The opinion
CUMMINGS, Circuit Judge
(dissenting).
The majority rests its decision on the Speech or Debate Clause contained in Article I, Section 6, Clause 1 of the Constitution, providing “The Senators and Representatives * * * for any Speech, Debate in either House * * * *740 shall not be questioned in any other Place.” 1 This clause is derived from the 1689 English Bill of Rights providing:
“That the freedom of Speech and Debate or proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament.”
This privilege was chiefly intended to protect members of Parliament from criminal charges and libel or slander actions. See United States v. Johnson, 383 U.S. 169, 182 , 86 S.Ct. 749 , 15 L.Ed.2d 681 ; The Bribed Congressman’s Immunity from Prosecution, 75 Yale L.J. 335 , 341-342 (1965).
In this country, a similar clause in the Massachusetts Constitution of 1780 was first construed in Coffin v. Coffin, 4 Mass. 1, 27 (1808), a slander suit, as enabling members of the legislature “to execute the functions of their office without fear of prosecutions, civil or criminal.” At two other places in his opinion, Chief Justice Parsons refers to freedom from “prosecutions.” Of course, prosecutions are not involved in the present suit for injunctive and declaratory relief.
The Supreme Court’s first consideration of the Speech and Debate Clause came in Kilbourn v. Thompson, 103 U.S. 168, 169 , 26 L.Ed. 377 , where it was deemed to give members of a congressional committee a defense against a suit for damages brought by a person imprisoned for failure to answer certain committee questions and to produce books and papers sought by the committee. In Kilbourn , the Court refused to limit this constitutional provision to words spoken in debate, but nevertheless confined its decision to “what is necessary to the case at hand,” stating:
“It is not necessary to decide here that there may not be things done, in the one House or the other, of an extraordinary character, for which the members who take part in the act may be held legally responsible.” See 103 U.S. pp. 204-205.
The next Supreme Court consideration of this clause came in another suit where the plaintiff sought damages from members of a legislature. Tenney v. Brandhove, 341 U.S. 367 , 71 S.Ct. 783 , 95 L.Ed. 1019 . There Justice Frankfurter concluded that the clause applied to immunize legislators from such actions if “from the pleadings it appears that the defendants were acting in the sphere of legitimate legislative activity” (at p. 376, 71 S.Ct. at p. 788 ). After stating that the purpose of the clause was to free members of the legislatures from “criminal and civil liability,” the Tenney opinion adhered to the caveat expressed in the Kilbourn case that members of the legislature might be held responsible for doing things “of an extraordinary character” (at pp. 375, 378, 71 S.Ct. 783 ).
The Supreme Court again considered this clause in United States v. Johnson, 383 U.S. 169 , 86 S.Ct. 749 , 15 L.Ed.2d 681 , where it was applied to bar a criminal prosecution against a former congressman. Again the Court was careful to limit its holding to the circumstances presented (at p. 185, 86 S.Ct. 749 ).
The last Supreme Court consideration of this clause occurred in the per curiam opinion in Dombrowski v. Eastland, 387 U.S. 82 , 87 S.Ct. 1425 , 18 L.Ed.2d 577 , another damage action. The Court reiterated the Tenney concept that legislators should be protected from the burden of defending themselves when engaged “in the sphere of legitimate legislative activity” (p. 85, 87 S.Ct. p. 1427). In contrast, here the Congressional defendants are being fully defended by the Government, as provided by 2 U.S.C. § 118 , with no possibility of monetary liability.
*741 This review of the leading authorities construing the Speech or Debate Clause shows that until today no court has applied it to an action seeking injunctive or declaratory relief. It is true that in Powell v. McCormack, 395 F.2d 577 (D. C. Cir. 1968), Judge Burger concluded that the clause applied to an action seeking equitable relief, but neither Judge McGowan nor Judge Leventhal agreed with him, and they reached certain aspects of the merits of the Powell complaint.
In my view, the immunity extended by the Speech or Debate Clause is limited to judicial proceedings in which individual legislators are sought to be rendered personally liable, civilly or criminally, for activities stemming from a privileged range of conduct. The -immunity does not extend to actions for declaratory and injunctive relief in which, as here, Congressmen are only parties in their official capacity.
