Speech or Debate Clause

Article I, Section 6, Clause 1, of the U.S. Constitution states in part,

for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other place.

The purpose of the clause is to prevent the arrest and prosecution of unpopular legislators based on their political views.

The U.S. Supreme Court has gradually defined and redefined the Speech or Debate Clause in several cases over the years. The first case concerning the Speech and Debate Clause was Kilbourn v. Thompson, 103 U.S. (13 Otto) 168, 26 L. Ed. 377 (1880). The Court has interpreted the Speech or Debate Clause to mean that members of Congress and their aides are immune from prosecution for their "legislative acts." This does not mean that members of Congress and their aides may not be prosecuted. Rather, evidence of legislative acts may not be used in a prosecution against a member of Congress or a congressional aide.

The main controversy surrounding the Speech or Debate Clause concerns the scope of the phrase "legislative acts." The phrase obviously encompasses speeches and debates on the floor of the Senate or the House of Representatives. According to the Supreme Court, voting, preparing committee reports, and conducting committee hearings also are legislative acts, but republishing legislative materials for distribution to constituents and accepting a bribe to influence a vote are not.

Legislators and their aides have invoked the Speech or Debate Clause with varying results. In May 1994 former Illinois congressman Daniel Rostenkowski was indicted for allegedly devising schemes to defraud the federal government of money and Rostenkowski's fair and honest services. Rostenkowski argued in part that he could not be prosecuted for misappropriating a Clerk Hire Allowance by using it to pay employees for personal services rather than for official work because the allowance was connected with hiring a clerk, which is a legislative activity. In United States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995), the U.S. Court of Appeals for the District of Columbia rejected this argument, noting that the indictment had not charged that the persons who performed the personal services had any relationship whatsoever to the legislative process.

In contrast, the clerk of the House of Representatives and other House personnel have been shielded from an employment discrimination suit by the Speech or Debate Clause. In Browning v. Clerk, U.S. House of Representatives, 789 F.2d 923 (D.C. Cir. 1986), the U.S. Court of Appeals for the District of Columbia Circuit held that the clerk and other House personnel did not have to answer to charges of employment discrimination brought by an official House reporter because the employee's duties were directly related to the legislative process.

Further readings

Brodie, Katherine Deming. 1996. "The Scope of Legislative Immunity Under the Speech or Debate Clause and the Rulemaking Clause." George Washington Law Review 64 (June-August).

Brudney, James J. 1999. "Congressional Accountability and Denial: Speech or Debate Clause and Conflict of Interest Challenges to Unionization of Congressional Employees." Harvard Journal on Legislation 36 (winter).

Fitzpatrick, Terence M. 2000. "The Speech or Debate Clause: Has the Eighth Circuit Gone Too Far?" UMKC Law Review 68 (summer).

Walker, Matthew R. 1995. "Constitutional Law—Narrowing the Scope of Speech or Debate Clause Immunity." Temple Law Review 68 (spring).

Cross-references

Congress of the United States.