Congressional Arbitrage at the Executive’s Expense: The Speech or Debate Clause and the Unenforceable STOCK Act

Fodor, Anna | January 1, 2014

In early 2012, Congress passed the Stop Trading on Congressional Knowledge (STOCK) Act. The STOCK Act explicitly prohibits members of Congress and their staff from trading on material, nonpublic information received because of their status. The Act leaves enforcement of its provisions to the Executive Branch. However, the Speech or Debate Clause and recent case law interpreting the Clause’s legislative privilege create roadblocks to the Executive’s ability to effectively enforce the Act against a member of Congress. Given the obstacles to effective enforcement, the STOCK Act creates a risk-free opportunity for political gain by the Legislative Branch while positioning the Executive to pursue hamstrung prosecutions. Congress’s arbitrage opportunity thus comes at the expense of the Executive and threatens the balance and separation of powers. This Note argues that if legislative privilege is understood as an institutional privilege of Congress as a body rather than an individual privilege of each member of Congress, the courts may recognize a congressional waiver of all members’ legislative privilege as applied to the STOCK Act. Such a waiver would restore the ability of the Executive to effectively enforce the STOCK Act and would alleviate separation of powers concerns.