Bastien v. Office-Sen. Campbell

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 10 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

RITA BASTIEN,

Plaintiff - Appellant,
v. No. 02-1343
THE OFFICE OF SENATOR BEN
NIGHTHORSE CAMPBELL,

Defendant - Appellee,

AMERICAN FEDERATION OF
STATE COUNTY AND MUNICIPAL
EMPLOYEES, AFL-CIO; NATIONAL
EMPLOYMENT LAWYERS
ASSOCIATION; AARP; NATIONAL
ASIAN PACIFIC AMERICAN
LEGAL CONSORTIUM;
AMERICAN ASSOCIATION OF
PEOPLE WITH DISABILITIES,
PROJECT ON GOVERNMENT
OVERSIGHT; and PUBLIC CITIZEN,
INC.,

Amici Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 01-WY-799-CB(OES))

John S. Evangelisti (Karen Larson, with him on the briefs), Denver, Colorado, for
Plaintiff - Appellant.
Jean Marie Manning, Senate Chief Counsel for Employment (Claudia A. Kostel,
Senate Senior Counsel for Employment, with her on the brief), Office of Senate
Chief Counsel for Employment, Arlington, Virginia, for Defendant - Appellee.

Traci L. Lovitt, of Jones, Day, Reavis & Pogue, New York, New York (Glen D.
Nager, of Jones, Day, Reavis & Pogue, Washington, D.C., with her on the brief),
for Amici Curiae American Federation of State, County and Municipal
Employees, AFL-CIO, National Employment Lawyers Association, AARP, and
American Association of People with Disabilities; Vincent Eng, Legal Director,
National Asian Pacific American Legal Consortium, Washington, D.C., on the
brief for Amicus Curiae National Asian Pacific American Legal Consortium;
Larry P. Weinberg, General Counsel, American Federation of State, County and
Municipal Employees, AFL-CIO, Washington, D.C.; Jenifer Bosco, Senior Staff
Attorney, National Employment Lawyers Association, San Francisco, California;
Andrew J. Imparato, President and CEO, American Association of People with
Disabilities, Washington, D.C.

Allison M. Zieve, Public Citizen Litigation Group, Washington, D.C.; Sheila A.
Bedi and David C. Vladeck, Institute for Public Representation, Georgetown
University Law Center, Washington, D.C., on the brief for Amici Curiae Project
on Government Oversight and Public Citizen, Inc.

Before SEYMOUR, BALDOCK, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Our Constitution’s Speech or Debate Clause states that “for any Speech or

Debate in either House, [members of Congress] shall not be questioned in any

other Place.” U.S. Const. art. I, § 6, ¶ 1. The issue before us is whether this

Clause precludes Plaintiff Rita Bastien’s employment-discrimination claim

brought under the Congressional Accountability Act of 1995 (the CAA). Senator

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Ben Nighthorse Campbell fired Plaintiff from her position on his staff. Her

duties included meeting with the public to obtain information used by the Senator

for both constituent services and his legislative agenda. We hold that suit is not

barred because the claim does not question the conduct of official Senate

legislative business by Senator Campbell or his aides. We do not address,

however, whether certain evidence may be inadmissible in this litigation because

it concerns such conduct.

I. The Congressional Accountability Act

The CAA, 2 U.S.C. § 1301 et seq., extends the protections of 11 major

workplace statutes to congressional employees. See § 1302(a)(1)–(11). It creates

the Office of Compliance (OOC), an independent office within the legislative

branch. See id. § 1381. The OOC has a five-member Board of Directors,

appointed jointly by the Speaker of the House, the Senate Majority Leader, and

the Senate and House Minority Leaders. See id. § 1381(b). “In addition to

promulgating rules for implementation of the eleven statutes, the OOC oversees a

complaint procedure that provides for counseling, mediation, formal hearings and

decisions by a hearing officer, and appeal to the Board of Directors.” James J.

Brudney, Congressional Accountability and Denial: Speech or Debate Clause

and Conflict of Interest Challenges to Unionization of Congressional Employees,

36 Harv. J. Legis. 1, 9 (1999). See generally Sandra Mazliah, The Congressional

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Accountability Act of 1995: Meandering the Mandatory Administrative Maze, 6

Fed. Cir. B.J. 5 (1996). The CAA provides for judicial review, see 2 U.S.C.

§1407, and it allows plaintiffs to opt out of some Board proceedings and instead

file suit in federal district court. See id. §§ 1404, 1408; Brudney, supra, at 9-10.

Under the CAA a plaintiff may file a complaint only against the employing

office, not the individual member of Congress. See 2 U.S.C. §§ 1405(a) &

1408(b). The Office of House Employment Counsel, see id. § 1408(d), or the

Senate Chief Counsel for Employment represents the office, Brudney, supra, at 10

n.46; and damages are paid from funds appropriated into the OOC’s Treasury

account. See § 1415(a). Of particular relevance to our case, the CAA explicitly

retains Speech or Debate Clause immunity for members of Congress, see § 1413,

thereby avoiding any issue regarding whether Congress as a whole can waive such

immunity for individual members.

II. Factual and Procedural Background

Plaintiff worked for six years—from July 7, 1994, to September 4,

2000—as a Senate Aide in Senator Campbell’s Englewood, Colorado, office. On

September 5, 2000, at the age of 61, she was transferred to the Senator’s Colorado

Springs office, where she was a District Director. On April 10, 2001, she was

terminated.

Plaintiff sued Senator Campbell’s office (the Office) under the CAA on

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April 30, 2001, alleging age discrimination and retaliation for discrimination

complaints. She alleged that the discrimination began several months before her

transfer to Colorado Springs and continued until her termination.

