THE INSTITUTIONAL SPEECH OR DEBATE PROTECTION: NONDISCLOSURE AS SEPARATION OF POWERS

The Speech or Debate Clause encompasses certain privileges that inure to the benefit of legislators. But its nondisclosure protection secures legislative-not legislators'-independence. This nondisclosure protection provides Congress as an institution the procedural right to assert its interests prior to the executive branch's compelling the disclosure of legislative acts and corresponding documentary materials. Reading the opinion of the U.S. Court of Appeals for the D.C. Circuit in United States v. Rayburn House Office Building as a separation-of-powers case distinguishes this institutional, procedural protection from a so-called "nondisclosure privilege" against any compelled disclosure, which was rejected by the U.S. Court of Appeals for the Ninth Circuit in United States v. Renzi. The D.C. Circuit's construction of the Speech or Debate Clause in Rayburn leaves executive-branch officials considerable latitude to investigate Members of Congress, subject to procedural constraints. Because the value the Clause protects is democratic representation, rather than legislative independence per se, the question of nondisclosure is one of protective procedure, not of privilege: Congress, not the executive branch, gets to make first determinations as to privilege.