Speech and debate clause Summary

  • Last updated on November 11, 2022

Article I, section 6, of the U.S. Constitution grants both civil and criminal immunity to all members of Congress during the performance of their official legislative duties.

Wishing to avoid problems such as those between the British parliament and the crown, the Framers of the U.S. Constitution wanted members of Congress to participate in legislative debates and other official activities without fear of arrest or civil lawsuits. The speech and debate clause, Article I, section 6, of the U.S. Constitution, covers not only words spoken during congressional debates but also any actions required to conduct official legislative business. Protection extends to words spoken during committee hearings, speeches printed in the Congressional Record (whether delivered or not), and information obtained by congressional staff.Congress, arrest and immunity of members ofCongress, arrest and immunity of members of

In Kilbourn v. Thompson[case]Kilbourn v. Thompson[Kilbourn v. Thompson] (1881), the Court read the clause broadly, defining protected actions as “things generally done in a [congressional] session by one of its members in relation to the business before it.” In the 1970’s, in a series of decisions, the Court further refined the meaning of the clause. In United States v. Brewster[case]Brewster, United States v.[Brewster, United States v.] (1972), the Court stated that bribery was not protected because this action goes beyond a legislator’s official legislative duties. Therefore, criminal actions that are merely peripherally related to some legislative function are not protected. In Doe v. McMillan[case]Doe v. McMillan[Doe v. McMillan] (1973), the Court limited the clause’s coverage to only those documents disseminated within Congress. Thus private publications by members of Congress are not covered by the clause. In Hutchinson v. Proxmire[case]Hutchinson v. Proxmire[Hutchinson v. Proxmire] (1979), the Court stated that members could be liable for statements made during political rather than legislative actions, including views expressed in press releases and newsletters and in speeches delivered outside Congress.

Gravel v. United States[case]Gravel v. United States[Gravel v. United States] (1972) arose when Senator Mike Gravel read to his subcommittee extended portions of classified documents concerning the U.S. government’s conduct of the Vietnam War (later called the Pentagon PapersPentagon Papers). Senator Gravel opposed the Vietnam WarVietnam War;Gravel, Mike[Gravel, Mike] and believed that the public needed to know the government’s true evaluation of its war efforts. The Court stated that Senator Gravel’s comments at the committee hearing were protected but not his efforts to get a private publisher to reprint the Pentagon Papers. The Court also extended the clause’s coverage to the senator’s staff in this case. The Court, however, also stated that congressional contacts with the executive branch were political activities, not official legislative actions, and therefore were not protected by the clause. The Court stated, “While the Speech or Debate Clause recognizes speech, voting and other legislative acts as exempt from liability that otherwise might attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts.” In this way, the Court further defined the boundaries of the clause’s coverage.

Further Reading
  • Fisher, Louis. American Constitutional Law. 3d ed. Durham, N.C.: Carolina Academic Press, 1999.
  • Katzmann, Robert A. Courts and Congress. Washington, D.C.: Brookings Institution Press, 1997.

Congress, arrest and immunity of members of

Executive immunity

Hutchinson v. Proxmire

Kilbourn v. Thompson

New York Times Co. v. United States

Powell v. McCormick

Separation of powers

Speech and press, freedom of

Vietnam War

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