Author: Michael Stern

             The D.C. Circuit issued a significant Speech or Debate ruling last month in a case involving former Congressman Tom Feeney.  Feeney had been investigated by the House Ethics Committee for accepting a privately financed trip which allegedly violated House Rules because it was paid for by a lobbyist and/or was “substantially recreational in nature.”   

            After the ethics investigation was closed, federal prosecutors began looking into the matter.  Grand jury subpoenas were issued to Feeney’s lawyers seeking information about the statements that Feeney had made to the Ethics Committee (although it is not clear from the opinion, it appears that the investigation may have focused on whether these statements were truthful).  Feeney and his lawyers moved to quash the subpoenas based on the Speech or Debate Clause.  The district court denied the motion, holding that “the congressman was not acting in his legislative capacity but in his personal capacity as a witness to facts relevant to the Committee’s investigation.” 

            At first glance, the district court’s conclusion would appear to be well-supported by the D.C. Circuit’s decision in United States v. Rose, 28 F.3d 181 (D.C. Cir. 1994).  Rose involved a congressman who was sued by the Justice Department for filing false financial disclosure statements that failed to disclose personal loans he had received from his campaign and other sources.  The suit relied upon the congressman’s testimony before the House Ethics Committee, which had previously investigated the same issue.  The court rejected the argument that this use of the testimony violated the Speech or Debate Clause, noting that the congressman’s testimony did not relate to pending legislation but to his handling of personal financial transactions.  It concluded that he “was acting as a witness to facts relevant to a congressional investigation of his private conduct; he was not acting in a legislative capacity.” 

            In reaching this conclusion, however, the Rose court had to distinguish a prior D.C. Circuit decision, Ray v. Proxmire, 581 F.2d 998 (D.C. Cir. 1978), which held that a Senator’s letter to the Senate Ethics Committee was protected by Speech or Debate.  In that case, the Senator was responding to allegations that he had misused Senate rooms by reserving them for the use of his wife’s clients.  The Ray court stated that “[i]n responding to a Senate inquiry into an exercise of his official powers, Senator Proxmire was engaged in a matter central to the jurisdiction of the Senate.”  The Rose court seized upon this reference to the Senator’s “official powers,” finding that Rose’s testimony, in contrast, related to personal financial transactions rather than the use of “official powers.” 

            This distinction, however, makes little sense.  In the first place, it is clear that the ethics committee has jurisdiction over alleged improper filings of financial disclosures, and it is difficult to see why such matters are any less “central to the jurisdiction” of the House or Senate than other allegations of improper conduct by Members.  Second, it is not at all obvious how one concludes that misuse of Senate rooms is more “official” than improper filing of financial disclosures.  In the former case, the Member allegedly misused an official power for personal gain, while in the latter the Member allegedly failed to perform an official duty for personal benefit.  Why this makes a difference for purposes of Speech or Debate protection is not explained by the Rose case. 

            The application of this distinction to the facts of the Feeney case is not self-evident either.  The government argued that the ethics investigation concerned a “personal” matter, i.e., Feeney’s receipt of a privately funded vacation in violation of House Rules.  During the course of the ethics investigation, however, Feeney had argued that his trip was for purposes of legislative fact-finding.  The D.C. Circuit found that this contention (whether or not it was true) transformed the investigation into one of whether Feeney had “abused” his official powers in accepting the trip.  It therefore concluded that the case fell on the Ray side of the Ray/Rose line and that Feeney’s statements to the Ethics Committee were protected by Speech or Debate.      

            Given the incoherence of the Ray/Rose distinction, it is difficult to say with assurance whether the Feeney panel applied it correctly.  As Judge Kavanaugh points out in his concurrence, the Ray/Rose test involves “fine slicing of Member’s speech” that engenders confusion and uncertainty.  It is worth noting, however, that the Feeney decision may add even more uncertainty and confusion to this area.  For example, the panel emphasized the fact that “legislative fact-finding” is itself protected by Speech or Debate.  Does this mean that the case would have been decided differently if the alleged official purpose of the trip had been non-legislative (e.g., giving a speech)?  It is also impossible to tell from the decision what the relationship was between the statements that the government sought to subpoena and the alleged legislative purpose of the trip.  Does the mere fact that the ethics investigation involved an issue of legislative fact-finding mean that all of Feeney’s statements are protected by Speech or Debate, even if they related to other subjects (such as whether the trip was funded by a lobbyist)? 

            Judge Kavanaugh proposes eliminating the Ray/Rose distinction and replacing it with a simple rule that all Member statements in congressional disciplinary proceedings are protected by Speech or Debates.  I will discuss this proposal in a future post.  For now I will simply note that there is much force to Kavanaugh’s argument, but it would have very significant implications that need to be carefully considered. 

            Before leaving the main Feeney decision, it should be noted that it could have implications outside the narrow area of subpoenas for statements made to the Ethics Committee.  If the grand jury were investigating whether the privately financed trip constituted a bribe or illegal gratuity, it might be argued, based on the language of this case, that the Speech or Debate Clause prohibits any inquiry into the trip because of the alleged legislative fact-finding purpose.  Whether the holding in fact extends so far will have to await future litigation.

           The Magistrate Judge in the Renzi case has issued this report and recommendation on Renzi’s claim that the indictment violated the Speech or Debate Clause. 

