Speech or Debate CLAUSE

AuthorTheodore Eisenberg
Pages2464-2465

Page 2464

The Constitution's speech or debate clause provides that "for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other Place." Despite its narrow phrasing, the clause was read in GRAVEL V. UNITED STATES (1972) and other cases as protecting all integral parts "of the deliberative and communicative process by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation." The clause also protects members' aides in performing tasks that would be protected if performed by members. An act protected by the clause may not be the basis of a civil or criminal judgment against a member of Congress. Under Doe v. McMillan (1973), actions by private citizens are barred even though the English PARLIAMENTARY PRIVILEGE from which the clause derives was concerned with executive encroachments on legislative prerogatives.

There are three inroads upon the speech or debate clause's protection. First, criminal prosecutions for corrupt behavior, such as accepting a bribe to influence legislation, may go forward, as in BREWSTER V. UNITED STATES (1972), on the theory that even if legislative acts were performed in exchange for payment, accepting a bribe is not a legislative act. But this area is not without difficulty, as was evidenced by the Court's refusal in United States v. Johnson (1966) and United States v. Helstoski (1979) to allow the use of legislative acts as evidence in corruption cases.

Second, in Gravel v. United States and HUTCHINSON V. PROXMIRE (1979), the Court implicitly held that communications with a member's constituents are not legislative functions and expressly held that members of Congress could be made to answer for words, written or spoken, or deeds done, outside formal congressional communications channels. Thus Senator Mike Gravel (or his aide) could be interrogated about republishing the Pentagon Papers with a private publisher, even though he could not be asked about reading the papers into the record of a committee hearing (see NEW YORK TIMES CO. V. UNITED STATES). And Senator William Proxmire could be held liable for defamatory communications.

Third, a citizen aggrieved by a subpoena to appear before, or furnish documentary evidence to, a congressional committee may challenge the subpoena by refusing to comply and defending any resulting contempt citation on the ground that the...

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