The Office moved to dismiss the suit under Fed. R. Civ. P. 12(b)(1),

contending that the Speech or Debate Clause barred federal subject matter

jurisdiction over the case, and that the claim should be dismissed on the ground of

sovereign immunity. The Office asserted that “Plaintiff’s duties of meeting with

constituents, gathering information for the Senator, discussing constituent

suggestions and then conveying them to the Senator, constitute actions that

directly relate to the due functioning of the legislative process,” Bastien v.

Campbell, 209 F. Supp. 2d 1095, 1101 (D. Colo. 2002), and accordingly should

be shielded from judicial scrutiny by the Speech or Debate Clause. Plaintiff

responded that “her actions were political rather than legislative in nature, and

that although she met with constituents to discuss certain issues, she never

performed legislative functions.” Id.

The district court granted the Office’s motion to dismiss. Id. It held that

“the Speech or Debate Clause provides immunity to Members of Congress and

their aides for personnel actions taken with respect to employees whose duties are

directly related to the due functioning of the legislative process[.]” Id. at 1103. It

then found that “the majority of Plaintiff’s job duties . . . were directly related to

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the due functioning of the legislative process.” Id. at 1104.

The court characterized Plaintiff’s job responsibilities in the Englewood

office as follows:

Plaintiff’s interaction with constituents and her attendance at various
meetings and congressional hearings on behalf of the Senator
illustrates that Plaintiff’s duty was not only to provide Senator
Campbell with information, but to take action on behalf of the
Senator and provide him with recommendations on various
legislative issues and agendas.

Id. at 1105. It described her job responsibilities in the Colorado Springs office as

including “gathering and conveying to Senator Campbell himself, and to the

Defendant, information critical to the Senator’s legislative agenda.” Id. at 1106.

The court concluded that “the personnel actions taken by [the Office] against the

Plaintiff are afforded Speech or Debate Clause immunity.” Id. at 1104.

Plaintiff appeals this ruling. We reverse and remand to allow the suit to

proceed.

III. The Speech or Debate Clause

The first paragraph of Article I, § 6 of the Constitution states:

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.

U.S.C.A. Const. art. I § 6, ¶ 1. On its face the Speech or Debate Clause would

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not appear to apply to a Senator’s conduct with respect to his employees. It

appears to protect only the Senator’s remarks on the Senate Floor. But the

Supreme Court has long treated the Clause as constitutional shorthand for a more

extensive protection.

The Office contends that this protection encompasses “personnel actions

taken against employees whose job duties directly relate to the due functioning of

the legislative process.” Aplee. Br. at 41 (capitalization omitted). In its view,

Plaintiff was such an employee, so her claim is constitutionally barred.

We disagree. As we read the Supreme Court’s opinions on the Speech or

Debate Clause, the Clause protects only “legislative” acts by a member of

Congress or an aide, and only official, formal acts (or perhaps their functional

equivalent) deserve the adjective “legislative.” In particular, Plaintiff’s informal

contacts with constituents and other sources of information and opinion were not

legislative in nature. Because Plaintiff’s duties were not legislative and personnel

actions allegedly taken against her were not in themselves legislative, her CAA

claim can proceed.

Our conclusion follows from a careful review of Supreme Court precedent.

We now proceed to summarize the Court’s opinions to establish that the Office’s

contentions go beyond any holding and are inconsistent with the Court’s

explanations of its holdings.

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 The Court’s first pronouncement on the Clause was in Kilbourn v.

Thompson, 103 U.S. 168 (1880). First, Kilbourn held that a committee

investigation exceeded the constitutional powers of the House of Representatives

and hence ruled invalid a House order declaring a witness in contempt for

violating a subpoena duces tecum issued by the committee. It reinstated the

witness’s claim against the House sergeant at arms for falsely arresting him in

accordance with the order. See id. at 170-77, 205. Then, however, the Court held

that the Speech or Debate Clause protected against suit the members of Congress

responsible for the order.

The Court said that “it may be reasonably inferred that the framers of the

Constitution meant the same thing” as what Lord Denman had said in construing

the British Parliamentary privilege from which the Clause was derived:

The privilege of having their debates unquestioned, though denied
when the members began to speak their minds freely in the time of
Queen Elizabeth, and punished in its exercise both by that princess
and her two successors, was soon clearly perceived to be
indispensable and universally acknowledged. By consequence,
whatever is done within the walls of either assembly must pass
without question in any other place. For speeches made in
Parliament by a member to the prejudice of any other person, or
hazardous to the public peace, that member enjoys complete
impunity. For every paper signed by the speaker by order of the
House, though to the last degree calumnious, or even if it brought
personal suffering upon individuals, the speaker cannot be arraigned
in a court of justice. But if the calumnious or inflammatory speeches
should be reported and published, the law will attach responsibility
on the publisher. So if the speaker by authority of the House order
an illegal act, though that authority shall exempt him from question,

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 his order shall no more justify the person who executed it than King
Charles's warrant for levying ship-money could justify his revenue
officer.

Id. at 202 (quoting Stockdale v. Hansard, 9 Ad. & E. 1, 112 Eng. Rep. 1112 (K.C.

1839) (emphasis added)). Accordingly, the Court construed “Speech or Debate”

broadly, writing:

It would be a narrow view of the constitutional provision to limit it
to words spoken in debate. The reason of the rule is as forcible in its
application to written reports presented in that body by its
committees, to resolutions offered, which, though in writing, must be
reproduced in speech, and to the act of voting, whether it is done
vocally or by passing between the tellers. In short, to things
generally done in a session of the House by one of its members in
relation to the business before it.

Id. at 204 (emphasis added).

