Activities to Which Speech or Debate Clause Applies

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Article I, Section 6, Clause 1:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

A series of decisions from the Supreme Court address the general scope of the Speech or Debate Clause. These cases elucidate the distinction between legislative acts, such as voting or debating, which are accorded protection under the Clause and are not subject to “inquiry,” 1 and political or other nonlegislative acts, which are not protected by the Clause and therefore may serve as the basis for a legal action.2 The cases suggest at least three noteworthy themes. First, despite the text, the protections afforded by the Clause extend well beyond “speeches” or “debates” undertaken by “Senators and Representatives.” 3 Second, otherwise legitimate political interactions external to the legislative sphere—for example, disseminating information outside of Congress—are generally not considered protected legislative acts.4 Third, the Clause does not immunize criminal conduct that is clearly not part of the “due functioning” of the legislative process.5

The Supreme Court adopted a broad interpretation of “Speech or Debate” from its first assessment of the Clause in the 1881 case Kilbourn v. Thompson.6 In Kilbourn, the Court considered whether a civil action could be maintained against Members who were responsible for initiating and approving a contempt resolution ordering an arrest.7 The Members defended themselves on the ground that their acts were protected by the Clause. The Court agreed, determining that the Members were not subject to suit for their actions.8

The Court adopted a constitutional construction of the Clause that extended its protections beyond mere legislative deliberation and argument, holding that “it would be a narrow view of the constitutional provision to limit it to words spoken in debate.” 9 Instead, the Court determined that the Clause applied to “things generally done in a session of the House by one of its members in relation to the business before it,” including the presentation of reports, the offering of resolutions, and the act of voting.10 Accordingly, the Court concluded that although the arrest itself may have been unlawful, the Members were immune from suit and could not be “brought in question” for their role in approving the resolution “in a court of justice or in any other place,” as that act was protected by the Clause.11

The Court only rarely addressed the Clause after Kilbourn.12 It was not until the 1966 case United States v. Johnson that the Court embarked on an attempt to define the protections afforded by the Clause in the context of a criminal prosecution of a Member.13 In Johnson, a former Member challenged his conviction for conspiracy to defraud the United States that arose from allegations he had agreed to give a speech defending certain banking interests in exchange for payment.14 In prosecuting the case, the government relied heavily on the former Member’s motive for giving the speech, introducing evidence that the speech had been made solely to serve private, rather than public, interests.15 Focusing on the admission of this protected evidence, the Court overturned the conviction. “However reprehensible such conduct may be,” the Court concluded that a criminal prosecution, the “essence” of which requires proof that “the Congressman’s conduct was improperly motivated,” was “precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry.” 16 The opinion noted that the Clause must be “read broadly to effectuate its purposes,” ultimately concluding that it prohibits a prosecution that is “dependent” upon the introduction of evidence of “the legislative acts” of a Member or “his motives for performing them.” 17 Although it overturned the conviction, the Court remanded the case to the district court for further proceedings, holding that the government should not be precluded from bringing a prosecution “purged of elements offensive to the Speech or Debate clause” through the elimination of all references to the making of the speech.18

The Johnson case stands for at least two important propositions. First, the opinion demonstrated that the government is not prohibited from prosecuting conduct that merely relates to legislative duties, but is not itself a legislative act.19 When a legislative act is not an element of the offense, the government may proceed with its case by effectively “purg[ing]” the introduction of evidence offensive to the Clause.20 Second, though not explicitly articulating such a privilege, the opinion impliedly introduced the evidentiary component of the Clause by holding that even though a case may go forward, a Member may invoke the Clause to bar admission of specific protected evidence.21

The evidentiary privilege component of the Clause was reaffirmed in United States v. Helstoski.22 There, the Court expressly held that any “references to past legislative acts of a Member cannot be admitted [into evidence] without undermining the values protected by the Clause.” 23 The Court acknowledged that “without doubt the exclusion of such evidence will make prosecutions more difficult,” but reasoned that such a limitation was consistent with a constitutional provision that was “designed to preclude prosecution of Members” entirely when legislative acts form the basis of the claim.24

In the 1972 decision of United States v. Brewster, which involved a Member’s challenge to his indictment on a bribery charge, the Court reaffirmed Johnson and clarified that “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.” 25 The Court made clear that the Clause does not prohibit inquiry into illegal conduct simply because it is “related” to the legislative process or has a “nexus to legislative functions,” but rather, the Clause protects only the legislative acts themselves.26 By adhering to such a limitation, the Court reasoned that the result would be a Clause that was “broad enough to insure the historic independence of the Legislative Branch, essential to our separation of powers, but narrow enough to guard against the excesses of those who would corrupt the process by corrupting its Members.” 27

Brewster also drew an important distinction between legislative and political acts. The opinion labeled a wide array of constituent services,28 though “entirely legitimate,” as “political in nature” rather than legislative.29 As a result, the Court suggested that “it has never been seriously contended that these political matters . . . have the protection afforded by the Speech or Debate Clause.” 30

Turning to the terms of the bribery indictment, the Court framed the fundamental threshold question for any prosecution of a Member of Congress as “whether it is necessary to inquire into how [the Member] spoke, how he debated, how he voted, or anything he did in the chamber or in committee in order to make out a violation of this statute.” 31 With regard to bribery, the Court reasoned that because acceptance of the bribe is enough to prove a violation of the statute, there was no need for the government to present evidence that the Member had later voted in accordance with the illegal promise, “[f]or it is taking the bribe, not performance of the illicit compact, that is a criminal act.” 32 Because “taking the bribe is, obviously, no part of the legislative function” and was therefore “not a legislative act,” the government would not be required to present any protected legislative evidence in order to “make out a prima facie case.” 33 In that sense, the Court distinguished the case before it from Johnson. Whereas the prosecution in Johnson relied heavily on showing the motive for Johnson’s floor speech, the prosecution in Brewster need not prove any legislative act, but only that money was accepted in return for a promise.

