the constitutional independence and prerogatives of every individual Senator and of the Senate as a whole to a degree none of us anticipated when the resolution was adopted.

The same observation applies to the House of Representatives as a whole.

These two Supreme Court decisions have so restricted the immunity given to Members of Congress by the "speech or debate" clause that they can no longer independently acquire information respecting

activities of the executive branch nor inform their constituents of their findings without risking criminal prosecution. Indeed, these decisions raise the clear danger that a Member's speech or vote on the floor may subject him to inquiry by the executive or judicial branch.

The framers of the Constitution wrote the "speech or debate" clause to remedy a very specific evil. Fresh in their minds was the history of harassment by English kings and their judges of Members of Parliament who spoke out in the course of their legislative activities in a manner embarrassing to the Crown. The legislative immunity incorporated in our Constitution is a product of that turbulent period in English history marked by the glorious revolution and the beheading of Charles I. Indeed, one reason Charles I lost his head was his imprisonment of Members of Parliament who opposed his overseas military campaigns.

Justice Frankfurter related the history and origins of legislative immunity to the "speech or debate" clause in his excellent opinion in the case of Tenney v. Brandhove, 341 U.S. 367, 372 (1971):

In 1668, after a long and bitter struggle, Parliament finally laid the ghost of Charles I, who had prosecuted Sir John Elliot and others for "seditious" speech in Parliament. . . . In 1689, the Bill of Rights declared in unequivocal language: "That the Freedom of Speech, and Debate or proceeding in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament." 1 Wm. & Mary Sess. 2, Ch. 2.

Freedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation. It was deemed so essential for representatives of the people that it was written into the Articles of Confederation and later into the Constitution. . . .

The reason for the privilege is clear. It was well summarized by James Wilson, an influentual member of the Committee of Detail which was responsible for the provision in the Federal Constitution. "In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of everyone, however powerful, to whom the exercise of that liberty may occasion offence." II Works of James Wilson (Andrews ed. 1896). 38.

Until these decisions by the present activist majority, the Supreme Court relied heavily upon this history to derive the meaning of the clause. When I refer to a court as "activist," I mean a court which ignores the history or policy or settled precedents underlying a particular clause of the Constitution or statute. The Supreme Court can be labeled "activist" whether it is popularly considered "liberal." as was the Warren Court, or as "conservative." The vice is the same whatever the ideology-placing the Court itself above the Constitution. It is not interpreting and applying, but rewriting.

An unfortunate example of an activist court at work is also found in the majority opinion in United States v. Brewster, written by Chief Justice Burger who was joined by Justices Stewart, Marshall, Blackmun, Powell, and Rehnquist. There the majority concluded that the English history which gave rise to article I, section 6 of the Constitution was no longer dispositive in interpreting the "speech or debate" clause. It was satisfied that

Our history does not reflect a catalog of abuses at the hands of the Executive that gave rise to the privilege in England.

The Court has conveniently forgotten much about American history. During the infamous "alien-sedetion" period, the Federalist ad