To say that “Speech or Debate in either House” is to be construed broadly

is not, however, to say that it should be cast free from its mooring. In particular,

it should not be, and has not been, read to make members of Congress into a

special class of citizens protected from suit (or prosecution) arising out of any

activity that could assist in the performance of their official duties. After all,

virtually anything that a member of Congress does could be said to relate, more or

less directly, to official business (e.g., causing an accident when speeding to

attend a constituent’s dinner party). And although any suit or prosecution against

a member of Congress could improperly influence the member in the conduct of

official duties, the Clause does not protect against all such intrusions. The

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Supreme Court’s jurisprudence indicates that the Clause’s protection is limited to

the conduct of official business of the member’s chamber. Other activities by

members are “political” rather than “legislative,” however important they may be.

In other words, “Speech or Debate” has been interpreted broadly to encompass

voting, issuing reports, and other formal activity, but the phrase “in either House”

that immediately follows “Speech or Debate” has limited the protection to official

conduct. Thus, Kilbourn described the protection of the Clause as limited “to

things generally done in a session of the House by one of its members in relation

to the business before it.” Id. at 204 (emphasis added). Later opinions continued

this theme.

After Kilbourn the Supreme Court did not address the Speech or Debate

Clause for another 70 years. The issue in Tenney v. Brandhove, 341 U.S. 367

(1951), was whether a civil rights claim could be brought against several state

legislators for conducting a committee hearing to inquire into statements made by

the plaintiff, himself a state legislator. Id. at 370-71. The Court held that the

Congress that enacted the civil rights legislation could not have intended that law

to impinge on the traditional privilege of legislators expressed at the national

level in the Speech or Debate Clause. Id. at 376. The Court noted that

“[i]nvestigations, whether by standing or special committees, are an established

part of representative government,” id. at 377, and ruled against the plaintiff

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because the committee investigation had not “exceeded the bounds of legislative

power,” id. at 378. In other words, “Speech or Debate in either House” includes

questioning witnesses in committee meetings.

United States v. Johnson, 383 U.S. 169, 185 (1966), added two important

glosses to the Clause. First, the Court held that the Clause protects not only the

“legislative acts of [a] member of Congress,” but also the member’s “motives for

performing them.” Second, it held that even though the Clause may not bar a

particular prosecution altogether, it could preclude use of certain evidence.

Johnson, a former Congressman, had been convicted of violating and conspiring

to violate the federal conflict-of-interest statute by his efforts to influence the

Department of Justice to dismiss an indictment against a loan company and its

officers. Id. at 171. One part of that effort was his delivery of a speech on the

House floor favorable to the loan company. Id. at 172. The Court found that

proper application of the Clause required exclusion from trial of evidence relating

to Johnson’s floor speech, the manner of its preparation, and his motives for

making it. Id. at 173-76. Certainly, the consideration of such evidence at trial

amounted to “questioning” a member of Congress concerning a Speech or Debate

in the member’s House. The Court rejected the Government’s argument that the

Clause “was meant to prevent only prosecutions based upon the ‘content’ of

speech, such as libel actions, but not those founded on ‘the antecedent unlawful

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conduct of accepting or agreeing to accept a bribe.’” Id. at 182 (quoting brief of

the United States). It also rejected the contention that the Clause “was not

violated because the gravamen of the count was the alleged conspiracy, not the

speech.” Id. at 184. Although affirming the Court of Appeals’ reversal of the

convictions, the Court remanded to permit a new trial at which the prohibited

evidence would be excluded. Id. at 185. The Court refused to bar the prosecution

altogether. In particular, in accord with Kilbourn’s view of the scope of the

Clause, it would not construe the Clause to provide a privilege with respect to

contacts with executive agencies. The Court wrote, “[T]he attempt to influence

the Department of Justice . . . in no wise related to the due functioning of the

legislative process.” Id. at 172.

Dombrowski v. Eastland, 387 U.S. 82 (1967) (per curiam), reaffirmed

Kilbourn in providing Speech or Debate Clause protection for issuance of

congressional subpoenas—in that case, a subpoena “validated by subsequent

Subcommittee ratification,” id. at 84. The Court further stated that “legislators

engaged in the sphere of legitimate legislative activity should be protected not

only from the consequences of litigation’s results but also from the burden of

defending themselves.” Id. at 85 (internal quotation marks and citation omitted).

Counsel for the committee, however, was not protected by the Clause with respect

to his actions preceding issuance of the subpoena. Id. He had allegedly

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conspired with state officials to violate Dombrowski’s civil rights in obtaining the

records that were then subpoenaed by the committee.

Although Powell v. McCormack, 395 U.S. 486 (1969), is best remembered

for holding that the House of Representatives improperly excluded Mr. Powell

after his election in 1966, it also raised issues of Speech or Debate Clause

immunity with respect to Members of the House and its employees. The Court

determined that “[a]lthough this action should be dismissed against respondent

Congressmen [for voting for exclusion], it may be sustained against their agents.”

Id. at 550. But see id. at 501-02 (stating that Court need address only whether the

defendant House employees could be sued even if the Congressmen were

protected). The Court rejected the defendant employees’ attempt to distinguish

the rulings against congressional employees in Kilbourn and Dombrowski on the

grounds that the prior cases “concerned an affirmative act by the employee

outside the House having a direct effect upon a private citizen,” id., at 504, and

that they had involved suits for damages rather than the “assertedly greater

interference with the legislative process” in Powell, in which the plaintiff sought

disbursement of funds (salary) by the Sergeant at Arms, id. Otherwise, Powell

does not appear to have broken any new ground with respect to Speech or Debate

Clause protection.

The next Court opinion on the Clause, United States v. Brewster, 408 U.S.

