Citizens Union of New York v. Attorney General of New York (269 F. Supp. 3d 124, 2017)

OPINION AND ORDER

KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE

Plaintiffs Citizens Union of the City of New York and Citizens Union Foundation, Inc. of the City of New York (collectively, “Plaintiffs”) commenced this action to challenge the constitutionality of New York Executive Law Sections 172-e and 172-f (the “Disclosure Provisions”).

Currently pending before this Court is a dispute over a subpoena Plaintiffs served upon the Governor of the State of New York (the “Governor”) insofar as it seeks non-public documents concerning the government’s interest in enacting the Disclosure Provisions and the extent to which the Disclosure Provisions are tailored to address that interest. The Governor moved to quash this subpoena on the grounds that the non-public documents sought are not relevant and also are protected from disclosure under the legislative privilege, deliberative process privilege and/or attorney-client privilege, For the reasons that follow, the Governor’s motion to quash is GRANTED.

BACKGROUND

On June 8, 2016, the Governor announced anticipated ethics, lobbying, and campaign-finance reform legislation intended to “curb the power of independent expenditure campaigns unleashed by the 2010 Supreme Court case Citizens United vs. Federal Election Commission.” (Doc. No. 41 ¶ 38.) In a speech announcing the legislation, the Governor stated:

[T]he power to influence and the power to be heard in elections was tilted beyond all recognition when the Supreme Court upheld Citizens United, This decision'ignited the equivalent of a campaign nuclear arms race and created a shadow industry in New York—maligning the integrity of the electoral process and drowning out the voice of the people .... As Governor of New York, I am taking action to curb the powérs of independent entities and ensure these committees cannot circumvent the law and cheat the system. We are also strengthening disclosure requirements so we know exactly where and from whom this dark money flows. Our message is clear: In New York, democracy is not for sale,

(Doc. No. 41 ¶ 39.)

On June 17, 2016, at the end of the Legislative Session, two bills that addressed ethics, lobbying, and campaign-finance reform—A10742 and S8160—were introduced into the New York State Assembly and New York State Senate. (Doc. No. .41 ¶ 41.) The two bills were accompanied by a “Message of Necessity” from the Governor, which states, inter alia: “[t]he bill would ... require disclosures of political relationships i and behaviors widely recognized to be influential but which operate in' the shadows. As passage of 'this bill would enact the strongest reforms in the country to combat the outsized influence of dark money in politics, it is imperative that New York pass this bill.” (Doc. No. 41 ¶43.) The Senate and Assembly voted upon and passed the two bills on the same day. (Doc. No. 41 ¶¶ 43,47.)

On August 24, 2016, the Governor signed the bills into law as Chapter 286. (Doc. No. 41 ¶5.) As described by Plaintiffs, Chapter 286 “contained many provisions aimed at much-needed ethics and campaign-finance reform,” the majority of which are not at issue in this litigation, (Doc. No. 68 p. 1.) However, Chapter 286 also amended the New York Executive Law by adding the Disclosure Provisions, Sections 172-e and 172—f, which are the subject of Plaintiffs’ constitutional challenges. (Doc. No. 41 ¶ 6.)

Section 172-e requires a non-profit organization (“501(c)(3) organization”) that makes an in-kind donation in excess of $2,500 to a non-profit lobbying organization (“501(c)(4) organization”) to disclose the identity of any donor who makes a donation in excess of $2,500 to the 501(c)(3) organization. N.Y. Exec. L. §§ 172-e(2)(a), 172-e(l). Section 172-f requires a 501(c)(4) organization that spends more than $10)000 on published communications that “refer[ ] to and advocate[ ] for or against á Clearly identified elected official or the position of any elected official or administrative or legislative body relating to the outcome of any vote or substance of any legislation, potential legislation, pending legislation, rule, regulation, hearing, or decision by any legislative, executive or administrative body” to disclose “the name and address of any individual, corporation, association, or group that made a donation of [$1,000] or more” to the 501(c)(4) organization. Id. at §§ 172-f(2)(a), 172-f(l)(a)-(b); The Disclosure Provisions further mandate that the donor disclosure reports will made publicly available, absent a determination by the New York Attorney General that disclosure may result in harm to the source of the donation. Id. at §§ 172-e(3), 172-f(3). Section 172-e took effect on November 22, 2016, and Section 172-f took effect on September 23, 2016. (Doc. No. 41 ¶ 5.)

On December 12, 2016, Plaintiffs filed a Complaint in the Southern District of New York against the Governor, the Attorney General of the State of New York, and various other state officials, .seeking declaratory and injunctive relief, from the implementation and enforcement of the Disclosure Provisions. (Doc. No. 1.) The Complaint alleged that the Disclosure Provisions are facially overbroad under the First Amendment. Plaintiffs subsequently filed an Amended Complaint, which added claims that the Disclosure Provisions are unconstitutional under the First Amendment as applied to Plaintiffs and invalid under the New York State Constitution. (Doc. No. 41.) In the Amended Complaint, Plaintiffs also assert that the Governor signed the legislation “to retaliate against good government groups like Plaintiffs for criticizing his ethics reform efforts.” (Doc. No. 41 ¶¶ 4, 32-34, 87, 97, 120, 131.)

On December 30, 2016, Plaintiffs wrote to the Court advising that they sought leave to file a motion for a preliminary injunction, preceded by “targeted discovery on the existence and scope of the government’s interest in obtaining donor disclosures from covered organizations, and the interest’s relationship to the amount of burdened speech, both of which are vital to analyzing the facial over-breadth of the statutes.” (Doc. No. 28 pp. 1, 5-6 &• n.2.) Plaintiffs further explained that the necessary discovery included “basic documents like the bill jacket, message of necessity, and legislative history, and any other documents from the Governor’s office concerning the rationale for the statute.” (Doc. No. 28 p. 1 n.2.) On January 11, 2017, the Honorable Richard M. Berman .ruled that “limited expedited discovery” would be permitted prior to Plaintiffs’ application for a preliminary injunction. (Doc. No. 34 p. 7.)

