Monitored Disclosure: a Way to Avoid Legislative Supremacy in Redistricting Litigation

• Publication year: 2021

MONITORED DISCLOSURE: A WAY TO AVOID LEGISLATIVE SUPREMACY IN REDISTRICTING LITIGATION

Mark Tyson

Abstract. The Speech or Debate Clause of the U.S. Constitution protects members of Congress from testifying about "legislative acts" or having "legislative acts" used against them as evidence. U.S. Supreme Court decisions delineating the scope of what constitutes a "legislative act" have an episodic feel and have failed to create a readily applicable test for new factual scenarios. One such scenario occurs when members of Congress communicate with state legislators regarding congressional redistricting. Courts must know how to handle instances where members of Congress assert legislative privilege in the redistricting context, and specifically when members of Congress assert the privilege in an effort to prevent disclosure of documentary material. Instead of resorting to the traditional "legislative acts" test, courts should permit disclosure of written materials subject to the rules of discovery. Courts should be vigilant in reviewing discovery requests to ensure that plaintiffs are not unduly burdening members of Congress, thereby unnecessarily distracting them from their work.

INTRODUCTION

[Members of Congress] shall 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.(fn1)

Our speech or debate privilege was designed to preserve legislative independence, not its supremacy(fn2)

The Speech or Debate Clause creates a privilege for members of Congress from revealing information about "legislative acts."(fn3) The Clause has been both praised as essential to the independence of the legislature, in that it shields legislators from executive and judicial harassment,(fn4) and criticized as a screen behind which misbehaving legislators may escape the usual legal consequences of their actions.(fn5) The U.S. Supreme Court has interpreted the Clause to create a testimonial privilege that protects members of Congress from testifying regarding "legislative acts."(fn6) However, the circuit courts have split on the question of whether the Clause also contains a nondisclosure privilege.(fn7) The U.S. Supreme Court has yet to furnish an answer.

What the U.S. Supreme Court has done is to construe the scope of the privilege.(fn8) Before 1972, the privilege was applied broadly.(fn9) But in 1972, the Court narrowed the privilege's scope significantly in the seminal case of Gravel v. United States(fn10) In spite of Gravel's narrowing effect, subsequent cases applying Gravel's test have an episodic feel. The U.S. Supreme Court will likely not conduct a fact-specific inquiry(fn11) and will not examine a Congressperson's motive.(fn12) But beyond that, much of the U.S. Supreme Court's guidance has come in dicta and has not proved very useful in new contexts and fresh factual scenarios.(fn13)

One new context is redistricting. Redistricting takes place every ten years(fn14) with the goal of "realign[ing] a legislative district's boundaries to reflect changes in population."(fn15) Congressional redistricting must adhere to a strict "one person, one vote" requirement.(fn16) But even within this stricture, there is a risk that redisricting bodies will use impermissible criteria-such as impermissible racial criteria-to redraw district lines. After the 2010 redisricting cycle, a group of Texas Latino voters initiated suit against the Texas congressional and legislative redisricting plan alleging that the redisricting decision makers had impermissibly used racial animosity as a redisricting criteria.(fn17) In an effort to prove these allegations, the plaintiffs sought to discover written communications between members of the United States Congress and members of the Texas State Legislature.(fn18) The members of Congress made a motion for nondisclosure, arguing that legislative privilege barred the plaintiffs from discovering their correspondence.(fn19) However, a Texas district court denied the motion and allowed the plaintiffs to discover the correspondence.(fn20) This case raises important questions regarding both the actual scope of the privilege generally and the appropriate scope of the privilege in the redisricting context specifically.

Although the modern articulation of the privilege as delineated by Gravel does not bar discovery in Perez v. Texas,(fn21) it is easy to foresee members of Congress using different arguments based on Congress's broad grant of authority to regulate redisricting as a method of protecting future correspondence from being discovered.(fn22) This is important because redisricting plaintiffs who allege racial gerrymandering already face a difficult burden to show intent.(fn23) If future plaintiffs were cut off from discovering information like the written correspondence in Perez v. Texas, members of Congress and redisricting bodies generally would be insulated from scrutiny by private litigants. The public profits immensely from "private attorney generals,"(fn24) and losing that private check in the redistricting context would be a heavy blow not only to individual rights, especially for minority voters, but also to transparency in government generally.

For those reasons and others this Comment will explain below, at least in the redistricting context, the legislative privilege should not include an absolute nondisclosure privilege. Part I of this Comment describes the Speech or Debate clause generally. Part II outlines Congress's authority to govern redistricting and explains redistricting requirements. Part III describes Perez v. Texas. Part IV details how the Perez court's reasoning could harm future redistricting plaintiffs. Part V asserts that the Speech or Debate Clause should not contain an absolute nondisclosure privilege. Finally, Part VI argues that the Perez v. Texas court reached the right result but for the wrong reasons, and that courts in the future should eschew the "legislative acts" test in redistricting cases in favor of applying normal discovery rules to protect members of Congress from harassment and distraction.

I. THE SPEECH OR DEBATE CLAUSE: HISTORY, PURPOSE, AND SCOPE

The Speech or Debate Clause confers both immunity and privilege on members of Congress for "legislative acts."(fn25) The purpose behind the Clause is to protect the legislature from other branches of government.(fn26) Thus, courts have applied the Clause to both civil and criminal actions. During the first several hundred years of the Clause's existence, the U.S. Supreme Court construed it broadly.(fn27) However, in the 1970s, the Court narrowed what constitutes a "legislative act."(fn28) While the Court's test narrowed the scope of "legislative acts," it did not resolve all ambiguities, including a question over which the circuit courts have split: specifically, whether the Clause contains a nondisclosure privilege.(fn29) Additionally, nearly all of the states have adopted some version of the Clause;(fn30) however, many have interpreted the Clause even more narrowly than the U.S. Supreme Court's interpretation.(fn31) This section will survey the past and current state of Speech or Debate Clause jurisprudence as a way to feature the areas in which future application is in doubt.

A. The Speech or Debate Clause Creates Both an Immunity and a Privilege

Article I, Section 6 of the U.S. Constitution provides that "for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place."(fn32) According to well-settled and longstanding U.S. Supreme Court precedent, the Clause immunizes members of Congress and their aides from criminal or civil liability for all acts "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."(fn33) The Clause also contains a testimonial and evidentiary privilege that shields members of Congress from testifying about legislative acts or having legislative acts used against them as evidence.(fn34) The Clause has been both praised as essential to the independence of the legislature in that it shields legislators from executive and judicial harassment,(fn35) and criticized as a screen behind which misbehaving legislators may escape the usual legal consequences of their actions.(fn36) In some cases, the Clause will conceal and protect misconduct,(fn37) yet it has been acknowledged that this consequence is inevitable if the Clause is to serve its fundamental purpose.(fn38)

B. The Clause 's Purpose Is to Preserve Legislative Independence, and Courts Have Applied It to Both Civil and Criminal Actions

Historically, the Clause's fundamental purpose was to free the legislature from executive and judicial oversight that threatens legislative independence.(fn39) The Court has been willing to go beyond the actual text of the Clause in order to effectuate this purpose.(fn40) But the Court has made clear that the Clause was meant to preserve legislative independence-not to establish legislative supremacy.(fn41) Additionally, the Clause is meant to protect the "functioning of Congress," not the reputation of its members.(fn42) Courts...