Article 1, Section 6, Clause 1: Rights of Members
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.
Because Congress was expected to meet at a location distant from the homes and workplaces of most Congressmen, there was a necessity for Congressmen to be salaried. Otherwise, only the wealthy could afford to serve in Congress. This was a particularly crucial point for the House, which was meant to be representative of the people. A practical restriction on serving in the House to only the richest citizens would defeat this purpose.
We can almost see the reader shaking his head in derision. The majority of Congressmen are worth over $1 million, whereas the median individual wealth in the U.S. is about a tenth that figure. Congressmen are, by any reasonable standard, a wealthy group. We doubt we would want it any other way; members of the House may represent us, but we expect them to represent the best of us.
We can still imagine the reader shaking his head in derision, and we acknowledge that being rich is hardly the same thing as being capable, though we also think it obvious that there is some correlation. The compensation must not be so measly that men and women of genuine ability must make great financial sacrifices to serve in Congress. The annual Congressional salary in 2021 is $174,000 per year, not counting perquisites of office. For comparison, the median salary of Forbes 500 CEOs is $12.3 million. A salary of $174,000 per year is at about the 95% percentile of individual income in the United States. We do not consider this excessive. In fact, we are inclined to consider it a bit stingy. A talented CEO would likely take a substantial pay cut to serve in Congress, and this seems undesirable to us.
The clause also states that it is the federal government that pays the salary. This is a small but significant change from the practice under the Articles of Confederation, in which the states paid the salaries of their delegation to Congress. It arguably has the effect (perhaps largely symbolic) of creating a fiduciary responsibility of a member of Congress to the nation as a whole. A member of the House may represent a single district of a particular state, but in representing that district, he is expected to act as his constituents would in seeking the common good of the entire country. We believe that this need not be incompatible with looking out for the legitimate interests of his district.
The clause also sets out two special privileges. The first is that a member of Congress may not be arrested except for the most serious or immediate of crimes. Of these, treason is self-explanatory. Felonies were originally offenses for which a person was subject to forfeiting his entire lands and goods. Most such offenses also carried the threat of capital punishment, so that felony became a synonym for capital offense in the minds of many Englishmen and Americans. Nowadays, under federal law, felony is defined as any offense for which the maximum punishment is death or imprisonment for more than a year. Given the explosion of felony offenses on the statute books over the last century, the privilege from arrest now seems mostly symbolic.
The clause also permits arrest for breach of the peace. The term can be construed so broadly to cover almost any crime, but we believe the Framers here intended it in the narrow sense of acting in such a way that a reasonable man would perceive an immediate threat of violence.
Why this privilege from arrest? It was intended to protect legislators from interference by the executive branch aimed at thwarting unfavorable votes or other actions. It was on the basis of this clause that the courts ordered the FBI to return much of the evidence collected in a raid on the office of Representative William J. Jefferson in connection with a corruption investigation. Jefferson was later convicted of accepting bribes on the basis of nonprivileged evidence, by which time he had been turned out of office by the voters of his district.
Members of Congress are also immune to any legal action arising from their speech in Congress. The courts have held that this extends to other activities directly related to their legislative functions, such as speech in committee meetings, or to any material they enter in the Congressional Record. The intent is to permit Congressmen to speak their minds without fear of frivolous suits for defamation. The check on this power is that they remain answerable to their House for their speech, so that theoretically a Congressman who genuinely slandered someone in a Congressional speech could be censured or even expelled from his House. It was under this shield that Harry Reid infamously made false statements about Mitt Romney’s income taxes that likely damaged his election prospects in 2012. Reid later shrugged off the matter with “Romney didn’t win, did he?” As Senate Majority Leader, Reid was too powerful for there to be any realistic chance of censure for his actions.