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Should SCOTUS Hear Senator Menendez’s Speech or Debate Case?

A Third Circuit panel recently rejected Senator Menendez’s Speech or Debate appeal, thereby clearing the way for his corruption trial to proceed. United States v. Menendez, No. 15-3459 (3d Cir. July 29, 2016) (slip opinion). Menendez, it is reported, may seek further review from the full Third Circuit and/or file a petition for certiorari with the Supreme Court. While the court’s conclusion is no surprise, its reasoning raises some questions which could be fodder for Supreme Court review.

To briefly recap the facts, Menendez is accused of having intervened with the executive branch on behalf of one Dr. Salmen Melgen in exchange for personal gifts and campaign contributions. For example, Menendez allegedly sought to persuade/pressure executive officials to drop a Medicare fraud investigation into Melgen’s billing practices.

The prosecution claimed that Speech or Debate protection was simply inapplicable to legislative efforts to influence the executive branch. Menendez argued, on the other hand, that “the Speech or Debate privilege protects any effort by a Member to oversee the Executive Branch, including informal efforts to influence it.” Slip op. at 20-21.

The Third Circuit rejected both of these positions as too extreme. It set forth instead a two-step procedure for determining whether a legislator’s activity qualifies for Speech or Debate protection. First, “we look to the form of the act to determine whether it is inherently legislative or non-legislative.” Slip op. at 16. This involves classifying legislative acts into three categories. Certain acts, such as “introducing and voting on proposed resolutions and legislation, introducing evidence and interrogating witnesses during committee hearings, subpoenaing records for committee hearings, inserting material into the Congressional Record, and delivering a speech in Congress,” are so “manifestly” or “inherently” legislative that no further inquiry is necessary. These acts are protected regardless of the legislator’s motive or intent in performing them.” Id. at 17.

By contrast, “some acts are so clearly non-legislative that no inquiry into their content or underlying motivation or purpose is needed to classify them.” Slip op. at 17. Examples of such clearly non-legislative activities activities include (1) routine constituent services such as making appointments with executive agencies and providing assistance with securing government contracts; and (2) communicating with voters and the general public outside of Congress by means such as press releases, constituent newsletters and media appearances. These activities, though perfectly legitimate, are not protected even if they relate to the legislative process or public policy issues. Id. at 17-18.

The third category consists of activities that are “neither manifestly legislative nor clearly non-legislative.” Slip op. at 18. These “ambiguously legislative” acts, which include “trips by legislators and informal contacts with the Executive Branch,” cannot be determined to be protected or unprotected based on their form alone. Instead, the court must proceed to the second step of the analysis and “consider the content, purpose, and motive of the act to assess its legislative or non-legislative character.” Id.

Based on this framework, the Third Circuit found that Menendez’s activities fell outside the bounds of Speech or Debate protection. His “informal” (i.e., outside of formal congressional proceedings such as committee hearings and floor debates) efforts to influence the executive branch fell within the middle ground of “ambiguously legislative” acts and would not receive automatic protection merely because Menendez characterized them as “oversight.” Id. at 21. The court therefore must “drill down” to determine whether these acts were truly legislative in nature. Id. at 20.

This determination in turn depended on whether Menendez was trying to “influence the Executive Branch on policy, for actual legislative purposes,” on the one hand, which would qualify as true congressional oversight, or, on the other hand, whether he was simply trying to help a particular individual, which would not. Here the Third Circuit had little difficulty in sustaining the district court’s finding that Menendez’s true purpose, or at least his predominant purpose, in communicating with the executive branch was to lobby on behalf of Dr. Melgen, not to advance policy or legislative objectives. See slip op. at 22-29. As the panel concluded, “[r]ecord evidence and unrebutted allegations in the indictment cause us to conclude that the District Court did not clearly err when it found that the challenged accts were informal attempts to influence the Executive Branch toward a political resolution of Dr. Melgen’s disputes and not primarily concerned with broader issues of policy.” Slip op. at 29.

Again, this conclusion is not surprising given the facts of the Menendez case. However, the Third Circuit’s framework for resolving Speech or Debate issues raises a couple of questions. First, why are certain acts considered “manifestly non-legislative” while others are not? If, for example, a member of Congress gives a policy speech regarding Medicare billing reform outside of Congress (say to an association of medical professionals), this act is considered manifestly non-legislative even if its sole purpose is to garner support and input for legislative reform. On the other hand, if the same member were to go to the agency in charge of Medicare billing and urge it to adopt reforms without any legislative action, this “ambiguously legislative” act would apparently be protected because it is focused on policy. Indeed, even if the member simultaneously lobbied the agency on behalf of constituents, the communication might still be protected so long as its “predominant purpose” was policy-related.

This disparity of treatment can probably be explained only by the fact that Supreme Court precedent required the Third Circuit to classify constituent communications and other publication of information outside of Congress as non-legislative. See, e.g., Hutchinson v. Proxmire, 443 U.S. 111 (1979); Doe v. McMillan, 412 U.S. 306 (1973). This precedent has been criticized as undervaluing the importance of congressional communications with constituents and the general public. See Josh Chafetz, Democracy’s Privileged Few 110 (2007) (arguing that this precedent “give[s] short shrift to communications between Members and the public”). Professor Chafetz argues that “both communications with constituents and communications with executive agencies . . . ought to be privileged.” Id. at 105. Because the Supreme Court has foreclosed only the former, however, the Third Circuit’s approach treats the two differently without offering a rationale for doing so.

The second concern is that the Third Circuit’s approach encourages courts to scrutinize the motivations of legislators, which is normally thought of as an evil the Speech or Debate Clause was designed to prevent. As an example, imagine that a senator is advocating against the closure of a military base in her state on the grounds that the base is essential to the national defense. Under the Third Circuit’s framework, her communications to executive agencies would be privileged if this policy argument is the true reason for her position. But if a court determines that her “predominant purpose” is to save the jobs of her constituents, the communications would apparently be unprivileged. Thus, the Third Circuit’s approach creates a need for courts to evaluate legislative motivation even where it may be completely irrelevant to the merits of the underlying case. One might argue that the more absolute and formalist positions of either the prosecution (no attempts to influence agencies are protected) or the defense (all attempts to influence agencies under the rubric of oversight are protected) would be preferable.

The Supreme Court has not shown much interest in Speech or Debate issues over the last 35 years or so. But if it should be so inclined, the Menendez case provides it with the opportunity to reconsider past doctrine and provide lower courts with needed guidance in this area.

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