Judge Trevor McFadden (D.D.C) has an interesting historical exploration of the Constitution's speech or debate clause in a recent opinion in Schilling v. Pelosi. The clause (art. I, § 6) says: “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other place.” In the case, Schilling sought access to emails and recordings from a House committee, claiming that they would show the committee illicitly relied on unpaid private consultants. Judge McFadden deploys extensive historical and originalist analysis to give the clause a broad reading and reject the claim, tracing the provision from its early English roots through the English Bill of Rights (which has an almost identical provision) and the constitutional convention.
In conclusion, sticking with an express constitutional rule and rejecting the invitation to balancing:
… Schilling … suggests courts should balance speech and debate immunity against the public’s interest in disclosure when presented with this type of claim. Accord Judicial Watch, Inc. v. Schiff, 998 F.3d 989, 998 (D.C. Cir. 2021) (Henderson, J., concurring in the judgment) (“I believe, in the right case, the application of the Speech or Debate Clause to a common law right of access claim would require careful balancing.”). The Court respectfully disagrees.
The Constitution structurally precludes balancing—to the extent a common law right conflicts with an express provision in the Constitution, the common law is void. See U.S. Const., art. IV, cl. 2 (the Supremacy Clause); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803) (“[T]he particular phraseology of the constitution of the United States confirms and strengthens the principle . . . that a law repugnant to the constitution is void.”); Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 628 (1834) (noting federal courts “derive no jurisdiction from the common law; because the people of the United States, in framing their constitution, have thought proper to restrict them within certain limits”). The Constitution trumps common law principles.
And throughout history, speech and debate privilege has been understood as an absolute jurisdictional bar. See Williams’s Case 13 How. St. Tr. at 1384 (“[T]hese being matters transacted in parliament . . . this court ought not to take conasance of them; nor hath it any jurisdiction to judge or determine of them.”); Rangel, 785 F.3d at 25 (affirming jurisdictional dismissal). Engaging in a “balancing” of interests would subvert that jurisdictional limitation by subjecting Members and their aides to “the burden of defending themselves” on the merits. Eastland, 387 U.S. at 85. Indeed, one of the primary functions of legislative immunity is to insulate the legislature from “accountability before a possibly hostile judiciary.” Johnson, 383 U.S. at 180–81.
Thus, the Court holds the “non-disclosure privilege for written materials” is “absolute, and [] admits of no balancing.” Rayburn, 497 F.3d at 662; accord Musgrave v. Warner, 2022 WL 424589, at *4 (D.D.C. September 15, 2022) (rejecting a “fact-dependent” balancing test in common law right-of-access cases covered by the Speech or Debate Clause).
Posted at 6:17 AM