Article 1, Section 6, Clause 1 — Activities To Which Speech Or Debate Clause Applies

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Article I, Section 6, Clause 1:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

A series of decisions from the Supreme Court address the general scope of the Speech or Debate Clause. These cases elucidate the distinction between legislative acts, such as voting or debating, which are accorded protection under the Clause and are not subject to “inquiry,” [1](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn1art1 " Gravel v. United States, 408 U.S. 606, 616 (1972). ") and political or other nonlegislative acts, which are not protected by the Clause and therefore may serve as the basis for a legal action.[2](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn2art1 " See, e.g., id. at 613–29; United States v. Brewster, 408 U.S. 501, 507–29 (1972); United States v. Johnson, 383 U.S. 169, 174–85 (1966); Kilbourn v. Thompson, 103 U.S. 168, 201–05 (1881). ") The cases suggest at least three noteworthy themes. First, despite the text, the protections afforded by the Clause extend well beyond “speeches” or “debates” undertaken by “Senators and Representatives.” [3](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn3art1 " Kilbourn, 103 U.S. at 204 (extending the protections of the Clause beyond speeches and debates); Gravel, 408 U.S at 616–17 (extending the protections of the Clause to acts of aides). ") Second, otherwise legitimate political interactions external to the legislative sphere—for example, disseminating information outside of Congress—are generally not considered protected legislative acts.[4](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn4art1 " See Gravel, 408 U.S. at 625–26. ") Third, the Clause does not immunize criminal conduct that is clearly not part of the “due functioning” of the legislative process.[5](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn5art1 " See Johnson, 383 U.S. at 172. ")

The Supreme Court adopted a broad interpretation of “Speech or Debate” from its first assessment of the Clause in the 1881 case Kilbourn v. Thompson.[6](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn6art1 " Kilbourn, 103 U.S. at 200–05. ") In Kilbourn, the Court considered whether a civil action could be maintained against Members who were responsible for initiating and approving a contempt resolution ordering an arrest.[7](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn7art1 " Id. at 200. ") The Members defended themselves on the ground that their acts were protected by the Clause. The Court agreed, determining that the Members were not subject to suit for their actions.[8](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn8art1 " Id. at 201. In reaching its holding, the Court noted that if the Members had ordered the unlawful arrest “in any ordinary tribunal” they would have been liable for the act. Id. The Court concluded, however, that the Constitution and the Clause make clear that Congress “is not an ordinary tribunal.” Id. ")

The Court adopted a constitutional construction of the Clause that extended its protections beyond mere legislative deliberation and argument, holding that “it would be a narrow view of the constitutional provision to limit it to words spoken in debate.” [9](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn9art1 " Id. at 204. ") Instead, the Court determined that the Clause applied to “things generally done in a session of the House by one of its members in relation to the business before it,” including the presentation of reports, the offering of resolutions, and the act of voting.[10](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn10art1 " Id. ") Accordingly, the Court concluded that although the arrest itself may have been unlawful, the Members were immune from suit and could not be “brought in question” for their role in approving the resolution “in a court of justice or in any other place,” as that act was protected by the Clause.[11](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn11art1 " Id. at 201. ")

The Court only rarely addressed the Clause after Kilbourn.[12](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn12art1 " See Philip Mayer, An Uncertain Privilege: Reexamining the Scope and Protections of the Speech or Debate Clause, 50 Colum. J.L. & Soc. Probs. 229, 233 (2017) ( “After Kilbourn, the Supreme Court did not substantively address the Clause until almost a century later.” ). ") It was not until the 1966 case United States v. Johnson that the Court embarked on an attempt to define the protections afforded by the Clause in the context of a criminal prosecution of a Member.[13](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn13art1 " Johnson, 383 U.S. at 170–85. ") In Johnson, a former Member challenged his conviction for conspiracy to defraud the United States that arose from allegations he had agreed to give a speech defending certain banking interests in exchange for payment.[14](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn14art1 " Id. at 170–73. The Member also allegedly agreed to “exert influence” over Department of Justice enforcement decisions. Id. at 171. With regard to that aspect of the claim, the Court suggested that an “attempt to influence the Department of Justice” was not legislative. Id. at 172. ") In prosecuting the case, the government relied heavily on the former Member’s motive for giving the speech, introducing evidence that the speech had been made solely to serve private, rather than public, interests.[15](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn15art1 " Id. at 177. ") Focusing on the admission of this protected evidence, the Court overturned the conviction. “However reprehensible such conduct may be,” the Court concluded that a criminal prosecution, the “essence” of which requires proof that “the Congressman’s conduct was improperly motivated,” was “precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry.” [16](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn16art1 " Id. at 180. ") The opinion noted that the Clause must be “read broadly to effectuate its purposes,” ultimately concluding that it prohibits a prosecution that is “dependent” upon the introduction of evidence of “the legislative acts” of a Member or “his motives for performing them.” [17](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn17art1 " Id. at 185. ") Although it overturned the conviction, the Court remanded the case to the district court for further proceedings, holding that the government should not be precluded from bringing a prosecution “purged of elements offensive to the Speech or Debate clause” through the elimination of all references to the making of the speech.[18](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn18art1 " Johnson, 383 U.S. at 185. ")

The Johnson case stands for at least two important propositions. First, the opinion demonstrated that the government is not prohibited from prosecuting conduct that merely relates to legislative duties, but is not itself a legislative act.[19](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn19art1 " Id. at 185. ") When a legislative act is not an element of the offense, the government may proceed with its case by effectively “purg[ing]” the introduction of evidence offensive to the Clause.[20](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn20art1 " Id. ") Second, though not explicitly articulating such a privilege, the opinion impliedly introduced the evidentiary component of the Clause by holding that even though a case may go forward, a Member may invoke the Clause to bar admission of specific protected evidence.[21](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn21art1 " Id. at 173 ( “The language of the Speech or Debate Clause clearly proscribes at least some of the evidence taken during trial.” ). ")

The evidentiary privilege component of the Clause was reaffirmed in United States v. Helstoski.[22](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn22art1 " 442 U.S. 477, 487 (1979). ") There, the Court expressly held that any “references to past legislative acts of a Member cannot be admitted [into evidence] without undermining the values protected by the Clause.” [23](https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/activities-to-which-speech-or-debate-clause-applies#fn23art1 " Id. at 489. The Helstoski opinion interpreted Johnson as “leav[ing] no doubt that evide