Speech-or-Debate Clause Bars Lawsuit Over House Proxy Voting Rules


The opinion is McCarthy v. Pelosi (D.C. Cir.), written by Chief Judge Sri Srinivasan, joined by Judges Judith Rogers and Justin Walker:

In response to the COVID-19 pandemic, the House of Representatives adopted a Resolution enabling Members who are unable to attend proceedings in person to cast their votes and mark their presence by proxy. A number of Representatives and constituents challenge the constitutionality of the Resolution. They argue that various
constitutional provisions compel in-person participation by Representatives in all circumstances, including during a pandemic.

[We conclude] that the Resolution and its implementation lie within the immunity for legislative acts conferred by the Constitution's Speech or Debate Clause….

The Speech or Debate Clause states that "Senators and Representatives … for any Speech or Debate in either House … shall not be questioned in any other Place." … The central object of the Speech or Debate Clause is to protect the "independence and integrity of the legislature." The Clause does so by preventing "intimidation of legislators by the Executive and accountability before a possibly hostile judiciary."

While the Clause by terms prohibits "Speech or Debate in either House" from being "questioned in any other Place," it is long settled that the Clause's protections range beyond just the acts of speaking and debating. To "confine the protections of the Speech or Debate Clause to words spoken in debate would be an unacceptably narrow view." Rather, the "Supreme Court has consistently read the Speech or Debate Clause 'broadly' to achieve its purposes."

Of particular salience, the Clause applies not just to speech and debate in the literal sense, but to all "legislative acts." Legislative acts are those "generally done in a session of the House by one of its members in relation to the business before it." Consequently, while the "heart of the Clause is speech or debate in either House," the Clause reaches matters forming "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House."

Additionally, although the Clause's terms expressly prohibit questioning of "Senators or Representatives" in connection with legislative acts, it is well established that the Clause's protections extend to Congressional aides and staff. The Clause applies to aides and staff "insofar as [their] conduct … would be a protected legislative act if performed by [a] Member." The "key consideration, Supreme Court decisions teach, is the act presented for examination, not the actor."

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  1. As I read this, were Pelosi to pull out a .30-06 and start shooting Republican reps, there is no way that she could be held *criminally* liable for her actions.

    I don’t think that was the intent of this provision — and what the Dems need to worry about is what a MAGA majority might turn around and do to them after the 2022 election.

    1. Shooting someone is not part of the legislativ process. Deciding how a member is to cast his or her vote is.

      1. Allowing someone to get a proxy vote if they support the leadership, but requiring them to show up in person if they want to oppose the leadership, is also not part of the “legislative process” in any reasonable definition of the term.

        But that is what happened here, IIRC

        1. And the next step is punishing members who won’t give the leadership proxies.

        2. You of course don’t RC, or aren’t being honest.

          1. You, of course, don’t rebut the argument with facts, just bald assertions.

            1. All Greg had was assertions, so that seems fair.

              1. Your assertion is groundless. He offered an opinion concerning proxies.

                1. No. He made a factual assertion. Which was, predictably, false.

                  1. Some interesting information on the proxy usage. 179 Democrats and 7 Republicans named proxies. Only one of those Republicans didn’t name a Democrat as their proxy… Interesting, that.

                    But, yes, there’s no reports of members being denied the use of proxies, though there was one case of two Democrats trying to vote a proxy for the same absent member.

      2. Shooting someone definitely would be an effective way to win a debate….

      3. This isn’t deciding how a member is to cast his or her vote. It’s handing one member’s vote over to another member to cast.

        Remote electronic voting would be fine, so long as it’s verifiably the member casting the vote. Allowing proxy voting? Not so fine.

        Why? Because the members can be pressured by leadership to provide proxies. They’ve just transformed a provision meant to guarantee members the freedom to act as they want on legislative matters, into a provision that can be used to deprive them of the power to act.

    2. MAGA majority?

      Just not enough half-educated racists, superstitious gay-bashers, backwater xenophobes, obsolete misogynists, and downscale, disaffected clingers left in modern America to give Trump (or most any other Republican) a majority.

      Conservatives should continue to husband their dwindling resources, trying to create carve-outs from generally applicable laws for bigotry and backwardness where they can.

      1. You may want to make your appointment to a detox center now, because you’ll be on a bender after the 2022 midterms and 2024 presidential elections, which will be dominated by GOP wins.

