How expansive is the Constitution’s ‘speech or debate’ clause?

Six members of Congress produced a video urging active military personnel not to obey illegal orders. In my column last week, I praised Sen. Mark Kelly (D-Ariz.) for not relying primarily on his constitutional “speech or debate” immunity as a senator to block in the courts the censure levied against him by Secretary of Defense Pete Hegseth.

Instead, Kelly appealed to the broader free speech protection all Americans enjoy under the First Amendment. U.S. District Court Judge Richard Leon agreed with Kelly’s argument, freezing the censure action pending the outcome of Hegseth’s appeal.

The “speech or debate” clause may still have some bearing down the road on appeal. If it does, the question arises as to just how expansive the clause’s protection is over a video made outside Congress’s immediate legislative arena.

When taking a constitutional law course in the 1960s, I did not give a second thought to what the speech or debate clause meant. The relevant thrust of the Constitution’s Article I, section 6 is that senators and representatives “shall not be questioned in any other place” for “any speech or debate in either House” of Congress.

There were no landmark speech or debate cases highlighted in my 1965 con-law text. Looking back now, I find there was a less-major case referenced. In Kilbourn v. Thompson (1880), the Supreme Court gave a broader interpretation to the clause than I would have imagined. It held that “anything done in the House by one of its members relating to the business before it” is protected.

The origin of the protection is not difficult to trace. It goes back to Article IX of the English Bill of Rights of 1689: “The freedom of speech and debates or procedures in Parliament may not be impeached or questioned in any other court or place out of the Parliament.” It was designed to keep British monarchs from interfering with the official business of the House of Commons or from intimidating its members over votes cast.

It was clear from the start that the English version applied exclusively to the actual speeches and deliberations in committees and the chamber and not to related peripheral legislative materials.

In Federalist 48, James Madison defends both the separation of powers in the proposed Constitution and the complementary need for shared powers between the branches as internal cross-checks: “The next and most difficult task is to provide some practical security for each, against the invasion of the others.”

In his majority opinion in U.S. v. Johnson (1966), Justice John Marshall Harlan II elaborated on Madison’s assertion: “The legislative privilege protecting against possible prosecution by an unfriendly executive and conviction by a hostile judiciary is one manifestation of the practical security for ensuring the independence of the legislature.”

The broad application of the speech or debate clause enunciated in the Kilbourn case in 1880 was reaffirmed in the 1972 case of Gravel v. U.S., in which Sen. Mike Gravel (D-Alaska) published in the Congressional Record the “Pentagon Papers,” a classified Defense Department report on the origins of the Vietnam War. The Supreme Court held that “All activities which are an integral part of the deliberative and communicative process of House proceedings, are within the sphere of privilege.”

One area where the British Parliament and the U.S. Congress do agree is that the scope of the privilege does not extend to remarks a member repeats outside the legislature. In such cases, a member is on his own if challenged. The privilege is institutional, not personal.

A dramatic example of this distinction is the Supreme Court’s 1979 ruling in Hutchinson v. Proxmire, in which Sen. William Proxmire (D-Wis.) was sued by a federal employee for defamation for accusing the employee’s agency of wasteful spending through publicly circulated news releases and television interviews. The court held that the senator had no claim of immunity from a libel action if he repeated and published his accusations outside the Congress.

The principle established by the courts was that the speech or debate clause does not protect members against liability for transmitting allegedly defamatory materials by press releases or newsletters, or for any political or representational activities not directly related to the legislative or policy-making sphere.

As for the Hegseth’s censure letter to Kelly over what Hegseth called the “seditious six” video, one can understand why Kelly, and the district court judge who backed him, relied principally on a First Amendment, free speech argument. Not only is that approach more broadly appealing politically, but it is also on safer ground judicially than a “speech or debate” clause claim about a video posted on an external social app.

Don Wolfensberger is a 28-year congressional staff veteran culminating as chief-of-staff of the House Rules Committee in 1995. He is author of “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress: From Fair Play to Power Plays” (2018).

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