Can the Vice President Invoke the Speech or Debate Clause Privilege at All? [Updated]

Professor Michael McConnell writes to suggest that even if Vice President Pence was performing legislative functions on January 6, the Constitution's text does not extend the privilege to him.

In response to my post yesterday on the scope of the Speech and Debate Clause privilege, Professor Michael McConnell e-mailed to suggest I was too quick to credit claims that the former Vice President is covered by the clause at all. Like others, I had focused on the question of whether the Vice President's duties, as related to counting electoral votes, should be considered "legislative" in character and, if so, the extend to which that privilege would yield to criminal process. Whether the privilege extends to the Vice President at all, however, is an antecedent question.

As Professor McConnell notes, the text of the Constitution appears to limit the privilege to "The Senators and Representatives." Here is the relevant text from 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.

As Professor McConnell points out, the antecedent for the pronoun "they" is "[t]he Senators and Represenatives." Thus whether the Vice President may invoke the Speech or Debate privilege would seem to be dependent upon whether the Vice President can claim to be a "Senator" or "Representative," and not merely on whether the Vice President's relevant conduct is somewhat legislative or whether or not it is purely ceremonial.

This strikes me as a powerful point.

One potential counter-argument might be that becuase Article I, Section 3, Clause 1 makes the Vice President the President of the Senate, this makes him a Senator, at least for some purposes. A problem with this counter-argument, however, is that when the word "Senator" is used throughout the Constitution, it is not used in a way that would include the Vice President. For instance, Article, I, Section 3, clause 1 provides that "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote." This language would seem to exclude the Vice President as a Senator (or even as a member of the Senate). Note also that while the Vice President may vote in the Senate when the Senate is tied, that is expressly provided for in a separate provision, and is not accomplished by making the Vice President a Senator.

Another counter-argument could be that since the privilege can extend to legislative staff, it should also extend to the Vice President when the Vice President is performing a legislative function. Yet it is difficult to argue that the "[t]he Senators and Representatives" rely upon the Vice President the way that they may rely upon their staff. Thus, this counter-argument extends the privilege beyond the scope of the text, and does so in a way that cannot be justified as necessary to operationalize the privilege for those who are expressly covered (Senators and Represenatives). One could argue that a Senator cannot fully engage in speech or debate without relying upon staff. One could not argue that a Senator's ability to participate in speech and debate is somehow dependent upon the assistance of the Vice President.

For what it is worth, Professor McConnell also noted that he agrees with me that the Speech or Debate Clause privilege "is not overridden" by criminal investigations, but is skeptical about whether the privilege could be waived.

UPDATE: I should have noted that Josh Blackman made similar arguments about the scope of the Speech or Debate Clause privilege in this post.

UPDATE: See also Michael Ramsey's take on this question at The Originalism Blog.

Comments

[Lee Moore]

Another counter-argument could be that since the privilege can extend to legislative staff

Which, Shirley, is conclusive proof that under SCOTUS precedent it is NOT necessary to be a Senator or Representative in order to benefit from the privilege. SCOTUS explicitly overrode that obvious textual requirement in the 1970s.

One could not argue that a Senator's ability to participate in speech and debate is somehow dependent upon the assistance of the Vice President.

Really ? During the Senators' Speech and Debate, while he is presiding as President of the Senate, he's the ump. You don't think baseball players ability to participate in a game of baseball is somehow dependent on the assistance of the umpires ?

[California Dreamer]

Don’t call me Shirley!
You’re correct that under SCOTUS precedent, the clause applies to some people who are not members of Congress. But which people?

SCOTUS says only that it also applies to people who help a member to prepare for a speech or debate in Congress; if it were otherwise, the purpose of the clause — to protect members from being questioned about what they say in a speech or debate — would be subverted, because prosecutors could ask the same questions to their aides and speechwriters that they would otherwise ask to the members themselves. But, so far as I can determine, the purpose of the clause would in no way be impaired by refusing to apply it to the Vice President.

[Lee Moore]

I appreciate that. The only point I was making was that although McConnell’s point was perfectly obvious and correct as a matter of text, it is perfectly wrong as a matter of precedent, since SCOTUS has previously ruled that it is NOT necessary to be a Senator or Representative.

