Communications Outside the Legislative Process

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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.

The Supreme Court’s opinion in Gravel v. United States establishes that communications outside of the legislative process are generally not protected by the Clause.1 Gravel involved a Speech or Debate challenge to a grand jury investigation into the disclosure of classified documents by a Senator and his aides.2 After coming into possession of the “Pentagon Papers” —a classified Defense Department study addressing U.S. involvement in the Vietnam War—Senator Mike Gravel disclosed portions of the document at a subcommittee hearing and submitted the entire study into the record.3 The Senator and his staff had also allegedly arranged for the study to be published by a private publisher.4 A grand jury subsequently issued a subpoena for testimony from one of Senator Gravel’s aides and the private publisher.5 Senator Gravel intervened to quash the subpoenas.6

The Supreme Court rejected Senator Gravel’s effort to shield his aide and the publisher from testifying. The Gravel opinion began by reasoning that “[b]ecause the claim is that a Member’s aide shares the Member’s constitutional privilege, we consider first whether and to what extent Senator Gravel himself is exempt from process or inquiry by a grand jury investigating the commission of a crime.” 7 In addressing the scope of the Senator’s protections, the Court implied the existence of the testimonial component of the Clause, noting that the protections of the Clause protect a Member from compelled questioning.8 The Court did so by stating, without further discussion, that it had “no doubt” that “Senator Gravel may not be made to answer—either in terms of questions or in terms of defending himself from prosecution—for the events that occurred at the subcommittee meeting.” 9

The Gravel opinion also drew a clear line of demarcation between protected legislative acts and other unprotected acts not “essential to the deliberations” of Congress.10 Although the Senator was protected for his actions at the hearing, the Senator’s alleged arrangement for private publication of the Pentagon Papers was not “part and parcel of the legislative process” and was therefore not protected by the Clause.11 In reaching this determination, the Court established a working definition of “legislative act” that remains applicable today, holding that a legislative act is an

integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.12

Private publication, as opposed to publication in the record, was “in no way essential to the deliberations of the Senate.” 13 Thus, the Clause provided no immunity from testifying before the grand jury relating to that arrangement.14

The Court reaffirmed its views on internal and external distribution of legislative materials in its subsequent decisions in Doe v. McMillan and Hutchinson v. Proxmire.15 McMillan involved a civil suit brought by parents and students in which it was alleged that the disclosure and publication of “somewhat derogatory” personal information in a congressional committee report on the District of Columbia public school system violated the petitioner’s right to privacy.16 The report was distributed within Congress and ordered printed and distributed by the Government Publishing Office (GPO).17 The complaint named a variety of defendants, including committee Members, congressional staff, the head of the GPO, and a number of non-congressional parties.18 The Court began by holding that the claims against the committee Members and their staffs for their activities, such as preparing and approving the report, were “plain[ly] . . . barred” by the Clause.19 However, the Court found that the public printer enjoyed no Speech or Debate Clause protections for the republication of the report to the public, even though that action was directed by Congress.20 Public republication of an otherwise protected legislative report, the Court reasoned, was not “an essential part” of the legislative or deliberative process.21 In reaching that conclusion, the Court rejected claims that Congress’s public “informing function” should fall within the Clause’s protections.22

Similarly, in Hutchinson, the Court held that the Clause did not provide a Senator and his aide with immunity in a defamation suit arising from the Senator’s public dissemination of his “Golden Fleece Award,” a prize intended to draw attention to wasteful government spending.23 The suit alleged damages arising from the Senator publicizing the award nationwide through press releases and newsletters.24 In holding that the Clause did not provide the Member and his aide with immunity, the Court saw no reason “for departing from the long-established rule” that a Member may face liability for republication of legislative statements or reports.25 Whereas the Senator would be “wholly immune” for his efforts to publicize the award through a speech in the Senate, “neither the newsletters nor the press release was ‘essential to the deliberations of the Senate’” and therefore they were not protected.26 The Court rejected arguments put forward by the Senator that public dissemination of the award came within the protections of the Clause either by advancing the “the duty of Members to tell the public about their activities,” an argument previously rejected in McMillan, or as a means to influence other Senators.27 Neither activity, the Court concluded, was “part of the legislative function or the deliberations that make up the legislative process.” 28

1: Gravel v. United States, 408 U.S. 606, 622–27 (1972). Gravel also exemplifies that the Speech or Debate protections can extend to a Member’s personal aides. Id. at 616–22.
2: Id. at 608–10.
3: Id. at 608.
4: Id. at 610.
5: Id. at 608.
6: Id. at 609.
7: Gravel, 408 U.S. at 613.
8: Id. at 626; Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 418 (D.C. Cir. 1995) (holding that “the Supreme Court recognized the testimonial privilege in Gravel v. United States” ). Gravel involved questioning before a grand jury. 408 U.S. at 613. The D.C. Circuit has suggested, however, that the prohibition extends to questions asked “in a deposition, on the witness stand, and so forth . . .” Fields v. Off. of Johnson, 459 F.3d 1, 14 (D.C. Cir. 2006).
9: Gravel, 408 U.S. at 616.
10: Id. at 625.
11: Id.
12: Id.
13: Id.
14: Id. at 626.
15: 412 U.S. 306, 308–17 (1973); 443 U.S. 111, 114–133 (1979).
16: McMillan, 412 U.S. at 308 n.1.
17: Id. at 308–09.
18: Id. at 309.
19: Id. at 312.
20: Id. at 313–18.
21: Id. at 314–15
22: Id. at 317.
23: Hutchinson v. Proxmire, 443 U.S. 111, 114 (1979). Senator Proxmire had given the award to federal agencies that funded the petitioner’s research. Id.
24: Id. at 115–16.
25: Id. at 128.
26: Id. at 130 (quoting Gravel v. United States, 408 U.S. 606, 625 (1972)).
27: Id. at 131–33. The opinion drew a clear distinction between the legislative act of a Member informing himself, and the generally non-legislative act of informing the public. Id. at 132.
28: Id. at 133.