Schilling v. Speaker of the U.S. House of Representatives

633 F.Supp.3d 272

Robert SCHILLING, Plaintiff, v. SPEAKER OF the U.S. HOUSE OF REPRESENTATIVES,Nancy Pelosi, et al., Defendants.

Case No. 1:22-cv-162 (TNM)

United States District Court, District of Columbia

Signed October 3, 2022

Christopher Cochran Horner, Max Will, PLLC, Washington, DC, Matthew D. Hardin, Hardin Law Office, Washington, DC, for Plaintiff.

Douglas N. Letter, U.S. House of Representatives Office of General Counsel, Washington, DC, for Defendants United States House of Representatives, United States House Committee on Oversight & Reform.

Douglas N. Letter, Todd Barry Tatelman, Brooks McKinly Hanner, U.S. House of Representatives Office of General Counsel, Washington, DC, for Defendants Nancy Pelosi, Cheryl L. Johnson, Catherine Szpindor.

MEMORANDUM OPINION

TREVOR N. McFADDEN, United States District Judge

Robert Schilling requested emails and recordings from a committee of the U.S. House of Representatives. He says those materials will show that the committee illicitly relied on unpaid private consultants when preparing for certain legislative hearings. The House refused. So Schilling sued, seeking compelled disclosure under the common law right of public access. Defendants now move to dismiss, arguing the Speech or Debate Clause bars Schilling's claims. Reviewing text, history, and precedent, the Court concludes the Clause acts as an absolute jurisdictional bar to suits seeking compelled disclosure of materials related to legislative activity. This case must be dismissed.

I.

This case arises from the House Committee on Oversight and Reform's ongoing work on climate change. Amend. Compl. ¶ 14, ECF No. 12. In recent years, the Committee held hearings to investigate the energy industry's business practices and research on fossil fuels. Id. ¶ 17. Schilling alleges that some committee members and their aides relied on unpaid "consulting services" in preparation for those hearings, violating federal law and House rules prohibiting in-kind donations to cover congressional expenses. See id. ¶¶ 18, 52-57; 31 U.S.C. § 1342.

Schilling sought to expose that allegedly unlawful alliance. So he requested emails and recordings involving committee members, staffers, and some private parties. See Amend. Compl. ¶ 68 (recounting the specific request). Schilling submitted his request to the Clerk of the House, the Office of the Capitol Librarian, the Chief Administrative Officer of the House, the Speaker of the House, the Committee on Oversight and Reform, and Office of the General Counsel for the House (collectively, the House). Id. ¶¶ 68-71, 78.

But the House rejected his request. So he sued it under the common-law right of public access seeking a declaratory judgment and an injunction requiring disclosure. See Amend. Compl. 38 (Prayer for Relief). The House now moves to dismiss. It claims the Speech or Debate Clause immunizes it from suits, like Schilling's, that seek records related to legislative activity. See id. at 11-16; U.S. Const., art. I, § 6. The Court held a motion hearing, and the motion is now ripe for resolution.

II.

A complaint must contain "a short and plain statement of the grounds for the court's jurisdiction." Fed. R. Civ. P. 8(a)(1). A defendant may move to dismiss for failure to satisfy that requirement. See id. 12(b)(1). When it does, the Court must presume that "a cause lies outside [its] limited jurisdiction," Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), and the plaintiff bears the burden of overcoming that presumption, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). While the Court accepts factual allegations in the complaint as true, those allegations "will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Nepal v. U.S. Dep't of State, 602 F. Supp. 3d 115, 123 (D.D.C. May 12, 2022). And the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

III.

The text of the Speech or Debate Clause is straightforward: "for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other place." U.S. Const., art. I, § 6.

But to fully understand the Clause's meaning, let us start with its Anglo origins. That history confirms what modern courts have held: Speech or Debate immunity is vital to the legislative function and should be read broadly.

Of course, "English common-law practices and understandings . . . cannot be indiscriminately attributed to the Framers of our own Constitution." N.Y. State Rifle & Pistol Assoc. v. Bruen, — U.S. —, 142 S. Ct. 2111, 2136, 213 L.Ed.2d 387 (2022). Thus, any historical analysis must recognize the ways English and American legal traditions differ.

A.

