[Congressional Record Volume 146, Number 43 (Friday, April 7, 2000)]
[Senate]
[Pages S2444-S2445]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     DIRECTING SENATE LEGAL COUNSEL

  Mr. MURKOWSKI. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of S. Res. 283, submitted 
earlier by Senator Lott and Senator Daschle.
  The PRESIDING OFFICER. The clerk will report the resolution by title.
  The assistant legislative clerk read as follows:

       A resolution (S. Res. 283) to direct the Senate Legal 
     Counsel to intervene in the name of the Senate Committee on 
     Appropriations and the Senate Committee on the Judiciary in 
     United States of America v. Northwest Airlines Corporation, 
     et al.

  There being no objection, the Senate proceeded to consider the 
resolution.
  Mr. LOTT. Mr. President, Northwest Airlines, one of the defendants in 
a civil antitrust action brought by the Department of Justice on behalf 
of the United States in the U.S. District Court for the Eastern 
District of Michigan, has subpoenaed the General Accounting Office to 
produce documents that GAO collected or generated in the course of its 
preparation of testimony or reports for several Senate committees, 
including the Committee on Appropriations Subcommittee on 
Transportation and the Committee on the Judiciary Subcommittee on 
Antitrust, Business Rights, and Competition.
  GAO advised Northwest's counsel that the documents sought were 
unavailable because they are protected by

[[Page S2445]]

both the Speech or Debate Clause of the Constitution, which is 
Congress's legislative privilege, and GAO's own deliberative process 
privilege. Northwest Airlines has chosen to contest GAO's assertion of 
privilege by moving in the U.S. District Court for the District of 
Columbia to compel GAO to produce the documents.
  The records that Northwest Airlines is seeking were records that GAO, 
which is an investigative agency of Congress, collected or created 
while preparing testimony or reports in response to requests from 
committees and subcommittees of the Senate. Northwest has not given 
GAO, the Senate, or the Court any explanation for why it may defeat the 
privileges inhering in GAO internal work product and deliberative 
documents, including drafts of proposed testimony, to defend itself in 
this antitrust action. None of these internal records at issue in this 
matter has been provided to Northwest's adversary, the Justice 
Department. Nor are the final reports issued by GAO or GAO's 
congressional testimony at issue in this matter, as all parties to the 
litigation, including Northwest Airlines, have been given full access 
to these materials.
  GAO is opposing Northwest's motion to compel, invoking its 
deliberative process privilege. But the legislative privilege that is 
grounded on the Constitution's Speech or Debate Clause belongs to the 
Congress. In order to ensure congressional independence from the other 
branches of the government, the Constitution affords Congress with an 
absolute privilege from compelled questioning through the courts about 
the performance of its legislative responsibilities, such as the 
gathering of information and preparation of hearings, the conduct of 
administrative oversight, and the consideration of legislation.
  The Senate has a strong interest in the ability of its committees to 
receive testimony and analysis from GAO, which serves as its 
investigative arm, without fear that entities whose activities are the 
subject of that testimony and analysis will be allowed to root around 
in GAO's internal work papers, drafts, and deliberative documents 
seeking something of possible help to them in unrelated litigation. 
That kind of intrusion into the legislation process is precisely what 
the Speech or Debate Clause was intended to foreclose.
  Because the Speech or Debate Clause privilege belongs to the Congress 
and because it is the committee of Congress that are the direct 
beneficiaries of GAO's contributions to their legislative work, it is 
appropriate that the court hear directly from those Senate committees 
for which GAO was providing analysis how Northwest's attempt to compel 
production of GAO's internal work product threatens their autonomous 
performance of legislative duties entrusted to them under the 
Constitution. Accordingly, this resolution authorizes the Senate Legal 
Counsel to intervene in this matter in the name of the Committee on the 
Judiciary and the Committee on Appropriations to assert the Speech or 
Debate Clause as protection against compelled questioning of GAO, 
through compelled production of GAO's internal work product when 
responding to requests from Congress.
  Mr. MURKOWSKI. Mr. President, I ask unanimous consent that the 
resolution be agreed to, the preamble be agreed to, the motion to 
reconsider be laid upon the table, and that any statements relating to 
the resolution be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The resolution (S. Res. 283) was agreed to.
  The preamble was agreed to.
  The resolution, with its preamble, reads as follows:

                              S. Res. 283

       Whereas, in the case of United States v. Northwest Airlines 
     Corporation, et al., Misc. No. 99-424, pending in the United 
     States District Court for the District of Columbia, defendant 
     Northwest Airlines, by seeking to compel the production of 
     documents of the United States General Accounting Office, has 
     placed in issue the privileges of the United States Senate 
     under the Speech or Debate Clause, Art. I, sec. 6, cl. 1, of 
     the United States Constitution; and
       Whereas, pursuant to sections 703(c), 706(a), and 713(a) of 
     the Ethics in Government Act of 1978, 2 U.S.C. 288b(c), 
     288e(a), and 288l(a), the Senate may direct its counsel to 
     intervene in the name of a committee of the Senate in any 
     legal action in which the powers and responsibilities of 
     Congress under the Constitution are placed in issue: Now, 
     therefore, be it
       Resolved, That the Senate Legal Counsel is directed to 
     intervene in the name of the Senate Committee on 
     Appropriations and the Senate Committee on the Judiciary in 
     the case of United States v. Northwest Airlines Corporation, 
     et al., to protect the Senate's privileges under the Speech 
     or Debate Clause of the Constitution.

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