The Lost Judicial Review Function of the Speech and Debate Clause

*J.D., University of Virginia School of Law, 2021. I would like to thank Professors Saikrishna Prakash and A.E. Dick Howard for providing instrumental advice during the development of this Note, and Professors Caleb Nelson and John Harrison for offering insightful comments on previous drafts.Show More

The prevailing understanding of the Speech or Debate Clause of the United States Constitution is that it was transplanted without significant modification from Article 9 of the English Bill of Rights of 1689. This Note challenges that view by highlighting overlooked deviations which inform how this legislative privilege was adapted from a system of parliamentary sovereignty to fit one in which the Constitution is supreme. Courts and commentators have neglected to recognize that the Speech or Debate Clause, unlike Article 9, provides no institutional shield for the legislature in the exercise of its internal proceedings. Article 9’s protection of “proceedings in Parliament” from judicial review was omitted from the Speech or Debate Clause, and the Clause was also reconfigured to name individual members of Congress—rather than the collective body itself—as the possessors of the legislative privilege.

This novel textual analysis invites questioning of an arguably undeserved discrepancy in judicial enforcement of the Constitution as between federal statutes and congressional proceedings—those investigatory and lawmaking processes which lead up to the enactment of statutes. Favoring more robust judicial review of congressional proceedings, this Note identifies matters as to which a more textually grounded understanding of the speech or debate privilege could encourage change. Potential changes include permitting motive inquiries when individuals challenge congressional investigations as infringing their fundamental rights, lifting the enrolled bill doctrine and the extreme deference which veil the lawmaking process, and differentiating between lawsuits against individual legislators and those against collective legislative bodies.

Introduction

The Speech or Debate Clause of Article I, Section 6 of the United States Constitution provides members of Congress and their close aides with immunity from suit for legislative conduct, as well as an evidentiary privilege rendering evidence of legislative acts inadmissible.¹ 1.See, e.g., Gravel v. United States, 408 U.S. 606, 616 (1972) (immunity from suit); United States v. Johnson, 383 U.S. 169, 184–85 (1966) (evidentiary privilege).Show More Historical and purposive expositions of the Speech or Debate Clause often appeal to its textual source, Article 9 of the English Bill of Rights of 1689.² 2.The Supreme Court recognized Article 9 of the English Bill of Rights as the predecessor of the Speech or Debate Clause in its first interpretation of the Clause in Kilbourn v. Thompson, 103 U.S. 168, 202 (1880).Show More Article 9 reads: “That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”³ 3.The Bill of Rights 1689, 1 W. & M. c. 2.Show More Just a few edits at the Philadelphia Convention produced the American Clause in its constitutional form: “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other place.”⁴ 4.U.S. Const. art. I, § 6, cl. 1.Show More

Due to the shared lineage of these legislative privilege provisions, the highest American and British courts have reciprocally referred to each other’s privilege jurisprudence for interpretive guidance. For example, when considering whether the legislative privilege covered allegations of criminal conspiracy and bribery by legislators, the U.S. Supreme Court looked to the British case Ex parte Wason for assistance.⁵ 5.United States v. Brewster, 408 U.S. 501, 502, 509 (1972) (where a former senator was charged with bribery (citing Ex parte Wason [1869] 4 LRQB 573 at [577])); Johnson, 383 U.S. at 170–71, 183 (where a former congressman was charged with conspiracy to defraud the United States (citing Ex parte Wason, 4 LRQB at [576]–[77])).Show More In turn, when former members of the House of Commons were charged with false accounting in R v. Chaytor, the United Kingdom Supreme Court (“UKSC”) referenced the U.S. Supreme Court’s analysis in United States v. Brewster, writing that the interpretive issues created by the two provisions “mirror[]” each other and that therefore “some of the reasoning in Brewster is relevant to consideration of the scope of [Article 9].”⁶ 6.R v. Chaytor [2010] UKSC 52, [38], [2011] 1 AC 684, 704.Show More

American courts have embraced the similarities between the two provisions but have fallen short in recognizing their stark differences. This Note seeks to highlight and begin to rectify this void. In particular, it analyzes how the differences between the two provisions evince a purposeful deviation in the American constitutional system that could make internal legislative proceedings—the investigatory and lawmaking processes which lead up to the enactment of statutes—more susceptible to judicial review.

Part I examines the text and function of Article 9, explaining that its phrase “proceedings in Parliament” provides institutional protection to Parliament from judicial review of its internal proceedings. Part II turns to the American Founding, discussing contemporaneous understandings of Article 9 and how the Framers transformed Article 9 into the Speech or Debate Clause, with adaptations fitted for the American system of government. This Part focuses on the Framers’ omission of a parallel phrase to “proceedings in Parliament,” which, along with the Clause’s individualized subject, indicates that the Clause was more likely designed to support than to suppress judicial review of internal congressional proceedings. Part III applies this novel textual analysis to the modern American judicial landscape, where Congress receives much deference for its internal proceedings. Current jurisprudence ironically employs the Speech or Debate Clause to impede judicial scrutiny of internal legislative proceedings, although the Clause’s textual and structural framing suggests instead that it contemplates more searching judicial review.

1. * J.D., University of Virginia School of Law, 2021. I would like to thank Professors Saikrishna Prakash and A.E. Dick Howard for providing instrumental advice during the development of this Note, and Professors Caleb Nelson and John Harrison for offering insightful comments on previous drafts. ↑

2. See, e.g., Gravel v. United States, 408 U.S. 606, 616 (1972) (immunity from suit); United States v. Johnson, 383 U.S. 169, 184–85 (1966) (evidentiary privilege). ↑

3. The Supreme Court recognized Article 9 of the English Bill of Rights as the predecessor of the Speech or Debate Clause in its first interpretation of the Clause in Kilbourn v. Thompson, 103 U.S. 168, 202 (1880). ↑

4. The Bill of Rights 1689, 1 W. & M. c. 2. ↑

5. U.S. Const, art. I, § 6, cl. 1. ↑

6. United States v. Brewster, 408 U.S. 501, 502, 509 (1972) (where a former senator was charged with bribery (citing Ex parte Wason [1869] 4 LRQB 573 at [577])); Johnson, 383 U.S. at 170–71, 183 (where a former congressman was charged with conspiracy to defraud the United States (citing Ex parte Wason, 4 LRQB at [576]–[77])). ↑

7. R v. Chaytor [2010] UKSC 52, [38], [2011] 1 AC 684, 704. ↑