Parliamentary Privilege Minutes of Evidence


Memorandum prepared by the Office of the General Counsel of the US House of Representatives

HISTORY, PURPOSE, AND SCOPE OF THE SPEECH AND DEBATE CLAUSE OF THE US CONSTITUTION

  We have prepared this memorandum to provide the Joint Committee with a general understanding of the history, purpose and scope of the Speech or Debate Clause of the US Constitution.

INTRODUCTION

  The Speech or Debate Clause provides that "for any Speech or Debate in either House, they [the Representatives and Senators] shall not be questioned in any other place." US Const, art I, § 6, cl 1. As a general proposition, the protections of the Speech or Debate Clause apply to all activities:

    within the "legislative sphere" . . . even though the [] conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.

  Doe v MacMillan, 412 US 306, 312-13 (1973) (quoting Gravel v US, 408 US 606, 624-25 (1972)).

  The "legislative sphere" includes all activities that are:

    "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."

  Eastland v United States Serviceman's Fund, 421 US 491, 504 (1975) (quoting Gravel, 408 US at 625).

  Activities within the legitimate legislative sphere include more than just words spoken in debate. The cases "have plainly not taken a literalistic approach in applying the privilege . . . Committee reports, resolutions and the act of voting are equally covered." Gravel, 408 US at 617. Similarly, committee investigations and hearings have also long been held to be activities within the legitimate legislative sphere. See eg, Eastland, 421 US 419 (dismissing suit to enjoin Senate committee investigation); McMillan, 412 US 312-13 (dismissing as against House committee Members suit to enjoin preparation and publication of committee report).

  Of course, "everything a Member of Congress may regularly do is not a legislative act within the protection of the Speech or Debate Clause." McMillan, 412 US at 313. For example, a private republication of a report or a republication of statements in the report in a press conference would likely not be protected by the Speech or Debate Clause. See, eg, McMillan, 412 US at 313-14 ("[P]rivate republication of documents introduced and made public at a committee hearing [not protected], although the hearing was unquestionably part of the legislative process."); Hutchinson v Proxmire, 443 US 111, 130 (1979) (newsletters and press releases not protected). Similarly, constituent service work including Members contacts with executive branch officials on behalf of constituents, is not generally protected by the Speech or Debate Clause. US v Rose, 28 F3d 181, 188 (DC Cir 1994).

THE HISTORY AND PURPOSE OF THE SPEECH OR DEBATE CLAUSE

  The Speech or Debate Clause privilege is rooted in the epic struggle for parliamentary supremacy in 16th and 17th century England:

    Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators.

  US v Johnson, 383 US 169, 178 (1974).

    As Parliament achieved increasing independence from the Crown, its statement of the privilege grew stronger. In 1523, Sir Thomas More could make only a tentative claim . . . 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" speeches in Parliament . . . In 1689, the Bill of Rights declared in unequivocal language: "That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament."

  Tenney v Brandhove, 341, US 367, 372 (1951).

  As a result of the English experience, "[f]reedom of speech and action in the legislature was taken as a matter of course" by the Founders, and reflected in the Speech or Debate Clause of the Constitution. The Speech or Debate Clause was intended by the Founders:

    to insure that the legislative function the Constitution allocates to Congress may be performed independently.

    [T]he "central role" of the Clause is to "prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary . . ."

  Eastland, 421 US at 502 (emphasis added) (quoting Gravel, 408 US at 617). [1] "In the American governmental structure the clause serves the additional function of reinforcing the separation of powers so deliberately established by the Founders." Johnson, 383 US at 178.

  "The guarantees of th[e Speech or Debate] Clause are vitally important to our system of government and therefore are entitled to be treated by the courts with the sensitivity that such important values require". Helstoski v Meanor, 442 US 500, 506 (1979). Accordingly, the Supreme Court has "[w]ithout exception . . . read the Speech or Debate Clause broadly to effectuate its purposes." Eastland, 421 US at 501. [2]

THE SCOPE OF THE SPEECH OR DEBATE CLAUSE

  The Speech or Debate privilege, as it has been construed by the Supreme Court and the lower courts has two broad aspects. First, the clause provides immunity from lawsuits for all actions "within the `legislative sphere,' . . . even though the [] conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes." McMillan, 412 US at 312-13 (quoting Gravel, 408 US at 624-25). [3] This legislative immunity extends both to civil suits and criminal prosecutions. [4]

  Second, the Speech or Debate Clause provides a testimonial privilege. Gravel, 408 US 606. This aspect of the privilege operates to protect those to whom it applies from being compelled to give testimony as to privileged matters, [5] and from being compelled to produce privileged documents. [6]

  The Supreme Court has drawn no distinctions between the immunity from suit and the testimonial aspects of the privilege. Rather, it has stated unequivocally that when the Speech or Debate privilege applies, it is "absolute."