On January^ 24, 2017, Plaintiffs served Requests for the Production of Documents (the “Requests”) on the Governor seeking documents regarding the nature and extent of the government interest in the Disclosure Provisions,- the scope of the Disclosure Provisions, the application of the Disclosure Provisions, and the Governor’s Message of Necessity, among other documents and information. (Doc. No. 38-1.) Plaintiffs also served the New York State Senate (the “Senate") and the New York State Assembly (the “Assembly”) with subpoenas seeking. similar types óf information on the same day. (See Doc. No. 63-1.) The Governor, Senate, and Assembly agreed to produce copies of publicly available documents in their possession regarding the Disclosure Provisions, but objected to Plaintiffs’ demands for the production of non-public documents. Specifically, the Governor objected to the Requests on relevance grounds and insofar as they sought production of privileged documents and communications.

The Governor subsequently requested a conference to address his anticipated motion for a protective order quashing the. Requests. (Doe. No. 38.) On March 3, 2017, this Court held a pre-motion conference and granted the Governor leave to proceed with filing a motion for a protective order. (Doc. Nos. 44-45, 50.)

Following the March 3, 2017 conference, the Senate and Assembly (collectively, the “Intervenors”) sought leave to intervene in this action for the limited purposes of participating in the briefing for the Governor’s motion for a protective order, explaining that their privileges would also be implicated by any ruling regarding the Governor’s claims of privilege. (Doc. Nos. 46, 49, 53-54.) Judge Berman granted the Inter-venors’ applications on March 10, 2017. (Doc. No. 55.)

On March 17, 2017, the Governor filed the instant motion for a protective order quashing Plaintiffs’ Requests. (Doc. Nos. 64-65.) The Intervenors filed memoranda of law in support of the issuance of a protective order on the same day. (Doc. Nos. 61-63.) The Governor and Interve-nors all argue in their briefs that the discovery Plaintiffs seek is not relevant and, further, is protected from disclosure under the legislative and deliberative process privileges, as well as attorney-client privilege in some instances. Plaintiffs oppose the Governor’s motion. (See Doc. No. 68.)

On April 25, 2017, this Court held oral argument on the pending motion for a protective order. During the conference, the Court ordered Plaintiffs to serve revised and narrowed discovery requests on the Governor by May 5, 2017. The Court also directed the parties to provide supplemental briefing regarding two issues raised during oral argument: the relevance of the discovery sought and the potential waiver of privilege. The Court further ordered the Governor to serve a redacted privilege log upon Plaintiffs and to provide an unredacted version of the privilege log to the Court for in camera review. (Doc. Nos. 77, 79.)

On May 5, 2017, Plaintiffs filed their supplemental brief and also served their Amended First Set of Requests for Production of Documents (the “Amended Requests”) upon the Governor. (Doc. No. 81.) The Amended Requests seek:

• Documents and communications containing factual information or factual conclusions concerning the government’s interest in enacting the Disclosure Provisions, including factual information or factual conclusions concerning any purported harm or problem (or lack thereof) resulting from the activities regulated by the Disclosure Provisions.

• Documents and communications containing factual information or factual conclusions concerning the relationship, if any, between the Disclosure Provisions and “dark money,” as that term is used by the Governor in his message of approval, dated August 24, 2016, including the existence, prevalence, or impact of such “dark money.”

• Documents and communications containing factual information or factual conclusions concerning the relationship, if any, between the Disclosure Provisions and “shadow lobbying,” as that term was used by the Governor’s spokesman’s public statements directed at “Good Government Groups,” including the existence, prevalence, or impact of such “shadow lobbying” by 501(c)(3)s or 501(c)(4)s.

• Documents and communications containing factual information or factual conclusions concerning whether and what ways the scope of activity regulated by the Provisions, and the manner of regulation, was tailored to address the identified problems or harms, and not to otherwise burden First Amendment rights, including how the activities regulated compare to activities that were already subject to regulation prior to enactment of the Disclosure Provisions.

• Documents and communications containing factual information or factual conclusions concerning whether and in what ways the Disclosure Provisions are like or unlike other disclosure provisions in other states or jurisdictions.

(Doc. No. 81-1 pp. 5-7.)

Plaintiffs assert that the Amended Requests, taken together, seek the production of factual information or materials in the possession of the Governor or his staff that “supports or undermines the existence of any real harm or problem resulting from the activities regulated by the [ ] Disclosure Provisions; that supports or undermines a conclusion that the Provisions will alleviate those harms or problems; and that supports or undermines a conclusion that the scope of activity regulated by the Provisions, and the manner of regulation, was tailored to address the identified problems or harms, and not to otherwise burden First Amendment rights.” (Doc. No. 81-1 p. 4.) They have repeatedly clarified, however, that the Amended Requests do not seek “the subjective intent of the Governor or any of his aides.” (Doc. No. 81-1 pp. 4-5.)

■ On May 30, 2017, the Governor filed his supplemental brief and submitted his Privilege Log to the Court for in camera review. (Doc. No. 89.) For each of the 214 documents over which the Governor has asserted a claim of privilege, the Privilege Log lists the date, the document type, the author, the recipients, the type of privilege asserted, and a description of the document. The documents included on the Governor’s Privilege Log can be broadly categorized as:

• Communications between and among counsel for the Governor regarding the drafting of the Disclosure Provisions (Privilege Log Entry Nos. 1; 25; 38).

• Communications between and among counsel regarding research by, or requested by, counsel for use in drafting the Disclosure Provisions (Privilege Log Entry Nos. 3-24; 26-27; 47-48; 138).

• Drafts of summary memoranda prepared by counsel regarding potential ethics reform bills, including summaries of the purpose and provisions of the legislation (Privilege Log Entry Nos. 28-30; 57; 59; 61-62; 67).

• Communications regarding counsel’s legal assessment or analysis of the Disclosure Provisions, including regarding the potential scope of the disclosure requirements (Privilege Log Entry Nos. 2; 31; 135-137; 214).

• Communications regarding, requesting, or reflecting counsel’s edits to draft public statements regarding campaign finance reform and the ethics reform legislation (Privilege Log Entry Nos. 32-37; 39-46; 49-56; 58; 60; 63-66; 68-134; 139-175; 179-180; 206-209).

• Communications regarding the drafts of the sponsor’s memo, approval message, and/or executive order for the ethics reform legislation, as well as communications-requesting or reflecting the work of counsel regarding these documents (Privilege Log Entry Nos. 176-178; 181— 206; 210-213).

(Doc. No. 89 Ex. B.)

