An Uncertain Privilege: Reexamining the Scope and Protections of the Speech or Debate Clause

By Philip Mayer

The Speech or Debate Clause of the United States Constitution was put in place to protect and preserve the independence of the legislative branch. The United States Supreme Court has consistently read the Clause broadly to effectuate this purpose, and it has applied the Clause’s protections absolutely to ensure that legislators are not questioned by a hostile executive or judiciary in regard to their legislative activities. In recent years, a circuit split has developed regarding whether the Clause provides for a documentary non-disclosure privilege, which would shield legislators from subpoenas or search warrants issued by the executive branch and enforced by the judiciary. The Ninth and Third Circuits have rejected such a documentary non-disclosure privilege, while the D.C. Circuit has consistently reaffirmed its commitment to a broad documentary non-disclosure privilege. Adding further uncertainty to the Clause’s protections, the Ninth Circuit has also denied the Clause’s protections to legislators involved in negotiations about future legislation. In order to provide clarity to the Clause’s privileges, the Supreme Court should adopt a limited documentary non-disclosure privilege and should apply the Clause’s protections to non-criminal negotiations in anticipation of future legislation.

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