House Minority Leader Kevin McCarthy and the four other Republicans who are resisting they have yet to say whether they will comply, defy or contest the order. But the question of whether a committee can subpoena a sitting member of Congress is almost certain to be went to court. If it does, Congress’s authority will be determined in part by a little-known provision of the United States Constitution called “Speech or debate” clause.
This clause protects legislators and their staff from responsibility for doing things like giving floor speeches, voting on legislation, and conducting research.
It would not be the first time that this provision of the Constitution has been invoked during a congressional investigation. In fact, the clause has played a central role in determining the limits of the constitutional authority of Congress in the system of separation of powers.
What is the speech or debate clause?
The origins of the speech or debate clause arose from the kind of practices that limited the freedom of UK parliamentarians.
During the 16th and 17th centuries, the threat of criminal prosecution was often used by the British monarchy to intimidate legislators from acting against the Crown. King James II, for example, ordered the prosecution of the Speaker of the House of Commons for making public alleged plots between James II and the King of France to restore Catholicism as the official religion of England. Concern about the King’s actions led Parliament to place a clause in the English Bill of Rights which prevented prosecution by legislative acts.
With this story in mindthe framers of the United States Constitution wanted to adopt similar language to make sure Congress was independent and could function without threats from the president.
As a result, Article 1 of the United States Constitution grants members of Congress legal immunity from liability for any speech or debate. In other words, the Constitution protects members of Congress from having to worry about being sued for speaking out while doing their jobs.
The Supreme Court has repeatedly recognized that the provision not only protects speech and debate, but extends to all actions related to legitimate legislative functions.
The protection, however, does not extend to speech or debate that is only incidentally related to the official duties of legislators, such as speeches delivered outside of Congress or comments in press releases.
Why is the clause important?
Because the clause extends to all legitimate legislative functions, questions of “speech or debate” arise in virtually all congressional investigations.
One of the First decisions of the Supreme Court The clause involved was an 1880 case in which real estate broker Hallet Kilbourn refused to testify in a House inquiry into the failure of a bank that held government bonds. The Court’s decision in the case centered on whether Kilbourn could sue the House of Representatives for holding him in contempt. In his opinion, the Supreme Court found that the speech or debate clause precluded such a trial.
Other landmark cases of speeches or debates have addressed the extent to which a legislator’s actions on the floor of Congress could be used as conspiracy evidence and if the committees have the authority to subpoena bank records to deepen congressional investigations. In general, the courts have consistently used the speech or debate clause to protect the ability of members of Congress to do their jobs.
All of this litigation has helped define the parameters of what it means for Congress to engage in constitutionally legitimate action and the limits of Congress’s power.
Precedent in speech or debate cases has also played a key role in legal battles involving congressional investigations into Trump’s presidency, as well as the Jan. 6 attack on Capitol Hill.
In 2019, the Supreme Court used speech or debate jurisprudence in evaluating the constitutionality of House subpoenas seeking President Trump’s financial records.
Furthermore, the clause arose in recent litigation between the Republican National Committee (RNC) and Speaker Nancy Pelosi. The January 6 committee subpoenaed Salesforce.com for information about how the Trump campaign used Salesforce to spread false statements about the 2020 election. Salesforce and the RNC challenged the constitutionality of the subpoena in court. In response, Speaker Pelosi and House Democrats argued that the speech or debate clause barred the entire lawsuit. In an opinion issued on May 1, 2022, the DC District Court sided with the Democrats and dismissed the litigation on the grounds that the January 6 committee served a valid legislative purpose.
What happens now?
Now it may be the Republicans’ turn to invoke the clause.
If the five subpoenaed members of Congress refuse to comply, then Congress could try to hold them in contempt. That could probably take the matter to court.
However, there is a catch. Because speech or debate gives legislators immunity from both civil and criminal lawsuits, the clause prevents courts from hearing certain types of cases. And even when the immunity does not apply directly, the clause can grant members with protections against the introduction of evidence or having to testify about certain actions if they relate to a legitimate legislative purpose.
It is difficult to know precisely how the clause will be applied in the case of the five Republican legislators: there are little history of a committee that issues subpoenas to members of Congress outside of ethics investigations.
Relying exclusively on the clause as a legal argument to challenge the citations would probably fail in courtWhat the courts have been indifferent to similar arguments in the past.
But invoking the Clause could, at the very least, prolong the legal battle over whether the Jan. 6 panel can compel lawmakers to present evidence and buying time from the legislators quotedperhaps even taking the issue beyond the 2022 midterms.
This article is republished from The conversation, a nonprofit news site dedicated to sharing ideas from academic experts. Written by: jennifer selin, Wayne State University.
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Jennifer Selin does not work for, consult with, own stock in, or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond her academic position.
Reference-news.yahoo.com