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501 (1972), is of particular importance to this case because of its elaboration on

the meaning of “legislative acts.” Brewster was a former Senator charged with

accepting a bribe in exchange for promising to cast a particular vote. The Court

overturned the dismissal of the indictment. It distinguished Johnson on the

ground that there was “no need for the Government to show that [Brewster]

fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the

statute, not performance of the illegal promise.” Id. at 526. It said that Johnson

stands for the proposition “that a Member of Congress may be prosecuted under a

criminal statute provided that the Government’s case does not rely on legislative

acts or the motivation for legislative acts.” 408 U.S. at 512. It further explained:

“A legislative act has consistently been defined as an act generally done in

Congress in relation to the business before it. In sum, the Speech or Debate

Clause prohibits inquiry only into those things generally said or done in the House

or the Senate in the performance of official duties and into the motivation for

those acts.” Id.

The Court then pointed out that much of the work of Senators and

Representatives does not qualify for protection:

It is well known, of course, that Members of the Congress
engage in many activities other than the purely legislative activities
protected by the Speech or Debate Clause. These include a wide
range of legitimate “errands” performed for constituents, the making
of appointments with Government agencies, assistance in securing
Government contracts, preparing so-called “news letters” to

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 constituents, news releases, and speeches delivered outside the
Congress. The range of these related activities has grown over the
years. They are performed in part because they have come to be
expected by constituents, and because they are a means of developing
continuing support for future elections. Although these are entirely
legitimate activities, they are political in nature rather than
legislative, in the sense that term has been used by the Court in prior
cases. But it has never been seriously contended that these political
matters, however appropriate, have the protection afforded by the
Speech or Debate Clause.

Id. (emphasis added).

The Court refused to accept what it considered an overly expansive

construction of the Speech or Debate Clause. It adopted the approach of Justice

Brandeis for the Court in Long v. Ansell, 293 U.S. 76 (1934). Long had rejected a

broad interpretation of the congressional immunity from arrest provided by

Article I, Section 6, because that Clause’s “language is exact and leaves no room

for a construction which would extend the privilege beyond the terms of the

grant,” id. at 82 (quoted by Brewster, 408 U.S. at 521).

Thus, Brewster rejected the view that the Clause protects “all conduct

‘related to the due functioning of the legislative process.’” Brewster, 408 U.S. at

513 (quoting Johnson, 383 U.S. at 172). The Court said that Senator Brewster

had read out of context the passage quoted from Johnson and that Johnson

actually had held “that only acts generally done in the course of the process of

enacting legislation were protected.” Brewster, 408 U.S. at 514. Contrary to

Senator Brewster’s argument, “[i]n no case has this Court ever treated the Clause

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as protecting all conduct relating to the legislative process. In every case thus far

before this Court, the Speech or Debate Clause has been limited to an act which

was clearly a part of the legislative process—the due functioning of the process.”

Id. at 515-16 (footnotes omitted). The Court concluded its rejection of a “related-

to” reading by pointing out the dangers of an excessive expansion of Speech or

Debate Clause immunity:

We would not think it sound or wise, simply out of an
abundance of caution to doubly insure legislative independence, to
extend the privilege beyond its intended scope, its literal language,
and its history, to include all things in any way related to the
legislative process. Given such a sweeping reading, we have no
doubt that there are few activities in which a legislator engages that
he would be unable somehow to “relate” to the legislative process.
Admittedly, the Speech or Debate Clause must be read broadly to
effectuate its purpose of protecting the independence of the
Legislative Branch, but no more than the statutes we apply, was its
purpose to make Members of Congress super-citizens, immune from
criminal responsibility.

Id. at 516.

On the same day as Brewster, the Court also decided Gravel v.

United States, 408 U.S. 606 (1972), in which it considered the Speech or Debate

Clause in the context of Senator Gravel’s disclosure of the Pentagon Papers. The

Court took the opportunity to explain the circumstances in which members of

Congress are protected by the Clause with respect to acts by their aides. It did

not, however, clearly expand protection in any other dimension.

The case arose out of a subpoena to Senator Gravel’s aide, Leonard S.

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Rodberg, issued by a federal grand jury investigating possible criminal

misconduct associated with public release of the documents. One evening Senator

Gravel had convened a meeting of a Senate subcommittee he chaired, where he

read portions of the Pentagon Papers and placed all 47 volumes in the public

record. Rodberg had been added to the Senator’s staff earlier that day and had

assisted in the preparation and conduct of the hearing. A number of days after the

hearing, press reports indicated that Senator Gravel had arranged for a private

company to publish the papers. Id. at 608-10.

The Court thought it “incontrovertible” that the Senator could not be

questioned about events at the subcommittee hearing. Id. at 615. It then extended

that protection to Rodberg’s involvement, stating that “the Speech or Debate

Clause applies not only to a Member but also to his aides insofar as the conduct

of the latter would be a protected legislative act if performed by the Member

himself.” Id. at 618. It explained that such aides must be treated as alter egos of

the Member because “the day-to-day work of such aides is so critical to the

Members’ performance.” Id. at 616-17. It being “literally impossible, in view of

the complexities of the modern legislative process, with Congress almost

constantly in session and matters of legislative concern constantly proliferating,

for Members of Congress to perform their legislative tasks without the help of

aides and assistants,” id. at 616, it follows that to deny the aides’ acts the

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protection of the Clause would “inevitably . . . diminish[] and frustrate[]” the

“central role of the . . . Clause—to prevent intimidation of legislators by the

Executive and accountability before a possibly hostile judiciary,” id. at 617. The

privilege, however, belongs to the Senator, who can waive an aide’s claim of

protection. See id. at 622 n.13. One could say that the aide’s actions are treated,

for sound reasons of policy, as the functional equivalent of actions by the member

of Congress.

The Court discussed at some length its earlier decisions in Kilbourn,

Dombrowski, and Powell, in which members of Congress were held to be

protected by the Speech or Debate Clause while their aides were nevertheless

subject to liability. The Court found those cases distinguishable because the aides

had not performed legislative acts. The discussion provides a further gloss on the

Court’s view of what actions are “legislative” and thus protected by the Clause.