As it happens I entirely agree that the text is simple and straightforward and ought to be followed. But that is not the precedent, as the precedent is based on 1970s vague, handwaving, “purposive”, read between the lines crap. But how to apply that crap today ? Who can say, since it was plucked from the aether ?

If SCOTUS sticks with the precedent, which was basically never mind the text, we’ll determine what the privilege ought to apply to, then they can happily arrive anywhere they please. And we don’t know where that is yet.

It's somewhat strange to labor over the exact meaning of the text of the judge's writings about the rule he is making up, while ignoring the text of the rule that is actually written down in law. Yet that is the strange effect of combining judicial invention with enthusiasm for stare decisis.

[Longtobefree]

"the Constitution's text does not extend the privilege to him."

Bullshit.
If "shall not be infringed" means "can be infringed in some ways at some times in some places depending on made up words like "assault rifle", then he can claim the privilege.

[Dilan Esper]

If the speech or debate clause had a preamble that said something like "the independence of full time members of the House and Senate being necessary to the preservation of the free state, they shall be privileged...." you can bet that this would be referenced in determining the scope of the privilege.

[Lee Moore]

By whom ? It was your team that made the grammatically challenged argument that the opening words of 2A made the explicitly unconditional right into a conditional one. The court, correctly, ruled otherwise.

[Joe_dallas]

Section 3.
The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.

The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.

Section 6.
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.

The first sentence of Article 1 Section 3 states that the senate shall be composed of two senators from each state. It does not state that the VP will included included as a member of the senate. The speech and debate clause only extends to senators and to Representatives. It doesnt include language that provides the speech and debate clause will extend to the VP (or Senate aides or representative aides).

[Toranth]

But if the President of the Senate did not count as a Senator in any way, why would they feel it necessary to have a clause stating “but shall have no vote, unless they be equally divided”? That seems to suggest that, except for the clause, the President of the Senate would have a vote in non-ties.

The language used is insufficiently precise to allow these sorts of conversations in the first place, and the steady expansion to people that are even more obviously not Senators or Representatives (and activities that are neither Speech nor Debate) makes the situation even more unclear.

It’d be great if the Court would take the opportunity to make clear lines… but given the history, I doubt it would happy. I expect the barest minimal that can punt the issue.

[Commenter_XY]

Doesn't naming the VP the President of the Senate settle the question? The text implies the VP a) has a legislative function (break a tie), and b) has traditionally had their expenses for the office paid for by the Legislative branch and not the Executive branch (may have very recently changed)?

Section 3 names the VP and specifies functions as Prez of Senate.

[Alpheus W Drinkwater]

I think the question is a lot closer than Prof. McConnell's piece would suggest. I hope we get some interesting decisions on this topic.

[Kazinski]

I have a lot of sympathy for a strict textualist approach to the constitution, however if you consider this hypothetical I think it makes a good case for including protections for the VP under Article 1, Section 6, Clause 1:

"The Senators and Representatives ... 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."

Say the Senate has scheduled a vote on a bill to legalize abortion in all 50 states, and the Senate Majority leader has advised the VP that the vote may be tied and she should be on hand to break the tie. As she is driving through Virginia, her motorcade gets in an injury accident, the local sheriff responds and after a short time her secret service detail tells the sheriff that she has urgent business in Washington and needs to continue on their way, the sheriff says 'tough luck'. The VP gets out of her SUV and intercedes so forcefully that the sheriff decides he is being illegally interfered with, so he arrests her.

Is the VP constitutionally immune from arrest by the Sheriff, when she is "going to and returning from" "Attendance at the Session"?

I think almost any court would say yes, because the clear purpose of the clause is to prevent the Senate and the House's business from being disrupted by an overzealous sheriff or judge, and the VP is clearly functioning as a Senator in presiding and casting a tie breaking vote.

[JasonT20]

...and the VP is clearly functioning as a Senator in presiding and casting a tie breaking vote.

