The Volokh Conspiracy
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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."
