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 a nondisclosure privilege. Under a nondisclosure privilege, Members would have a privilege to refuse to disclose legislative information in a legal proceeding. If accepted, the privilege would allow Members to withhold certain legislative records in response to a subpoena for documents.

Before turning to that issue, though, I will discuss today the three established branches of the Speech or Debate privilege. To illustrate, let’s imagine a simple hypothetical, where Senator Smith gives a speech on the Senate floor regarding, say, the debt limit.

The Speech or Debate Clause provides that “for any Speech or Debate in either House [Senators and Representatives” shall not be questioned in any other Place.” See John Filamor’s Cake.  It derives from article 9 of the English Bill of Rights of 1689, which provides: “That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”

1. Liability. The first branch of the Speech or Debate privilege protects a Member from liability for certain activities within the legislative sphere. The legislative sphere extends beyond Thus, Senator Smith cannot be prosecuted or sued for his speech.

The non-liability branch of Speech or Debate is at the very core of the Clause’s protection. The fundamental purpose of the Clause was to prevent the types of abuses as had occurred in England during the 16th and 17th centuries, when the Stuart and Tudor monarchs used the criminal law as a retaliatory weapon against disfavored MPs. As explained in a recent decision of the U.K. Supreme Court, R v. Chaytor, UKSC 52 (2010), article 9 was designed to redress grievances arising from the reign of Charles I, “in particular the acceptance by the Court of King’s Bench that parliamentary privilege did not protect against [prosecution for] seditious comments in the Chamber.” The U.S. Supreme Court has noted that “[t]here is little doubt that the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominate thrust of the Speech or Debate Clause.” United States v. Johnson, 383 U.S. 169, 182 (1966).

The first issue in the Renzi case involved how to apply the liability privilege to the facts of that case.

2. Testimony. The “testimonial” branch of the Speech or Debate Clause prohibits requiring Members of Congress (or their aides) to testify in legal proceedings about matters within the legislative sphere.  Thus, Senator Smith cannot be required to testify in court about his speech, even in a case brought against a third party, in which there is no attempt to hold Smith liable.

The testimonial aspect of the privilege is somewhat removed from the core application, but it is supported by the literal language of the Clause—the Senator is being “questioned” about his speech. Moreover, such questioning might very well involve an attempt to impugn or impeach the legitimacy or motivation of the Senator’s legislative acts, thus falling within the purpose of the Clause.

3. Use. The third branch of the privilege is one prohibiting the evidentiary use of legislative acts. Under this branch a Member’s legislative act cannot be used as evidence against him in a legal proceeding, even though the proceeding itself does not violate the Speech or Debate Clause. Thus, for example, although Senator Smith could be prosecuted for taking a bribe in exchange for promising to make a speech regarding the debt limit, the fact that he actually gave the speech could not be introduced into evidence. The theory is that the bribery and promise to make the speech in exchange for the bribe are not legislative acts, but the actual speech itself is. Introducing the speech into evidence would hold Senator Smith accountable for that legislative act and would question or impeach his motive for delivering it.

Although in the hypothetical the introduction of the speech would seem to implicate the purposes of the Speech or Debate privilege, this is not invariably the case. Suppose in the course of the speech, Senator Smith describes his contempt for Senator Jones, who holds a different position on the debt limit. The next day Senator Jones is found dead, and Senator Smith is arrested for the murder. Can Senator Smith’s speech be offered as evidence of motive? Apparently not, although one might wonder if this result makes sense.

These three branches of the Speech or Debate privilege have been recognized by the Supreme Court. A fourth branch, nondisclosure, has only been addressed by lower courts. The D.C. Circuit has recognized the nondisclosure privilege, while the Third Circuit and now the Ninth Circuit in Renzi have not. I will turn to that issue in my next post.