I disagree. The VP is clearly functioning as the VP, as only the VP gets to cast a tie-breaking vote. (The President pro tempore, who serves the function of President of the Senate in presiding over Senate business when the VP isn't there, cannot cast a tie-breaking vote.)

[The Margrave of Azilia]

“The VP gets out of her SUV and intercedes so forcefully that the sheriff decides he is being illegally interfered with, so he arrests her.”

Even if the VP is a Senator, that sounds like a breach of the peace (or could be alleged to be so) and thus the immunity from arrest wouldn’t apply.

[Stephen Lathrop]

Kazinski, I think an overzealous sheriff or judge is not going to get anywhere near the VP, or much hamper the motorcade when the Secret Service orders it back in motion—which will happen promptly.

Folks who only see Secret Service motorcades on TV, doing arrivals and departures, may not understand what happens when motorcades operate in the wild. It becomes an awe-inspiring display of speed, power, and rolling control of the streets and terrain which lie ahead.

[Kazinski]

It’s a hypothetical, most hypotheticals never happen in the wild.

If a judge asked the hypothetical in oral arguments the answer wouldn’t be “the motorcade wouldn’t stop”.

Besides I could have just as easily made the hypothetical Martin VanBuren hastening back to Washington in a carriage to cast a tiebreaker on a National Bank, the legal analysis doesn’t change.

[kkoshkin]

The text pretty plainly excludes the Vice President (or anyone who is not a Senator or a Representative). But if SCOTUS has interpreted this clause in a different way, then those decisions need to be addressed as well. It seems to me that both positions are, therefore, plausible, and any screams of "FRIVOLOUS," etc., should be dismissed.

[Lee Moore]

Except in reference to the SCOTUS precedent itself.

[not guilty]

The statute setting forth procedures for certification of the electoral count, 3 U.S.C. § 15, prescribes certain duties for the President of the Senate, which is ordinarily the Vice-President. Four electoral counts, however, have been certified pursuant to that statute when the office of Vice-President was vacant -- in 1905, 1925, 1949 and 1965.

Such certification is a legislative activity. Several trial judges in the District of Columbia have rejected claims by January 6 defendants that the electoral count certification is not an official proceeding of Congress for purposes of 18 U.S.C. § 1512(c)(2). https://www.emptywheel.net/2023/01/16/how-legal-certainty-about-1512c2-has-wobbled-even-as-certainty-trump-violated-it-increased/ (including links to numerous district court rulings)

Pence's position that the Speech or Debate Clause applies here is plausible.

[Jason Cavanaugh]

"Such certification is a legislative activity."

No, it is not. According to the Constitution, they have no role to play whatsoever aside from being present and hearing the VP announce the vote totals.

The very notion that they have the right to object to certified results from the States is nothing more than self-allocated authority created from thin air.

[JasonT20]

The very notion that they have the right to object to certified results from the States is nothing more than self-allocated authority created from thin air.

I have always agreed with this. The Constitution gives Congress no authority whatsoever to dismiss the Electoral Votes of any state. A repeat of 1876, where there were multiple state officials claiming the authority to certify electoral votes, would create a constitutional crisis. That is because the Constitution doesn't say what to do about that. Congress claimed the authority to decide with no basis in the text, and it was only accepted because no state has objected in all of the time since. (Or needed to.)

Imagining a hypothetical where Congress rejected a state's certified Electoral Votes for not complying with the smallest details in 3 U.S.C. § 15, or even just because there were enough votes in Congress to reject them arbitrarily, suppose the state went to the Supreme Court arguing that Congress had exceeded its authority. How would Congress defend its actions? What could it point to in the Constitution that would give it that power?

[Alpheus W Drinkwater]

I completely agree with you, Jason C, and have made the same case here many times. But I don’t see how that makes the Vice-President’s actions not a legislative activity. Maybe if a federal court declares ECA unconstitutional, then you could make the case.

[Jason Cavanaugh]

Opening a sequence of envelopes and announcing the vote totals contained within is in no way 'legislative.'

If you wanted to argue that the Senators and Representatives have the authority to object to anything, then they could be argued to be involved in legislative activity, but the VP cannot object and his purpose is to open envelopes and count votes. I don't see a world in which that is somehow 'legislative.'