The Governor also submitted a list of the documents that he,- as well as the Senate and Assembly, have produced to Plaintiffs in discovery thus far. (Doc. No. 89 Ex. C.) This list includes a number of documents regarding the legislation at issue, including the Bill Jacket, emails between the Governor’s Counsel’s Office and various third-parties such as “Good-Government Groups,” the Juné 17, 2016 Senate Standing Committee on Rules Voting and Attendance Record, DVDs of the Senate’s discussion and vote on the, legislation, the Assembly Floor Debate Transcript, and Assembly agendas, among other documents.'(Doc. No, 89 Ex. C.)

During the pendency of the instant motion for a protective order, the Governor filed a motion to dismiss the Amended Complaint based upon, inter alia, executive immunity from suit under the Eleventh'Amendment. (Doc, No, 82.) On June 23, 2017, Judge Berman granted the Governor’s motion to dismiss, holding that the Court lacked subject matter jurisdiction to consider Plaintiffs’ claims asserted against the Governor in his official capacity. (Doc. No. 96.)

Following Judge Berman’s Opinion and Order dismissing the Governor as a party to this litigation, Plaintiffs served-the Governor with a third-party subpoena pursuant to Federal Rule of Civil Procedure 46. (Doc. No. 96-1.) The subpoena propounds identical Requests for" the Production of Documents as Plaintiffs’ Amended Requests. (See Doc, No. 96.)

The parties subsequently requested that this Court convert the Governor’s motion for a protective order, and all briefing associated with that motion, into a motion to quash Plaintiffs’ subpoena seeking the production of documents, (Doc. Nos, 96, 98, 100.) This Court granted that application during a conference held on June 29, 2017. (Doc. No. 100.)

DISCUSSION

I. STANDARD FOR DISCOVERY

A. Federal Rules Of Civil Procedure 45 And 26

Rule 45 governs the issuance of third-party subpoenas and supplies the framework for motions to quash. Under Rule 45(d)(3), the court must modify or quash a subpoena that, inter alia, “requires disclosure of privileged or other protected matter, if no exception or waiver applies” or “subjects a person to undue burden.” Fed. R. Crv. P. 45(d)(3)(A)(iii)-(iv). In assessing whether the subpoena imposes an undue burden, courts weigh “the burden to the subpoenaed party against the value of the information to the serving party” by considering factors such as “relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden, imposed.” Bridgeport Music Inc. v. UMG Recordings, Inc., No. 05-cv-6430 (VM) (JCF), 2007 WL 4410406, at *2 (S.D.N.Y. Dec. 17, 2007) (quoting Travelers Indem. Co. v. Metro. Life Ins. Co., 228 F.R.D. 111, 113 (D. Conn. 2005)). “Motions to compel and motions to quash a subpoena are both ‘entrusted to the sound discretion of the district court,’ ” In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003) (quoting United States v. Sanders, 211 F.3d 711, 720 (2d Cir. 2000)).

The discovery parameters set forth in Rule 26 also apply to subpoenas served upon non-parties, Under Rule 26(b), “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to' relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely'benefit.” Fed. R. Crv. P. 26(b)(1). In general, the relevance standard that applies when seeking discovery from a party also applies to non-parties. Malibu Media, LLC v. Doe, No. 15-cv-3147 (AJN), 2016 WL 5478433; at *2 (S.D.N.Y. Sept. 29, 2016) (“subpoenas issued under Rule 45 are subject to the relevance requirement of Rule 26(b)(1)”) (internal quotations omitted).

The party seeking discovery bears the initial burden of proving the discovery is relevant, and then the party withholding discovery on the grounds of burden, expense, privilege, or work product bears the burden of proving the discovery is in fact privileged or work product, unduly burdensome and/or expensive. See Fireman’s Fund Ins. Co. v. Great Am. Ins. Co. of N.Y., 284 F.R.D. 132, 135 (S.D.N.Y. 2012) (“Once relevance has been shown, it is up to the responding party to justify curtailing discovery.”) (citation omitted); Allison v. Closette Too, L.L.C., No. 14-cv-1618 (LAK) (JCF), 2015 WL 136102, at *8 (S.D.N.Y. Jan. 9, 2015):

B. Application Of Rules 45 And 26

Plaintiffs, as the parties seeking discovery from the Governor, bear the initial burden of proving that the information and documents sought are relevant and proportional to the needs of the case. See Fed. R. Civ. P. 26(b); Fireman’s Fund Ins. Co., 284 F.R.D. at 135.

In their Amended. Complaint, Plaintiffs allege that the Disclosure Provisions are overly broad on their face and as-applied to Plaintiffs and other similar types of “good-government groups.” First Amendment challenges to legislation like the Disclosure Provisions.are analyzed under heightened scrutiny. For purposes of this discovery motion only, the parties agree that the Disclosure Provisions will be subject to “exacting scrutiny,” which assesses whether there is .a “substantial relationship” between the Disclosure Provisions and a “sufficiently important” governmental interest. (Doc. No. 81 p. 1; see also Doc. No. 38 p. 3.) See also Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 366-67, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (quoting Buckley v. Valeo, 424 U.S. 1, 64, 66, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)); Indep. Inst. v. Fed. Election Comm’n, 216 F.Supp.3d 176, 190 (D.D.C. 2016), aff'd, — U.S. -, 137 S.Ct. 1204, 197 L.Ed.2d 243 (2017). Under this standard, Plaintiffs argue that documents reflecting the “factual information” considered by the Governor and Members of the Senate and Assembly concerning the governmental interest in the Disclosure Provisions and the Disclosure Provisions’ relationship to those interests are relevant to the merits of their claim and, as such, are subject to discovery in this litigation. (See, e.g., Doc. No. 81 pp. 1-3.) They state that factual information may be contained in statistics, reports, studies, investigative findings, and other communications.

1. Production Of Documents In The Public Record

As a starting point', it is important to recognize what discovery has been produced thus far. The Governor has produced all public legislative documents in his possession, including the Governor’s Message of Approval, his Message of Necessary, and the Bill Jacket. The Bill Jacket is comprised of several documents, including the text of the bill, vote count, Message of Necessity and requests for same from the Legislature, and letters from “Good Government Groups” concerning the proposed legislation. The Governor also produced email communications between the Governor’s Counsel’s Office and third-party entities, such as Citizens Union, the Brennan Center, Lawyers Alliance for New York, and other groups, with related attachments. Likewise, the Senate and Assembly have produced documents in their possession regarding the legislative history, including the voting records, relevant transcripts, and the Assembly Sponsors’ Memorandum, among other documents and communications.

