Congressional Research Service
Understanding the Speech or Debate Clause, continued ...
Todd Garvey, Legislative Attorney
December 1, 2017
Who Is Protected?
Although the text of the Speech or Debate Clause refers only to “Senators and Representatives,” and therefore clearly applies to actions by any Member of Congress, 93 it is well established that protections of the Clause generally apply equally to congressional staff. 94
In Gravel, the Court held that the Clause protects an aide’s action when the Clause would have protected the same action if it were done by a Member. 95
An aide, the Court reasoned, should be viewed as the “alter ego” of the Member he serves. 96
The Gravel Court recognized that the Member and his aide must be “treated as one,” 97 noting: (I)t is literally impossible, in view of the complexities of the modern legislative process, with Congress almost constantly in session and matters of legislative concern constantly proliferating, for Members of Congress to perform their legislative tasks without the help of aides and assistants; that the day-to-day work of such aides is so critical to the Members’ performance that they must be treated as the latter’s alter egos; and that if they are not so recognized, the central role of the Speech or Debate clause — to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary — will inevitably be diminished and frustrated. 98
At issue in Gravel were the actions of a Member’s personal staff.
Other decisions of the Court have extended the protections of the Clause to committee staff, including those in the position of chief counsel, clerk, staff director, and investigator. 99
However, it should be noted that any protections under the Clause that are enjoyed by congressional staff flow from the Member. 100
They do not inhere personally to the individual.
As a result, an “aide’s claim of privilege can be repudiated and thus waived by the [Member].” 101
93 The Clause may be asserted not only by a current Member, but also by a former Member in an action implicating his conduct while in Congress. See Brewster, 408 U.S. at 502.
94 Gravel, 408 U.S. at 616-17.
95 Id. at 628 (holding that an aide’s “immunity, testimonial or otherwise, extends only to legislative acts as to which the Senator himself would be immune”).
96 Id. at 617.
97 Id. at 616 (quoting United States v. Doe, 455 F.2d 753, 761 (1972)).
98 Id. at 616-17 (internal citations omitted).
99 See Eastland, 421 U.S. at 507; McMillan, 412 U.S. at 309. See also, Rangel v. Boehner, 785 F.3d 19, 24-5 (D.C. Cir.
2015).
100 Gravel, 408 U.S. at 621 (noting that the “privilege applicable to the aide is viewed, as it must be, as the privilege of the Senator, and invocable only by the Senator or by the aide on the Senator’s behalf ...”).
101 Id. at 622 n.13.
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U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE
Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE
Congressional Research Service
Understanding the Speech or Debate Clause, continued ...
Todd Garvey, Legislative Attorney
December 1, 2017
What Constitutes a Legislative Act?
It is apparent that the key determination in Speech or Debate Clause cases is whether the conduct directly in question, or on which evidence or testimony is sought, constitutes a legislative act. 102
If legislative, the Member is exempt from criminal or civil liability that may otherwise have attached to that act, and evidence of the act may not be introduced or testimony by the Member compelled. 103
As the Court has repeatedly stated, Members are “immune from liability for their actions within the ‘legislative sphere,’ even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.” 104
If the underlying conduct is not legislative, however, the prosecution or civil claim is not barred by the Clause, and evidence of the act is not privileged. 105
Examining judicial precedent regarding acts that are “legislative,” it would appear that Members enjoy protection under the Clause when:
speaking or acting on the House or Senate floor; 106
introducing and voting on bills and resolutions; 107
preparing and submitting committee reports; 108
speaking or acting at committee meetings and hearings; 109
conducting official investigations and issuing subpoenas; 110 and
engaging in fact-finding and information-gathering for legislative purposes. 111
Conversely, actions that have not been viewed as “integral” to the legislative process and, therefore, have not been interpreted to be protected legislative acts include:
speaking outside of Congress; 112
writing newsletters and issuing press releases; 113
privately publishing a book; 114
distributing official committee reports outside the legislative sphere; 115
engaging in political activities; 116
engaging in constituent services, including acting as a conduit between a constituent and the executive branch; 117
promising to perform a future legislative act; 118 and
accepting a bribe. 119
The general legal guidance provided by the Court in Gravel and other cases does not clearly categorize every type of action in which Members may regularly engage.
As a result, determining whether novel conduct, not analogous to past precedent, should be viewed as a legislative act may sometimes be difficult.
102 Johnson, 383 U.S. at 185; Brewster, 408 U.S. at 512; Gravel, 408 U.S. at 625. See also, u]Renzi[/u], 651 F.3d at 1021 (describing the question of what constitutes a legislative act as “of fundamental importance”).
103 See Gravel, 408 U.S. at 626 (noting that the Clause “recognizes speech, voting and other legislative acts as exempt from liability that might otherwise attach ...”).
104 McMillan, 412 U.S. at 312-13.
105 See Brewster, 408 U.S. at 512.
106 Johnson, 383 U.S. at 184-85; Gravel, 408 U.S. at 616.
107 Kilbourn, 103 U.S. at 204 (holding that the Clause protects “resolutions offered ... and ... the act of voting ...”).
108 McMillan, 412 U.S. at 311; Kilbourn, 103 U.S. at 204.
109 See McMillan, 412 U.S. at 311; see also, Gravel, 408 U.S. at 628-29. In addition, some lower federal courts have held that the Clause bars the use of evidence of a Member’s committee membership. Compare United States v. Swindall, 971 F.2d 1531, 1543 (11th Cir. 1991), rehearing denied, 980 F.2d 1449 (11th Cir. 1992), with United States v. McDade, 28 F.3d 283, 291 (3rd Cir. 1994),
cert. denied, 514 U.S. 1003 (1995).
110 See Eastland, 421 U.S. at 507; Tenney, 341 U.S. at 377 (refusing to examine motives of state legislator in summoning witness to hearing).
111 Gov’t of V.I. v. Lee, 775 F.2d 514, 521 (3rd Cir. 1985); Miller v. Transamerican Press, Inc., 709 F.2d 524, 530 (9th Cir. 1983); McSurely v. McClellan, 553 F.2d 1277, 1286-87 (D.C. Cir. 1976).
112 Brewster, 408 U.S. at 512.
113 Proxmire, 443 U.S. at 130.
114 Gravel, 408 U.S. at 625-26.
115 McMillan, 412 U.S. at 315-16.
116 Brewster, 408 U.S. at 512.
117 Id. (excluding “the making of appointments with Government agencies [and] assistance in securing Government contracts” from the Clause’s protections).
118 Helstoski, 442 U.S. at 489.
119 Brewster, 408 U.S. at 525.
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Understanding the Speech or Debate Clause, continued ...
Todd Garvey, Legislative Attorney
December 1, 2017
What Constitutes a Legislative Act?