    The question to be resolved is whether the action of the petitioners fall within the "sphere or legitimate legislative activity." If they do, the petitioners "shall not be questioned in any other Place" about those activities since the prohibitions of the Speech or Debate Clause are absolute.

  Eastland, 421 US at 501 (emphasis added).

  It is also worth noting that the protections of the Speech or Debate Clause apply "not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself." Gravel, 408 US at 618.

THE QUESTION OF WAIVER

  Finally, no case has squarely held that the Speech or Debate privilege may be waived. However, if the privilege is waivable, the standard is extremely high. "Assuming that [waiver of the Speech or Debate privilege] is possible, we hold that [it] can be found only after explicit and unequivocal renunciation of the protection." US v Helstoski, 442, US 477, 490-91 (1979) (emphasis added). In that case, the Supreme Court held that Congress man Helstoski's eight grand jury appearances, his voluntary production of privileged documents to the grand jury, and his testimony to the grand jury about his legislative activities, was not an "explicit and unequivocal" waiver of the privilege. Id. At 492. See also Johnson, 383 US at 184-85 (defendants congressman's introduction of legislative speech did not permit the government to rely on speech in indictment and prosecution).

  Of course, Members and committees may, as a practical matter, wave the testimonial aspect of the privilege from time to time by agreeing to produce documents or provide testimony in response to third-party subpoenas.

  "an integral part of the deliberate 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."

  Eastland, 421 US at 504 (quoting Gravel, 408 US at 625). See also Kilbourn, 103 US at 204 (Speech or Debate immunity extends to any act "generally done in a session of the House by one of its members in relation to the business before it.").

Civil Suits: Eastland, 421 US 491 (dismissing suit to enjoin Senate committee investigation); McMillan, 412 US 306 (dismissing as against House committee Members suit to enjoin preparation and publication of committee report); Dombrowski v Eastland, 387 US 82 (1967) (dismissing as against Senate committee Members civil conspiracy claim relating to their receipt of documents); Kilbourn, 103 US 168 (dismissing trespass action against House Members).


1   27 See also US v Brewster, 408 US 501, 507 (1972), 383 US at 178-82; Tenney, 341 US at 373. Back

2   28 See also McMillan, 412 US at 311; Gravel, 408 US at 618; Johnson, 383 US at 179; Kilbourn v Thompson, 103 US 168, 204 (1881). Back

3   29 As noted above, the "legitimate legislative sphere" includes all activities that are: Back

4   30 Criminal Prosecutions: Johnson, 383 US 169 (reversing conspiracy conviction based in part on Speech or Debate evidence); US v Helstoski, 442 US 477 (1979) (excluding evidence of legislative acts in criminal prosecution of House Member); Brewster, 408 US at 512 ("[A] Member of Congress may be prosecuted under a criminal statute provided that the Government's case does not rely on legislative acts or the motivation for legislative acts."). Back

5   31 See, eg Dennis v Sparks, 449 US 24, 30 (1980) (dicta); Gravel, 408 US at 615-16; Miller v Transamerican Press, Inc, 709 F2d 524, 528-29 (9th Cir 1983) (denying motion to compel testimony from former congressman). Back

6   32 See, eg, Maddox v Williams, 855 F Supp 406, 413 (DDC 1994) ("[T]he Speech or Debate Clause stands as an insuperable obstacle to [a party's] attempt to acquire by compulsion documents or copies of documents in the possession of the Congress."), aff'd sub nom Brown & Williamson Tobacco Corp v Williams, 62 F3d 408 (DC Cir 1995); Minepeco, SA v Conticommodity Services, 844 F2d 856, 859-61 (DC Cir 1988) (quashing document subpoena to congressional subcommittee); McSurely v McClellan, 553 F2d at 1296-97; Dombrowski v Burbank, 358 F2d 821, 823-24 (DC Cir 1966) (dicta), aff'd in part and rev'd in part, 387 US 82 (1967); Hearst v Black, 87 F2d 68, 71-72 (DC Cir 1936); United Transportation Union v Springfield Terminal Ry Co, 132 FRD 4, 507 (D Maine 1990) (quashing document subpoena to Senator); (US Football League v National Football League, 1986-1 Trade Cas (CCH) 67, 123 (SDNY 1986); US v Peoples Temple of the Disciples of Christ, 515 F Supp 246, 248-49 (DDC 1981) (quashing document subpoena to congressional committee). Back


 
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© Parliamentary copyright 1999
Prepared 9 April 1999