In the Governor’s and Intervenors’ view, the legislative history; and other materials in the public record are the only evidence relevant to Plaintiffs’ facial and as-applied challenges to the Disclosure Provisions, and they have already produced this information. They correctly point out that, in other First Amendment cases, numerous courts have recognized that the bill text, legislative record and other public materials are the primary source for discerning the governmental interest in the legislation (regardless of the standard of review applied). See, e.g., Buckley, 424 U.S. at 66-67, 72, 96 S.Ct. 612 (relying on the legislative history to conclude that the governmental interests sought to be vindicated by the disclosure requirements were sufficiently important to withstand exacting scrutiny); New York v. Ferber, 458 U.S. 747, 757-59, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (relying on the legislative history and other public sources as supplying the governments’ basis for enacting the challenged law and holding “[w]e shall not second-guess- this legislative judgment”); City of Las Vegas v. Foley, 747 F.2d 1294, 1297 (9th Cir. 1984) (for a First Amendment case, “[t]he relevant governmental interest is determined by objective indicators as taken from the face of the statute, the effect of the statute, comparison to prior law, facts surrounding enactment of the statute, the stated purpose, and the record of proceedings.”); Allstate Ins. Co. v. Serio, No. 97-cv-620 (SS) (THK), 1998 WL 477961, at *5 (S.D.N.Y. Aug. 13, 1998) (“[a]s is traditionally done, inquiry into the constitutionality of [the challenged provision] can be conducted on the basis of the statutory fecheme, the legislative history, [and] other publicly available material ....”); All. of Auto. Mfrs., Inc. v. Jones, No. 4:08-cv-555 (MCR) (CAS), 2018 WL 4838764, at *4-5 (N.D. Fla. Sept. 11, 2013) (“Legislative history is the primary source for determining legislative - intent”); see also Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1, 13-13 (D.C. Cir. 2009) (courts may look to the legislative history to discern the government’s interest, but should only do so when the statutory text itself is ambiguous).

2. Plaintiffs’ Requests For Nonr-Public Documents

Plaintiffs vigorously dispute that discovery is limited to materials in the public record and argue that they are entitled to know what “factual material” was before the Governor and legislative bodies for several reasons. First, Plaintiffs contend that the documents in the Governor’s Privilege Log should be produced because the public legislative records do not contain sufficient information to withstand heightened scrutiny. This argument misses the mark. While a sparse legislative record, if proven, may be relevant to Judge Berman’s determination on the merits, it does not justify turning discovery into a fishing expedition into non-public information that may or may not have been considered important by individual legislators and the Governor in connection with passage of the Disclosure Prpvisions; nor does it warrant the disclosure of privileged materials. See Lemanik, S.A. v. McKinley Allsopp, Inc., 125 F.R.D. 602, 608 (S.D.N.Y. 1989) (“it has long been the rule in this Circuit that ‘the parties should not be permitted to roam in shadow zones of relevancy and to explore matter which does not presently appear germane on the theory that it might conceivably become so.’ ”) (citing In re Surety Ass’n of Am., 388 F.2d 412, 414 (2d Cir. 1967)). Rather, the Federal Rules of Civil Procedure dictate that the appropriate inquiry remains whether the discovery sought—here, the documents listed on the Governor’s Privilege Log—is relevant, proportional, and otherwise not barred by an applicable privilege or as a result of undue burden or expense.

Plaintiffs next argue that documents on the Privilege Log should be produced because the government must present concrete, pre-enactment evidence establishing the existence of a sufficiently important governmental interest and that the Disclosure Provisions are tailored to address that interest. (See, e.g., Doc. No. 81 pp. 1-2.) Plaintiffs assert that they need to know what facts the Governor and legislators considered before enácting the Disclosure Provisions in order to make their argument that the State lacked a sufficient evidentiary basis to justify enacting the Provisions and that the State’s alleged concerns also are not addressed by the Provisions. (Doc. No. 100 at 13:5-19.) While the Supreme Court has required the presentation of “concrete evidence,” such as statistics, to withstand a constitutional challenge in some cases where the government’s asserted justification for a law is premised on empirical data, see Turner Broad. Sys,, Inc. v. Fed. Commc’ns Comm’n, 512 U.S. 622, 664-67, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994), the Court has explained that “[t]he quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.” Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 391, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000). The Court has held that empirical evidence is not required, however, when the asserted government interest is “neither novel nor implausible.” Id. at 391, 120 S.Ct. 897. In Nixon, a case involving a challenge to campaign contribution limitations imposed by the State of Missouri, the Court rejected the argument that empirical evidence was required and, instead, held that an affidavit from a state senator and various public newspaper articles were sufficient to substantiate the state's interest in preventing corruption, an interest that had already been recognized as important by the Court in Buckley. Id. at 391-94, 120 S.Ct. 897.

In the same yein as Nixon, the Governor and Intervenors argue that the factual discovery Plaintiffs seek is irrelevant because “[t]he government interest here in disclosure has been repeatedly recognized by courts, commentators, and Citizens Union itself’ and, has been found to be sufficiently important to justify requiring the disclosure of donors. (Doc. No. 70 p. 5; see also, e.g., Doc. No. 65 p. 11.) They emphasize that in other donor disclosure cases, the Supreme Court has never required the government to support its interest in the disclosure requirements by pointing to facts considered" by individual legislators before enactment of the statutes at issue, but instead has looked to its prior precedent, and to a lesser extent, the legislative history, to determine whether the challenged disclosure requirement can withstand constitutional scrutiny. (Doc. No. 70 p. 5) (citing, ie., Citizens United, 558 U.S. at 367, 130 S.Ct. 876). Plaintiffs acknowledge that “the Supreme Court has heard donor disclosure First Amendment cases again and again over ... the last ten years” (Doc. No. 79 at 68:20-22), yet, significantly, they do not cite to a single case involving a First Amendment challenge to a disclosure requirement where the government was required to identify specific, non-public facts that were considered by individual lawmakers or executives as part of the constitutionality analysis. On the contrary, a review of the precedent involving First Amendment challenges to other donor disclosure requirements supports the Governor’s and' Intervenors’ position that-the documents on the Privilege Log are not relevant to Plaintiffs’ claims.