It is apparent that the key determination in Speech or Debate Clause cases is whether the conduct directly in question, or on which evidence or testimony is sought, constitutes a legislative act. 102
If legislative, the Member is exempt from criminal or civil liability that may otherwise have attached to that act, and evidence of the act may not be introduced or testimony by the Member compelled. 103
As the Court has repeatedly stated, Members are “immune from liability for their actions within the ‘legislative sphere,’ even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.” 104
If the underlying conduct is not legislative, however, the prosecution or civil claim is not barred by the Clause, and evidence of the act is not privileged. 105
Examining judicial precedent regarding acts that are “legislative,” it would appear that Members enjoy protection under the Clause when:
speaking or acting on the House or Senate floor; 106
introducing and voting on bills and resolutions; 107
preparing and submitting committee reports; 108
speaking or acting at committee meetings and hearings; 109
conducting official investigations and issuing subpoenas; 110 and
engaging in fact-finding and information-gathering for legislative purposes. 111
Conversely, actions that have not been viewed as “integral” to the legislative process and, therefore, have not been interpreted to be protected legislative acts include:
speaking outside of Congress; 112
writing newsletters and issuing press releases; 113
privately publishing a book; 114
distributing official committee reports outside the legislative sphere; 115
engaging in political activities; 116
engaging in constituent services, including acting as a conduit between a constituent and the executive branch; 117
promising to perform a future legislative act; 118 and
accepting a bribe. 119
The general legal guidance provided by the Court in Gravel and other cases does not clearly categorize every type of action in which Members may regularly engage.
As a result, determining whether novel conduct, not analogous to past precedent, should be viewed as a legislative act may sometimes be difficult.
102 Johnson, 383 U.S. at 185; Brewster, 408 U.S. at 512; Gravel, 408 U.S. at 625. See also, u]Renzi[/u], 651 F.3d at 1021 (describing the question of what constitutes a legislative act as “of fundamental importance”).
103 See Gravel, 408 U.S. at 626 (noting that the Clause “recognizes speech, voting and other legislative acts as exempt from liability that might otherwise attach ...”).
104 McMillan, 412 U.S. at 312-13.
105 See Brewster, 408 U.S. at 512.
106 Johnson, 383 U.S. at 184-85; Gravel, 408 U.S. at 616.
107 Kilbourn, 103 U.S. at 204 (holding that the Clause protects “resolutions offered ... and ... the act of voting ...”).
108 McMillan, 412 U.S. at 311; Kilbourn, 103 U.S. at 204.
109 See McMillan, 412 U.S. at 311; see also, Gravel, 408 U.S. at 628-29. In addition, some lower federal courts have held that the Clause bars the use of evidence of a Member’s committee membership. Compare United States v. Swindall, 971 F.2d 1531, 1543 (11th Cir. 1991), rehearing denied, 980 F.2d 1449 (11th Cir. 1992), with United States v. McDade, 28 F.3d 283, 291 (3rd Cir. 1994),
cert. denied, 514 U.S. 1003 (1995).
110 See Eastland, 421 U.S. at 507; Tenney, 341 U.S. at 377 (refusing to examine motives of state legislator in summoning witness to hearing).
111 Gov’t of V.I. v. Lee, 775 F.2d 514, 521 (3rd Cir. 1985); Miller v. Transamerican Press, Inc., 709 F.2d 524, 530 (9th Cir. 1983); McSurely v. McClellan, 553 F.2d 1277, 1286-87 (D.C. Cir. 1976).
112 Brewster, 408 U.S. at 512.
113 Proxmire, 443 U.S. at 130.
114 Gravel, 408 U.S. at 625-26.
115 McMillan, 412 U.S. at 315-16.
116 Brewster, 408 U.S. at 512.
117 Id. (excluding “the making of appointments with Government agencies [and] assistance in securing Government contracts” from the Clause’s protections).
118 Helstoski, 442 U.S. at 489.
119 Brewster, 408 U.S. at 525.
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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE
Congressional Research Service
Understanding the Speech or Debate Clause, continued ...
Todd Garvey, Legislative Attorney
December 1, 2017
What Constitutes a Legislative Act?, continued ...
One federal appellate court, however, has adopted a two-step analysis for identifying whether certain conduct is protected by the Clause. 120
In United States v. Menendez, Senator Robert Menendez challenged, on Speech or Debate grounds, an indictment alleging that he solicited and accepted gifts in exchange for his efforts to influence executive branch action for the benefit of a friend.121
In rejecting the Senator’s claim, the U.S. Court of Appeals for the Third Circuit (Third Circuit) laid out its analytical framework, noting that first “we look to the form of the act to determine whether it is inherently legislative or non-legislative.” 122
Some acts, the court reasoned, are “so clearly legislative” that “no further examination has to be made.” 123
These “manifestly legislative acts” are entitled to absolute protection under the Clause, even if undertaken for an “unworthy purpose.” 124
Other acts, the court suggested, are just as clearly nonlegislative, and receive no protection under the Clause. 125
If an act is either clearly legislative or clearly nonlegislative, the Third Circuit has suggested that a court should, at step one, give effect to that clear categorization. 126
If, however, an act does not fall neatly into either category, the court may proceed to the second step of the inquiry where it may consider “the content, purpose, and motive of the act to assess its legislative or non-legislative character.” 127
These so-called “ambiguously legislative” acts, the court reasoned, “will be protected or unprotected based on their particular circumstances.” 128
In this instance, the court determined that the alleged acts were “outside the constitutional safe harbor” because the Senator was “essentially lobbying on behalf of a particular party....” 129
120 United States v. Menendez, 831 F.3d 155, 166-67 (3rd Cir. 2016).
121 Id. at 159.
122 Id. at 166.
123 Id.
124 Id.
125 Id.
126 Menendez, 831 F.3d at 166.
127 Id.
128 Id. at 166-67. For example, in Lee, the Third Circuit court suggested that it is the content of the conversation, not the purpose, that is determinative. 775 F.2d at 522-24.
129 Id. at 169.
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Todd Garvey, Legislative Attorney
December 1, 2017
What Constitutes a Legislative Act?, continued ...
One federal appellate court, however, has adopted a two-step analysis for identifying whether certain conduct is protected by the Clause. 120
In United States v. Menendez, Senator Robert Menendez challenged, on Speech or Debate grounds, an indictment alleging that he solicited and accepted gifts in exchange for his efforts to influence executive branch action for the benefit of a friend.121
In rejecting the Senator’s claim, the U.S. Court of Appeals for the Third Circuit (Third Circuit) laid out its analytical framework, noting that first “we look to the form of the act to determine whether it is inherently legislative or non-legislative.” 122
Some acts, the court reasoned, are “so clearly legislative” that “no further examination has to be made.” 123
These “manifestly legislative acts” are entitled to absolute protection under the Clause, even if undertaken for an “unworthy purpose.” 124
Other acts, the court suggested, are just as clearly nonlegislative, and receive no protection under the Clause. 125
If an act is either clearly legislative or clearly nonlegislative, the Third Circuit has suggested that a court should, at step one, give effect to that clear categorization. 126
If, however, an act does not fall neatly into either category, the court may proceed to the second step of the inquiry where it may consider “the content, purpose, and motive of the act to assess its legislative or non-legislative character.” 127
These so-called “ambiguously legislative” acts, the court reasoned, “will be protected or unprotected based on their particular circumstances.” 128
In this instance, the court determined that the alleged acts were “outside the constitutional safe harbor” because the Senator was “essentially lobbying on behalf of a particular party....” 129
120 United States v. Menendez, 831 F.3d 155, 166-67 (3rd Cir. 2016).
121 Id. at 159.
122 Id. at 166.
123 Id.
124 Id.
125 Id.
126 Menendez, 831 F.3d at 166.
127 Id.
128 Id. at 166-67. For example, in Lee, the Third Circuit court suggested that it is the content of the conversation, not the purpose, that is determinative. 775 F.2d at 522-24.
129 Id. at 169.
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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE
Congressional Research Service
Understanding the Speech or Debate Clause, continued ...
Todd Garvey, Legislative Attorney
December 1, 2017
What Constitutes a Legislative Act?, concluded ...
