April 2012, Volume 98, Issue 2
Restoring the Original Meaning of the Speech or Debate Clause
by Wells Harrell
98 Va. L. Rev. 385 (2012)
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A proper analysis of the original meaning of the Speech or Debate Clause identifies two, and only two, protections it affords a federal legislator: an immunity from punishment for legislative acts, and a privilege from testifying about those acts. Yet, the U.S. Supreme Court has interpreted the clause as prohibiting even the mention of legislative acts during a bribery prosecution. This evidentiary privilege lacks basis in text and prior precedent; what produced it was a deeply flawed understanding of the clause’s implications as a matter of constitutional structure. These flaws did not stop the D.C. Circuit from applying this unsound structural reasoning and thereby broadening the testimonial privilege well beyond its proper boundaries. These erroneous decisions needlessly frustrate the enforcement of anti-bribery laws which are necessary to punish and deter abuse of the public trust. Seeking to unsettle the foundations of nearly fifty years of precedent, this Note argues that the Court should remove the evidentiary privilege from the Speech or Debate Clause and return the testimonial privilege to its proper narrow scope. The Ninth Circuit’s recent disagreement with the D.C. Circuit’s interpretation of the clause gives the Supreme Court a prime opportunity to restore its original meaning this term.
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