The Court wrote:

The three cases reflect a decidedly jaundiced view towards extending
the Clause so as to privilege illegal or unconstitutional conduct
beyond that essential to foreclose executive control of legislative
speech or debate and associated matters such as voting and
committee reports and proceedings. In Kilbourn, the Sergeant-at-
Arms was executing a legislative order, the issuance of which fell
within the Speech or Debate Clause; in [Dombrowski], the committee
counsel was gathering information for a hearing; and in Powell, the
Clerk and Doorkeeper were merely carrying out directions that were
protected by the Speech or Debate Clause. In each case, protecting
the rights of others may have to some extent frustrated a planned or
completed legislative act; but relief could be afforded without proof

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 of a legislative act or the motives or purposes underlying such an act.
No threat to legislative independence was posed, and Speech or
Debate Clause protection did not attach.

Id. at 620-21 (emphasis added). We emphasize that the Court viewed “gathering

information for a hearing” in Dombrowski as not being a legislative act.

The Court further explained the meaning of “legislative act” in holding that

the Speech or Debate Clause afforded no protection with respect to arrangements

for private publication of the Pentagon Papers. Id. at 622. Relying on English

precedents, the Court extended the Clause’s protection of republications only so

far as official committee reports. Id. at 623-24. The Court said that “private

publication . . . was in no way essential to the deliberations of the Senate; nor

does questioning as to private publication threaten the integrity or independence

of the Senate by impermissibly exposing its deliberations to executive influence.”

Id. at 625. Also, it appeared that “neither Congress nor the full committee

ordered or authorized the publication.” Id. at 626. The Court said that it could

not “but conclude that the Senator’s arrangements with [the private publisher]

were not part and parcel of the legislative process.” Id.

More broadly, said the Court: “That Senators generally perform certain

acts in their official capacity as Senators does not necessarily make all such acts

legislative in nature.” Id. at 625. It elaborated:

Legislative acts are not all-encompassing. The heart of the
Clause is speech or debate in either House. Insofar as the Clause is

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 construed to reach other matters, they must be 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. As the Court of Appeals put it, the
courts have extended the privilege to matters beyond pure speech or
debate in either House, but only when necessary to prevent indirect
impairment of such deliberations.

Id. (internal quotation marks and citation omitted) (emphasis added).

Based on these general principles, the Court held that no “constitutional or

other privilege . . . shields Rodberg, any more than any other witness, from grand

jury questions relevant to tracing the source of obviously highly classified

documents that came into the Senator’s possession and are the basic subject

matter of inquiry in this case, as long as no legislative act is implicated by the

questions.” Id. at 628. Then it held that a protective order

would afford ample protection for the [Speech or Debate Clause]
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; (2) concerning the
motives and purposes behind the Senator's 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.

Id. at 628-29 (footnote omitted).

Strangely, the Court did not state that all this protection was required—it

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just said that the order would provide “ample protection.” Id. at 628. This

peculiar language may have been appropriate because some of the limitations in

the order could be justified on grounds other than the Speech or Debate

Clause—for example, a grand jury’s authority is generally limited to investigating

only crime—and those other grounds provided, in the context of that case, at least

as much protection as the Clause in certain areas.

Further hampering an understanding of the reach of the Clause under

Gravel is the uncertainty regarding the scope of the protection with respect to all

noncriminal acts performed by the Senator’s aides “in the course of their

employment, in preparation for the subcommittee hearing,” id. at 629. This

protection is not explored in the opinion. In particular, the scope of “preparation”

for a hearing, which could include virtually any work by an aide, is left

unspecified. Perhaps such specificity was unnecessary in that case because

Rodberg had been an aide for only a few hours before the hearing. In any event,

despite Gravel’s expansive construction of the Clause to protect certain activity

of congressional aides, it still confined protection to activity closely and directly

tied to the conduct of official legislative business.

In Doe v. McMillan, 412 U.S. 306 (1973), the Court considered a suit by

persons allegedly defamed by a committee report publicly disseminated by the

Government Printing Office. The Court held that the Speech or Debate Clause

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barred the claim “insofar as it sought relief from the Congressmen-Committee

members, from the Committee staff, from the consultant, or from the investigator,

for introducing material at Committee hearings that identified particular

individuals, for referring the report that included the material to the Speaker of the

House, and for voting for publication of the report.” Id. at 312. Distribution of

the report within Congress itself was also protected. See id. The necessity or

relevance of disclosure in the report of the allegedly defamatory matter was not a

proper subject of inquiry under the Clause. See id. at 312-13. At the same time,

however, the Court held that the Clause “does [not] immunize those who publish

and distribute otherwise actionable materials beyond the reasonable requirements

of the legislative function.” Id. at 315-16. Although the Court indicated that

perhaps a showing could be made that some public dissemination of the materials

might have been necessary “in order [for Congress] to perform its legislative

function,” id. at 317—in which case the dissemination would be protected by the

Speech or Debate Clause—it failed to provide specific guidance on how to resolve

the matter on remand.

In Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975), the

Court clarified that the Speech or Debate Clause protects not only votes to

authorize committee investigations but also issuance of subpoenas in the exercise

of that authorization. Id. at 505. The Court wrote that “[i]n determining whether

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particular activities other than literal speech or debate fall within the ‘legitimate

legislative sphere’ we look to see whether the activities took place ‘in a session of

the House by one of its members in relation to the business before it.’” Id. at 503

(quoting Kilbourn, 103 U.S. at 204). “The power to investigate and to do so

through compulsory process plainly falls within [Gravel’s] definition [of the

legitimate legislative sphere].” Id. at 504. “[T]he power to investigate is inherent

in the power to make laws.” Id. The “investigation at issue [was] related to and in

furtherance of a legitimate task of Congress.” Id. at 505. Not only were the

Committee members immune from suit, but so was the Committee’s Chief

Counsel. See id. at 507.