This approach may be subject to criticism in light of the Supreme Court’s repeated warning that inquiries into the motive or purpose underlying actions of Members are generally not permitted by the Clause. 130
The Court has expressly held that “in determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted it.” 131
Other courts have rejected an analytical approach that would empower a court to look beneath an act that appears legislative.
For example, the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) has held that the Clause not only protects “acts which are manifestly legislative,” 132 but “also forbids inquiry into acts which are purportedly or apparently legislative, even to determine if they are legislative in fact.” 133
While the Menendez opinion acknowledged Supreme Court precedent, it nonetheless determined that “only after we conclude that that an act is in fact legislative must we refrain from inquiring into a legislator’s purpose or motive.” 134
Prior to such a determination, the Third Circuit suggested, a court should — and at times must — make such an inquiry to prevent nonlegislative acts from being “misrepresented” as legislative acts. 135
130 Johnson, 383 U.S. at 185.
131 Eastland, 421 U.S. at 508.
132 United States v. Dowdy, 479 F.2d 213, 226 (4th Cir. 1973).
133 Id.
134 Menendez, 831 F.3d at 167
135 Id. at 167.
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Todd Garvey, Legislative Attorney
December 1, 2017
What Constitutes a Legislative Act?, concluded ...
This approach may be subject to criticism in light of the Supreme Court’s repeated warning that inquiries into the motive or purpose underlying actions of Members are generally not permitted by the Clause. 130
The Court has expressly held that “in determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted it.” 131
Other courts have rejected an analytical approach that would empower a court to look beneath an act that appears legislative.
For example, the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) has held that the Clause not only protects “acts which are manifestly legislative,” 132 but “also forbids inquiry into acts which are purportedly or apparently legislative, even to determine if they are legislative in fact.” 133
While the Menendez opinion acknowledged Supreme Court precedent, it nonetheless determined that “only after we conclude that that an act is in fact legislative must we refrain from inquiring into a legislator’s purpose or motive.” 134
Prior to such a determination, the Third Circuit suggested, a court should — and at times must — make such an inquiry to prevent nonlegislative acts from being “misrepresented” as legislative acts. 135
130 Johnson, 383 U.S. at 185.
131 Eastland, 421 U.S. at 508.
132 United States v. Dowdy, 479 F.2d 213, 226 (4th Cir. 1973).
133 Id.
134 Menendez, 831 F.3d at 167
135 Id. at 167.
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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE
Congressional Research Service
Understanding the Speech or Debate Clause, continued ...
Todd Garvey, Legislative Attorney
December 1, 2017
Member Interactions with the Executive Branch
A closer look at judicial treatment of Member interactions with the executive branch reveals some of the difficulty in determining whether certain conduct qualifies as a legislative act.
While interactions with the executive branch may be viewed as “official” and “legitimate,” they are not always “legislative.” 136
It seems from Brewster and Johnson, for example, that communicating with an executive branch agency on behalf of a constituent is not a protected legislative act. 137
Interactions with the executive branch intended to “influence” executive policy for nonlegislative reasons are similarly not legislative acts. 138
The Gravel opinion further narrowed the class of interactions with the executive branch that could be deemed legislative, holding that: Members of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies — they may cajole, and exhort with respect to the administration of a federal statute — but such conduct, though generally done, is not protected legislative activity. 139
This passage suggests that even communications and interactions with the executive branch pertaining to an agency’s administration and execution of a federal statute, though wholly unrelated to constituent services, are similarly unprotected.
Yet, when the interaction is connected to the conduct of “oversight,” the action may be more likely to be viewed as legislative and subject to the protections of the Clause.
For example, in Eastland v. United States Serviceman’s Fund, the Supreme Court held that “the power to investigate ... plainly falls” within the definition of legislative. 140
Thus, interactions with the executive branch taken pursuant to an authorized congressional investigation, including those actions taken at hearings, in issuing subpoenas, or pursuing contempt, have all been interpreted to be protected legislative acts. 141
Less formal oversight contacts with the executive branch (for example, actions taken by individual Members not pursuant to an official committee investigation) have not always received protections under the Clause. 142
In Menendez, the Third Circuit held that a claim of conducting “‘oversight’ does not automatically result in Speech or Debate protections.” 143
Instead, the court reasoned that “oversight activities exist along a spectrum” in which some informal actions are unprotected, but other “informal attempts to influence the Executive Branch on policy, for actual legislative purposes, may qualify as ‘true legislative oversight’ and merit Speech or Debate immunity.” 144
Lobbying on behalf of a particular party, the court held, was an action “outside the constitutional safe harbor” created by the Clause. 145
136 See Brewster, 408 U.S. at 512.
137 Id.; Johnson, 383 U.S. at 172.
138 See Gravel, 408 U.S. at 625; Johnson, 383 U.S. at 172.
139 Gravel, 408 U.S. at 625.
140 Eastland, 421 U.S. at 504.
141 Id.
142 See McDade, 28 F.3d at 299-300. Confusion among the courts on this topic may be highlighted by comparing McSurely v. McClellan, 553 F.2d 1277, 1287 (D.C. Cir. 1976) (suggesting a “requirement of congressional authorization of the inquiry” for oversight activity to be protected by the Clause) with Miller v. Transamerican Press, Inc., 709 F.2d 524, 530 (9th Cir. 1983) (holding that actions during an unofficial investigation by an individual Member are protected by the Clause).
143 Menendez, 831 F.3d at 166.
144 Id. at 168.
145 Id. at 169.
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Understanding the Speech or Debate Clause, continued ...
Todd Garvey, Legislative Attorney
December 1, 2017
Member Interactions with the Executive Branch
A closer look at judicial treatment of Member interactions with the executive branch reveals some of the difficulty in determining whether certain conduct qualifies as a legislative act.
While interactions with the executive branch may be viewed as “official” and “legitimate,” they are not always “legislative.” 136
It seems from Brewster and Johnson, for example, that communicating with an executive branch agency on behalf of a constituent is not a protected legislative act. 137
Interactions with the executive branch intended to “influence” executive policy for nonlegislative reasons are similarly not legislative acts. 138
The Gravel opinion further narrowed the class of interactions with the executive branch that could be deemed legislative, holding that: Members of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies — they may cajole, and exhort with respect to the administration of a federal statute — but such conduct, though generally done, is not protected legislative activity. 139
This passage suggests that even communications and interactions with the executive branch pertaining to an agency’s administration and execution of a federal statute, though wholly unrelated to constituent services, are similarly unprotected.
Yet, when the interaction is connected to the conduct of “oversight,” the action may be more likely to be viewed as legislative and subject to the protections of the Clause.
For example, in Eastland v. United States Serviceman’s Fund, the Supreme Court held that “the power to investigate ... plainly falls” within the definition of legislative. 140
Thus, interactions with the executive branch taken pursuant to an authorized congressional investigation, including those actions taken at hearings, in issuing subpoenas, or pursuing contempt, have all been interpreted to be protected legislative acts. 141
Less formal oversight contacts with the executive branch (for example, actions taken by individual Members not pursuant to an official committee investigation) have not always received protections under the Clause. 142
In Menendez, the Third Circuit held that a claim of conducting “‘oversight’ does not automatically result in Speech or Debate protections.” 143
Instead, the court reasoned that “oversight activities exist along a spectrum” in which some informal actions are unprotected, but other “informal attempts to influence the Executive Branch on policy, for actual legislative purposes, may qualify as ‘true legislative oversight’ and merit Speech or Debate immunity.” 144
Lobbying on behalf of a particular party, the court held, was an action “outside the constitutional safe harbor” created by the Clause. 145
136 See Brewster, 408 U.S. at 512.
137 Id.; Johnson, 383 U.S. at 172.
138 See Gravel, 408 U.S. at 625; Johnson, 383 U.S. at 172.
139 Gravel, 408 U.S. at 625.
140 Eastland, 421 U.S. at 504.
141 Id.
142 See McDade, 28 F.3d at 299-300. Confusion among the courts on this topic may be highlighted by comparing McSurely v. McClellan, 553 F.2d 1277, 1287 (D.C. Cir. 1976) (suggesting a “requirement of congressional authorization of the inquiry” for oversight activity to be protected by the Clause) with Miller v. Transamerican Press, Inc., 709 F.2d 524, 530 (9th Cir. 1983) (holding that actions during an unofficial investigation by an individual Member are protected by the Clause).