        1. Is there no fairy tale a clinger will embrace as true?

    3. The MAGA crowd, so quick to endorse violence.

  2. I imagine the same type of yahoos objected to electronic voting, to the use of pencils (rather than quills), to Sunday sessions, to women wearing pants, to women voting, and just about every other element of progress, to which losers customarily and reflexively object.

    Because that is what losers do. Well, that and develop flimsy, partisan arguments protesting that all change is unconstitutional.

    1. “I imagine”

      There’s your mistake there.

    2. This decision is so distant from the plain intent of the framers of the Constitution as to be utterly baseless. The intent of the clause was to deny detention of elected representatives that would prevent them from attending a session of Congress. It incidentally protects their speech uttered on the floor of their respective house. It’s just plumb amazing how a legal education can inspire flights of fancy that don’t even touch on the plain language of the Constitution.

  3. I understand the outcome here, what I don’t understand is the constitutional hook used to get there.

    Wouldn’t this fit much more neatly under each house being able to set its own rules? And then political question, it’s something given to a co-ordinate branch so the judiciary simply doesn’t have a role.

    1. I was thinking the same thing. The Constitution says:

      Each House may determine the Rules of its Proceedings

      It also says

      a Majority of each shall constitute a Quorum to do Business

      There are references to meeting, sitting and assembling but there obviously was no references to electronic meetings voting or more modern communications.

      While I don’t think proxies were intended there seems to be no prohibition of them and I believe there have been instances where members have been physically transported into the chamber. Robert Packwood was carried into the Senate in 1988 in order to gain a quorum to vote on cloture – the vote failed.

      1. Packwood was, in fact, physically present in the chamber. The court decision is a flight of fancy. The House could adopt a rule permitting remote participation in meetings and voting under the Constitution as written, but the notion of voting by proxy is nowhere considered in the Constitution and therefore impermissible.

        1. Why does it have to be listed in the Constitution? The constitution allows both houses to have their own rules, this is simply another (bad in my opinion) rule.

    2. The lower court and the court of appeal both found lack of jurisdiction and so dismissed the case rather than deciding it.
      Defendants had moved for dismissal based on Speech and Debate and on lack of standing, and other grounds might have been available, but having found one they had no need to look at more, and no authority to examine the merits.

    3. Depends…

      Let’s imagine that you have this proxy rule. But the person who you gave your proxy didn’t vote how you wanted? What then?

      What if you tried to come back and vote, but the House wouldn’t take your vote? You’d given it to your proxy, and couldn’t get it back.

      What if House leadership mandated incoming members would have their votes handled by the Speaker for the first year?

      These are all rules.

  4. Well, let’s see if some member catches hell for their proxy’s vote choice, then claims “It wasn’t my vote, don’t blame me!”

    See also: nobody voted for this or that regulation.

  5. The problem in challenging this is the enrolled bill doctrine, I suppose: If the legislative leaders say everything was kosher, the courts flatly refuse to look at any evidence that they’re lying.

  6. The case was correctly decided but on the wrong grounds:
    Article 1 Section 5.
    Each House may determine the Rules of its Proceedings.

    I’m not a fan of lower courts searching thru precedent that seems like it could apply when the constitution itself speaks clearly on that question. If the constitution and precedent speak clearly, great, but no need to cite the wrong clause because you find some precedent that construed another clause so liberally it could apply.

    1. I think that goes too far.

      Imagine the following rule. “New incoming members will have their votes given to the Speaker as a proxy vote for the first year”.

      That’s a rule. Would it be legit?

      1. If an incoming member refused what could the Speaker do? Give them a bad office or bad committee assignments? Expelling a member I believe takes a 2/3 vote which seems unlikely.

  7. Now lets discuss how a court handles a House rule forbidding gays from voting.

    No jurisdiction?

    1. Why gays?

      Why not bigoted, poorly educated, backwater Republicans?

  8. Spose, because of the ongoing Covid crisis, Nancy were to decide in the interests of social distancing, that all House votes must be made via Twitter.

    And Twitter decides not to allow any Republicans to have Twitter accounts.

  9. If the Framers meant “all legislative acts”, why did they say “Speech or Debate”? Is there evidence that at the time the Constitution was written and ratified there was a general understanding that “Speech or Debate” encompassed everything a legislature does? Or is this an example of later judges deciding that they are smarter than the Framers, so they’ll interpret the language to mean what the Framers SHOULD have said?

