The Constitution provides that members of Congress “shall not be questioned in any other Place” for “any Speech or Debate in either House.” This protection is absolute and applies to a broad range of official congressional activities delineated by case law. The clause both creates immunity from liability in civil and criminal proceedings and establishes evidentiary and testimonial privileges. With respect to the process for invoking the clause, a federal district court ruled in 2022 that the protection does not need to be affirmatively asserted by a member of Congress for a judge to review its applicability, but the Supreme Court has not ruled directly on that issue or on whether the clause is waivable by Congress.
The Speech or Debate clause covers activities involving: speech on the floor of each congressional chamber, congressional votes, and legislative action in congressional committees. The guiding principle articulated by the Supreme Court in reviewing the applicability of the clause is whether the conduct constitutes “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.”
Speech or Debate clause protection encompasses investigative activities by congressional committees that include the issuance of subpoenas and the introduction of records at hearings and in committee reports. It covers congressional aides with respect to activities that “would be immune legislative conduct if performed by” the member of Congress for whom they work, although it must be asserted on behalf of the aide by the member, and “the doctrine is less absolute when applied to officers or employees of legislative bodies.” Further, it applies in both civil and criminal proceedings, and covers claims for damages as well as injunctive relief.
Speech or Debate clause protection does not extend to activities by members of Congress outside their core responsibilities. As summarized by the Supreme Court, noncovered conduct includes: “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.”
One subcategory of congressional activity where Speech or Debate clause protection may not be categorical is informal information gathering by individual members of Congress. For example, in 2004, the 10th Circuit Court of Appeals ruled that Speech or Debate clause protection did not extend to meetings a Senator’s aide held with members of the public to gather information relevant to constituent services and the Senator’s legislative agenda.
More recently, the D.C. Circuit in 2023 considered a claim by an individual member of Congress that the clause barred the Department of Justice from reviewing over 2,000 messages and documents on a cell phone of his that was seized pursuant to a warrant. Noting that some of the communications that concerned a vote on certifying election results involved “quintessential legislative acts,” while others would not qualify for Speech or Debate clause protection, the court instructed the district to review the applicability of the clause on a communication-by-communication basis.
Another recent case involved a motion by a Senator to quash a subpoena for his testimony before a grand jury in an investigation of alleged efforts to disrupt the administration of the 2020 election in Georgia. The testimony sought concerned conversations between the Senator and Georgia state election officials and other statements he made relating to 2020 election results in Georgia. The Senator asserted that all of these communications constituted protected “legislative acts.” In a decision affirmed by the 11th Circuit Court of Appeals, the district court found that Speech or Debate clause protection applied to a subset of the communications – those that related to the Senator’s decision on certifying the 2020 presidential election. At the same time, the court denied the motion with respect to communications concerning alleged efforts to pressure election officials on Georgia election processes, allowing the grand jury to “carefully question” the Senator on those topics as well as communications with presidential campaign officials and public statements outside the Senate on Georgia’s election results.
Evidentiary and Testimonial Privileges
Speech or Debate clause protection extends beyond immunity from liability to provide a privilege barring both the introduction of evidence of legislative acts and compelled testimony. Courts have disagreed, however, on the extent to which the clause bars compelled disclosure of documents. The D.C. Circuit Court of Appeals has ruled that the clause provides an absolute bar on compelled disclosure of documents regardless of whether the documents are introduced into evidence. The 9th Circuit Court of Appeals, on the other hand, has taken a narrower view of the protection, holding that the clause does not preclude compelled disclosure where “it takes place as part of an investigation into otherwise unprotected activity.”
Process for Asserting the Privilege
Congress does not always raise the Speech or Debate clause in civil and criminal proceedings. When affirmatively suing as plaintiffs or intervening in lawsuits, the House and Senate do not generally invoke the protection. On occasion, congressional defendants also have declined to assert the privilege. Further, in some criminal and civil cases, the House and Senate have declined to assert the protection to allow the introduction of testimony or documents.
The Supreme Court has not ruled on whether a congressional defendant must affirmatively raise Speech or Debate clause protection as a defense in order for a court to review its applicability. However, in a recent challenge by a private party to a subpoena issued by a congressional committee, a federal district court ruled that it must review whether Speech or Debate clause protection barred the lawsuit even though no parties had invoked this immunity.
The Supreme Court also has not ruled directly on whether the immunity provided by the Speech or Debate clause may be waived. However, it has stated that if one assumed for the sake of argument that waiver was possible, it could only occur “after explicit and unequivocal renunciation of the protection.” In a subpoena enforcement lawsuit brought by a Senate investigative committee against a private party, the D.C. Circuit rejected the private party’s argument that by seeking judicial enforcement the committee had forfeited Speech or Debate clause protection.
Congress has successfully invoked the doctrine of sovereign immunity to obtain dismissal of lawsuits against Congress based on official legislative actions. This doctrine bars lawsuits against the United States unless it consents to be sued. Courts have found that this immunity applies to Congress.
The Supreme Court has defined exceptions to the doctrine that allow courts to enjoin government action where officers are acting “beyond their statutory powers” or where the manner in which governmental powers are being exercised is “constitutionally void.” In a recent challenge to a subpoena issued by the House Select Committee to Investigate the January 6th Attack on the United States Capitol, the plaintiffs unsuccessfully claimed that sovereign immunity did not apply because disclosure of the subpoenaed phone records would violate their First Amendment rights of association. In this case, the 9th Circuit Court of Appeals found that there was “little to suggest” that disclosure of the records would “affect protected associational activity” and therefore declined to apply the more stringent First Amendment review standard sought by the plaintiff. Further, it stated that even if the more exacting standard had applied, the subpoena would have met that standard because there was a substantial relationship between the disclosures required by the subpoena and the important investigative interests of the Committee, and the subpoena was narrowly tailored to that requirement. The court affirmed the district court’s determination that sovereign immunity barred the suit.
Co-Equal is not aware of a case in which a private party has successfully challenged a congressional claim of sovereign immunity.