[Carl_N_Brown]

When the Vice President acts as President of the Senate in opening a sequence of state electoral vote envelopes and announcing the vote totals, is that a legislative or executive act?

When the Vice President acts as President of the Senate in casting a tie breaking vote in the Senate, is that a legislative or executive act?

[Jason Cavanaugh]

Q1) Neither
Q2) Irrelevant

[Armchair Lawyer]

So, the historical background of why the speech and debate clause exists is useful.

Back during the 1600's, when Parliament used to meet in England, the Crown would use its prosecutorial power to punish and intimidate members of Parliament who made statements critical of the crown. In order to ensure proper separation of powers, it was ensured that "the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament"

That history continued with the Articles of Confederation, which ensured that "[f]reedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress"

Now, on occasion, the Vice President has a legislative role to play in Congress. Notably, the breaking of ties in the Senate, and his 12th amendment duties. In the context of these legislative roles, should his or her freedom to debate in Congress be maintained? Or is "just" the Vice President, uniquely, able to be prosecuted or questioned for how they vote or proceed in the Senate. All other legislators are immune.

That makes little sense, given the history.

[JasonT20]

If the purpose of the Speech and Debate Clause is to protect members of Congress from threats or intimidation from the executive, then how would it make sense to include the VP in that? The VP is part of the executive branch, and has been chosen explicitly as a running mate with the President since the Civil War, I believe. (Though the 12th Amendment does still make their votes in the Electoral College separate, technically.)

As far as I can tell, the VP never engages in any “speech or debate” in the Senate and hasn’t in a very long time (Area Man below claims that Senate rules since John Adams was VP have generally excluded the VP from speaking during debates over Senate business). So what is there to protect with the privilege in any case?

[The Margrave of Azilia]

Hmmm…under the 1.0 version of the Vice Presidency the Veep was the runner-up in a Presidential election, meaning the Veep could be (and in Jefferson’s case was) an opponent of the President.

So what protected, say, Jefferson from an administration (like Adams’) which was determined to prosecute the opposition?

We could argue that the Veep’s duties in the Senate involve presiding, not speech or debate, so the clause wouldn’t apply. Maybe tiebreaking votes would be a way of presiding.

And merely presiding doesn’t seem to violate any law (as opposed to defamatory speeches, for instance).

[Kazinski]

At the time of the founding the states were individually as strong as the federal government.

What would happen if a sheriff in Pennsylvania arrested John Adams when he was VP headed to Washington?

Is Washington going to call out the militia, which the sheriff may well be the commander of, to arrest the sheriff and free the VP?

[Armchair Lawyer]

Others cover this well, but much has been made of the “Speech and Debate” phrase, which is really Congress going about it’s normal business.

But let’s answer your question for a second, regarding the Executive Branch. Let’s imagine for a second that during the 2020 Electoral Count, Trump decides to order the law enforcement forces or military of the US to prevent Pence from actually going to Congress. He makes up a reason…it for your own safety, or some reason

Then, the VP isn’t overseeing the vote, and per the 12th amendment, the electoral count doesn’t actually occur.

Now, if the VP (as President of the Senate) was included under the speech and debate clause, such a restriction would be considered illegal. But if the VP wasn’t included under the Speech and Debate clause….what’s to legally prevent this course of action?

[Rip Murdock]

This post could have used a spellcheck:

Thus whether the Vice President may invoke the Speech or Debate privelge

One potential counter-argument might be that becuase

[Area Man]

The Constitution’s text specifically states that Senators and Representatives, the President, and all federal judges shall receive compensation for their services. It never mentions compensation for the VP. Are we to conclude, then, that since those other offices are specifically mentioned, but the VP isn’t, the VP isn’t to receive compensation? Doubtful.

Then again, Senators can be removed by 2/3 vote of the Senate, while the VP is removed through the impeachment process. Also, the VP is chosen in the same manner as the president, and her term begins at the same time. All that strongly indicating the VP isn’t a member of Congress.

John Adams definitely thought the VP was part of the Senate, though, because he actively participated in debates until the Senators shut him, and every other VP after him, down. He’d probably be surprised to learn he had no immunity for his speech and debate.

