The ease of Internet publishing is increasing our expectations that lawmakers and congressional support agencies serve as a source for timely legislative information.

As our expectations increase, congressional information will flourish only if the standards governing its dissemination are clearly articulated. Congress and its appendages will only share information in the broad way an digitally empowered citizenry will increasingly demand if they can do so with confidence about the legal and political ramifications of their engagement.

The first of these potential consequences comes from the application of standards of the Franking Commission to the venues of digital information, as covered in detail by David All and Paul Blumenthal in the Open House Project report’s chapter on Member Web Use Restrictions.

Serving as a public source for legislative information, however, brings another separate congressional privilege into stark modern relief. Just as email and websites have drawn Congress to apply standards of paper mail privileges (the Frank), the Speech and Debate clause of the Constitution needs to be reinterpreted to establish to what degree it applies to congressional use of the Internet.

Article I Section 6 of the Constitution says, in part:

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.

This section of the Constitution appears to be mainly directed at maintaining an important separation of powers between the legislative and executive branches, permitting legislators the freedom from (especially executive) influence necessary for objective consideration of legislative considerations, while still maintaining that all citizens are still equal under the law. Legislators must be able to consider the consequences of their decisions objectively, rather than focusing on legal ramifications as they might pertain to them personally.

Debate around the limits of the exemptions of the clause center around what qualifies as legislative activity (Constitution Annotated, from CRS via Cornell):

Immunity from civil suit, both in law and equity, and from criminal action based on the performance of legislative duties flows from a determination that a challenged act is within the definition of legislative activity, but the Court in the more recent cases appears to have narrowed the concept somewhat.

…At this point, the Court distinguished between those legislative acts, such as voting,[p.130]speaking on the floor or in committee, issuing reports, which are within the protection of the clause, and those acts which enjoy no such protection. Public dissemination of materials outside the halls of Congress is not protected, the Court held, because it is unnecessary to the performance of official legislative actions. Dissemination of the report within the body was protected, whereas dissemination in normal channels outside it was not.

This isn’t particularly reassuring, although the corresponding footnote does point to an inconsistency, “Difficulty attends an assessment of the effect of the decision, inasmuch as the Justices in the majority adopted mutually inconsistent stands, id., 325 (concurring opinion), and four Justices dissented. Id., 331, 332, 338. The case leaves unresolved as well the propriety of injunctive relief,” and the annotation later continues:

The clause protects more than speech or debate in either House, the Court affirmed, but in order for the other matters to be covered “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.”395Press releases and newsletters are “[v]aluable and desirable” in “inform[ing] the public and other Members” but neither are essential to the deliberations of the legislative body nor part of the deliberative process.396

This isn’t very reassuring for the future of public input into legislative operations. If publishing committee or member press releases doesn’t fall within the realm of the speech and debate clause, does posting legislative information through THOMAS? When Congress does its part in encouraging an informed citizenry, it should be able to do so with a clear idea about the legal consequences of helping constituents understand the substance of legislation.

I don’t know what the best way is for the boundaries of the speech and debate clause to be clarified, or who is in the best position to articulate to members and committees just which activities through their websites and communications have different potential consequences than their more traditional activities, which are clearly covered by the speech and debate clause. It seems to me, however, that clarification of its application are a necessary precondition for confident congressional engagement with the Internet.

(Two notes:

First, this is an issue that some within Congress are at least considering, since at least one committee and also Congressional Research Service itself have posted memos or notices of their intent not to forfeit their exemption under the clause.

Second, the explanatory materials linked to in this post come from a Cornell reprinting of the CRS publication Constitution of the United States, Analysis and Interpretation, published within the Constitution Annotated’s mandate for public consumption, itself somewhat of a deviation from the CRS position of only serving Congress, concerned about maintaining their Article I Section 6 exempt status.)