The Speech or Debate Clause

. . . for any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place.

—Thomas G. Hungar & Michael Bopp

Introduction

The Speech or Debate Clause immunizes Senators and Representatives from prosecution and civil suits based on things they say or do in their legislative capacities. This immunity traces its roots to a parliamentary privilege that was enshrined in the English Bill of Rights of 1689. The clause helps to preserve the separation of powers by enabling members of Congress to legislate without fear of reprisals by the executive or judicial branches or by state governments. Justice James Wilson observed that the privilege was “indispensably necessary” for a representative to “enjoy the fullest liberty of speech” in order to “discharge his publick trust with firmness and success.”¹ The Speech or Debate Clause also allows members to focus their time and energy on legislating instead of defending themselves against lawsuits brought by private individuals. The courts have addressed three primary questions with regard to the Speech or Debate Clause: What does the clause protect? How does the clause provide protections? Whom does the clause protect?

History Before 1787

The Speech or Debate Clause has its origins in England’s parliamentary privilege, which sometimes protected members’ right to freedom of speech and debate in Parliament. According to Sir William Blackstone, the privilege “was principally established . . . to protect [Parliament] members . . . from being oppressed by the power of the crown.”² Over the centuries, members of the House of Commons were prosecuted, imprisoned, and even sentenced to death for speeches or legislation that offended the Lancastrian, Tudor, and Stuart monarchs.³ In these cases, the privilege was asserted with mixed success. In 1689, Parliament finally prevailed as the privilege was permanently enshrined in the English Bill of Rights.⁴ It provided “[t]hat the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”⁵ After the Bill of Rights was adopted, the privilege “was never again seriously questioned or denied.”⁶

Speech or Debate clauses were written into the charters or bills of rights of many of the thirteen colonies along with three state constitutions adopted before ratification of the Federal Constitution.⁷ For example, the Massachusetts Constitution of 1780 provided that “[t]he freedom of deliberation, speech and debate, in either house of the legislature . . . cannot be the foundation of any accusation or prosecution, action, or complaint, in any other court or place whatsoever.”⁸ The Articles of Confederation copied the text of the English Bill of Rights nearly verbatim: “Freedom of speech and debate in Congress shall not be impeached or questioned in any Court, or place out of Congress.”⁹

The Constitutional Convention and Ratification Debates

The Speech or Debate Clause was first introduced at the Constitutional Convention on May 29, 1787, by Charles Pinckney of South Carolina.¹⁰ The Pinckney Plan provided that “[f]reedom of speech and debate in the Legislature shall not be impeached, or questioned, in any place out of it.”¹¹ The Committee of Detail revised the clause, making it nearly identical to the language in the English Bill of Rights and the Articles of Confederation.¹² This version (with minor changes in capitalization) was adopted without debate on August 10, 1787.¹³ The Committee of Style then revised the language of the clause to the version we have today.¹⁴ Both Charles Pinckney and James Madison of Virginia proposed methods for interpreting the clause. Pinckney thought that “[e]ach House sh[ould]” have the power to be the “[j]udge of its own privileges,” while Madison thought “it would be better” if the contours of the privilege were determined legally.¹⁵ Neither proposal was adopted.

The clause was not controversial. During the ratification debates, there was no extensive discussion of the Speech or Debate Clause in the Federalist Papers or published opposition by the Anti-Federalists.

What Does the Speech or Debate Clause Protect?

The text of the Speech or Debate Clause refers only to “Speech or Debate in either House,” but the clause and its parliamentary antecedents have long been understood to encompass other conduct, albeit only legislative acts. Thomas Jefferson, who served as President of the Senate, explained that the acts protected by the privilege were “restrained to things done in the House in a Parliamentary course.”¹⁶ Justice Joseph Story added that the privilege “does not cover things done beyond the place and limits of duty.”¹⁷ For example, a “speech delivered in the house of commons” would be privileged, but if the same speech was published elsewhere, the member could be “liable to an action and prosecution” in court.¹⁸ Story reasoned that these “same principles seem applicable to the privilege of debate and speech in congress.”