This is all to say that the VP is a weird office with no clear answer to this or other questions regarding the office.

[CJColucci]

If the privilege applies to the Vice President, to what does it extend? If the President of the United States makes incriminating statements in a phone call to Lindsey Graham, can Sen. Graham be compelled to testify about them? If not, why not?

[Kazinski]

Probably not.

The Supreme court's recent per curium opinion about Senator Grahams subpoena appeal made it clear that any questioning involving "informal legislative fact finding" would almost certainly be barred:

"The lower courts assumed that the informal investigative fact-finding that Senator Graham assertedly engaged in constitutes legislative activity protected by the Speech or Debate Clause, U. S. Const. Art. I, §6, cl. 1, and they held that Senator Graham may not be questioned about such activities. The lower courts also made clear that Senator Graham may return to the District Court should disputes arise regarding the application of the Speech or Debate Clause immunity to specific questions. Accordingly, a stay or injunction is not necessary to safeguard the Senator’s Speech or Debate Clause immunity."

[not guilty]

"If the President of the United States makes incriminating statements in a phone call to Lindsey Graham, can Sen. Graham be compelled to testify about them? If not, why not?"

Some questions are off limits when a legislator testifies before a grand jury. SCOTUS delineated four categories about which a Senator (and by extension his aide) may not be questioned in Gravel v. United States, 408 U.S. 606, 628-29 (1972):

Because the Speech or Debate Clause privilege applies both to Senator and aide, it appear to us that paragraph one of the [Court of Appeals] order, alone, would afford ample protection for the privilege if it forbade questioning any witness, including Rodberg: (1) concerning the Senator's conduct, or the conduct of his aides at the June 29, 1971, meeting of the subcommittee; [Footnote 18] (2) concerning the motives and purposes behind the Senator' conduct, or that of his aides, at that meeting; (3) concerning communications between the Senator and his aides during the term of their employment and related to said meeting or any other legislative act of the Senator; (4) except as it proves relevant to investigating possible third-party crime, concerning any act, in itself, not criminal, performed by the Senator, or by his aides in the course of their employment, in preparation for the subcommittee hearing. We leave the final form of such an order to the Court of Appeals in the first instance, or, if that court prefers, to the District Court.

Incriminating statements made by Donald Trump to Lindsey Graham would be "relevant to investigating possible third-party crime."

The Speech or Debate clause does not "immunize Senator or aide from testifying at trials or grand jury proceedings involving third-party crimes where the questions do not require testimony about or impugn a legislative act." Gravel, at 622. Senator Graham voted to certify the electoral count. Trump's incriminating statements made to him prior thereto would not impugn a legislative act.

[QuantumBoxCat]

Under a functional analysis, I would think the President also has a claim to legislative immunities. When the President vetoes a bill passed by both houses of congress, he can be said to be engaged in a legislative function.

Senators could also use a functional analysis to claim judicial immunities, since they perform a judicial function in the context of an impeachment trial. Are they Senators or are they judges? In the same context, the Chief Justice of the Supreme Court might be able to claim legislative immunities when presiding over an impeachment trial in the Senate. Senators could also claim executive privileges since they perform an executive function when confirming or rejecting presidential nominations.

A functional analysis creates all kinds of fun scenarios when applied to a separation of powers based government that incorporates checks and balances. By its very nature, this form of government includes political actors from one branch functioning within the sphere of the other branches. Taken to its extreme, a functional analysis at this level would simply erode the distinction between the three branches.

[Lee Moore]

When the President vetoes a bill passed by both houses of congress, he can be said to be engaged in a legislative function.

You could argue that, but I don't think it's a very good argument. In reality it is Congress that has the legislative power, but the President has the power to block them from exercising it (unless they can summon an override majority.)

If he had the power to adjust legislation that might be different - eg with a line item veto. But as it is, he just has power to prevent Congress from legislating.

It's analogous to a government edict imposing a minimum wage. It just prevents you and your employer agreeing a wage lower than the regulation commands. It doesn't affect what work you perform, or who gets employed. The government doesn't magically become your employer. Your employer is still your employer. The government is just hanging around running blocking patterns. And so with the President and his veto pen.

