Washington Law Review


Mark Tyson


The Speech or Debate Clause of the U.S. Constitution protects members of Congress from testifying about “legislative acts” or having “legislative acts” used against them as evidence. U.S. Supreme Court decisions delineating the scope of what constitutes a “legislative act” have an episodic feel and have failed to create a readily applicable test for new factual scenarios. One such scenario occurs when members of Congress communicate with state legislators regarding congressional redistricting. Courts must know how to handle instances where members of Congress assert legislative privilege in the redistricting context, and specifically when members of Congress assert the privilege in an effort to prevent disclosure of documentary material. Instead of resorting to the traditional “legislative acts” test, courts should permit disclosure of written materials subject to the rules of discovery. Courts should be vigilant in reviewing discovery requests to ensure that plaintiffs are not unduly burdening members of Congress, thereby unnecessarily distracting them from their work.

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