As explained in United States v. Johnson, supra, p. 180 , 86 S.Ct. 749 , the state legislators’ privilege is on a parity with the federal privilege arising from the Speech or Debate Clause. In fact, at least 43 states have constitutional provisions equivalent to that clause. (See Tenney v. Brandhove, supra, at p. 375 , 71 S.Ct. 783, note 1 ; Alaska Const., Art. II, § 6; Hawaii Const., Art. Ill, § 8.) Despite such state constitutional provisions, injunctive relief has often been accorded against members of state legislatures, showing that injunctive relief is also not barred by the Speech or Debate Clause of the federal Constitution. Thus in Dombrowski v. Pfister, 380 U.S. 479 , 85 S.Ct. 1116 , 14 L.Ed.2d 22 , it was held that the plaintiffs were entitled to declaratory and injunctive relief against the chairman of a joint committee of the legislature and others. A few years later, in Bond v. Floyd, 385 U.S. 116 , 87 S.Ct. 339 , 17 L.Ed.2d 235 , the Court again held that a plaintiff was entitled to declaratory and injunctive relief against members of a state legislature even though the Supreme Court of Georgia had interpreted its Speech or Debate Clause as barring actions for declaratory relief against legislators. Village of North Atlanta v. Cook, 219 Ga. 316 , 133 S.E.2d 585 (1963). The rationale of the Dombrowski and Bond decisions applies equally to members of the United States House of Representatives.
Similarly, in Liveright v. Joint Committee, 279 F.Supp. 205, 215 (M.D.Tenn.1968), an injunction was entered against members of a joint committee of the Tennessee Assembly and other members of the legislature, restraining them from proceeding under a vague and overbroad resolution (narrower than Rule XI) authorizing the investigation of the Highlander Research Center of Knox County. To like effect, see Bush v. Orleans Parish School Board, 191 F.Supp. 871 (E.D.La.1961), affirmed, Denny v. Bush, 367 U.S. 908 , 81 S.Ct. 1917 , 6 L.Ed.2d 1249 ; Jordan v. Hutcheson, 323 F.2d 597, 601-602 (4th Cir. 1963).
Thus in the foregoing cases, the Supreme Court and other federal courts have approved declaratory and injunctive relief against legislators. The instant decision is the first known Speech or Debate Clause ruling to the contrary.
Under the allegations of this complaint, the House Committee on UnAmerican Activities has engaged in a consistent course of conduct whose effect is to stifle freedom of association and criticism of the government. 2
3 The Speech or Debate Clause was designed to encourage just such criticism. Its prophylactic purpose reflected “the central importance to our political system of uninhibited political expression as guaranteed to the general populace by the First and Fourteenth Amendments.” United States v. Johnson, supra, 383 *742 U.S. at p. 182 , 86 S.Ct. at p. 756, note 12 . Its purpose should not be subverted by employing it to deny relief to these plaintiffs. This is especially true when the clause has never before been applied to actions for injunctive or declaratory relief in the nearly 180 years of its operation. In fact, the novelty of the Government’s position is shown by its not having raised this clause during the first two and one-half years this case has been pending!
Even assuming arguendo the correctness of Judge Burger’s views in Powell v. McCormack, that case is not controlling here. There the relief sought would force the seating of Congressman-Elect Powell, whereas if these plaintiffs should prevail on the merits, Congress could enact a narrower enabling Act and continue its investigations thereunder. In Powell , the plaintiff had no alternative way of presenting his constitutional claim in a judicial proceeding, whereas here the majority opinion admits that these plaintiffs’ constitutional claims can be entertained in their criminal trials. If they should prevail on this point in those trials, the result would in effect be a judicial decision that Rule XI is unconstitutionally broad, the very result sought here. An unfavorable decision here would signify no less respect for a coordinate branch of the Government than would a like decision in the criminal prosecutions. The fact that plaintiffs can test the issues presented here in their criminal prosecutions is no reason to deny them standing in this proceeding. Flast v. Cohen, 392 U.S. 83 , 88 S.Ct. 1942 , 20 L.Ed.2d 947 . As Judge Medina observed in Wolff v. Selective Service Local Board No. 16, 372 F.2d 817, 824-825 (2d Cir. 1967):
“Where basic constitutional rights are imperiled, the courts have not required a series of injured parties to litigate the permissible scope of the statute or administrative interpretation but have nullified the unconstitutional action and required the Government to start in the first instance with a statute or interpretation that will not so overhang free expression that the legitimate exercise of constitutionally protected rights is suppressed.”