In any event, this "legislative function" thing is simply a SCOTUS head fake. The Speech and Debate clause doesn't mention legislation. It's a general rule for whatever the Senators happen to be chattering about. The Senators are not legislating when they give consent to Presidential appointments. Is it suggested that the Speech and Debate clause doesn't cover them when they're badmouthing Kavanaugh ? Hardly.

The thing is - as you suggest - that though Congress is described as the Legislative branch, and the President is described as the Executive branch, the Constitution doles out other powers and responsibilities to them. Congress (or sometimes the Senate alone) gets some non-legislative chores, and the President gets some non-executive chores. That doesn't turn the President's non-executive chores into executive ones. It just means the guy representing the Executive branch gets some other non-executive chores. And thusly for the Legislative branch.

[JasonT20]

I said this in another post on this topic, but I still think that the privilege extended in the Speech and Debate Clause should be fairly narrow. At least, it should be if it is going to be given such absolute protection as to not be "questioned in any other place." Rather than protecting "legislative functions" that Senators and Representative engage in (or their staff), it should focus only on actual speech and debate.

It is all well and good to try and protect officials in different parts of the government from political prosecution or interference as a separation of powers matter, but no one should be above the law. Extending privileges that are in the Constitution* beyond what the text demands tends to make them above the law. That needs to be guarded against as well as their freedom to speak and debate.

*Executive privilege, qualified immunity, and absolute immunity are all privileges with no textual basis in the Constitution that the Supreme Court has created that put government officials beyond the reach of law in various ways that no ordinary citizen could ever be. At least the Speech and Debate privilege is actually in the Constitution, but that doesn't mean it should be so broad as to allow members of Congress and their staff to avoid scrutiny in such broad circumstances as we are talking about in these cases.

[SRG]

I think that there is strong motivated reasoning at play here in an attempt to rationalise granting Pence an immunity to which he is not actually entitled.

It is abundantly clear that the Constitution extends the privilege to Senators and Representatives only and there is no honest way to argue that the VP is a senator or a representative. That he may perform a legislative function in the most technical sense is irrelevant, as the Originalist blog post makes clear.

[Lee Moore]

I agree.

However the Gravel case is also an obvious example of motivated reasoning , and it sits there as SCOTUS precedent. It would be unfortunate - but very Robertsian - for SCOTUS to get all clear and textual in re Pence, but fail to tidy away the Gravel dung pile.

[Alpheus W Drinkwater]

I don't know that Gravel was such a dung pile (the decision, not the Senator). After all, members of Congress discuss issues with their aides, and confide all kinds of things to them, as a normal and necessary part of performing their duties as Congressmen. Extending the clause to them seems like a logical extension of the protection that Congressmen enjoy, at least as far as aides are performing legislative functions.

[Lee Moore]

Sure, but the Constitutional privilege is what those old guys wrote, not what it might seem sensible that they should have written. It would not have been hard to draft the Speech and Debate privilege to include aides, nor would it be difficult to draft a wee Amendment to that effect now.

But as an interpretation of the Speech and Debate Clause as it existed on paper, duly ratified by the States, the Gravel case was a pile of dung.

[Alpheus W Drinkwater]

The text of the constitution puts the Vice-President in the chamber with a specific function to play in the legislative session, and even gives him a vote under certain circumstances. So I don't see how you or the Originalist blog can say it's "abundantly clear." It's a close and arguable point.

[SRG]

"Senators and Representatives" are clearly defined in the Constitutionh. The VP isn't one of them. The Constitution does not say, "all legislators" or "all lawmakers" or "all members of the House and Senate".

[F.D. Wolf]

Ramsay offers simple-minded textualism at its most banal. "The Vice President isn't a Senator or Representative. Derp."

You know who else isn't a Senator? A former Senator. Under this sophisticated analysis. I guess you could a haul a former Senator into court all day and ask him questions about his legislative acts.

[Rigelsen]

“One could not argue that a Senator's ability to participate in speech and debate is somehow dependent upon the assistance of the Vice President.”

I don’t think you thought this through very well.