            To recap, (now former) Congressman Renzi is alleged to have told landowners who wished to obtain federal land exchange legislation that he would sponsor the bill only if they purchased for inclusion in the exchange certain property owned by a James Sandlin (who happened to owe Renzi a substantial sum of money). 

            The government’s primary argument is that these allegations do not offend the Speech or Debate Clause because they involve only future legislative acts.  It relies on cases, such as United States v. Helstoski, 442 U.S. 477 (1979), which hold that the promise to vote for a bill in the future, at least in the context of the promise being made in exchange for a bribe, is not a legislative act protected by Speech or Debate. 

            The Magistrate begins his analysis by accepting the basic thrust of the government’s argument.  He states that “the government may establish the allegations with proof involving promises to vote and solicit other votes for the respective land swap proposals in return for the purchase of the Sandlin property; such promises are promises to perform future legislative acts, and as such, under Helstoski, are not protected.” 

            However, as the Magistrate obliquely acknowledges, the matter is not so simple as the foregoing quote would suggest.  The Renzi case would have been on all fours with Helstoski if Renzi were alleged to have promised to vote for the land exchange legislation in return for the purchase of some property unrelated to the legislation.  The same would be true if Renzi had allegedly stated that he would vote for the land exchange legislation only if the Sandlin property were included and the purchaser paid more than X amount for it.  In actuality, however, these allegations have not been made; instead, the core of the prosecution’s case is simply that Renzi corruptly insisted that he would support the land exchange legislation only if the Sandlin property were included.

In the ensuing ten pages, the Magistrate struggles to explain why this difference makes no difference. As he observes, the case law has not “established any definitive boundary for the lower courts to apply to establish whether an activity involves Speech or Debate.” Unfortunately, the Magistrate’s discussion does not bring that boundary into sharper focus; if anything, he blurs the lines even more.

Renzi argued that negotiating with private landholders is a routine and inherent part of the legislative process for land exchange legislation. The Magistrate’s response to this argument is particularly confusing: “Renzi’s conduct alleged in the indictment may be routine, it may be “procedurally” akin to negotiating an amendment to draft legislation, and some day communication between private landowners drafting legislation in the hopes their local representative might support it, and a representative who might at some future time support such legislation may be provided constitutional protections befitting that relationship, but presently this Court does not find that it is protected under the Speech or Debate Clause of the Constitution.” (emphasis in original).

What does this mean? Is the Magistrate suggesting that Renzi’s position is logical, but somehow conflicts with existing case law? Or is it that Renzi’s position may be right, but the Magistrate does not intend to be the first judge to say so? Hard to tell.

The Magistrate ascribes considerable significance to the fact that Renzi’s negotiations with the landowners occurred before legislation was introduced. He indicates at one point that the same negotiations, had they taken place before legislation was introduced, would have been “probably protected,” and, at another, “clearly protected” by Speech or Debate. Presumably the Magistrate is persuaded that such negotiations would themselves be part of the legislative process and therefore covered by Speech or Debate, even though they involve references to future legislative acts. For reasons that are unexplained, however, the Magistrate does not believe that the same can be said about negotiations that precede the introduction of legislation. To muddy the waters further, the Magistrate asserts that “there is no artificial line drawn at the introduction of legislation.”

Regardless of whether the negotiations were part of the legislative process, however, the Magistrate acknowledges it would be impermissible for the prosecution to use that evidence to impugn Renzi’s motivation for sponsoring the land exchange legislation. He states that “inquiring into Renzi’s motivation for telling the land proponents to include the property in their exchange packages, or Renzi’s motivation for sponsoring the package, would draw an impermissible inference into Renzi’s legislative acts, and would be privileged.”

This is, of course, precisely what the indictment seems to do when it alleges that Renzi and Sandlin entered into a conspiracy to deprive the United States of its right to Renzi’s “honest services” by “using the promise of Renzi’s exercise of his official authority in their favor to compel [the landowners] to purchase the Sandlin Property.” Although the indictment may not expressly state that Renzi had a corrupt motivation for telling landowners, this is implicit in the charges. If Renzi did not have a corrupt motivation for insisting that the Sandlin property be included in the legislative proposal, then the United States was not deprived of his honest services and there would be no basis for the indictment.

Finally, a word must be said about the Magistrate’s most far-fetched attempt to attempt to avoid the application of Speech or Debate. He suggests that the Clause does not apply because the alleged activities exceeded Congress’s jurisdiction. Why? Not because Congress lacks the power to enact land exchange legislation. Instead the Magistrate claims that “Congress’s jurisdiction in this instance certainly does not reach as far as the illegal conduct alleged to take place in the negotiations between the landowners and Renzi solely for the personal enrichment of Renzi.” In other words, because Renzi was alleged to have acted illegally, he is not entitled to protection of Speech or Debate. This assertion would make the Speech or Debate privilege meaningless. As the Helstoski Court noted, “the Speech or Debate Clause was designed to preclude prosecution of Members for legislative acts.” It would hardly achieve this purpose if the government could evade its strictures when the legislative acts were illegal.

In conclusion, I have to give the Magistrate some credit for grappling with the difficult case law in this area. Speech or Debate law is complicated, sometimes inconsistent and definitely under-theorized. Unfortunately, the Magistrate’s foray has not improved matters.