United States v. Helstoski, 442 U.S. 477 (1979), removed any doubt that

evidence of legislative acts cannot be introduced into evidence for any purpose.

Former Congressman Helstoski was prosecuted for allegedly accepting bribes in

return for promising to introduce private bills granting resident status to aliens.

The issue was the extent to which the Speech or Debate Clause required exclusion

of evidence the Government sought to offer during trial. The Government

“contend[ed ]that the Speech or Debate Clause does not bar the introduction of all

evidence referring to legislative acts . . . [and] argue[d] that the Clause does not

prohibit it from introducing evidence of discussions and correspondence which

describe and refer to legislative acts if the discussions and correspondence did not

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occur during the legislative process.” Id. at 486. The Government said that it

“s[ought] to introduce such evidence to show Helstoski’s motive for taking money,

not to show his motive for introducing the bills.” Id. Following Johnson and

Brewster, the Court largely rejected the Government’s argument, stating that those

precedents “leave no doubt that evidence of a legislative act of a Member may not

be introduced by the Government.” Id. at 487. It reiterated that “[t]he Clause

protects ‘against inquiry into acts that occur in the regular course of the legislative

process and into the motivation for those acts.’” Id. at 489 (quoting Brewster, 408

U.S. at 525). It noted, however, that “[a] promise to deliver a speech, to vote, or

to solicit other votes at some future date is not ‘speech or debate,’ [nor is] a

promise to introduce a bill . . . a legislative act.” Id. at 490.

The most recent Supreme Court opinion on the Speech or Debate Clause was

handed down a quarter-century ago. In Hutchinson v. Proxmire, 443 U.S. 111

(1979), the source of Senator Proxmire’s problem was not alleged criminality but

an allegedly libelous attempt at humor. The Senator’s Golden Fleece Award

publicized expenditures of taxpayer money he considered wasteful. Plaintiff

Hutchinson received the award for his research on anger in animals. Senator

Proxmire entered his comments in the Congressional Record and then referred to

the award in newsletters to his constituents and others. In addition, he referred to

the research in a television interview, and his aide contacted federal agencies that

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had supported the research. See id. at 114-17.

The Court denied Senator Proxmire the protection he sought under the

Speech or Debate Clause: “A speech by Proxmire in the Senate would be wholly

immune and would be available to other Members of Congress and the public in

the Congressional Record. But neither the newsletters nor the press release was

‘essential to the deliberations of the Senate’ and neither was part of the

deliberative process.” Id. at 130. The Court acknowledged that it had given the

Speech or Debate Clause “a practical rather than a strictly literal reading which

would limit the protection to utterances made within the four walls of either

Chamber. Thus, we have held that committee hearings are protected, even if held

outside the Chambers; committee reports are also protected.” Id. at 124. But, it

continued, “[t]he gloss going beyond a strictly literal reading . . . has not . . .

departed from the objective of protecting only legislative activities.” Id. at 125.

The Clause reaches only matters that are “‘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.’” Id. at 126 (quoting Gravel, 408 U.S. at 625).

This view conforms to that of Justice Joseph Story, who wrote: “[T]his privilege is

strictly confined to things done in the course of parliamentary proceedings, and

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does not cover things done beyond the place and limits of duty.” J. Story,

Commentaries on the Constitution § 863 at 329 (1st ed. 1833) (Story) (quoted by

Proxmire, 443 U.S. at 126).

Even accepting Senator Proxmire’s contention that newsletters and press

releases “exert some influence on other votes in the Congress and therefore have a

relationship to the legislative and deliberative process,” id. at 131, the Court said

such a relationship was insufficient to trigger Speech or Debate Clause protection.

It noted that in Brewster it “had carefully distinguished between what is only

‘related to the due functioning of the legislative process,’ and what constitutes the

legislative process entitled to immunity under the Clause.” Id. (quoting Brewster,

408 U.S. at 512). Although Congress’s informing itself through hearings is a

legislative function protected by the Clause, “the transmittal of such information

by individual Members in order to inform the public and other Members is not a

part of the legislative function or the deliberations that make up the legislative

process.” Id. at 133. “Newsletters and press releases . . . are primarily means of

informing those outside the legislative forum; they represent the views and will of

a single Member. It does not disparage either their value or their importance to

hold that they are not entitled to the protection of the Speech or Debate Clause.”

Id. Of particular relevance here, the Court distinguished Proxmire’s actions from

“congressional efforts to inform itself through committee hearings[, which] are

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part of the legislative function.” Id. at 132-33 (emphasis added).

This survey of Supreme Court opinions reveals several continuing themes in

the interpretation of the mandate, “for any Speech or Debate in either House,

[Senators and Representatives] shall not be questioned in any other Place.” U.S.

Const. art. I, § 6, ¶ 1. First, in light of the history and undoubted purpose of the

Clause, the words “Speech or Debate” have been read broadly to encompass all

formal actions in the official business of Congress, including voting, conducting

hearings, issuing reports, and issuing subpoenas. See, e.g., Kilbourn, Tenney,

Powell, Gravel, Doe, and United States Servicemen’s Fund.

Second, in recognition of the needs of a large and overburdened legislative

body, the Court has extended the meaning of some terms in the Clause to include

their functional equivalents. Thus, “Senators and Representatives” includes aides

who function as their alter egos in performing legislative acts. See Gravel, 408

U.S. at 616-17; Doe, 412 U.S. at 312; United States Servicemen’s Fund, 421 U.S.

at 507. And committee hearings are deemed “in” the House even when conducted

far away. See Proxmire, 443 U.S. at 124.

Third, an act is “questioned” not only if it is the subject of civil or criminal

prosecution but even if evidence of the act is offered at a trial. See Johnson,

Helstoski.

