Mr. President, I ask unanimous consent that the Senate proceed to the consideration of S. Res. 121 that was submitted earlier today. Mr. President, this resolution concerns an appeal pending before…
Mr. President, I ask unanimous consent that the Senate proceed to the consideration of S. Res. 121 that was submitted earlier today.
Mr. President, this resolution concerns an appeal pending before the Supreme Court of the United States in an action brought by a former Senate employee against his employing office, the Office of former Senator Mark Dayton. In 2003, the former employee sued the office under the Congressional Accountability Act of 1995. As a defense to the suit, the office asserted that the Speech or Debate Clause of the Constitution barred a suit by the employee, because during his time with the office his job included legislative duties.
The lower courts denied this argument and refused to dismiss the suit on that ground. The office has now appealed this case to the Supreme Court, placing directly before the High Court the question of the application of the Speech or Debate Clause to suits brought under the Congressional Accountability Act.
As the scope of the Speech or Debate Clause will now be considered in the merits of an appeal by the Supreme Court for the first time in almost 30 years, it is important that the Senate as an institution have a voice in those proceedings to protect the Senate's interests in that important constitutional privilege that secures the independence of this body from the other branches of Government.
It is also important that the legal counsel appear on the Senate's behalf in this action so that the Court can be presented with the Senate's understanding of the proper application of the Speech or Debate Clause to the Congressional Accountability Act. Congress passed the act to apply to Congress the same Federal workplace and employment laws that applied to the private sector and the executive branch, giving our employees the same protections enjoyed by employees elsewhere. That was done with the understanding that suits by congressional employees, even employees with legislative duties, were not automatically barred by the Speech or Debate Clause privilege of Members.
Accordingly, as the Supreme Court is now being urged to bar all Congressional Accountability Act suits that are brought for adverse personnel actions by employees with any legislative duties, it is important that the Senate present to the Court the position that suits under the Congressional Accountability Act can proceed consistent with the Speech or Debate Clause. While that Clause would provide Members with a robust evidentiary and testimonial privilege concerning their legislative activities in these lawsuits and may limit permissible relief, it does not automatically block all such suits at the outset.
In addition, the Supreme Court has directed the parties to brief the additional questions of whether the case has become moot because Senator Dayton has left office, and whether the office of Senator Dayton could appeal the case directly to the Supreme Court. On these questions, the legal counsel will describe why suits brought under the Congressional Accountability Act against the office of a Member of Congress do not become moot after the Member departs from Congress. Indeed, the contrary position would undermine the act's important protections for employees whose Members are soon to end their congressional service. The legal counsel will also argue that the appeal is not within the jurisdiction of the Supreme Court as the provision of the Congressional Accountability Act that provides for direct appeal to the Supreme Court is not satisfied here.
In sum, this resolution would direct the Senate legal counsel to appear in this action on behalf of the Senate to protect the Senate's interests in the proper application of the Speech or Debate Clause to civil suits brought under the Congressional Accountability Act.
Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, and the motion to reconsider be laid upon the table; and that any statements be printed in the Record.
