In defense of Rayburn House: why the Supreme Court should recognize an evidentiary privilege of nondisclosure in its speech or debate clause jurisprudence.

Author:Kieser, Christopher M.

Article I of the United States Constitution includes the legislative privilege commonly known as the Speech or Debate Clause. The Clause reads that members of Congress:

[S]hall 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. (1) Despite the Clause's long history, (2) there have been comparatively few Supreme Court cases dealing with the grant of legislative immunity for words spoken in legislative acts. (3) Reasons for this could be numerous, including the fact that legislators rarely commit acts worthy of prosecution in connection with their service in Congress. However, recent cases in both the Ninth (4) and District of Columbia (5) Circuits have created one of the first modern controversies over the scope of the Clause. Specifically, the Circuits disagree over whether the Clause provides an evidentiary privilege of non-disclosure during an investigation into the activity of a member of Congress. (6) If the Supreme Court chooses to take this case, as some commentators believe it will, (7) it will have to address this disputed question and decide once and for all how far the Speech or Debate Clause will extend in protecting documents possibly used in a congressional investigation.

This Note will argue that in order to preserve the structural values inherent in the Constitution, especially the separation of powers and the independence of the legislative branch, (8) the Supreme Court should resolve this split in favor of the D.C. Circuit's decision in United States v. Rayburn House Office Building. (9) This Note will demonstrate that without the strong legislative privilege enunciated in that case, the framers' notion of legislative independence will be in danger. The executive branch could take advantage of a weaker Speech or Debate protection to give its agencies power to investigate documents that come very close to the border of "legislative acts." This flies in the face of the structural ideal of separation of powers, but may prove to be politically popular for a sitting president. To avoid such inevitable conflicts of interest, the independent judiciary must strike the balance between the other two branches. The Ninth Circuit's recent decision in Renzi fails to protect legislative independence, and despite extremely valid concerns about the inability to control legislative corruption, it should be rebuked if and when the Supreme Court grants certiorari on this issue.

Part I will begin by describing the origins and history of the Speech or Debate Clause. Part II will provide an overview of the Supreme Court's modern Speech or Debate jurisprudence in order to set the stage for the current split. Part III will follow with a detailed analysis of the decisions leading up to Renzi in the Ninth Circuit and Rayburn House in the D.C. Circuit. Part IV will analyze the holdings in those cases and discuss the ensuing circuit split created after the Ninth Circuit's June 2011 decision in Renzi. Part V will conclude with a recommendation that if the Supreme Court grants certiorari on the issue, it should follow Rayburn House's broader reading of the legislative immunity provision embodied in the Speech or Debate Clause in order to protect the important constitutional values of legislative independence and separation of powers.


    Unlike other, more controversial grants of legislative power, the Speech or Debate Clause was approved at the Federal Convention in 1787 without any debate or opposition. (10) As the Supreme Court stated in United States v. Johnson, the Clause adopted "almost verbatim the language of Article V of the Articles of Confederation," which "in turn [is] almost identical to the English Bill of Rights of 1689." (11) The English Bill of Rights provision states 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." (12) As the Supreme Court and some commentators have written, the original Clause was a reaction to years of legislative suppression committed by both the Tudor and Stuart monarchs in the sixteenth and seventeenth centuries. (13) It was apparently intended to guarantee and preserve "the independence and integrity of the legislature." (14) When the Clause was adopted into the new United States Constitution, its purpose remained the same. Instead of regulating the dichotomy between the monarch and the two houses of Parliament, its key goal was to preserve the separation and autonomy of the new United States Congress from encroachment by a hostile executive branch, made worse by a possibly equally hostile judiciary. (15) In contrast to previous Notes and Articles discussing the Rayburn House case, (16) this Note argues that the Clause must be interpreted broadly in order to serve this original intent.


    1. Early Decisions: Speech or Debate in the Civil Context

      The Supreme Court existed for nearly one hundred years before it first had occasion to examine the meaning of the Speech or Debate Clause. That first instance occurred in 1880 in Kilbourn v. Thompson. (17) That case required the Court to determine whether the legislative privilege embodied in the Clause protected sitting Congressmen in a committee from an investigation into discussions on the floor of the House of Representatives to determine whether they were guilty of false imprisonment. (18) In determining whether the committee's written resolutions would be protected, the Court offered the first definitive statement on the extent of the legislative privilege:

      It would be a narrow view of the constitutional provision to limit it to words spoken in debate. The reason of the rule is as forcible in its application to written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, whether it is done vocally or by passing between the tellers. In short, to things generally done in a session of the House by one of its members in relation to the business before it. (19) In short, faced with a choice between narrowing the Clause to enable a judicial investigation into the conduct of this legislative committee (which could have seemed like the more palatable alternative, especially given the accusation), and holding to the principles and protecting legislative independence with a strong privilege, the Court opted for the latter. By holding that the written acts of this particular legislative committee were protected by the Clause from investigation (and, in effect, the defendants were immune from being held liable for the intentional tort of false imprisonment), (20) the Supreme Court established precedent for a strong legislative privilege. (21) Kilbourn's facts could have been reason enough for the Court to shy away from the privilege and weaken it, but instead Kilbourn gave us a strong interpretation of the privilege and an important jumping off point for more modern Speech or Debate jurisprudence.

      The Clause was addressed on only a few occasions in the Supreme Court between Kilbourn and the beginning of the modern era. The next significant case expanding on the Court's jurisprudence came in 1951, at a time when McCarthyism was exerting significant pressure on the freedom of speech and expression in the United States. (22) Tenney v. Brandhove (23) involved plaintiff William Brandhove challenging the Senate Fact-Finding Committee on Un-American Activities and California state Senator Jack B. Tenney. Brandhove claimed that Tenney and his Committee violated his civil rights guaranteed by the Federal Constitution and by statute. (24) After the Ninth Circuit sided with Brandhove and held that he could state a valid claim for relief, (25) the Supreme Court found that the legislative privilege applied and accordingly reversed. The Court gave a powerful endorsement to a strong legislative privilege in Tenney. After discussing the historical background of the Clause and its formulations in several of the Revolution-era state constitutions, (26) Justice Frankfurter added a new justification for the breadth of the Clause, even surpassing the language used in Kilbourn. That powerful addition was the broad support of the privilege even in the face of heavy skepticism of legislatures on the part of both James Madison and Thomas Jefferson. (27) In Frankfurter's view, because influential framers who were not enamored by the possibility of legislative overreach still saw fit to give that branch of government such complete protection from liability, the privilege could not be overcome by a simple act of that same legislature. Part of Brandhove's complaint was based on a statute passed by Congress in 1871 under the enforcement power of Section five of the Fourteenth Amendment. (28) Justice Frankfurter rightfully expressed his surprise and doubt that the Congress itself meant, in the course of passing the statute, to abrogate the legislative privilege. As he wrote, "[w] e cannot believe that Congress--itself a staunch advocate of legislative freedom--would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us." (29) The Court then inquired into whether the activities of the Committee were "within the sphere of legitimate legislative activity," and determined that "[i]nvestigations ... are an established part of representative government," and therefore the Committee was performing a legitimate function and could not be questioned or held liable for acts occurring as a result of it. (30)

      Justice Black, concurring in Tenney, generally endorsed Justice Frankfurter's...

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