For example, in Buckley, the Supreme Court addressed constitutional challengés to various provisions of the Federal Election Campaign Act of 1971 (“FECA”), including to provisions that required political committees and candidates to disclose the identities of donors whose contributions exceeded a certain amount. 424 U.S. at 60-64, 96 S.Ct. 612. The Court held that the government’s interests in the disclosure requirements—providing the electorate with information about where political campaign money comes from, deterring corruption and the appearance of corruption, and gathering data to detect violations of campaign contribution limitations—were -sufficiently important to outweigh any potential infringement on First Amendment rights; Id. at 64-72, 96 S.Ct. 612. The Court cited to the legislative history of the FECA as the evidence of the government’s interests and purpose underlying the law. Id. at 66-68, 96 S.Ct. 612 (citing H.R. Rep. No. 92-564, p. 4 (1971) and S. Rep. No. 93-689, p. 2 (1974)). The Court concluded that, while donor disclosure requirements may impose some burden on individuals’ First Amendment rights, such requirements “certainly in most applications appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist.” Id. at 68, 96 S.Ct. 612.

Twenty-five years after Buckley,' the Supreme Court again considered the constitutionality of donor disclosure requirements, this time ones enacted as part of the Bipartisan' Campaign Reform Act of 2002 (“BCRA”), which amended FECA and other portions of the United States Code. McConnell v. Fed. Election Comm’n, 640 U.S. 93, 114, 124 S.Ct. 619, 167 L.Ed.2d 491 (2003). The plaintiffs in McConnell alleged that the disclosure requirements, which required the identification of individuals or groups who contributed threshold amounts towards “electioneering communications,” were facially overbroad. Id. at 194-95, 124 S.Ct. 619. In upholding the disclosure requirements as constitutional, the Court summarily explained that “[w]e agree with the District Court that the important state interests that prompted the Buckley Court to uphold FECA’s disclosure requirements—providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictions—apply in full to BCRA.” Id. at 196, 201-02, 124 S.Ct. 619.

Most recently, in Citizens United, the plaintiffs alleged that BCRA’s donor disclosure requirement was unconstitutional on an as-applied basis. 558 U.S. at 367-68, 130 S.Ct. 876. The Court rejected plaintiffs’ claims, holding that the government’s “informational interest”—that is, its interest in ensuring that the electorate is aware about the source of political speech—was sufficient to justify the disclosure requirement, citing to McConnell as the basis for this conclusion. 558 U.S., at 368-71, 130 S.Ct. 876.

Since Citizens United, circuit and district courts across the country have looked to the Buckley-McConnell-Citizens United trilogy as the basis for holding that there is a “‘recognized governmental interest’ in ‘providing the electorate .with information about,the sources of election-related spending’”.in connection with assessing the constitutionality' of compelled .disclosure requirements. Vt. Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 137-39 (2d Cir. 2014); see also, e.g., Indep. Inst., 216 F.Supp.3d at 185-86 (citing to Citizens United, McConnell, and other case law as recognizing the significance of the asserted governmental interest), aff'd, 137 S.Ct. 1204 ; Nat'l Ass’n of Mfrs., 582 F.3d at 14-16 (relying on precedent as the basis for finding that the “vital national interest” of transparency in government justified the disclosure requirements and explicitly rejecting plaintiffs argument that the government was. required to put forth “studies, statistics, or empirical evidence” supporting the need for mandatory disclosure statements). While this Court is mindful that the standards for discovery are broader than the rules governing the admissibility of evidence on the merits, see In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 69 (2d Cir. 2003), the fact that courts have routinely adjudicated the constitutionality of donor disclosure requirements without the type of expansive evidence that Plaintiffs request in this case supports the conclusion that such discovery is not relevant.

Plaintiffs next contend that they need to know what factual material was- before the Governor in order “to test the pre-enactment evidentiary basis” underlying the Disclosure Provisions. (Doc. No. 81 p. 3;) This very same argument regarding the need for discovery to “test” the sufficiency of the government’s asserted interest .was recently made—and .conclusively rejected—in Citizens United v. Schneiderman, 203 F.Supp.3d 397, 406-07 (S.D.N.Y. 2016) (appeal pending). Citizens United v. Schneiderman involved facial and as-ap-pliéd First Amendment challenges to the New York Attorney General’s policy of requiring charities to disclose their donors in order to be permitted to solicit funds within the state. Id. at 400-01, 406-07. While Citizens United vr Sehneiderman concerned a motion to dismiss, rather than a discovery motion, in that case, the Honorable Sidney H. Stein dismissed the case over plaintiffs’ objections that discovery was needed before their claims could be adjudicated on the merits. Id. at 406-07. Judge Stein further observed that “plaintiffs do not cite—nor has the Court found—any case authority supporting the proposition that merely pleading the existence of a disclosure requirement such as the attorney general’s entitles the plaintiffs] and subjects the state to discovery ....’’Id. at407.

Much like the precedential deficiency recognized in Citizens United v. Schneid-erman, Plaintiffs in this case do not identify, and this Court does not know of, any cases where a court authorized expansive discovery into the files of a governor or individual lawmakers in connection with a constitutional challenge to a donor disclosure requirement. Nevertheless, Plaintiffs assert that, in other types of First Amendment challenges, courts have “required discovery on the purported government interest and the sufficiency of the challenged regulation’s tailoring to that interest” citing to Turner Broadcasting, 512 U.S. at 664-65, 114 S.Ct. 2445 and Free Speech Coalition, Inc. v. Attorney General of U.S., 677 F.3d 519, 537 (3d Cir. 2012). (Doc. No. 42 p. 2.)

Turner Broadcasting involved a First Amendment challenge’ to telecommunications regulations requiring cable television systems to devote a portion of their broadcast channels to the transmission of local broadcast stations, 512 U.S. at 626, 114 S.Ct. 2445. Free Speech Coalition involved a challenge to a criminal statute and accompanying regulations that . imposed recordkeeping, labeling and inspection requirements on producers of sexually explicit content. 677 F.3d at 524-25. The stated government interests with respect to the regulations and law in Turner Broadcasting and Free Speech Coalition bear no similarity to the well-recognized government interests implicated in this case. This distinction alone renders them distinguishable. Nixon, 528 U.S. at 391, 120 S.Ct. 897 (“[t]he quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised”).

