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S, Speech or Debate Clause.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 23 November 2020

Speech or Debate Clause.

The Constitution provides that members of Congress “for any Speech or Debate in either House … shall not be questioned in any other Place” (Art. I, sec. 6). This protection, which grew out of centuries of struggle between the English parliament and throne, grants immunity to members against civil or criminal action stemming from the performance of their legislative duties.

During the sixteenth- and seventeenth-century reigns of the Tudor and Stuart monarchs, the Crown had sought to intimidate unsympathetic legislators through legal action. The English Bill of Rights in 1689 sharply limited this practice by providing that “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.”

In the American Constitution, the Speech and Debate Clause, which protects legislators from punitive executive or judicial action, reinforced the *separation of powers among the government’s three branches. Interpretation of this clause has centered on a definition of “legitimate legislative activity.” Such activity had been commonly held to extend beyond debate on the floor of the respective chambers to include views expressed in committee deliberations and reports and to encompass the act of voting as well. In *Kilbourn v. Thompson (1881), the Supreme Court gave this clause its broadest interpretation, defining protected actions as “things generally done in a session of [Congress] by one of its members in relation to the business before it” (p. 204).

During the 1970s the Supreme Court considered several cases aimed at narrowing this reading. In Doe v. McMillan (1973), the Court limited protection for the views expressed within congressional reports only to those documents disseminated within Congress. Allowing a suit against the Government Printing Office for publishing a committee report that allegedly contained defamatory material, the Court ruled somewhat ambiguously that dissemination in normal channels outside (p. 953) Congress was not protected. Under a related subsequent decision, *Hutchinson v. Proxmire (1979), members became liable for their views as expressed through press releases and newsletters. The Court found that although these means of communication are valuable and desirable, neither forms an integral part of Congress’s deliberative process. Here the Court distinguished between the indispensable “informing function,” under which Congress informs itself in an effort to produce better legislation, and the less vital “informing function” of reporting its activities to the public.

In United States v. Brewster (1972), the Court significantly reduced the Speech or Debate Clause’s protection. Former U.S. senator Daniel Brewster had been indicted for allegedly taking a bribe to influence the performance of his official legislative duties. Brewster sought protection under the clause to declare the indictment invalid. In upholding the indictment, the Court ruled that “Taking a bribe is, obviously, no part of the legislative process or function” (p. 526). The clause was read as prohibiting an inquiry into the motivation for performing specific legislative acts, but it provides no restraint against an inquiry into taking a bribe for specific legislative actions. The subject of the inquiry against Senator Brewster was the bribe, rather than the legislative objective the bribe was intended to promote.

In that same year, the Court issued a ruling in a second case involving a United States senator. In Gravel v. United States, it upheld the right of a *grand jury to inquire into the circumstances under which a member obtained security classified government documents and arranged for their private republication. “While the Speech or Debate Clause recognizes speech, voting and other legislative acts as exempt from liability that otherwise might attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts” (p. 626).

The Gravel case also explicitly brought congressional staff under the clause’s protection. During the 1960s, the number of legislative aides increased at a rate greater than in any previous decade. Recognizing the expanding role of staff, counsel for the Senate successfully argued that “the day-to-day work of such aides is so critical to the Member’s performance that they must be treated as the latters’ alter ego; and that if they are not so recognized, the central role of the Speech or Debate Clause … will inevitably be diminished and frustrated” (pp. 616–617). It is not surprising that the expanded speed and power of modern mass communication media has resulted in significant expansion of congressional immunities under the Speech and Debate Clause.

Richard Allan Baker