The Massachusetts Supreme Judicial Court adopted a similar interpretation of the state’s speech or debate clause. Coffin v. Coffin (1808) held that the privilege applied only to actions taken by a legislator “in the exercise of the functions of that office.”¹⁹ The Supreme Court of the United States has adopted this same view. Kilbourn v. Thompson (1880) held that the privilege extends “to things generally done in a session of the House by one of its members in relation to the business before it.”²⁰

In modern times, the Supreme Court has acknowledged that protected legislative acts are not actually “confine[d] . . . to words spoken in debate.”²¹ Rather, the Court held, this immunity extends to matters that are “an integral part of the deliberative and communicative processes” of “committee and House proceedings with respect to . . . proposed legislation or . . . other matters which the Constitution places within the jurisdiction of either House.”²² Under this precedent, immunity attaches to voting, drafting and proposing resolutions, engaging in committee or subcommittee hearings and meetings, preparing or authorizing publication of committee reports, and more.²³ Also covered are official investigations into subjects “on which legislation could be had,” along with subpoenas issued pursuant to those investigations.²⁴ Even the motivation behind a legislative act is protected.²⁵

Not everything that is regularly done by members of Congress is protected, however. Immunized legislative acts generally do not include speeches delivered outside Congress, constituent service efforts and communications, political activities, newsletters, press releases, and interactions with the media.²⁶ The Supreme Court has held that efforts to “influence the Executive Branch” outside of traditional legislative proceedings are likewise unprotected.²⁷ Other non-privileged activities include accepting bribes, promises by a member to perform an act (even if legislative) in the future, and the republication in a non-congressional setting of otherwise protected statements previously made in Congress.²⁸

How Does The Speech or Debate Clause Apply?

The privilege for protected legislative acts is absolute. The Supreme Court has explained that “the central role of the Speech or Debate Clause” is to shore up the separation of powers by “preventing intrusion by Executive and Judiciary into the legislative sphere.”²⁹ Under Supreme Court doctrine, this means that legislators “are immune from liability for their actions within the legislative sphere . . . even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.”³⁰

However, the scope of the privilege is not unlimited. The immunity extends only to core legislative activities so as to “free[] the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator.”³¹ But within that sphere, the clause is an “absolute bar to interference” that extends, for example, to the preclusion of civil litigation over legislative acts lest it “force[] Members to divert their time, energy, and attention from their legislative tasks.”³² The Court interprets the clause “broadly to effectuate its purposes.”³³

The clause has been construed to afford three distinct types of protection. First, the Clause provides immunity for members of Congress based on their legislative acts,³⁴ and this immunity applies in civil litigation and criminal prosecutions in both federal and state courts. Second, the clause creates an evidentiary privilege. In civil litigation and criminal prosecutions, opposing litigants cannot introduce evidence about legislative acts to prove their case against a member.³⁵ Third, the clause provides a testimonial privilege. Members cannot be “compelled to answer questions about legislative act[s] or produce legislative materials.”³⁶ Because the clause confers immunity from suit, a decision by a trial court not to dismiss a lawsuit on Speech or Debate Clause grounds is immediately appealable.³⁷

The Speech or Debate Clause protects against questioning “in any other Place,” such as a court or grand jury. Members, however, are always accountable to their respective houses, which can punish or expel them for “disorderly Behaviour.”³⁸ (See Essay No. 27.) And of course, members remain politically accountable to their constituents, who can vote them out of office on election day.

Whom Does the Speech or Debate Clause Protect?