143 Menendez, 831 F.3d at 166.
144 Id. at 168.
145 Id. at 169.
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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE
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Todd Garvey, Legislative Attorney
December 1, 2017
Member Interactions with the Executive Branch, concluded ...
To the contrary, other courts have held that “the applicability of the Speech or Debate Clause’s protections does not hinge on the formality of the investigation.” 146
“The controlling principle,” one court has asserted, is “whether information is acquired in connection with or in aid of an activity that qualifies as ‘legislative’ in nature.” 147
Consistent with this reasoning, federal courts have found “fact finding,” “field investigations,” and “information gathering” by individual Members to be protected legislative acts. 148
One way to harmonize these “informal contacts” cases is perhaps that when a Member is seeking to obtain information from the executive branch, the act is “legislative,” but when the Member is attempting to “influence” executive branch policy, the act is not legislative, at least generally. 149
It would appear difficult, however, to draw a distinction between “cajoling” executive branch officials on the “administration of a federal statute,” which is unprotected, and “true legislative oversight.” 150
Oversight often serves many purposes, including a desire to influence executive branch operations.
For example, a committee may solely be seeking information, or it may be conducting an investigation for the purposes of pushing the agency to implement the law in the manner that Congress desires. 151
Nevertheless, there remains significant uncertainty concerning what types of Member communications with the executive branch are protected by the Clause.
146 SEC v. Comm. on Ways & Means of the United States House of Representatives, 161 F. Supp. 3d 199, 236 (S.D.N.Y. 2015).
147 Jewish War Veterans of the United States of Am., Inc. v. Gates, 506 F. Supp. 2d 30, 57 (D.D.C. 2007).
148 United States v. Biaggi, 853 F.2d 89, 103 (2nd Cir. 1988); Lee, 775 F.2d at 521; Miller, 709 F.2d at 530; McSurely, 553 F.2d at 1286-87.
149 See Comm. on Ways & Means, 161 F. Supp. 3d at 246 (noting that documents that reflect a Member “‘cajol[ing]’ or ‘exhort[ing] with respect to the administration of a federal statute,’ they must be produced,” but documents that “reflect the Committee’s or the Subcommittee’s gathering of information to aid in legislating on the issue of Medicare reimbursement rates — whether according to formal congressional processes, [] or informal efforts [] — they are protected under the Clause and need not be produced”) (citations omitted).
150 Gravel, 408 U.S. at 625; Menendez, 831 F.3d at 168.
151 See CRS Report RL30240, Congressional Oversight Manual, by L. Elaine Halchin et al. (describing the various purposes of oversight). See also, United States v. McDade, 28 F.3d 283, 299-300 (3rd Cir. 1994) (discussing the broad meaning of the term “oversight”).
152 P.L. 104-1 (1995) (codified at 2 U.S.C. §§ 1301-1438). 2 U.S.C. § 1302(a) provides a list of 11 laws that the CAA makes applicable to the legislative branch.
153 2 U.S.C. § 1416.
154 Id. at §§ 1301, 1401-08. A “covered employee” includes employees of the House, Senate, and a number of other legislative branch offices. Id. at § 1301(3). “Employing office” includes “the personal office of a Member of the House of Representatives or of a Senator [or] ... a committee of the House of Representatives or the Senate or a joint committee ...,” and other legislative branch offices such as the Congressional Budget Office and the Architect of the Capitol. Id. at § 1301(9).
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Todd Garvey, Legislative Attorney
December 1, 2017
Member Interactions with the Executive Branch, concluded ...
To the contrary, other courts have held that “the applicability of the Speech or Debate Clause’s protections does not hinge on the formality of the investigation.” 146
“The controlling principle,” one court has asserted, is “whether information is acquired in connection with or in aid of an activity that qualifies as ‘legislative’ in nature.” 147
Consistent with this reasoning, federal courts have found “fact finding,” “field investigations,” and “information gathering” by individual Members to be protected legislative acts. 148
One way to harmonize these “informal contacts” cases is perhaps that when a Member is seeking to obtain information from the executive branch, the act is “legislative,” but when the Member is attempting to “influence” executive branch policy, the act is not legislative, at least generally. 149
It would appear difficult, however, to draw a distinction between “cajoling” executive branch officials on the “administration of a federal statute,” which is unprotected, and “true legislative oversight.” 150
Oversight often serves many purposes, including a desire to influence executive branch operations.
For example, a committee may solely be seeking information, or it may be conducting an investigation for the purposes of pushing the agency to implement the law in the manner that Congress desires. 151
Nevertheless, there remains significant uncertainty concerning what types of Member communications with the executive branch are protected by the Clause.
146 SEC v. Comm. on Ways & Means of the United States House of Representatives, 161 F. Supp. 3d 199, 236 (S.D.N.Y. 2015).
147 Jewish War Veterans of the United States of Am., Inc. v. Gates, 506 F. Supp. 2d 30, 57 (D.D.C. 2007).
148 United States v. Biaggi, 853 F.2d 89, 103 (2nd Cir. 1988); Lee, 775 F.2d at 521; Miller, 709 F.2d at 530; McSurely, 553 F.2d at 1286-87.
149 See Comm. on Ways & Means, 161 F. Supp. 3d at 246 (noting that documents that reflect a Member “‘cajol[ing]’ or ‘exhort[ing] with respect to the administration of a federal statute,’ they must be produced,” but documents that “reflect the Committee’s or the Subcommittee’s gathering of information to aid in legislating on the issue of Medicare reimbursement rates — whether according to formal congressional processes, [] or informal efforts [] — they are protected under the Clause and need not be produced”) (citations omitted).
150 Gravel, 408 U.S. at 625; Menendez, 831 F.3d at 168.
151 See CRS Report RL30240, Congressional Oversight Manual, by L. Elaine Halchin et al. (describing the various purposes of oversight). See also, United States v. McDade, 28 F.3d 283, 299-300 (3rd Cir. 1994) (discussing the broad meaning of the term “oversight”).
152 P.L. 104-1 (1995) (codified at 2 U.S.C. §§ 1301-1438). 2 U.S.C. § 1302(a) provides a list of 11 laws that the CAA makes applicable to the legislative branch.
153 2 U.S.C. § 1416.
154 Id. at §§ 1301, 1401-08. A “covered employee” includes employees of the House, Senate, and a number of other legislative branch offices. Id. at § 1301(3). “Employing office” includes “the personal office of a Member of the House of Representatives or of a Senator [or] ... a committee of the House of Representatives or the Senate or a joint committee ...,” and other legislative branch offices such as the Congressional Budget Office and the Architect of the Capitol. Id. at § 1301(9).
