Restoring the Original Meaning of the Speech or Debate Clause

Note — Volume 98, Issue 2

98 Va. L. Rev. 385
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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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  Volume 98 / Issue 2  

Content Discrimination Revisited

By Leslie Kendrick
98 Va. L. Rev. 231

Applying Constitutional Decision Rules Versus Invalidating Statutes In Toto: An Alternative To Rosenkranz’s Approach To Facial, As-Applied, And Overbreadth Adjudication

By Scott A. Keller & Misha Tseytlin
98 Va. L. Rev. 301

Law and Grace

By William J. Stuntz
98 Va. L. Rev. 367

Restoring the Original Meaning of the Speech or Debate Clause

By Wells Harrell
98 Va. L. Rev. 385