The text of the Speech or Debate Clause mentions only “Senators and Representatives,” but the courts have extended that privilege to others, including congressional aides. Gravel v. United States (1972) recognized that in light of the complexity of the modern legislative process, “it is literally impossible . . . for Members of Congress to perform their legislative tasks without the help of aides and assistants.”³⁹ As a result, congressional aides “must be treated as [the Members’] alter egos” or “the central role of the Speech or Debate Clause . . . will inevitably be diminished and frustrated.”⁴⁰ Thus, the Court held that “the Speech or Debate Clause applies not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.”⁴¹

On the other hand, the clause does not immunize congressional staff for unlawful or unconstitutional actions taken in furtherance of congressional directives. Powell v. McCormack (1969) held that “although an action against a Congressman may be barred by the Speech or Debate Clause, legislative employees who participated in the unconstitutional activity are responsible for their acts.”⁴² Dombrowski v. Eastland (1967) held that the clause “is less absolute, although applicable, when applied to officers or employees of a legislative body, rather than to legislators themselves.”⁴³ Gravel summarized the doctrine: Legislative aides are not covered by the privilege when they personally execute Congress’s illegal commands, since executing the law is not a legislative act.⁴⁴

The Court has also extended immunity to former members of Congress with respect to conduct during their term of office.⁴⁵ The Speech or Debate Clause does not apply to state legislators,⁴⁶ but their legislative acts may be protected by state constitutions or by virtue of the common law.⁴⁷

Open Questions

• Does the Speech or Debate Clause protect informal congressional information-gathering? The Second, Fourth, and Ninth Circuits have held that at least some types of informal information-gathering are covered by the privilege.⁴⁸ The Tenth Circuit took the opposite position.⁴⁹ The D.C. Circuit has explained that the relevant inquiry is whether something is a “legislative act” within the meaning of Gravel and not whether there is a separate category of protected acts labeled informal fact-finding.⁵⁰ The Supreme Court declined to block a state grand jury subpoena for Senator Lindsey Graham.⁵¹ According to the Court, doing so “was not necessary to safeguard the Senator’s Speech or Debate Clause immunity” because the lower courts had “assumed that the [Senator’s alleged] informal fact-finding” constituted protected legislative activity.”⁵²
• Does the Speech or Debate Clause protect against the disclosure of non-privileged materials that were found among privileged materials? The D.C. Circuit has held that permitting prosecutors to sort through privileged legislative materials to find the non-privileged materials violated the Speech or Debate Clause but that in camera review by the court to resolve privilege claims was permissible.⁵³ By contrast, the Ninth Circuit has held that “the Clause does not incorporate a non-disclosure privilege.”⁵⁴
• Are members’ employment decisions protected by the Speech or Debate Clause?⁵⁵
• Is the Vice President, in his role as President of the Senate, covered by the Speech or Debate Clause?⁵⁶ In 2023, a federal district court held that some of Vice President Mike Pence’s actions in the lead-up to January 6, 2021, were protected by the Speech or Debate Clause.⁵⁷ This decision was not appealed.