The Speech or Debate guarantee emerged out of a centuries-long conflict for English parliamentary supremacy. As early as 1377, the Speaker of the House of Commons petitioned the Crown at the opening of each session, claiming various "ancient rights and privileges." Carl Wittke, The History of the English Parliamentary Privilege 21 (1921). But the Speaker's Petition did not reference freedom of speech and debate until nearly two centuries later. Id. at 23. Parliament's growing ambition spurred the change: beginning in the sixteenth century it "engaged in a struggle with the Tudor and Stuart monarchs that precipitated its transformation from little more than an advisory council to the supreme power in England." Note, The Evidentiary Implications of the Speech or Debate Clause, 88 Yale L. J. 1280, 1282-83 (1979). The Commons, in particular, began to assert control over "matters once thought to be within the Crown's exclusive domain, such as the conduct of foreign policy and the succession." Robert J. Reinstein & Harvey A. Silverglate, Legislative Privilege and the Separation of Powers, 86 Harv. L. Rev. 1113, 1126 (1973).

Predictably, the Crown resisted, targeting members of parliament. In one early case, Richard Strode and other members were prosecuted for proposing bills to address corruption in the tin industry. See Leon R. Yankwich, The Immunity of Congressional Speech—Its Origin, Meaning and Scope, 99 Penn. L. Rev. 960, 963 (1951). Parliament responded with an Act declaring void proceedings against Strode and his colleagues "for any bill, speaking or declaring of any matter concerning the Parliament." Privilege of Parliament Act of 1512, 4 Hen. 8 c.8. But English courts disagreed as to whether that law applied only to Strode's case or more broadly, so the privilege remained "an act of grace on the part of the King." Yankwich, Immunity of Congressional Speech, supra, at 963 (emphasis omitted).

In another canonical case, John Eliot and fellow parliamentarians were convicted of seditious libel for giving speeches opposing royal abuses, including forced taxation. See Eliot's Case, 3 How. St. Tr. 294 (1629). Eliot's counsel argued the speech or debate privilege barred the suit: "Words spoken in Parliament, which is a superior court, cannot be questioned in this court, which is inferior." Id. at 295. But the King's Bench—royalist by definition—rejected Eliot's plea and imprisoned the defendants. Wittke, supra, at 30.

The struggle for parliamentary freedom of speech reached its zenith in a case involving Sir William Williams, Speaker of the House of Commons. See Rex v. Williams, 13 How. St. Tr. 1370 (1684-95). In the late-seventeenth century, Parliament received several "reports" detailing an alleged plot to replace the King and make England a Catholic state. See generally J. Pollock, The Popish Plot: A Study in the History of the Reign of Charles II (1903). Williams republished one such report, levying "allegations against some of the most prominent members of the royal court." Reinstein & Silverglate, Legislative Privilege, supra, at 1130-31. This displeased the Crown; when James II later ascended to the throne, he ordered a libel suit filed against Williams. Id. at 1131.

Williams's counsel, Sir Robert Atkyns, argued parliamentary privilege barred the suit altogether. See Williams's Case, 13 How. St. Tr. at 1384. Leaning on Parliament's longstanding tradition, Sir Robert maintained that "enquiring" and "counseling" was a core part of Parliament's function. See id. at 1415 ("This enquiry of theirs is necessary in a subserviency to all of the several high powers of that high court. Namely, in order to their legislature, or to the exercise of their power of judicature."). And, he explained, publishing the coup report fell within that enquiring role. See id. at 1414. Because parliamentarians have immunity for that kind of official conduct, he argued, the suit against Williams should be dismissed. Again, the King's Bench rejected the plea of privilege. It entered judgment against Williams and fined him ten thousand pounds for "scandalous, infamous, flagitious libel." See Rex v. Williams, 2 Show. K.B. 471 (1686).

But that was not the last word. In 1688, the Glorious Revolution forced James II into exile. Soon after, Parliament secured the English Bill of Rights, including a now familiar guarantee:

that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

1 W. & M., 2d sess., c.2 (1689). The committee chair responsible for the Bill said the clause "was put in for the sake of . . . Sir William Williams, who was punished out of Parliament for what he had done in Parliament." 9 A. Grey, Debates of the House of Commons 81 (1763), reprinted in Report from the Select Committee on the Official Secrets Act 24 (H.C. 1939). The privilege "was never again seriously questioned or denied." Wittke, supra, at 30.

B.

The speech and debate privilege "successfully survived the journey across the Atlantic to the...