ArtI.S6.C1.3.4 Distraction Rationale and Speech or Debate Clause

Article I, Section 6, Clause 1:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Two cases from the late 1960s reveal the Court’s view that the Clause embodies a desire to prevent the “distractions” associated with compelling a Member to participate in a legal proceeding. In Dombrowski v. Eastland, the Court affirmed the dismissal of a civil action against a Senator for allegedly conspiring with Louisiana state officials to violate the petitioner’s Fourth Amendment rights.1 In doing so, the Court noted broadly, and without additional discussion, that a Member “should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.” 2

Similarly, in Powell v. McCormack, the Court suggested that “the purposes of the Speech or Debate Clause are fully protected if legislators are relieved of the burden of defending themselves.” 3 The Court further described its underlying reasoning, noting that “[t]he purpose of the protection afforded legislators is not to forestall judicial review of legislative action but to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions.” 4 The Court’s brief and indefinite articulation of the anti-distraction rationale in these and subsequent cases has given rise to a significant debate among the lower courts regarding whether the principle justifies prohibitions on the disclosure of protected documents, even when not for evidentiary use.5

Dombrowski v. Eastland, 387 U.S. 82, 83 (1967). The petitioners were civil rights lawyers alleging that the Chairman and counsel of the Internal Security Subcommittee of the Senate Judiciary Committee conspired with Louisiana State officials to “seize property and records of petitioners by unlawful means.” Id. back
Id. at 85. back
Powell v. McCormack, 395 U.S. 486, 505 (1969). back
Id. back
Disagreement among the lower federal courts over whether the Clause prohibits any compelled disclosure of legislative act documents, regardless of purpose, or instead prevents only the evidentiary use of such documents, represents perhaps the chief ongoing dispute over the scope of the Clause’s protections. Compare United States v. Rayburn House Off. Bldg., 497 F.3d 654, 655 (D.C. Cir. 2007) (holding that the testimonial component of the Clause includes a documentary nondisclosure privilege) with United States v. Renzi, 651 F.3d 1012, 1034 (9th Cir. 2011) (holding that the testimonial component of the Clause does not create the documentary nondisclosure privilege outlined in Rayburn) and In re Fattah, 802 F.3d 516, 529 (3rd Cir. 2015) ( “The Speech or Debate Clause does not prohibit the disclosure of privileged documents. Rather, it forbids the evidentiary use of such documents.” ). back