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The United States Constitution Explained: Article I - The Legislature: Part 6 - Why be in Congress?

Updated: Dec 9, 2020

So far, we have talked about responsibilities and what Congress members can do, can’t do, should do, and shouldn’t do. Now let’s talk about some of the benefits of being a Congressman or Congresswoman that might make all those responsibilities worth it – and a few caveats that come with them.

Section 6 – Clause One

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.

Especially in 1789, and even now, traveling back and forth to DC often is expensive. In addition, it is hard (basically impossible) to find a job where you can be away so often and for so long as the sessions in Congress are and still get paid. Given these two problems, it would seem like only rich people and people with passive income could be in Congress. Insert Section 6. This country was not built by wealthy people alone. Sure, a lot of the Founding Fathers had money, but quite a few of them came from nothing or fought alongside people who had nothing in the Revolution and wanted people in similar situations to have a chance to lead their country. For this to be a possibility for many people, it had to come with a paycheck.

The second part of this clause looks a little sketchy on its face. To most people, it reads: as long as they aren't selling out the country to its enemies, committing some pretty serious crimes, or rioting, then they are above the law. What it actually means is a little bit different and has much less use today. In the early part of American History, many civil suits resulted in arrest to ensure that the person would arrive instead of a typical subpoena like we see today. Well, this would be a pretty easy way to keep someone you disagree with from going to Congress, right? Have a bunch of people sue them consistently, so they keep getting arrested and cannot make it to the session, and problem solved! This clause was meant to stop this. The phrase treason, felony, or breach of the peace is intended to exclude all criminal offenses from the privilege.

The last part of this clause is a doozy that has had many legal challenges and is a premise that has been fought over all the way back to the founding of the British Parliament. For our purposes, we will keep to the high-level description that Congress members cannot be held Criminally or Civilly liable for how they choose to debate discuss issues related to legislation. This gives them the full independence needed to have an effective legislature. If you are really curious and want to know more about this nuanced idea, send me an email or put your question in the chat box, and I will be happy to provide resources to help you better understand it.

Section 6 – Clause Two

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

This is mainly protection from Senators and Representatives using their offices for profit.

For example, The President does not like his Secretary of State, and he announces he is appointing me to Secretary of State, and I am waiting to be confirmed by the Senate. In the same week, a proposal comes up to double the salary of the Secretary of State.

For another example, let's assume I am an expert on cloud web architecture. We just voted earlier in the session on the creation of a new Department of Government Web Architecture.

In these two cases I would have just voted on and proposed my own job switch or salary increase in the middle of my term! In both cases, there is no way that I can completely disavow any bias in my decision making for voting yes, voting no, or not voting (and therefore basically voting no) on any of these proposals.

This Clause was not heavily debated at the convention, and therefore has a significant loophole that the founders missed. You can be appointed to one of these positions after your term has ended. So, in theory, you could propose and vote on a salary change for an office and be appointed to it when your term ends. This clause has not been litigated very much, and there have been no amendments to this effect, so we can assume this is a very rare case.

The last piece of this clause and this section is that you cannot hold an Office under the United States and be a member of either House. The phrase "Office under the United States" generally refers to Offices under the Executive Branch or any United States agency. This ensures no conflict of interest where someone working for the Executive Branch is also double-dipping and working in the Legislature to push a certain angle from the Executive.

- Publius

In our next post, we will continue on with Article I, Section 7. Please remember to follow us on Instagram and Facebook @marchforthfortheconstitution for other Constitution content and share us with your friends. When we reach 100 followers on our Instagram or Facebook page, we will pick one lucky follower to give away a $25 Amazon gift card! BIG NEWS ALERT: March Forth will be producing a podcast! Beginning this month, our founder, editor, and lead writer Matt Loft will be hosting The Publius Podcast. The podcast's goal is to go more in-depth than we can in these posts in a way that will hopefully be more engaging and easier for our audience to learn from. Stay tuned to our Instagram and Facebook pages for updates on when and where you can find the podcast!

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