There Dombrowski v. Pfister, supra, was applied to prevent federal interference with First Amendment rights ( 372 F.2d at p. 824 ).
In sum, the Speech or Debate Clause protects legislators from imprisonment or money judgments that would adversely affect their ability to perform their Congressional duties. But if these plaintiffs were to prevail in this case, the defendant members of Congress would not be impeded in their Congressional functions but merely have to conduct their future investigations under a narrower, constitutional mandate. Thus permitting this action to proceed will have no chilling effect on the legislators’ performance of their duties. Cf. Note, 78 Harv.L.Rev. 1473, 1475 (1965).
The Court of Appeals for this Circuit has previously recognized the different impact of damages and injunctive actions, stating as follows in Adams v. City of Park Ridge, 293 F.2d 585, 587 (7th Cir. 1961):
“ * * * the case at bar is not an action for damages for torts committed. It looks to the future only and asks for a declaratory judgment and an injunction against invasions of plaintiffs’ federal constitutional rights contemplated by a municipality’s ordinance. None of the reasons which supports a city’s immunity from an action for damages for tortious injuries already inflicted by its officers, agents or servants applies to this case. No reason is apparent why a city and its officials should not be restrained from prospectively violating plaintiffs’ constitutional rights pursuant to its own legislative enactment, and an injunction not be granted, as provided in § 1983.”
Similarly here, the reasons supporting Congressional immunity in criminal prosecutions or in damage actions do *743 not apply to this case. Cf. Flast v. Cohen, 392 U.S. 83, 112, n. 6 , 88 S.Ct. 1942, 1959 (concurring opinion).
By belated resort to the Speech or Debate Clause, this Court should not evade the mandate of Stamler v. Willis, 371 F.2d 413 (7th Cir. 1966), holding that this complaint presents a substantial constitutional question, and that the breadth of Rule XI should be measured against this Committee’s conduct over the years. Cf. Watkins v. United States, 354 U.S. 178, 198, 202 , 77 S.Ct. 1173 , 1 L.Ed.2d 1273 ; Gojack v. United States, 384 U.S. 702, 711-712 , 86 S.Ct. 1689 , 16 L.Ed.2d 870 . The Stamler opinion contemplated that this judicial re-examination was to occur in this proceeding rather than in subsequent criminal proceedings. By settling the questions raised by this complaint in this civil proceeding, future interference with Committee activity would be eliminated. Unlike the now pending criminal prosecutions, more suitable discovery procedures and more liberal rules of evidence are available here to throw light on the serious constitutional questions presented. These questions are surely weighty enough to call for adjudication by three judges rather than a single judge hearing the criminal cases. Moreover, direct Supreme Court resolution is available upon appeal from the judgment on the merits by this 3-judge court. See Zemel v. Rusk, 381 U.S. 1, 5-7 , 85 S.Ct. 1271 , 14 L.Ed.2d 179 . Defendants have not shown why defense of this proceeding would be significantly more burdensome than would their cooperation in the prosecution of these plaintiffs under 2 U.S.C. § 192 .
These plaintiffs, like those in Dombrowski v. Pfister, 380 U.S. 479 , 85 S.Ct. 1116 , should be permitted to raise these questions in a civil proceeding not inhibiting the full exercise of their First Amendment rights. They should not have to go through years of criminal litigation as in Gojack v. United States, 384 U.S. 702 , 86 S.Ct. 1689 , where the defendant had to stand trial twice, was convicted twice, appealed unsuccessfully twice, obtained a new trial from the Supreme Court and finally the dismissal of charges against him in the Supreme Court.