TO BE CONTINUED ...
Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE
Congressional Research Service
Understanding the Speech or Debate Clause, continued ...
Todd Garvey, Legislative Attorney
December 1, 2017
Application of the Clause to Employment and Personnel Actions
The Speech or Debate Clause plays a key role in civil actions challenging Members’ employment and personnel actions.
These cases generally arise under the Congressional Accountability Act (CAA), which made several civil rights, labor and employment, and workplace safety laws applicable to congressional offices. 152
After seeking confidential 153 counseling and mediation, the CAA expressly authorizes “covered employees” to bring a civil action for violations of the incorporated laws, not against an individual Member, but against the “employing office.” 154
The CAA also prohibits any employing office from retaliating against an employee for alleging a CAA violation. 155
Settlements and judgments reached under a CAA authorized action are paid out of funds appropriated to the legislative branch. 156
The law, it appears, was “intended to subject the legislative branch to liability for violation of federal employment laws, not to subject its Members personally to such liability.” 157
Moreover, the law expressly provides that the authorization to bring a civil suit under the CAA “shall not constitute a waiver ... of the privileges of any Senator or Member of the House of Representatives under [the Clause].” 158
The Supreme Court has held that “this provision demonstrates that Congress did not intend the Act to be interpreted to permit suits that would otherwise be prohibited under the Speech or Debate Clause.” 159
The judicial framework for analyzing the Clause’s application to Member employment and personnel decisions has evolved over time.
Prior to enactment of the CAA, 160 the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) had determined that the Clause immunized Members from claims challenging personnel decisions concerning most of their staff. 161
In Browning v. Clerk of the United States House of Representatives, the D.C. Circuit broadly held that “personnel decisions are an integral part of the legislative process to the same extent that the affected employee’s duties are an integral part of the legislative process.” 162
The court, therefore, held that the Clause protected personnel actions taken by Members that impacted any employee whose “duties were directly related to the due functioning of the legislative process.” 163
Thus, the Clause’s application depended on the functions and duties of the impacted employee.
152 P.L. 104-1 (1995) (codified at 2 U.S.C. §§ 1301-1438). 2 U.S.C. § 1302(a) provides a list of 11 laws that the CAA makes applicable to the legislative branch.
153 2 U.S.C. § 1416.
154 Id. at §§ 1301, 1401-08. A “covered employee” includes employees of the House, Senate, and a number of other legislative branch offices. Id. at § 1301(3). “Employing office” includes “the personal office of a Member of the House of Representatives or of a Senator [or] ... a committee of the House of Representatives or the Senate or a joint committee ...,” and other legislative branch offices such as the Congressional Budget Office and the Architect of the Capitol. Id. at § 1301(9).
155 Id. at § 1317(a).
156 Id. at § 1415(a).
157 Fields, 459 F.3d at 28 (emphasis in original).
158 2 U.S.C. § 1413. See Fields, 459 F.3d at 8 (“The [CAA] therefore does nothing to a Member’s Speech or Debate Clause immunity....”).
159 Office of Senator Dayton v. Hanson, 550 U.S. 511, 514, (2007).
160 Prior to the CAA, an employment-related claim arising from a personnel action that allegedly violated the Constitution could still be brought pursuant to an implied cause of action. See, e.g., Davis v. Passman, 442 U.S. 228, 244 (1979) (implying a cause of action for sex discrimination under the Fifth Amendment); Walker v. Jones, 733 F.2d 923, 933 (D.C. Cir. 1984) (implying a cause of action for sex discrimination under the Fifth Amendment).
161 Browning v. Clerk of the United States House of Representatives, 789 F.2d 923, 928-29 (D.C. Cir. 1986). See also, Niedermeier v. Office of Max S. Baucus, 153 F. Supp. 2d 23, 31 n.5 (D.D.C. 2001) (“It also appears that this court lacks subject matter jurisdiction over plaintiff's amended claim, because the Speech or Debate Clause provides defendant immunity for his legislative acts and this Circuit has defined legislative acts to include personnel actions of members of Congress.”) (citing Browning, 789 F.2d at 929).
162 Id. at 928.
163 Id. at 929,
TO BE CONTINUED ...
Understanding the Speech or Debate Clause, continued ...
Todd Garvey, Legislative Attorney
December 1, 2017
Application of the Clause to Employment and Personnel Actions
The Speech or Debate Clause plays a key role in civil actions challenging Members’ employment and personnel actions.
These cases generally arise under the Congressional Accountability Act (CAA), which made several civil rights, labor and employment, and workplace safety laws applicable to congressional offices. 152
After seeking confidential 153 counseling and mediation, the CAA expressly authorizes “covered employees” to bring a civil action for violations of the incorporated laws, not against an individual Member, but against the “employing office.” 154
The CAA also prohibits any employing office from retaliating against an employee for alleging a CAA violation. 155
Settlements and judgments reached under a CAA authorized action are paid out of funds appropriated to the legislative branch. 156
The law, it appears, was “intended to subject the legislative branch to liability for violation of federal employment laws, not to subject its Members personally to such liability.” 157
Moreover, the law expressly provides that the authorization to bring a civil suit under the CAA “shall not constitute a waiver ... of the privileges of any Senator or Member of the House of Representatives under [the Clause].” 158
The Supreme Court has held that “this provision demonstrates that Congress did not intend the Act to be interpreted to permit suits that would otherwise be prohibited under the Speech or Debate Clause.” 159
The judicial framework for analyzing the Clause’s application to Member employment and personnel decisions has evolved over time.
Prior to enactment of the CAA, 160 the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) had determined that the Clause immunized Members from claims challenging personnel decisions concerning most of their staff. 161
In Browning v. Clerk of the United States House of Representatives, the D.C. Circuit broadly held that “personnel decisions are an integral part of the legislative process to the same extent that the affected employee’s duties are an integral part of the legislative process.” 162
The court, therefore, held that the Clause protected personnel actions taken by Members that impacted any employee whose “duties were directly related to the due functioning of the legislative process.” 163
Thus, the Clause’s application depended on the functions and duties of the impacted employee.
152 P.L. 104-1 (1995) (codified at 2 U.S.C. §§ 1301-1438). 2 U.S.C. § 1302(a) provides a list of 11 laws that the CAA makes applicable to the legislative branch.
153 2 U.S.C. § 1416.
154 Id. at §§ 1301, 1401-08. A “covered employee” includes employees of the House, Senate, and a number of other legislative branch offices. Id. at § 1301(3). “Employing office” includes “the personal office of a Member of the House of Representatives or of a Senator [or] ... a committee of the House of Representatives or the Senate or a joint committee ...,” and other legislative branch offices such as the Congressional Budget Office and the Architect of the Capitol. Id. at § 1301(9).
155 Id. at § 1317(a).
156 Id. at § 1415(a).
157 Fields, 459 F.3d at 28 (emphasis in original).
158 2 U.S.C. § 1413. See Fields, 459 F.3d at 8 (“The [CAA] therefore does nothing to a Member’s Speech or Debate Clause immunity....”).
159 Office of Senator Dayton v. Hanson, 550 U.S. 511, 514, (2007).
160 Prior to the CAA, an employment-related claim arising from a personnel action that allegedly violated the Constitution could still be brought pursuant to an implied cause of action. See, e.g., Davis v. Passman, 442 U.S. 228, 244 (1979) (implying a cause of action for sex discrimination under the Fifth Amendment); Walker v. Jones, 733 F.2d 923, 933 (D.C. Cir. 1984) (implying a cause of action for sex discrimination under the Fifth Amendment).