    1. “Or is this an example of later judges deciding that they are smarter than the Framers, so they’ll interpret the language to mean what the Framers SHOULD have said?”

      See, it wasn’t all that hard to figure out.

  10. After observing the McCarthy-Pelosi dustup, it seems about time for one of the Conspirators — recent events establish that Prof. Blackman is, remarkably, no longer the sole candidate — to tee up a ‘why the House of Representatives is not entitled to compel former Pres. Trump to appear as a witness before a committee’ post.

    Unconstitutional! Unprecedented! Inconsistent with original intent, original public meaning, the Original Pancake House, and the Original Hot Dog Shop!

    1. Oh, I think they could. As he’s only a former President now, there’s no issue of trying to compel a co-equal branch anymore.

      1. It appears Brett Bellmore will take a pass on this one, figuring Prof. Blackman, Prof. Volokh, and/or Prof. Barnett will handle it.

        Your moment of clarity is a positive development, Mr. Bellmore.

        1. Recognizing that former Presidents are not Presidents, and recognizing that current Presidents ARE Presidents, are just two sides of the same coin. Prior to January 20th, there absolutely would have been a problem with the House attempting to compel Trump to testify. Since then, there would be a problem with them attempting to compel Biden to testify.

          I look forward to Biden losing that immunity in 2025.

          1. Eager to question him under oath about Obama’s birth certificate, the laptop, Hillary’s emails, QAnon, Seth Rich, and the stolen election?

  11. What nonsense. So if the House adopted a rule in clear contravention of the Constitution, for example, reducing the quorum requirement from the Constitutionally-mandated majority to 1/3, this could not be challenged in court?

    1. Well, I understand the Senate “passed” the Palm Sunday Compromise on a 3-0 vote, so it’s not like they even do follow the constitutionally mandated quorum rules.

      1. In United States v. Ballin, 144 U.S. 1 (1892), the Supreme Court unanimously upheld House of Representatives Rule XV which allowed the clerk to note members present but not voting to count towards establishing the presence of a quorum.

        The Court made no mention of the Speech and Debate Clause and obviously felt free to pass upon the merits of the rule.

        I believe Pelosi is right on the legal merits, but don’t believe the Speech and Debate Clause has any relevance to the case.

    2. I agree. This doesn’t make sense. It’s one thing to try to force a member of Congress to defend why they voted a certain way or explain how they decided what vote to cast or something of that nature. But to say that we cannot hold Congress accountable for failing to adhere to the Constitutional rules for how they conduct their business is ludicrous. The only thing I can think of is if, maybe, they would say that you had to challenge the individual laws as unconstitutional laws because they were passed using procedures that violated the constitution. (So, for example, if a law was passed under a diminished quorum requirement, one could challenge the LAW as unconstitutional because it didn’t receive a majority vote without technically challenging the procedure in court.) So rather than simply suing in court to end the bad procedure of proxy voting, McCarthy would have to simply challenge every piece of legislation that has been passed using proxy voting, on the grounds that it was not Constitutionally passed…sounds kinda like playing whack-a-mole to me. Just tackle the problem head-on and bring the rogue branch back into alignment with the constitution…

      1. That is a good point.

        Though I believe Pelosi is right on the legal merits; I believe the court should have ruled on the merits. Proxy voting is a terrible idea for many reasons, perhaps chiefly because if “debates” on a bill are real and not just theatre, one should be open to changing his mind during them.

        That aside, I believe the question comes down whether proxy voting was a concept known to the Founders (as opposed to, say, tele-conferencing, which obviously it was not). There was no proxy voting in the House of Commons (which dates to 1341) until 2018. However, there was a long history of proxy voting in the House of Lords, the practice regularized in 1626 and discontinued in 1868.

  12. The clause was meant to prevent abuses like charges of treason for voting the wrong way when counting electoral votes. If I recall correctly the courts were willing to judge whether the legislature could refuse to seat a member for dubious reasons. The court should have looked to this sentence of the Constitution: “Each House may determine the Rules of its Proceedings”. The comparable provision of the Massachusetts constitution was used to invalidate an initiative petition to reform the legislative process, which had become dominated by the two party leaders at the expense of the people and the other 198 elected officials. Because legislative procedures are not “laws” they can not be amended by passing a law. And constitutional amendments require the consent of the Senate majority leader who will not allow a vote on one that would diminish his power.

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