In Turner Broadcasting, Congress’ proffered justifications for the “must carry” regulations were the promotion of fair competition, preservation of free broadcast television, and promotion of the dissemination of information. 512 U.S. at 662, 114 S.Ct. 2445. The government relied on economic statistics and other empirical evidence to support these justifications. Id. at 662-68, 114 S.Ct. 2445; see also Nat’l Ass’n of Mfrs., 582 F.3d at 15-16. The economic analyses and empirically-derived justifications for the regulations in Turner Broadcasting are fundamentally different from the justifications for the Disclosure Requirements here. See Nat’l Ass’n of Mfrs., 582 F.3d at 15-16. As D.C. Circuit Chief Judge Merrick B. Garland explained in National Association of Manufacturers, a case involving a First Amendment challenge to a donor disclosure requirement, “[t]he informational interest that Congress and the public "have in knowing who is lobbying is hardly novel” and “a claim that good government requires greater transparency” is a common-sense value judgement that has been “repeatedly endorsed by the Supreme Court as sufficient to justify disclosure statutes.” Id. at 6-9, 15-16. Thus, the court in National Association of Manufacturers found that the government did not need to present evidence beyond the publicly stated purpose of a donor disclosure law in order for the court to find that the disclosure requirement did not violate the First Amendment. Id. at 15-16.

In Free Speech Coalition, the government’s justification for the criminal law and regulations was to deter the production and distribution of child pornography. 677 F.3d at 525-28, 535. The Third Circuit remanded for further fact-finding regarding the application of the challenged provisions, but not for. additional discovery into the government’s interest in enacting the regulations or into the relationship between the interest and the regulations— the type of discovery that Plaintiffs seek here. 677 F.3d at 537-39. The court explained that it could not “intelligently weigh the legitimate versus problematic applications of the Statutes” to decide the constitutionality of the regulations because it lacked evidence to “accurately compare the amount of [plaintiffs’ constitutionally-protected speech that does not implicate the government’s interest in protecting children {e.g., speech involving performers who are obviously adults) to the amount of [plaintiffs’ speech that implicates the government’s interest {e.g., speech involving performers who are not obviously adults).” Id. In contrast here, Plaintiffs make it clear that they are not seeking discovery into the effects of the Disclosure Provisions, but rather want the pre-enactment material considered by the different legislative actors. Further, Plaintiffs can provide information about the nature and volume of donations implicated by the Disclosure Provisions without discovery from the Governor or Intervenors. Nothing in Free Speech Coalition can be read as supporting Plaintiffs’ assertion that the discovery they seek is appropriate here. (Doc. No. 68 p. 14) (citing Free Speech Coal).

To the extent that Plaintiffs rely on discriminatory redistricting or other Equal Protection cases to support their discovery requests, such cases are also unhelpful. In redistricting cases, “proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); see also Rodriguez v. Pataki, 280 F.Supp.2d 89, 101-02 (S.D.N.Y. 2003) (holding that even if evidence of discriminatory animus was not an element of plaintiffs’ claim under the Voting Rights Act, “it certainly is something that can be considered in deciding whether the New York Legislature’s 2002 redistricting plans pass judicial muster”), adopted by, 293 F.Supp.2d 302 (S.D.N.Y. 2003). Judicial inquiry into legislative intent is therefore “specifically contemplated as part of the resolution of the core issue that such cases present,” Bethune-Hill v. Va. St. Bd. of Elections, 114 F.Supp.3d 323, 337 (E.D. Va. 2015), and “requires ‘a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.’” Puente Ariz. v. Arpaio, 314 F.R.D. 664, 668 (D. Ariz. 2016) (quoting Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555). As a result, “e[]vidence that the legislature has undertaken ‘a series of official actions ... for invidious purposes’ ” or “ ‘[contemporary statements by members of the deci-sionmaking body, minutes of its meetings, or reports’” may be relevant in cases where the government is accused of engaging in discriminatory conduct. Id. (quoting Arlington Heights, 429 U.S. at 267-68, 97 S.Ct. 555). Thus, in redistricting and Equal Protection cases, courts have been willing to permit some discovery into the legislative process when the discovery might “shed light' on” whethér thé legislature acted with a constitutionally impermissible purpose in adopting the challenged provision. Id,-, see also Bethune-Hill, 114 F.Supp.3d at 337 (explaining that redistricting cases present “extraordinary circumstances” to justify judicial intrusion into the legislative process because “the natural corrective mechanisms built into our republican system of government offer little check upon the very real threat of ‘legislative self-entrenchment’ ”) (citation omitted).

In contrast, a First ■ Amendment challenge -to a statute does not require inquiry into biased motives or potential self-dealing. Indeed, in United States v. O'Brien, the Supreme Court stated that inquiries into legislative purpose have no place in deciding the merits of a First Amendment challenge, 391 U.S. 367, 383, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (cautioning that “[inquiries into congressional motives or purposes are a hazardous matter” in a First Amendment challenge to a law prohibiting the' destruction of a draft card). The Court also stated that “[i]t is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive” or purpose. Id. Courts applying O’Brien have recognized that “[allowing discovery of legislative motives ... would not only create a major departure from the precedent rejecting the use of legislative motives, but is also inconsistent with basic analysis under the First Amendment which has not turned on the motives of the legislators, but on the effect of the regulation.” Foley, 747 F.2d at 1297-98; see also Trunk v. City of San Diego, No. 06-cv-1597 (BTM) (WMC), 2007-WL 1110715, at *4-6 (S.D. Cal: Apr. 2, 2007) (holding that discovery into Congressman’s reasons for supporting a law was not relevant to plaintiffs First Amendment Establishment Clause challenge).