161 Browning v. Clerk of the United States House of Representatives, 789 F.2d 923, 928-29 (D.C. Cir. 1986). See also, Niedermeier v. Office of Max S. Baucus, 153 F. Supp. 2d 23, 31 n.5 (D.D.C. 2001) (“It also appears that this court lacks subject matter jurisdiction over plaintiff's amended claim, because the Speech or Debate Clause provides defendant immunity for his legislative acts and this Circuit has defined legislative acts to include personnel actions of members of Congress.”) (citing Browning, 789 F.2d at 929).
162 Id. at 928.
163 Id. at 929,
TO BE CONTINUED ...
Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE
Congressional Research Service
Understanding the Speech or Debate Clause, continued ...
Todd Garvey, Legislative Attorney
December 1, 2017
Application of the Clause to Employment and Personnel Actions, continued ...
The Browning holding, however, was subsequently called into question by two later decisions outside the Speech or Debate Clause context that addressed the “administrative” nature of personnel decisions.
First, in Forrester v. White, the Supreme Court held that judicial immunity for “judicial acts” did not extend to an employment decision, which the court categorized as an administrative act rather than a judicial act. 164
Second, in Gross v. Winter, the D.C. Circuit extended that reasoning to the legislative sphere. 165
In an opinion addressing common law legislative immunity enjoyed by members of the D.C. City Council, rather than Speech or Debate Clause protections enjoyed by Members, the court relied on Forrester to hold that the “functions ... legislators exercise in making personnel decisions ... are administrative, not [] legislative.” 166
These cases arguably implied that a Member’s personnel decision should be viewed as nonlegislative, and, therefore, not protected by the Clause.
Forrester and Gross suggest that the initial shift away from Browning’s reasoning predated the enactment of the CAA in 1995.
Moreover, the courts have explained that the CAA “does nothing to a Member’s Speech or Debate Clause immunity.” 167
Therefore, it does not appear that the CAA compelled the courts to alter their approach to these types of claims.
Yet, after enactment of the CAA, the courts continued to diverge from the course charted by Browning, ultimately leading to a rejection of that decision’s determination that the Clause generally acts as a bar to employment-related claims. 168
In the 2004 decision of Bastien v. Office of Campbell, the first case addressing how the Clause applies to the CAA, the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) “hesitated to embrace” the D.C. Circuit’s reasoning in Browning, finding instead that “a personnel decision is not a ‘legislative act,’ ... and is therefore not entitled to immunity.” 169
The Clause provided protections in CAA-related claims, according to the court, only to the extent that other “legislative acts must be proved to establish the claim ...” 170
Two years later, the D.C. Circuit reconsidered Browning in Fields v. Office of Johnson. 171
That consolidated case involved CAA claims for racial, gender, and disability discrimination and retaliation brought by a pair of House and Senate staffers. 172
There was no clear majority opinion in Fields, but the en banc court was unanimous in deciding both that the Clause does not require automatic dismissal of CAA claims and that the Browning framework was no longer consistent with Supreme Court precedent and should be abandoned. 173
The plurality opinion 174 explicitly rejected Browning’s test for determining when the Clause protects a Member’s personnel decisions, holding that regardless of the role of the given employee, “many personnel decisions” lack any “nexus” to legislative acts and are, therefore, not protected by the Clause. 175
164 Forrester v. White, 484 U.S. 219, 220 (1988).
165 Gross v. Winter, 876 F.2d 165, 170-72 (D.C. Cir. 1989).
166 Id. at 172.
167 Fields, 459 F.3d at 8. See also, 2 U.S.C. § 1413.
168 See Fields, 459 F.3d at 11-13; Bastien v. Office of Campbell, 390 F.3d 1301, 1318-19 (10th Cir. 2004).
169 Bastien, 390 F.3d at 1318.
170 Id.
171 Fields, 459 F.3d at 11-13.
172 Id. at 4.
173 Id. at 17; Id. at 17 (Rodgers, J., concurring); Id. at 25-26 (Brown, J.,
concurring); id. at 18 (Tatel, J., concurring).
174 Judge Brown’s concurring opinion took a narrower view, suggesting that the CAA creates a “legal fiction” by holding the Member’s office liable for employment discrimination, not the Member or his aides individually. Id. at 26 (Brown, J., concurring) The employing office, Judge Brown asserted, should not enjoy the protections of the Clause, only the Member and covered aides if personally implicated. Id. at 26-7.
175 Fields, 459 F.3d at 11.
TO BE CONTINUED ...
Understanding the Speech or Debate Clause, continued ...
Todd Garvey, Legislative Attorney
December 1, 2017
Application of the Clause to Employment and Personnel Actions, continued ...
The Browning holding, however, was subsequently called into question by two later decisions outside the Speech or Debate Clause context that addressed the “administrative” nature of personnel decisions.
First, in Forrester v. White, the Supreme Court held that judicial immunity for “judicial acts” did not extend to an employment decision, which the court categorized as an administrative act rather than a judicial act. 164
Second, in Gross v. Winter, the D.C. Circuit extended that reasoning to the legislative sphere. 165
In an opinion addressing common law legislative immunity enjoyed by members of the D.C. City Council, rather than Speech or Debate Clause protections enjoyed by Members, the court relied on Forrester to hold that the “functions ... legislators exercise in making personnel decisions ... are administrative, not [] legislative.” 166
These cases arguably implied that a Member’s personnel decision should be viewed as nonlegislative, and, therefore, not protected by the Clause.
Forrester and Gross suggest that the initial shift away from Browning’s reasoning predated the enactment of the CAA in 1995.
Moreover, the courts have explained that the CAA “does nothing to a Member’s Speech or Debate Clause immunity.” 167
Therefore, it does not appear that the CAA compelled the courts to alter their approach to these types of claims.
Yet, after enactment of the CAA, the courts continued to diverge from the course charted by Browning, ultimately leading to a rejection of that decision’s determination that the Clause generally acts as a bar to employment-related claims. 168
In the 2004 decision of Bastien v. Office of Campbell, the first case addressing how the Clause applies to the CAA, the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) “hesitated to embrace” the D.C. Circuit’s reasoning in Browning, finding instead that “a personnel decision is not a ‘legislative act,’ ... and is therefore not entitled to immunity.” 169
The Clause provided protections in CAA-related claims, according to the court, only to the extent that other “legislative acts must be proved to establish the claim ...” 170
Two years later, the D.C. Circuit reconsidered Browning in Fields v. Office of Johnson. 171
That consolidated case involved CAA claims for racial, gender, and disability discrimination and retaliation brought by a pair of House and Senate staffers. 172
There was no clear majority opinion in Fields, but the en banc court was unanimous in deciding both that the Clause does not require automatic dismissal of CAA claims and that the Browning framework was no longer consistent with Supreme Court precedent and should be abandoned. 173
The plurality opinion 174 explicitly rejected Browning’s test for determining when the Clause protects a Member’s personnel decisions, holding that regardless of the role of the given employee, “many personnel decisions” lack any “nexus” to legislative acts and are, therefore, not protected by the Clause. 175
164 Forrester v. White, 484 U.S. 219, 220 (1988).
165 Gross v. Winter, 876 F.2d 165, 170-72 (D.C. Cir. 1989).
166 Id. at 172.
167 Fields, 459 F.3d at 8. See also, 2 U.S.C. § 1413.
168 See Fields, 459 F.3d at 11-13; Bastien v. Office of Campbell, 390 F.3d 1301, 1318-19 (10th Cir. 2004).
169 Bastien, 390 F.3d at 1318.
170 Id.
171 Fields, 459 F.3d at 11-13.
172 Id. at 4.
173 Id. at 17; Id. at 17 (Rodgers, J., concurring); Id. at 25-26 (Brown, J.,
concurring); id. at 18 (Tatel, J., concurring).