Even more than in Dombrowski v. Pfister, supra, these plaintiffs are entitled to an adjudication of their civil complaint. There the allegedly over-broad statute was new and had not been judicially construed, so that any threat to free expression might have been obviated ad limine. Here it is alleged that the interpretation put on Rule XI during the approximately 30 years of the Committee’s existence exacerbates the overbreadth of the Rule, and it has already been held that plaintiffs’ allegations raise a substantial constitutional question (Stamler v. Willis, supra). Therefore, Dombrowski surely requires this Court to permit this civil litigation to proceed.
In denying the Government’s motion to dismiss, this Court has already determined that plaintiffs’ claims should be considered on their merits even though a coordinate branch of the Government is involved. The judiciary has always borne the basic responsibility for protecting individuals against unconstitutional invasions of their rights by all branches of the Government. 3 Thus the Supreme Court has overturned a major policy decision of the President because he exceeded his powers in seizing the steel mills. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 , 72 S.Ct. 863 , 96 L.Ed. 1153 . More recently, the Court has ruled that an Act of Congress designed to prevent members of the Communist Party from holding jobs in defense facilities, and action taken pursuant to that Act by the Secretary of Defense, was unconstitutional because it placed a greater restraint on First Amendment freedoms than was necessary to guard against espionage and *744 sabotage. United States v. Robel, 389 U.S. 258 , 88 S.Ct. 419 , 19 L.Ed.2d 508 . Although the Speech or Debate Clause protects individual legislators against personal liability for their legislative acts, it cannot foreclose judicial inquiry into the constitutionality of the Committee of which they are members. The Congress has no more right, whether through legislation or investigations conducted under an overbroad enabling Act, to abridge the First Amendment freedoms of the people than do the other branches of government, “For free expression — of transcendent value to all society, and not merely to those exercising their rights — might be the loser.” Dombrowski v. Pfister, supra, at p. 486 , 85 S.Ct. at p. 1121.
As shown in the Tenney case, and reiterated in Dombrowski v. Eastland, supra, the Speech or Debate Clause was meant to apply to legislators engaged in the sphere of legitimate legislative activity. In Stamler v. Willis, 371 F.2d 413 (7th Cir. 1966), the Court decided there was a substantial question whether these legislators were so engaged. In that vein, this Court has already unanimously denied the Government’s motion to dismiss and permitted limited discovery and should not now back-track from the forthright position previously taken merely to avoid passing upon the difficult and weighty questions presented.
The majority states that the action against the Attorney General and the United States Attorney must fall with the action against the Congressional defendants because the actions against the former are “ancillary.” But as early as Stockdale v. Hansard, 9 Ad. & El. 1 (1839), and certainly by the time of Kilbourn v. Thompson, supra, it was clearly established that liability, including personal tort liability, could be imposed on an official for following orders given to him by the Congress, even though the Congressmen could not be held. This is exactly what happened to the Sergeant-at-Arms of the House in Kilbourn . The principle was recently reaffirmed in Dombrowski v. Eastland, 387 U.S. 82 , 87 S.Ct. 1425 , 18 L.Ed.2d 577 , where the Supreme Court ordered that a tort action go to trial as against Senate Subcommittee Counsel Sourwine, while at the same time dismissing the action as against Senator Eastland. There is therefore no legal bar to the continuation of this action as against defendants Clark and Foran. I would hold that this action should proceed against the Congressional defendants as well.
For these reasons, I am unable to join in the judgment order being entered.
. By not raising this privilege or immunity in their Answer, which raised nine affirmative defenses, the Congressional defendants have waived it. But since the majority has seen fit to pass upon the merits of this defense, it will also be considered in this dissent.
. Unlike Tenney v. Brandhove, supra, the motives of these Congressional defendants are nowhere challenged. It is the effect of their conduct that is at issue here, not their motives,
. See Legislative Exclusion; Julian Bond and Adam Clayton Powell, 35 Univ. of Chi.L.Rev. 151, 164-166 (1967).