Plaintiffs repeatedly assert that they do not seek discovéry into legislative motivations, but rather that they only want to know what “factual material” was considered by the Governor and individual legislators prior to the enactment of the Disclosure Provisions. (See Doc. No. 68 p. 13.) As stated above, Plaintiffs argue-that the documents listed on the Governor’s Privilege Log,-as well as similar documents sought from the Senate and Assembly, are relevant because they will reveal whether the government had a sufficient factual basis to justify enacting the Disclosure Provisions. (Doe. No. 100 at 13:10-19.) But this argument fails to appreciate that there is a distinction between what factual information may have been before the Governor’s Office “concerning” the government’s interests in the Disclosure Provisions and what facts ultimately prompted the New York State government acting as a whole to enact the Disclosure Provisions. A fact does not become the foundation for-the government’s purpose for a law simply because it is considered by a single deci-sionmaker or even several decisionmakers. Nor is every single legislator required to consider a specific fact in order for that fact to be the primary impetus behind a bill. Likewise, the facts that cause a governor to endorse a law may differ from the facts relied on by individual legislators when voting for a law. Enacting legislation requires collective action on the part of the Senate, Assembly, and Governor, all of whom receive information from a-range of different sources,-both formal and informal. Each individual within this collective may place different weight on different facts and. have varying interests that nevertheless align to result in the passage of a law. See Brown v. Gilmore, No. 00-cv-1044, 2000 U.S. Dist. LEXIS 21623, at *20 (E.D. Va. Oct. 26, 2000) (“[t]here is an important difference between the motive and purposes of individual legislators and institutional legislative purpose”), aff'd, 258 E.3d 265 (4th Cir..2001); see also Jewish War Veterans of the U.S. of Am., Inc. v. Gates, 506 F.Supp.2d 30, 60 (D.D.C. 2007); S.C. Edu. Ass’n v. Campbell, 883 F.2d 1251, 1261-62 (4th Cir. 1989) (determining the “collective motivation of legislatures” based upon the statements of a few individuals “is a perilous enterprise indeed”), Even in cases where legislative motive is relevant to the merits of a claim, courts have observed that “it is the motivation of the entire legislature, not the motivation of a handful of voluble members[] that is relevant.” S.C. Edu. Ass’n, 883 F.2d at 1262 (citing Aldridge v. Williams, 44 U.S. 9, 24, 3 How. 9, 11 L.Ed. 469 (1845)); see also Murphy v. Empire of Am., FSA, 746 F.2d 931, 935 (2d Cir. 1984) (holding that isolated remarks in legislative debate are entitled to little or ho weight, particularly when they are unclear or conflict with other comments); In re Kelly, 841 F.2d 908, 912 n.3 (9th Cir. 1988) (“Stray comments by individual legislators, not otherwise supported by statutory language or committee reports, cannot be attributed to the full body that voted on the bill. The opposite inference is' far more likely.”). Instead, “the best indication of legislative intent is the law itself.” Utah Republican Party v. Hebrert, No. 2:14-cv-876 (DN) (DBP), 2015 WL 1851387, at *2-3 (D. Utah Apr. 22, 2015) (holding that discovery into the purpose behind a state statute was not relevant -but, even if- it were, the best sources of evidence existed in the public record). These same considerations are applicable to Plaintiffs’ efforts .to parse out the factual considerations of the Governor and each individual legislator and extrapolate those facts as either supporting or undermining the government’s collective interest in the Disclosure Provisions, In short, Plaintiffs fail to explain why the Governor’s consideration of a particular fact, or failure to consider a particular fact, is at all probative of whether the New York State government as a whole has a sufficiently important- interest to justify the Disclosure Provisions.

The distinction between an individual lawmaker’s factual knowledge and the factual underpinnings of the collective governmental interest is particularly significant here because the documents reflected in the Privilege Log are exclusively to, from, and/or between members of the Governor’s staff and his Counsel’s 'Office. There is not a single entry on the Log where the Governor ’himself was a party to the communication. As a result, there is no. way for Plaintiffs to ascertain whether the Governor considered, or was even was aware of, the factual material reflected in any particular document listed on the Privilege Log. While the Governor’s counsel and staff certainly play an important advisory role, the Governor is the ultimate decisionmaker in determining whether to sign a piece of legislation presented to him. Plaintiffs do ‘not explain how they can credibly divine what factual information actually influenced the Governor’s decisionmaking process simply by looking to the communications and work product of his staff. Nor do they address why it is reasonable to assume that facts identified by one of the Governor’s aides could conceivably support or undermine the interests of the collective New York State government in enacting the Disclosure Provisions or the published statements setting forth the government’s interest in the law. It is difficult for this Court to ideate a use of the documents listed on the Privilege Log that would not require impermissible speculation or the consideration of hearsay.

Moreover, review. of the categories of documents listed in the Privilege Log further supports the conclusion that such documents have no probative value in this case. A majority of the documents listed on the Governor’s Privilege Log are drafts of various documents, including drafts of Disclosure Provisions themselves, public statements, summaries,. and analyses, among other examples of preliminary work product.. “Drafts, by their very nature, rarely satisfy the test of relevance.” Grossman v. Schwarz, 125 F.R.D. 376, 385 (S.D.N.Y. 1989). As the court in Grossman explained, “administrative decisions ... are often subjected to repeated revisions, including changes in language and style, correction of typographical errors, editing by superiors of subordinates’ work, incorporation of new legal research or a more detailed review of the facts, or simply a more focused view of the issues with each reading.” Id. It further stated that “[t]he relevance of such revisions to defendants’ state of mind is pure speculation. Absent extrinsic evidence tending to show the relevance of k particular draft, production of these documents is likely to lead only to wasteful fishing expeditions concerning the identification and deciphering of handwriting and the reasons for immaterial revi-siqns.” Id.

Similarly, approximately three-quarters of the documents listed on the Privilege Log pertain to communications about draft public statements to be issued by the Governor about the new campaign-finance and ethics reform law. Plaintiffs fail to explain why these documents—and the factual statements contained therein—are relevant to their claims and defenses. Deliberations amongst the Governor’s staff and. counsel about how the Governor should announce or message the new ethics reform law have no bearing on whether the Disclosure Provisions impermissibly infringe upon Plaintiffs’ First Amendment rights. See Greater Birmingham Ministries v. Merrill; No. 2:15-cv-2193 (LSC), 2017 WL 2903197, at *3-4 (N.D. Ala. July 7,- 2017) (holding that, in an Equal Protection and Voters’ Right Act case, communications reflecting how the Governor’s staff opted to announce the challenged Photo ID Law were not relevant to plaintiffs’ claims).

In sum, this Court finds that Plaintiffs have failed to meet their burden of demonstrating the relevance of the documents listed in the Governor’s Privilege Log.