174 Judge Brown’s concurring opinion took a narrower view, suggesting that the CAA creates a “legal fiction” by holding the Member’s office liable for employment discrimination, not the Member or his aides individually. Id. at 26 (Brown, J., concurring) The employing office, Judge Brown asserted, should not enjoy the protections of the Clause, only the Member and covered aides if personally implicated. Id. at 26-7.
175 Fields, 459 F.3d at 11.
TO BE CONTINUED ...
Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE
Congressional Research Service
Understanding the Speech or Debate Clause, continued ...
Todd Garvey, Legislative Attorney
December 1, 2017
Application of the Clause to Employment and Personnel Actions, continued ...
The Fields plurality, which has been relied upon in subsequent opinions, 176 articulated a new framework for evaluating CAA claims that highlights the distinction between the Clause’s general immunity principle and the component evidentiary and testimonial privileges. 177
The plurality determined that the general immunity principle did not “bar” the suit because the personnel actions in question were not themselves legislative acts. 178
However, the plurality reasoned that “when the Clause does not preclude suit altogether, it still ‘protects Members from inquiry into legislative acts or the motivation for actual performance of legislative acts’” through the component evidentiary and testimonial privileges. 179
Thus, although generally not barring a CAA suit altogether, the Clause may “hinder” the suit by “preclud[ing] some relevant evidence.” 180
This was especially so in a claim for discrimination that “rests not on the fact that action was taken ... but on the reason that action was taken,” which would likely require the plaintiff to disprove the Member’s proffered motivation for taking the challenged personnel action. 181
The Fields plurality opinion was relied upon in Howard v. Office of the Chief Administrative Officer of the United States House of Representatives. 182
That case involved a CAA claim for racial discrimination and retaliation brought by a former House employee. 183
As in the Fields plurality, the court determined that the claim itself was not barred, as the personnel action in question was not a “legislative act.” 184
But the court highlighted that “in many employment discrimination cases, proof of ‘pretext’ will be crucial to the success of the claimant’s case,” 185 and those allegations of pretext, the court reasoned, must be proven “using evidence that does not implicate protected legislative matters.” 186
In some cases, the court warned, a plaintiff may not be able to meet the required burden of proof because the Clause bars him “from inquiring into legislative motives ... or conduct part of or integral to the legislative process....” 187
In the instant case, the court remanded to the district court with directions that the plaintiff’s claims be allowed to proceed, under the caveat that “it remain[ed] to be seen” whether, due to the “strictures” of the Clause, the plaintiff would be able to produce sufficient evidence to prove her claim. 188
Indeed, it was ultimately determined that the employee failed to produce sufficient evidence showing the asserted reason for her termination was pretextual. 189
176 See Howard, 720 F.3d at 947 (“Our discussion of Fields focuses on Judge Randolph’s plurality opinion because ... it reflects the broadest view of the Speech or Debate Clause.”); Floyd v. Lee, 968 F. Supp. 2d 308, 318 (D.D.C. 2013) (applying the Fields plurality opinion).
177 Id. at 13-15.
178 Id. at 13. Nor did the claims seek “to predicate liability on protected conduct.” Id.
179 Id. at 14 (citing Brewster, 408 U.S. at 508).
180 Id. at 14.
181 Id. at 15-16 (emphasis in original) (“For example, if a Senator claimed to have fired an employee because speeches the employee wrote did not accurately reflect the Senator’s legislative objectives, the Speech or Debate Clause would preclude the employee from proving her case by demonstrating that the speeches she wrote did in fact accurately reflect the Senator’s legislative objectives. In such a case, if the evidence ultimately bore out the affiant’s account of the plaintiff’s discharge, then the very inquiry leading to that conclusion would be unconstitutional.”). The Senate office appealed the D.C. Circuit’s decision directly to the Supreme Court. Office of Senator Dayton, 550 U.S. at 511. The Court denied certiorari, while also determining that it lacked jurisdiction under the CAA to hear an appeal of the interlocutory order. Id. at 515.
182 Howard, 720 F.3d at 947.
183 Id. at 941.
184 Id. at 949.
185 Id. at 947. In McDonnell Douglas Corp. v. Green, the Supreme Court established a framework for certain types of employment discrimination claims in which after a plaintiff proves a prima facie case for discrimination, the employer rebuts by producing evidence of a nondiscriminatory purpose, which the plaintiff then attempts to demonstrate is pretextual. 411 U.S. 792, 802-804 (1973).
186 Id. at 949.
187 Id. at 950.
188 Howard, 720 F.3d at 950.
189 Howard v. Office of the Chief Admin. Officer of the United States House of Representatives, No. 15-5243, 2015 U.S. App. LEXIS 22290, at *2 (D.C. Cir. 2015) (“Nor has appellant produced sufficient evidence for a reasonable jury to find that the appellee’s asserted non-discriminatory reason for her termination — that she was insubordinate — was pretextual and that the appellee discriminated against her on the basis of race.”).
TO BE CONTINUED ...
Understanding the Speech or Debate Clause, continued ...
Todd Garvey, Legislative Attorney
December 1, 2017
Application of the Clause to Employment and Personnel Actions, continued ...
The Fields plurality, which has been relied upon in subsequent opinions, 176 articulated a new framework for evaluating CAA claims that highlights the distinction between the Clause’s general immunity principle and the component evidentiary and testimonial privileges. 177
The plurality determined that the general immunity principle did not “bar” the suit because the personnel actions in question were not themselves legislative acts. 178
However, the plurality reasoned that “when the Clause does not preclude suit altogether, it still ‘protects Members from inquiry into legislative acts or the motivation for actual performance of legislative acts’” through the component evidentiary and testimonial privileges. 179
Thus, although generally not barring a CAA suit altogether, the Clause may “hinder” the suit by “preclud[ing] some relevant evidence.” 180
This was especially so in a claim for discrimination that “rests not on the fact that action was taken ... but on the reason that action was taken,” which would likely require the plaintiff to disprove the Member’s proffered motivation for taking the challenged personnel action. 181
The Fields plurality opinion was relied upon in Howard v. Office of the Chief Administrative Officer of the United States House of Representatives. 182
That case involved a CAA claim for racial discrimination and retaliation brought by a former House employee. 183
As in the Fields plurality, the court determined that the claim itself was not barred, as the personnel action in question was not a “legislative act.” 184
But the court highlighted that “in many employment discrimination cases, proof of ‘pretext’ will be crucial to the success of the claimant’s case,” 185 and those allegations of pretext, the court reasoned, must be proven “using evidence that does not implicate protected legislative matters.” 186
In some cases, the court warned, a plaintiff may not be able to meet the required burden of proof because the Clause bars him “from inquiring into legislative motives ... or conduct part of or integral to the legislative process....” 187
In the instant case, the court remanded to the district court with directions that the plaintiff’s claims be allowed to proceed, under the caveat that “it remain[ed] to be seen” whether, due to the “strictures” of the Clause, the plaintiff would be able to produce sufficient evidence to prove her claim. 188
Indeed, it was ultimately determined that the employee failed to produce sufficient evidence showing the asserted reason for her termination was pretextual. 189
176 See Howard, 720 F.3d at 947 (“Our discussion of Fields focuses on Judge Randolph’s plurality opinion because ... it reflects the broadest view of the Speech or Debate Clause.”); Floyd v. Lee, 968 F. Supp. 2d 308, 318 (D.D.C. 2013) (applying the Fields plurality opinion).