1. 1 The Works of James Wilson 421 (R. McCloskey ed., 1967). ↩︎
2. 1 Blackstone 164. ↩︎
3. Carl Frederick Wittke, The History of English Parliamentary Privilege 23–30 (1921). ↩︎
4. Id. at 30. ↩︎
5. 1 W. & M., ch. 2, sess. 2 (1688) (Eng.). ↩︎
6. Id. ↩︎
7. Kilbourn v. Thompson, 103 U.S. 168, 202–03 (1880); Tenney v. Brandhove, 341 U.S. 367, 373–74 (1951). ↩︎
8. Mass Const. of 1780, part I, art. XI. ↩︎
9. Articles of Confederation, art. V, § 5. ↩︎
10. Journal of the Constitutional Convention, Kept by James Madison 58, 64, 66 (E.H. Scott ed., 1893). ↩︎
11. Id. at 66. ↩︎
12. 2 Farrand’s 166. ↩︎
13. Id. at 254. ↩︎
14. Id. at 593. ↩︎
15. Id. at 340–41, 503. ↩︎
16. Thomas Jefferson, A Manual of Parliamentary Practice: For the Use of the Senate of the United States (1801). ↩︎
17. 2 Story’s Commentaries § 863. ↩︎
18. Id. ↩︎
19. Coffin v. Coffin, 4 Mass. 1, 27 (Mass. 1808). ↩︎
20. Kilbourn, 103 U.S. at 204. ↩︎
21. Gravel v. United States, 408 U.S. 606, 617–18 (1972). ↩︎
22. Id. at 625. ↩︎
23. Id. at 616, 624; Doe v. McMillan, 412 U.S. 306, 313 (1973); Powell v. McCormack, 395 U.S. 486, 502 (1969). ↩︎
24. Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 n.15, 505, 508 (1975). ↩︎
25. Tenney, 341 U.S. at 377. ↩︎
26. United States v. Brewster, 408 U.S. 501, 512 (1972). ↩︎
27. Doe, 412 U.S. at 313. ↩︎
28. Brewster, 408 U.S. at 526; United States v. Helstoski, 442 U.S. 489 (1979); Hutchinson v. Proxmire, 443 U.S. 111, 127–29 (1979). ↩︎
29. Helstoski, 442 U.S. at 477, 491. ↩︎
30. Doe, 412 U.S. at 312–13. ↩︎
31. Gravel, 408 U.S. at 617–18. ↩︎
32. U.S. Servicemen’s Fund, 421 U.S. at 503. ↩︎
33. Id. at 501. ↩︎
34. Doe, 412 U.S. at 306, 312; Dombrowski v. Eastland, 387 U.S. 82, 85 (1967). ↩︎
35. Helstoski, 442 U.S. at 477, 487, 489–90. ↩︎
36. Howard v. Office of Chief Admin. Officer of U.S. House of Representatives, 720 F.3d 939, 946 (D.C. Cir. 2013). ↩︎
37. Helstoski v. Meanor, 442 U.S. 500, 506–08 (1979). ↩︎
38. U.S. Const. art. I, § 5, cl. 2. ↩︎
39. Gravel, 408 U.S. at 616. ↩︎
40. Id. at 616–17. ↩︎
41. Id. at 618. ↩︎
42. Powell, 395 U.S. at 486, 504. ↩︎
43. Dombrowski, 387 U.S. at 85. ↩︎
44. Gravel, 408 U.S. at 621. ↩︎
45. Brewster, 408 U.S. at 501. ↩︎
46. United States v. Gillock, 445 U.S. 360, 374 (1980). ↩︎
47. Tenney, 341 U.S. at 378–79. ↩︎
48. United States v. Biaggi, 853 F.2d 89, 103 (2d Cir. 1988), United States v. Dowdy, 479 F.2d 213, 223–25 (4th Cir. 1973); Miller v. Transamerican Press, Inc., 709 F.2d 524, 530–31 (9th Cir. 1983). ↩︎
49. Bastien v. Off. of Senator Ben Nighthorse Campbell, 390 F.3d 1301, 1305–06 (10th Cir. 2004). ↩︎
50. In re Sealed Case, 80 F.4th 355 (D.C. Cir. 2023). ↩︎
51. Graham v. Fulton Cnty. Special Purpose Grand Jury, 143 S.Ct. 397 (2022). ↩︎
52. Id. at 398. ↩︎
53. United States v. Rayburn House Office Building, Room 2113, 497 F.3d 654 (D.C. Cir. 2007). ↩︎
54. United States v. Renzi, 651 F.3d 1012, 1039 (9th Cir. 2011). ↩︎
55. Davis v. Passman, 442 U.S. 228, 249 (1979); Howard, 720 F.3d at 939, 947. ↩︎
56. Roy E. Brownell II, Vice Presidential Secrecy: A Study in Comparative Constitutional Privilege and Historical Development, 84 St. John’s L. Rev. 423, 568–86 (2010). ↩︎
57. In Re Grand Jury Subpoena, No. [Redacted], D.D.C. (Mar. 27, 2023), https://perma.cc/533L-7473. ↩︎