Monitored Disclosure: A Way to Avoid Legislative Supremacy in Redistricting Litigation
Tyson, Mark, Washington Law Review
The Speech or Debate Clause of the U.S. Constitution protects members of Congress from testifying about "legislative acts" or having "legislative acts" used against them as evidence. U.S. Supreme Court decisions delineating the scope of what constitutes a "legislative act" have an episodic feel and have failed to create a readily applicable test for new factual scenarios. One such scenario occurs when members of Congress communicate with state legislators regarding congressional redistricting. Courts must know how to handle instances where members of Congress assert legislative privilege in the redistricting context, and specifically when members of Congress assert the privilege in an effort to prevent disclosure of documentary material. Instead of resorting to the traditional "legislative acts" test, courts should permit disclosure of written materials subject to the rules of discovery. Courts should be vigilant in reviewing discovery requests to ensure that plaintiffs are not unduly burdening members of Congress, thereby unnecessarily distracting them from their work.
[Members of Congress] 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.1
Our speech or debate privilege was designed to preserve legislative independence, not its supremacy.2
The Speech or Debate Clause creates a privilege for members of Congress from revealing information about "legislative acts."3 The Clause has been both praised as essential to the independence of the legislature, in that it shields legislators from executive and judicial harassment,4 and criticized as a screen behind which misbehaving legislators may escape the usual legal consequences of their actions.5 The U.S. Supreme Court has interpreted the Clause to create a testimonial privilege that protects members of Congress from testifying regarding "legislative acts."6 However, the circuit courts have split on the question of whether the Clause also contains a nondisclosure privilege.7 The U.S. Supreme Court has yet to furnish an answer.
What the U.S. Supreme Court has done is to construe the scope of the privilege.8 Before 1972, the privilege was applied broadly.9 But in 1972, the Court narrowed the privilege's scope significantly in the seminal case of Gravel v. United States.10 In spite of Gravel's narrowing effect, subsequent cases applying Gravel's test have an episodic feel. The U.S. Supreme Court will likely not conduct a fact-specific inquiry1 ' and will not examine a Congressperson's motive.12 But beyond that, much of the U.S. Supreme Court's guidance has come in dicta and has not proved very useful in new contexts and fresh factual scenarios.13
One new context is redistricting. Redistricting takes place every ten years14 with the goal of "realign[ing] a legislative district's boundaries to reflect changes in population."15 Congressional redistricting must adhere to a strict "one person, one vote" requirement.16 But even within this stricture, there is a risk that redistricting bodies will use impermissible criteria - such as impermissible racial criteria - to redraw district lines. After the 2010 redistricting cycle, a group of Texas Latino voters initiated suit against the Texas congressional and legislative redistricting plan alleging that the redistricting decision makers had impermissibly used racial animosity as a redistricting criteria.17 In an effort to prove these allegations, the plaintiffs sought to discover written communications between members of the United States Congress and members of the Texas State Legislature.18 The members of Congress made a motion for nondisclosure, arguing that legislative privilege barred the plaintiffs from discovering their correspondence. …