In Defense of Rayburn House: Why the Supreme Court Should Recognize an Evidentiary Privilege of Nondisclosure in Its Speech or Debate Clause Jurisprudence
Kieser, Christopher M., Notre Dame Law Review
Article I of the United States Constitution includes the legislative privilege commonly known as the Speech or Debate Clause. The Clause reads that members of Congress:
[S]hall 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. (1)
Despite the Clause's long history, (2) there have been comparatively few Supreme Court cases dealing with the grant of legislative immunity for words spoken in legislative acts. (3) Reasons for this could be numerous, including the fact that legislators rarely commit acts worthy of prosecution in connection with their service in Congress. However, recent cases in both the Ninth (4) and District of Columbia (5) Circuits have created one of the first modern controversies over the scope of the Clause. Specifically, the Circuits disagree over whether the Clause provides an evidentiary privilege of non-disclosure during an investigation into the activity of a member of Congress. (6) If the Supreme Court chooses to take this case, as some commentators believe it will, (7) it will have to address this disputed question and decide once and for all how far the Speech or Debate Clause will extend in protecting documents possibly used in a congressional investigation.
This Note will argue that in order to preserve the structural values inherent in the Constitution, especially the separation of powers and the independence of the legislative branch, (8) the Supreme Court should resolve this split in favor of the D.C. Circuit's decision in United States v. Rayburn House Office Building. (9) This Note will demonstrate that without the strong legislative privilege enunciated in that case, the framers' notion of legislative independence will be in danger. The executive branch could take advantage of a weaker Speech or Debate protection to give its agencies power to investigate documents that come very close to the border of "legislative acts." This flies in the face of the structural ideal of separation of powers, but may prove to be politically popular for a sitting president. To avoid such inevitable conflicts of interest, the independent judiciary must strike the balance between the other two branches. The Ninth Circuit's recent decision in Renzi fails to protect legislative independence, and despite extremely valid concerns about the inability to control legislative corruption, it should be rebuked if and when the Supreme Court grants certiorari on this issue.
Part I will begin by describing the origins and history of the Speech or Debate Clause. Part II will provide an overview of the Supreme Court's modern Speech or Debate jurisprudence in order to set the stage for the current split. Part III will follow with a detailed analysis of the decisions leading up to Renzi in the Ninth Circuit and Rayburn House in the D.C. Circuit. Part IV will analyze the holdings in those cases and discuss the ensuing circuit split created after the Ninth Circuit's June 2011 decision in Renzi. Part V will conclude with a recommendation that if the Supreme Court grants certiorari on the issue, it should follow Rayburn House's broader reading of the legislative immunity provision embodied in the Speech or Debate Clause in order to protect the important constitutional values of legislative independence and separation of powers.
I. HISTORY AND BACKGROUND OF THE CLAUSE
Unlike other, more controversial grants of legislative power, the Speech or Debate Clause was approved at the Federal Convention in 1787 without any debate or opposition. (10) As the Supreme Court stated in United States v. Johnson, the Clause adopted "almost verbatim the language of Article V of the Articles of Confederation," which "in turn [is] almost identical to the English Bill of Rights of 1689. …