Fourth, and most important for this appeal, the above “broad” constructions

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of the Speech or Debate Clause have always been confined within the limits of

formal, official proceedings. This limitation has been recognized from Kilbourn,

103 U.S. at 204 (describing object of Clause as “things generally done in a session

of the House by one of its member in relation to the business before it”) to

Johnson, 383 U.S. at 172 (attempts to influence executive agency are outside

Clause’s scope) to Brewster, 408 U.S. at 512 (the “Clause prohibits inquiry only

into those things generally said or done in the House or Senate in the performance

of official duties and into the motivation for those acts”), to Gravel, 408 U.S. at

625 (“[i]nsofar as the Clause is construed to reach other matters [than speech or

debate in either House], they must be 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”), and to Proxmire, 443 U.S. at 126 (“this

privilege is strictly confined to things done in the course of parliamentary

proceedings, and does not cover things done beyond the place and limits of duty”

(quoting Story)). The expression summarizing this proposition is that the Clause

protects only “legislative,” not “political,” acts. See Brewster, 408 U.S. at 512.

We now turn to the specifics of the case before us.

IV. Application to this Case

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 As we understand the Supreme Court’s jurisprudence on the Speech or

Debate Clause, the immunity issue before us turns on whether Plaintiff’s lawsuit

questions “legislative” action by Senator Campbell or Plaintiff. In our view, it

does not.

First, the alleged discriminatory acts by the Senator were not legislative

acts. No official Senate action, such as a vote or a subpoena, was involved. None

of the Senator’s alleged misconduct took place “in either House” of Congress,

either literally or constructively (as might be the case when a subcommittee

conducts hearings in the hinterlands).

Indeed, even if there had been a legislative act—say, a committee

resolution—directing a discriminatory action against Plaintiff, only the vote itself

would be protected by the Speech or Debate Clause. Plaintiff could still pursue a

claim for being removed from the payroll or being mistreated by supervisors. In

Powell the House of Representatives in effect fired a member of its own body.

Those who voted to exclude Powell were protected by the Speech or Debate

Clause. But its agents—including those who handled payrolls—were subject to

suit. Thus, in the case before us, Defendant—the Office of Senator

Campbell—could be liable for a discriminatory action against Plaintiff even if the

action was authorized or directed by immunized legislative votes.

Second, Plaintiff’s discrimination claim does not require proof of any

-29-
legislative act by Senator Campbell or any member of his staff. Defendant has not

pointed to, or even suggested, that Plaintiff would need to prove that Senator

Campbell cast a particular vote, subpoenaed a witness, or took part in any other

official Senate or Senate committee action. What Defendant does suggest is that

meetings with constituents or other members of the public—either by the Senator

himself or by his aides—are legislative acts to the extent that information is

gathered that could affect his votes or his efforts to craft proposed legislation. In

support of this position Defendant cites language in the Supreme Court’s decisions

in Doe, United States Servicemen’s Fund, and Proxmire, stating that gathering

information was a legislative act. In each of these cases, however, the information

gathering being addressed was in the course of formal committee action, when the

committee had subpoenaed witnesses or disclosed information during a hearing.

No Supreme Court opinion indicates that Speech or Debate Clause immunity

extends to informal information gathering by individual members of Congress. On

the contrary, Gravel summarized the nonimmunized civil complaint against the

committee counsel in Dombrowski as “charg[ing] [him] with conspiring with state

officials to carry out an illegal seizure of records that the Committee sought for its

own proceedings,” Gravel, 408 U.S. at 619—surely an information-gathering

function. Gravel explained that even though “the committee counsel was

gathering information for a hearing[,] . . . relief could be afforded [to those suing

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the counsel] without proof of a legislative act or the motives or purposes

underlying such an act.” Id. at 620-21. The Court’s discussions in its opinions of

the importance of information gathering is for the purpose of establishing that

such activity is a proper congressional function and, when conducted by a

committee, should be treated just as voting and debating legislation. To extend

protection to informal information gathering—either personally by a member of

Congress or by congressional aides—would be the equivalent of extending Speech

or Debate Clause immunity to debates before local radio stations or Rotary Clubs.

The only potential support for Defendant’s views on this matter that we can

find in the Supreme Court’s opinions is the statement in Gravel that a protective

order “would afford ample protection for the [Speech or Debate Clause] privilege

if it forbade questioning any witness . . . 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.” 408 U.S. at 628-29 (emphasis added).

Perhaps the Court is saying that information gathering targeted to a specific

hearing is activity privileged under the Clause. But the Court failed to expand on

the matter, and other language in Gravel, particularly the discussion of

Dombrowski summarized above, strongly suggests otherwise. The issue was not

clearly presented in Gravel because the staff member who acquired the

information—the Pentagon Papers—had only been hired on the day of the hearing.

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In any event, the unexplained statement in Gravel is insufficient ground for us to

stretch the meaning of “Speech or Debate in either House” to include the everyday

task of gathering views and information from constituents and others through

informal contacts.

Aside from reliance on the Speech or Debate opinions of the Supreme Court,

Defendant also points to the immunity granted the President. In Nixon v.

Fitzgerald, 457 U.S. 731(1982), the Supreme Court recognized “absolute

Presidential immunity from damages liability for acts within the ‘outer perimeter’

of his official responsibility.” Id. at 756. Fitzgerald had been terminated from his

Air Force position “in the context of a departmental reorganization and reduction

in force, in which the job was eliminated.” Id. at 733-34. He alleged that the

reorganization was a ruse and that he was actually terminated in retaliation for his

truthful testimony before a congressional committee. See id. at 736. Holding that

the President had “the authority to prescribe reorganizations and reductions in

force” within the Air Force, the Court “conclude[d] that [the President’s] alleged

wrongful acts lay well within the outer perimeter of his authority.” Id. at 757.

