Skip to content
Archive of entries posted on August 2011

An Alternative to Speech or Debate

My last three posts (see here, here and here) suggest that a nondisclosure privilege would be an awkward fit with the text, purpose and history of the Speech or Debate Clause. A final consideration that militates against a nondisclosure privilege is the absolute nature of the Clause. If the Clause protects against disclosure of legislative [...]

Parliamentary Privilege and Nondisclosure

Because the Speech or Debate Clause was modeled on article 9 of the English Bill of Rights, U.S. courts have long looked to English practice and precedent as a guide to its interpretation. This approach is reflected in the very first case to consider the Clause, Kilbourn v. Thompson, 103 U.S. 168 (1881), where the [...]

Speech or Debate and Nondisclosure

Now I will turn to the question of whether the Speech or Debate Clause should be read to encompass a “nondisclosure” privilege, which would protect Members of Congress from being required to produce information regarding their legislative activities. Following the hypothetical in my last post, suppose the Justice Department serves Senator Smith with a grand [...]

The Three Established Branches of Speech or Debate

In a prior post, I addressed one of the two major Speech or Debate issues in the Renzi case. That issue involved the application of one of the three established branches of the Speech or Debate privilege. The other issue in Renzi is whether the courts should recognize a fourth branch of the privilege, namely [...]

The Supercommittee, Moral Entrenchment, and the Puzzle of Statutized Rules

The Budget Control Act of 2011 (“BCA”) establishes a number of expedited procedures to govern House and Senate consideration of the legislative proposal from the “Supercommittee.” In essence, it requires that both the House and Senate have an up-or-down vote on the bill as proposed, and it forbids amendment of the bill in either house. [...]

Sunshine for the Super-Committee?

The legislation creating the “Joint Select Committee on Deficit Reduction” (AKA, the “Super-committee”) contains little detail on rules and procedures that the Super-committee is to follow.  Title IV of the Act establishes the Super-committee and provides for public notice of its hearings, but is otherwise silent on how much of its processes are to be [...]

Overview of Investigatory Authorities of House and Senate Committees

Michael Bopp of Gibson Dunn has prepared this useful guide to the investigative authorities of House and Senate Committees. For each committee, the attached table identifies who can issue subpoenas, how they are enforced, quorum requirements for taking testimony and whether deposition authority exists. Tweet

ABA Proposal for Lobbying Reform

The American Bar Association has approved a resolution calling for changes to federal lobbying regulation. (see this story in Politico). Interestingly, Politico quotes the head of the American League of Lobbyists as generally supportive of the resolution, except for the proposal to restrict campaign fundraising by lobbyists. The ABA resolution stems from the report of [...]

Law Professors Lecture Congress on Stuff They Know Nothing About

A group of law professors and labor policy experts have written this letter to Darrell Issa, Chairman of the House Oversight and Government Reform Committee (COGR), expressing their grave concerns over “threats to compel disclosure of privileged documents” from the National Labor Relations Board. COGR is investigating the NLRB’s decision to bring an action against [...]

The Strange Case of Scott Bloch

Scott Bloch, the former head of the Office of Special Counsel, the office charged with protecting government whistleblowers against retaliation, wasn’t very popular with the employees in his former office, and they went to Congress to complain. Among other things, they accused him of retaliating against those who voiced concerns about his policies. You get [...]