November/December 2024
By Zachary A. Kervin
The legislative privilege is a necessary, but often misunderstood and mischaracterized, foundation of our democratic republic. At its core, the privilege serves to ensure our legislators are free to pursue their public duties without distraction or fear. The legislative privilege ensures that legislators can carry out their duties without undue influence from the executive branch or concerns about being unfairly challenged in the judiciary. Without such protection, legislative independence would be lost along with our constitutional structure of separate, co-equal, and independent branches of government. As the Supreme Court has consistently held, the legislative privilege is indispensably necessary to "support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal."1
This article considers the federal legislative privilege unless otherwise stated, and the aspects of the privilege discussed herein apply to federal, state, and local legislators unless specified.
Background and Purpose
The need to protect legislators from the coercions of a separate branch of government is not a new concept and finds its origin in the British Parliament's historical struggles for power with the monarchy. Enacted in 1512, the Privilege of Parliament Act provides the first codified example of the legislative privilege by prohibiting the prosecution of any member of parliament for speech had during its proceedings.2 This idea was later broadened and strengthened in the 1689 English Bill of Rights.3 As with other concepts of English law, our nation's founders saw the advantage of an unafraid legislative body and adopted the concept of legislative immunity for our own government. This can be seen in Maryland's Declaration of Rights of 1776 and the U.S. Articles of Confederation both containing provisions providing legislators with immunity, and ultimately with the U.S. Constitution providing that no congressional member may be questioned in any other place for any speech or debate had in either house.4
An important initial distinction to be made when considering the legislative privilege is that legislative immunity and legislative privilege are separate but similar concepts. Article I, Section 6, Clause 1 of the U.S. Constitution, also known as the Speech or Debate Clause, provides that congressional members are immune from suit for speech or debate had in either house when given its plain meaning.5 The legislative privilege, in turn, is an "outgrowth of the doctrine of legislative immunity."6 While legislative immunity generally prevents a legislator from being personally tried for a legitimate legislative activity, the privilege protects information about these same activities when sought in an action for which the legislator is tried for non-legislative activities or as part of a suit in which the legislator is a nonparty. This distinction can be somewhat confusing as the early case law did not differentiate between these two ideas and the terms are often used interchangeably. Nonetheless, these parallel concepts of legislative privilege and legislative immunity work together to "reinforce[ ] representative democracy by fostering an environment where public servants can undertake their duties without the threat of personal liability or the distraction of incessant litigation."7
Legislative privilege and immunity do not protect all actions taken by a legislator. For an action and resulting information to be protected, the action must have been taken within the "sphere of legitimate legislative activity."8 There has been considerable debate as to what actions fall within this sphere. The Supreme Court has consistently held that the Speech or Debate Clause's protections apply only to those actions that are an "integral part of the deliberative and communicative processes."9 These "legitimate legislative activit[ies],"10 or "things 'generally done in a session of the legislature by one of its members in relation to the business before it,'"11 have included actions such as speaking or voting on the floor of either house; conducting committee business such as issuing subpoenas, making budgetary decisions, and revealing classified information during a hearing; caucus decisions; and any other "indispensable ingredient of lawmaking"12 that, if allowed to be questioned, would impair a legislator's ability to engage in his or her duties.13 Legislative errands however, which are those actions and resulting information that are not purely legislative, are not protected by the privilege. The Supreme Court has held actions such as appointing individuals to government agencies, speeches delivered outside of either house, the preparation of newsletters, or other similar conduct that is political in nature rather than legislative to be beyond the privilege's protections.14 Accordingly, the necessarily broad scope of the legislative privilege ensures that inquiries into a legislator's legitimate legislative acts that would hamper the legislative process do not occur.15
A second distinction is the federal legislative privilege provided to federal legislators, when compared to the federal privilege extended to state or local legislators, has a separate basis and differs in its scope of application. The legislative privilege enjoyed by Congress is granted by the Speech or Debate Clause. The legislative privilege that protects state and local legislators in federal question cases is provided by the federal common law.16 And although the Speech or Debate Clause is often used to interpret these common law legislative protections, the immunity and privilege provided to state and local legislators has been a source of more ambiguity and subject to a higher level of refinement than that extended to members of Congress.
Members of Congress
The legislative immunity and privilege provided to congressional members by the Speech or Debate Clause is absolute. A federal legislator may not be tried personally for any action that falls within the sphere of legitimate legislative action. The privilege protecting information about such actions also never yields, no matter the claim. Accordingly, the analysis for when the privilege protects information regarding a congressional member's actions is fairly straightforward: Does the act fall within the sphere of legitimate legislative activities? If so, the member may not be personally tried for the act, nor may information regarding the act be forcibly revealed. However, this is not the case for the privilege that is extended to state and local legislators.
State and Local Legislators
The legislative immunity and privilege provided to state and local legislators has a much different scope in its application. The protections enjoyed by state and local legislators give way to federal interests in enforcing federal criminal statutes. State and local legislators may be personally tried as well as forced to testify and produce evidence regarding conduct that was within the scope of legitimate legislative activities in federal criminal cases. As the Supreme Court held in United States v. Gillock, the legislative privilege must yield "where important federal interests are at stake, as in the enforcement of federal criminal statutes."17 However, this holding has caused some uncertainty as to the privilege in civil suits. The question has become what, if any, federal civil interests rise to the same level of importance as enforcing criminal statutes.
In Tenney v. Brandhove—the Supreme Court's seminal case on the provisioning of legislative immunity to state legislators—it was established that state legislators enjoy an absolute immunity from personal liability for civil claims based upon legitimate legislative acts.18 No matter the act or the motivation for acting, including such important federal interests as preserving civil rights, "a state legislator's common-law absolute immunity from civil suit survive[s]"19
However, the privilege protecting state legislators from the compelled disclosure of information relating to legitimate legislative acts in civil suits does not enjoy such a solid foundation. The Supreme Court's holding in Gillock left open the possibility that other federal interests exist that might rise to the same level of importance as the enforcement of federal criminal statutes and thus require the piercing of the legislative privilege. Courts have wrestled with defining this boundary ever since. Several federal district courts have applied a balancing test to determine when this qualified privilege should yield. The factors have included: (1) whether the information sought is relevant; (2) whether the information sought is available from other sources; (3) whether the claim is sufficiently serious; (4) to what extent the government is involved in the litigation; and (5) whether directing the disclosure of the information sought would defeat the purpose of the privilege and have a chilling effect on the legislative process.20 However, no federal appellate court has adopted such a balancing act, and at least five have directly rejected this approach.21 Civil causes of action that have been held to not warrant the privilege to yield include claims alleging violations of 42 U.S.C. § 1983, the Voting Rights Act, the First Amendment, the Dormant Commerce Clause, and the Equal Protection Clause of the Fourteenth Amendment.22 Accordingly, it is somewhat unclear what, if any, federal interests might warrant the intrusion into otherwise privileged legislative acts in civil cases. It appears that the federal legislative privilege afforded to state legislators in civil suits is all but absolute. Nonetheless, the possibility still exists that some federal civil interests rise to the level of importance...
