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

Question

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?

Answer 1

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 Congress.gov (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:

• United States v. Brewster (1972) ~ the Speech and Debate Clause is used to shield a Senator from bribery and corruption charges
• Gravel v. United States (1972) ~ the Speech and Debate Clause extends to Congressional aides; the case also narrowed the protections provided
• Kilbourn v. Thompson (1880) ~ House members cannot be sued for false imprisonment; establishes the "Kilbourn Test"
• Powell v. McCormack (1969) ~ further establishes the rights of House members
• Dombrowski v. Eastland (1967) ~ further establishes the immunities of members of Congress
• United States v. Rayburn House Office Building, Room 213 (2007) ~ FBI raids Congressman's office; Supreme Court says no way

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).

Answer 2

Upvote to Michael_B. I was going to say some similar things but I freely admit I didn't have all those citations handy. Kudos.

But let me add one thing: Why the principle of not punishing congressmen and women for lying is a good idea:

Suppose that there was some legal penalty for lying during a debate in Congress. Suppose a senator or representative could be fined or jailed or kicked out of office or whatever.

This brings up the question: Who determines what is the truth and what is a lie?

Many political debates involve controversy over the relevant facts. People on each side claim that the science or economics or history or whatever supports their position. Often they present totally conflicting "facts". Sometimes because one or the other is blatantly lying. But also because sometimes the truth is complex and hard to determine.

If someone has the power to say that on this controversial question, side A is right and side B is wrong and therefore anyone in Congress arguing in favor of side B is guilty of a crime and will be sent to prison, clearly the people who have this power are the ones who are really in control of the government.

In the worst case, they could be totally partisan and routinely declare that the party or faction they favor is right and the other party is wrong and have all their political opponents thrown in jail, without even bothering to look at the actual evidence. They could lie all they want because they are the ones with the power to declare what is legally considered a "lie", and of course they are always going to say that they are right. Even in the best case, assuming that they are completely honest people trying to be fair, how can you be sure that they will never, ever make a mistake? Especially given that, once they make a decision, no one is allowed to challenge it. If they hear the evidence on some debated question and decide the right answer is X, then no one is allowed to offer any evidence or any argument that in fact X is wrong, under threat of fines and imprisonment.

You can, of course, write on a piece of paper that this "truth commission" will be fair and non-partisan and always examine the best evidence in a totally impartial manner. Now tell me how you insure that it actually happens that way.

The people on this "truth commission" would be the REAL government. Congress and the legislatures would be irrelevant.

As I write this, there is a lawsuit by 17 states (that can be found here and here) against a group of oil companies to charge them with various crimes because they questioned global warming and funded research that challenges global warming. The premise of the lawsuit is that the oil companies lied about global warming. But of course the oil companies deny that they lied: they said they were pursuing the truth. Even if they are wrong, the idea that a court can declare that someone's public statements about a controversial political issue are lies and punish them with criminal penalties strikes at the very heart of democracy. If you're thinking, "but global warming is a proven fact and if they deny it than they are lying", please consider the precedent. A court will decide what statements about controversial issues are legal to make in public and what statements are crimes that can send you to jail. Are you confidant that the courts will always agree with your side? What if a judge came along who said the opposite, who said that he is convinced that global warming is a hoax and anyone who warns against global warming should go to jail. Even if you are absolutely convinced that such a judge would either have to be an idiot or was being paid off by the oil companies or whomever ... are you certain that there will never be a judge who is an idiot or corrupt? Because that's the point: If someone has the power to send you to jail for "lying" about political issues, how do you make sure that that person will never be corrupt and never make a mistake?

Freedom of speech inherently includes the right to lie. Not because we defend lying, but because if the government has the power to put you in jail for lying, then the government has the power to put you in jail for telling the truth.

Answer 3

The relevant House can make its own rules about the conduct of its members and the discipline it imposes on them. The House of Representatives has three levels of punishment: expulsion, censure, and reprimand. The Senate has just expulsion and censure.

The closest historical example to the situation you describe would seem to be the reprimand of Rep. Charles Wilson in 1978 (House resolution 1414 of the 95th Congress) for "false statement before [the] Ethics Committee investigating the influence of a foreign government".

However, members might wish to tread carefully when bringing such resolutions before the House, because in 1869 Rep. Edward Holbrook was censured for "unparliamentary language for stating in debate that another Member made false assertions".

Answer 4

Lying qua lying isn't per se a crime. However politicians can be indicted on many criminal charges just as the ordinary man on the street.

In such as situation they would be in court, facing a jury, and here lying to the court is a crime. It's called perjury.

So the juridicial framework takes account of lies qua lies but in only in certain situations. The political framework is orientated towards leadership in legislating new policies. A politician who is consistently found or seen to lie on major issues will eventually face a loss of trust. If this reaches a critical point, he would not be able to effectively govern.

It's worth noting in this context a quotation generally attributed to Abraham Lincoln:

You can fool some of the people all of the time, and all of the people some of the time, but you cannot fool all of the people all of the time.

You 'fool' people by lying to them. Lincoln was a politician, so it's right to think that the 'you' in the quote refers to politicians; after all, it is politicians who by making speeches address the people; so this is Lincolns comment on lying politicians. He's saying, in essence, they're no damned good, and in the end, they'll be damned by their own lies.