Fitzgerald hardly compels a conclusion that members of Congress have an

absolute immunity from similar suits by their staff assistants. It is not enough to

argue that if the head of one of the three branches of government has absolute

immunity in personnel matters, then so do the heads of a coequal branch. To be

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sure, any imposition of liability on a public official may impair that official’s

performance of official duties; lawsuits by former employees can consume time

and energy, and the prospect of such suits may deter the official from discharging

an employee whose incompetence diminishes the official’s own efficiency and

effectiveness. But Fitzgerald made clear that determining whether to recognize an

absolute immunity requires balancing such interests against the interests of those

who have been wronged. See id. at 744-48. And recognition of the President’s

absolute immunity derived from “[t]he President’s unique status under the

Constitution.” Id. at 750 (emphasis added). The Court said that “[b]ecause of the

singular importance of the President’s duties, diversion of his energies by concern

with private lawsuits would raise unique risks to the effective functioning of

government,” id. at 751, and “the sheer prominence of the President’s office”

makes him “an easily identifiable target for suits for civil damages,” id. at 752-53.

Surely these considerations also weigh heavily in the context of high ranking

executive officials, such as governors and cabinet officers; but the Court viewed

decisions giving such officials only a qualified immunity “to be inapposite.” Id. at

750.

Prominent as members of Congress are, the threat to the performance of

their duties arising from employment litigation is nothing like what would confront

the President. It is worth observing that the third branch of government, the

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judiciary, is not entitled to absolute immunity in making employment decisions.

See Forrester v. White, 484 U.S. 219 (1988). Moreover, Congress itself, at least in

1995, apparently did not believe it required such protection. It limited the reach of

the CAA only insofar as the Speech or Debate Clause provided immunity, and the

case law at that time hardly provided much ground for reliance on the Clause in

the personnel arena. A truly concerned Congress would likely have enacted a

specific protection in the CAA. Defendant would have a stronger argument if the

cause of action here were not one created by Congress. Indeed, the absolute-

privilege holding in Fitzgerald was limited to “‘implied’ causes of action [and did]

not address directly the immunity question as it would arise if Congress expressly

had created a damages action against the President . . . .” Fitzgerald, 457 U.S. at

748 n.27.

In any event, Defendant relies solely on the Speech or Debate Clause itself.

And whatever the strength of policy arguments for granting members of Congress

the same absolute immunity afforded the President, we are restricted to what the

language of the Clause will bear. Instructive in this regard is Justice Brandeis’s

opinion for the Court in Long v. Ansell, 293 U.S. 76 (1934). At issue was the

meaning of the clause immediately preceding the Speech or Debate Clause: “[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

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Session of their respective Houses, and in going to and returning from the same[.]”

U.S. Const. art. I, § 6, ¶ 1.

Senator Huey Long had been sued for libel in the District of Columbia, and

a summons to answer the complaint was served on him in the District during a

congressional session. The Court rejected Long’s argument that the constitutional

protection against arrests encompasses immunity from such a summons while he

was conducting the public’s business in Congress. Justice Brandeis wrote that the

language of the constitutional provision protecting members of Congress from

arrest “is exact and leaves no room for a construction which would extend the

privilege beyond the terms of the grant.” 293 U.S. at 82. Likewise, we decline to

read a congressional equivalent of the Fitzgerald privilege into the Speech or

Debate Clause.

Finally, Defendant relies on Browning v. Clerk, 789 F.2d 923 (D.C. Cir.

1986), the one appellate opinion dismissing an employment claim because of

Speech or Debate Clause immunity. The court in that case dismissed a complaint

alleging racial discrimination filed by a woman fired from her position as an

official reporter of the House of Representatives. The court stated that “[t]he

touchstone to determining whether the Speech or Debate Clause immunity attaches

is whether the activities at issue were ‘an integral part of the deliberative and

communicative processes [of Congress],’ Gravel, 408 U.S. at 625, such that the

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activity is legislative in character.” Id. at 928. This observation is not

controversial, coming from Gravel’s statement that for activities other than

“speech or debate in either House” to be legislative acts, “they must be 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.” Gravel,

408 U.S. at 625.

Browning went one step further, however, in stating, “[p]ersonnel decisions

are an integral part of the legislative process to the same extent that the affected

employee’s duties are an integral part of the legislative process. Thus, if the

employee’s duties are an integral part of the legislative process, such that they are

directly assisting members of Congress in the ‘discharge of their functions,’

personnel decisions affecting them are correspondingly legislative and shielded

from judicial scrutiny.” Browning, 789 F.2d at 928-29 (citation omitted).

We hesitate to embrace this test. A personnel decision is not a “legislative

act,” as defined by the Supreme Court, and is therefore not entitled to immunity.

The Speech or Debate Clause therefore provides protection only if legislative acts

must be proved to establish the claim challenging the personnel action. See, e.g.,

Helstoski, 442 U.S. at 487-89. Perhaps the Browning test is simply another way of

-36-
describing this protection. After all, in Browning the official reporter’s

performance could be established only by comparing her output to what was

actually said during a committee meeting. Thus, litigation of her claim would

have required examination of legislative acts. See Browning, 789 F.2d at 930. In

any event, even under the Browning formulation, Plaintiff here prevails, because

her job duties do not satisfy the Gravel standard for a legislative act. Her

discussions with constituents and others were not “an integral part of the

deliberative and communicative processes by which Members participate in

committee and House proceedings.” Gravel, 408 U.S. at 625. The

“communicative processes” referred to in Gravel are only those within Congress

itself.

V. Conclusion

We hold that Plaintiff’s cause of action under the CAA is not barred by the

Speech or Debate Clause. We REVERSE the dismissal by the district court and

REMAND for further proceedings consistent with this opinion.

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