Understanding the Speech or Debate Clause (CRS Report for Congress)
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| Release Date |
Dec. 1, 2017 |
| Report Number |
R45043 |
| Report Type |
Report |
| Authors |
Garvey, Todd |
| Source Agency |
Congressional Research Service |
Summary:
The Speech or Debate Clause (Clause) of the U.S. Constitution states that “[F]or any Speech or
Debate in either House,” Members of Congress (Members) “shall not be questioned in any other
Place.” The Clause serves various purposes: principally to protect the independence and integrity
of the legislative branch by protecting against executive or judicial intrusions into the protected
legislative sphere, but also to bar judicial or executive processes that may constitute a
“distraction” or “disruption” to a Member’s representative or legislative role. Despite the literal
text, protected acts under the Clause extend beyond “speeches” or “debates” undertaken by
Members of Congress, and have also been interpreted to include all “legislative acts” undertaken
by Members or their aides.
Judicial interpretations of the Clause have developed along several strains. First and foremost, the
Clause has been interpreted as providing Members with general criminal and civil immunity for
all “legislative acts” taken in the course of their official responsibilities. This immunity principle
protects Members from “intimidation by the executive” or a “hostile judiciary” by prohibiting
both the executive and judicial powers from being used to improperly influence or harass
legislators. Second, the Clause appears to provide complementary evidentiary and testimonial
privileges. Although not explicitly articulated by the Supreme Court, lower federal courts have
generally viewed these component privileges as a means of effectuating the purposes of the
Clause by barring evidence of protected legislative acts from being used against a Member, and
protecting a Member from compelled questioning about such acts.
The testimonial privilege component of the Clause has given rise to significant disagreement in
the lower courts. The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit)
has held that the Clause’s testimonial privilege encompasses a general documentary
nondisclosure privilege that applies regardless of the purposes for which disclosure is sought. To
the contrary, the U.S. Court of Appeals for the Third Circuit and the U.S. Court of Appeals for the
Ninth Circuit have rejected that position, holding instead that, at least in criminal cases, the
Clause prohibits only the evidentiary use of privileged documents, not their mere disclosure to the
government for review as part of an investigation.