1: Gravel v. United States, 408 U.S. 606, 616 (1972).
2: See, e.g., id. at 613–29; United States v. Brewster, 408 U.S. 501, 507–29 (1972); United States v. Johnson, 383 U.S. 169, 174–85 (1966); Kilbourn v. Thompson, 103 U.S. 168, 201–05 (1881).
3: Kilbourn, 103 U.S. at 204 (extending the protections of the Clause beyond speeches and debates); Gravel, 408 U.S at 616–17 (extending the protections of the Clause to acts of aides).
4: See Gravel, 408 U.S. at 625–26.
5: See Johnson, 383 U.S. at 172.
6: Kilbourn, 103 U.S. at 200–05.
7: Id. at 200.
8: Id. at 201. In reaching its holding, the Court noted that if the Members had ordered the unlawful arrest “in any ordinary tribunal” they would have been liable for the act. Id. The Court concluded, however, that the Constitution and the Clause make clear that Congress “is not an ordinary tribunal.” Id.
9: Id. at 204.
10: Id.
11: Id. at 201.
12: See Philip Mayer, An Uncertain Privilege: Reexamining the Scope and Protections of the Speech or Debate Clause, 50 Colum. J.L. & Soc. Probs. 229, 233 (2017) ( “After Kilbourn, the Supreme Court did not substantively address the Clause until almost a century later.” ).
13: Johnson, 383 U.S. at 170–85.
14: Id. at 170–73. The Member also allegedly agreed to “exert influence” over Department of Justice enforcement decisions. Id. at 171. With regard to that aspect of the claim, the Court suggested that an “attempt to influence the Department of Justice” was not legislative. Id. at 172.
15: Id. at 177.
16: Id. at 180.
17: Id. at 185.
18: Johnson, 383 U.S. at 185.
19: Id. at 185.
20: Id.
21: Id. at 173 ( “The language of the Speech or Debate Clause clearly proscribes at least some of the evidence taken during trial.” ).
22: 442 U.S. 477, 487 (1979).
23: Id. at 489. The Helstoski opinion interpreted Johnson as “leav[ing] no doubt that evidence of a legislative act of a Member may not be introduced by the Government in a prosecution . . .” Id. at 487.
24: Id. The Helstoski opinion also evidenced the Court’s unwillingness to address the important question of the proper means by which the protections of the Clause may be waived. Id. at 490–94. The waiver question hinges on whether the protections of the Clause inhere to Members as individuals, or to the House and Senate as institutions. If the Clause creates an individual privilege, waiver would need to be made by the individual Member and arguably could not be made by the institution without the Member’s consent. If, however, the privilege is institutional, waiver would need to be made by the institution, and arguably could not be made by the individual member without the institution’s consent. With regard to individual waiver, the Court saw no need to determine whether an individual Member can waive the Clause’s protections, but “assuming that is possible, we hold that waiver can be found only after explicit and unequivocal renunciation of the protection.” Id. at 490–91. With regard to institutional waiver, the opinion noted that “[t]his Court has twice declined to decide” whether Congress could waive a Member’s privilege through a “narrowly drawn statute.” Id. at 492. The Court again, however, saw “no occasion to resolve” the question. Id. The opinion nonetheless “recognize[d] that an argument can be made from precedent and history that Congress, as a body, should not be free to strip individual Members of the protection guaranteed by the Clause from being ‘questioned’ by the Executive in the courts,” but ultimately reiterated that “[w]e perceive no reason to undertake, in this case, consideration of the Clause in terms of separating the Members’ rights from the rights of the body.” Id. at 492–93.
25: United States v. Brewster, 408 U.S. at 512.
26: Id. at 513, 528.
27: Id. at 525.
28: These unprotected activities include “a wide range of legitimate ‘errands’ performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called ‘news letters’ to constituents, news releases, and speeches delivered outside the Congress.” Id. at 512. Similarly, in Hutchinson v. Proxmire, the Court held that informing the public of legislative activities is not protected by the Clause. 443 U.S. 111, 133 (1979) ( “Valuable and desirable as it may be in broad terms, the transmittal of such information by individual Members in order to inform the public and other Members is not a part of the legislative function or the deliberations that make up the legislative process. As a result, transmittal of such information by press releases and newsletters is not protected by the Speech or Debate Clause.” ).
29: Brewster, 408 U.S. at 512.
30: Id.
31: Id. at 526.
32: Id.
33: Id. at 525.