177 Id. at 13-15.
178 Id. at 13. Nor did the claims seek “to predicate liability on protected conduct.” Id.
179 Id. at 14 (citing Brewster, 408 U.S. at 508).
180 Id. at 14.
181 Id. at 15-16 (emphasis in original) (“For example, if a Senator claimed to have fired an employee because speeches the employee wrote did not accurately reflect the Senator’s legislative objectives, the Speech or Debate Clause would preclude the employee from proving her case by demonstrating that the speeches she wrote did in fact accurately reflect the Senator’s legislative objectives. In such a case, if the evidence ultimately bore out the affiant’s account of the plaintiff’s discharge, then the very inquiry leading to that conclusion would be unconstitutional.”). The Senate office appealed the D.C. Circuit’s decision directly to the Supreme Court. Office of Senator Dayton, 550 U.S. at 511. The Court denied certiorari, while also determining that it lacked jurisdiction under the CAA to hear an appeal of the interlocutory order. Id. at 515.
182 Howard, 720 F.3d at 947.
183 Id. at 941.
184 Id. at 949.
185 Id. at 947. In McDonnell Douglas Corp. v. Green, the Supreme Court established a framework for certain types of employment discrimination claims in which after a plaintiff proves a prima facie case for discrimination, the employer rebuts by producing evidence of a nondiscriminatory purpose, which the plaintiff then attempts to demonstrate is pretextual. 411 U.S. 792, 802-804 (1973).
186 Id. at 949.
187 Id. at 950.
188 Howard, 720 F.3d at 950.
189 Howard v. Office of the Chief Admin. Officer of the United States House of Representatives, No. 15-5243, 2015 U.S. App. LEXIS 22290, at *2 (D.C. Cir. 2015) (“Nor has appellant produced sufficient evidence for a reasonable jury to find that the appellee’s asserted non-discriminatory reason for her termination — that she was insubordinate — was pretextual and that the appellee discriminated against her on the basis of race.”).
TO BE CONTINUED ...
Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE
Congressional Research Service
Understanding the Speech or Debate Clause, continued ...
Todd Garvey, Legislative Attorney
December 1, 2017
Application of the Clause to Employment and Personnel Actions, continued ...
The CAA also authorizes congressional employees to bring sexual harassment claims for violations of Title VII of the Civil Rights Act of 1964, 190 although such claims appear to have only rarely been evaluated by federal courts.
In Scott v. Office of Alexander, the former scheduler for a Member brought a CAA claim that included counts alleging sexual harassment and retaliation for reporting that harassment in the form of a demotion. 191
The majority of the district court decision focused on the plaintiff’s retaliation claim. 192
Applying Fields, the court determined first that the demotion itself was not a legislative act, and thus the claim was not barred by the Clause’s general immunity principle. 193
However, the court also held that a retaliation claim “operates in the same way” as the discrimination claims brought in Fields and Howard. 194
Thus, the plaintiff would be required to rebut the Member’s assertion of nonretaliatory reasons for her demotion in order to show that it was pretextual. 195
Through an affidavit, the Member had asserted that Scott was demoted because of scheduling errors that caused him to miss votes and committee hearings. 196
The court concluded that:
Although Plaintiff argues that her “case would not require impermissibly questioning anything that Defendant may have done during the course of an actual vote or hearing,” whether the Congressman missed or attended an actual vote or hearing, and the reasons why he may have attended or missed an actual vote or hearing, are inquiries that impermissibly relate to the legislative process. Accordingly, the Court finds that Defendant has asserted, through the Congressman’s affidavit, legitimate, non-retaliatory reasons for Plaintiff's demotion that are protected from inquiry by the Speech or Debate Clause. 197
As a result, the court held that “the evidentiary privilege of the Clause prevents Plaintiff from refuting the Member’s stated reasons for her demotion.” 198
Because the plaintiff had not presented any evidence “unrelated to the Congressman’s stated reasons for Plaintiff’s demotion that would not require an inquiry into [] legislative acts,” the court dismissed the retaliation claim. 199
190 2 U.S.C. § 1302(a)(2); 42 U.S.C. §§ 2000e-2000e-17.
191 Scott v. Office of Alexander, 522 F. Supp. 2d 262, 265 (D.D.C. 2007).
192 Id. at 267-72.
193 Id. at 269 (“Plaintiff’s retaliation claim predicates liability on conduct that does not constitute core legislative activities.”).
194 Id. at 270.
195 Id.
196 Id. at 270-71.
197 Scott, 522 F. Supp. 2d at 271.
198 Id. at 272.
199 Id
TO BE CONTINUED ...
Understanding the Speech or Debate Clause, continued ...
Todd Garvey, Legislative Attorney
December 1, 2017
Application of the Clause to Employment and Personnel Actions, continued ...
The CAA also authorizes congressional employees to bring sexual harassment claims for violations of Title VII of the Civil Rights Act of 1964, 190 although such claims appear to have only rarely been evaluated by federal courts.
In Scott v. Office of Alexander, the former scheduler for a Member brought a CAA claim that included counts alleging sexual harassment and retaliation for reporting that harassment in the form of a demotion. 191
The majority of the district court decision focused on the plaintiff’s retaliation claim. 192
Applying Fields, the court determined first that the demotion itself was not a legislative act, and thus the claim was not barred by the Clause’s general immunity principle. 193
However, the court also held that a retaliation claim “operates in the same way” as the discrimination claims brought in Fields and Howard. 194
Thus, the plaintiff would be required to rebut the Member’s assertion of nonretaliatory reasons for her demotion in order to show that it was pretextual. 195
Through an affidavit, the Member had asserted that Scott was demoted because of scheduling errors that caused him to miss votes and committee hearings. 196
The court concluded that:
Although Plaintiff argues that her “case would not require impermissibly questioning anything that Defendant may have done during the course of an actual vote or hearing,” whether the Congressman missed or attended an actual vote or hearing, and the reasons why he may have attended or missed an actual vote or hearing, are inquiries that impermissibly relate to the legislative process. Accordingly, the Court finds that Defendant has asserted, through the Congressman’s affidavit, legitimate, non-retaliatory reasons for Plaintiff's demotion that are protected from inquiry by the Speech or Debate Clause. 197
As a result, the court held that “the evidentiary privilege of the Clause prevents Plaintiff from refuting the Member’s stated reasons for her demotion.” 198
Because the plaintiff had not presented any evidence “unrelated to the Congressman’s stated reasons for Plaintiff’s demotion that would not require an inquiry into [] legislative acts,” the court dismissed the retaliation claim. 199
190 2 U.S.C. § 1302(a)(2); 42 U.S.C. §§ 2000e-2000e-17.
191 Scott v. Office of Alexander, 522 F. Supp. 2d 262, 265 (D.D.C. 2007).
192 Id. at 267-72.
193 Id. at 269 (“Plaintiff’s retaliation claim predicates liability on conduct that does not constitute core legislative activities.”).
194 Id. at 270.
195 Id.
196 Id. at 270-71.
197 Scott, 522 F. Supp. 2d at 271.
198 Id. at 272.
199 Id
TO BE CONTINUED ...