Efforts to force five Republican lawmakers to provide information to a House panel probing the January 6 attack on the Capitol are unlikely to end with the summons issued on May 12, 2022.
House Minority Leader Kevin McCarthy and four other Republican holdouts have yet to say whether they will comply, defy or challenge the order. But the question of whether a committee can summon a sitting member of Congress is almost certain to go to court. If it did, Congress’ authority would be determined by a little-known provision of the US Constitution called the “speech or debate” clause.
This clause shields legislators and their staff from the obligation to perform floor speeches, vote on legislation, and conduct investigations.
It would not be the first time that this provision of the Constitution has been invoked during Congressional scrutiny. In fact, the clause has played a central role in determining the limits of Congress’ constitutional authority in the separation of powers.
What is a Speech or Debate Section?
The speech or debate clause has its origins in practices that limit the freedom of UK parliamentarians.
During the 16th and 17th centuries, the British monarchy often used threats of criminal prosecution to intimidate legislators and prevent them from taking action against the Crown. For example, King James II ordered the prosecution of the Speaker of the House of Commons for publicizing alleged plots between James II and the King of France to restore Catholicism as the official religion of England. Concern over the King’s actions prompted Parliament to place a clause in the English Bill of Rights that prevented prosecution for legislative acts.
With this history in mind, the draft US Constitution sought to adopt uniform language to ensure that Congress was independent and could function without threats from the president.
Consequently, Article 1 of the US Constitution provides members of Congress with legal immunity from liability for any speech or debate. In other words, the Constitution protects members of Congress from worrying about being prosecuted for expressing themselves while doing their job.
The Supreme Court has repeatedly held that the provision not only protects speech and debate, but extends to all acts relating to legitimate legislative functions.
However, patronage does not extend to speeches or debates that simply coincidentally relate to the official duties of legislators, such as addresses made outside Congress or remarks in press releases.
Why is the section important?
Because this clause extends to all legitimate legislative acts, “speech or debate” issues come up in nearly every congressional investigation.
One of the earliest Supreme Court decisions involving this clause was an 1880 case in which real estate broker Hallett Kilburn refused to testify in a House inquiry into the bankruptcy of a bank holding government bonds. The court’s decision in the case focused on whether Kilburn could sue the House of Representatives for holding him in contempt. In its opinion, the Supreme Court found that the speech or debate clause precludes such litigation.
Other historical speech or debate matters have suggested a legislator’s actions on the floor of Congress can be used as evidence of conspiracy and whether committees have the authority to summon bank records to investigate Congress. In general, courts have consistently used speech or debate clauses to protect the ability of members of Congress to do their jobs.
This litigation has helped define the parameters of the meaning of Congress to include the constitutionally valid actions and limits of Congress’ power.
The precedent in speech or debate matters has played a significant role in legal battles involving the Trump presidency as well as the Congressional investigation into the January 6 attack on the Capitol.
In 2019, the Supreme Court used speech or debate jurisprudence when evaluating the constitutionality of a House subpoena seeking President Trump’s financial records.
Additionally, this clause came up in a recent lawsuit between the Republican National Committee (RNC) and Speaker Nancy Pelosi. January 6 Committee summons 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 summons in court. In response, Speaker Pelosi and House Democrats argued that the speech or debate clause restricted the entire trial. In an opinion issued on May 1, 2022, the DC District Court sided with the Democrats and dismissed the lawsuit on the grounds that the January 6 committee was serving a legitimate legislative purpose.
what happens now?
Now it may be Republicans’ turn to enforce this clause.
If five summoned members of Congress refuse to comply, Congress may try to contemplate them. This will likely take the matter to the courts.
Yet there is a catch. Because speech or debate provides immunity to legislators from both civil and criminal cases, this clause bars courts from hearing certain types of cases. And even when immunity is not directly enforced, the clause can protect members against producing evidence or testifying about certain actions if they pertain to a legitimate legislative purpose.
It’s difficult to know how this clause would apply in the case of five Republican lawmakers—there is little history of a committee issuing subpoenas to members of Congress outside of ethics investigations.
Relying exclusively on the clause as a legal argument for challenging the summons is likely to fail courts, as courts have been inconsistent with similar arguments in the past.
But invoking the clause could at least prolong the legal battle over whether the January 6 panel can compel MPs to provide evidence and buy summons legislators’ time, perhaps even pushing the issue beyond the 2022 mid-term elections. Is.