3. Undue Burden

Having concluded that the discovery at issue has no relevance to the claims and defenses in this litigation, the Court will only briefly address the issue of whether the Amended Requests impose an undue burden on the Governor under Rule 45. Plaintiffs argue that since the Governor already identified and reviewed documents before being dismissed as a party, it would not be burdensome for the Governor to produce the documents that he collected. (Doc. No. 100 at 5:8—6:1.) In opposition, the Governor asserts that had he not been named as a party, he would have objected to the subpoena for the production of documents as burdensome at the outset. (Doc. No. 100 at 14:16-22.) Thus, the Governor argues, Plaintiffs should not receive the “benefit” of the less-stringent standard for party discovery simply because they improperly named him as a party to this suit. This Court agrees with the Governor that focusing the “undue burden” inquiry on only what would need to be done to produce the documents listed in the Privilege Log, without considering the burden associated with the collection of those documents, would unfairly benefit Plaintiffs and would negate the distinction between party and non-party discovery. This Court accordingly finds that locating, collecting, logging, and producing the documents sought by Plaintiffs amounts to an undue burden on the Governor and is disproportional to the needs of this case considering that the discovery is of no real probative value to Plaintiffs’ claims. Moreover, insofar as Plaintiffs seek to probe the files of each of the -150 Members of the Assembly and 63 Members of the Senate, this Court notes that compliance with such a request would likely require significant time and resources and would be disruptive to the workings of the State Legislature and is similarly disproportional to the needs of this case.

II. LEGAL STANDARDS GOVERNING THE CLAIMED PRIVILEGES

The documents listed in the Governor’s Privilege Log are not only irrelevant, but many of the documents are also protected by one or more privileges. For this reason as well, the Court grants the Governor’s motion to quash with respect to the certain categories of documents as more fully discussed below.

The Governor asserts claims of legislative privilege, deliberative process privilege, and/or attorney-client privilege over the documents listed in his Privilege Log. The parties dispute the scope and applicability of the legislative privilege against compelled disclosure in the context of discovery. The Governor and Intervenors assert that the legislative privilege operates as an absolute bar against the discovery sought by Plaintiffs. Plaintiffs contend that the legislative privilege is qualifiéd such that, if the privilege applies, the Court must apply a balancing test to determine whether disclosure of the privileged document is nevertheless proper in this case. The Governor and the Intervenors reply that even if the privilege is qualified, the balance of interests weighs in favor of quashing Plaintiffs’ subpoenas.

The parties agree that the deliberative process privilege is qualified but disagree about its applicability to the documents on the Governor’s Privilege Log and whether the balance of relevant factors weighs for or against disclosure. Likewise, there is no dispute as to the standard and scope of the attorney-client privilege; the parties simply dispute its applicability to the documents at issue.

. The Court begins by addressing the legal standards for the legislative and deliberative process privileges below and then, in Subsection C, applies the privileges to the documents on the Governor’s Privilege Log and, in Subsection D, addresses whether disclosure of the privileged documents is nevertheless warranted in this ease in light of the balance of interests. In Subsection E, the Court addresses attorney-client privilege.

A. Legislative Privilege

1. Legislative Privilege As Applied To Federal Lawmakers

The concept of legislative privilege, and the parallel doctrine of legislative immunity, “developed in sixteenth- and seventeenth-century England as a means of curbing monarchical- overreach, through judicial proceedings, in Parliamentary affairs.” Favors v. Cuomo, 285 F.R.D. 187, 207 (E.D.N.Y. 2012) (“Favors I”) (citing United States v. Johnson, 383 U.S. 169, 177-80, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966); Tenney v. Brandhove, 341 U.S. 367, 372, 71 S.Ct. 783, 95 L.Ed. 1019 (1951)). By the time this nation was founded, legislative autonomy was “deemed so essential for representatives of the people that it was written into the' Articles' of Confederation- and later into the Constitution” as the Speech or Debate Clause, and also was protected under several state constitutions. Tenney, 341 U.S. at 372-73, 71 S.Ct. 783.

The Speech or Debate Clause of the federal Constitution provides 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, cl. 1. The Clause has been construed as providing Members of Congress with two distinct, but related, absolute protections: (1) immunity from suit for their legislative acts and (2) protection from being compelled to testify in court and produce information about acts that fall within the “legitimate legislative sphere.” See, e.g., Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Supreme Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 731-33, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980); Gravel v. United States, 408 U.S. 606, 613-16, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); United States, v. Brewster, 408 U.S. 501, 525, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972); see also Sec. & Exch. Comm’n v. Comm. on Ways & Means of the U.S. House of Representatives, 161 F.Supp.3d 199, 242 (S.D.N.Y. 2015) (the “[testimonial privilege is thus at the heart of the Speech or Debate Clause protections.”).

The. protections afforded by the Speech or Debate Clause are broad. Eastland, 421 U.S. at 501-02, 95 S.Ct. 1813. Even if a legislative act, “if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes,” legislative immunity shields a Member of Congress from suit. Doe v. McMillan, 412 U.S 306, 312-12, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973) (citing Gravel, 408 U.S. at 624-25, 92 S.Ct. 2614). The protections afforded under the Clause serve the important purposes of ensuring that “the legislative function the Constitution, allocates to Congress may . be performed independently” and preventing executive and judicial interference with legislative responsibilities. Eastland, 421 U.S. at 502-03, 95 S.Ct. 1813; see also Gravel, 408 U.S. at 616, 92 S.Ct. 2614. It also fulfills the “additional function of reinforcing the separation of powers so deliberately established by the Founders.” Eastland, 421 U.S. at 502, 95 S.Ct. 1813 (citing Johnson, 383 U.S. at 178, 86 S.Ct. 749). Finally, the protections guard,, against compelled testimony and discovery, which have the “potential to create [] a distraction and force[ ] Members to divert time, energy, .and attention from their legislative tasks” to defend the litigation. Ways & Means, 161 F.Supp.3d at 233, 235 (quoting Eastland, 421 U.S. at 503, 95 S.Ct. 1813) (internal quotations omitted). The protections generally apply to legislative acts in both civil cases and criminal prosecutions. Id. at 233-34.

A presumption underlying the Speech or Debate Clause protections is that public statements and debate preceding action on a bill constitute the official record of considerations aired and discussed among legislators, and that the outcome of the vote and public statement of purpose for a bill represent the collective, negotiated decision of all lawmakers as it pertains to a law and the official purpose of the law. To the extent an individual lawmaker’s constituents disagree with his or her vote and statements (or silence) on the Floor, they have the power to replace that lawmaker in the -next election. Potential removal from office in the next election cycle, rather than legal liability, is the consequence for legislative acts. Likewise, the public record of the legislative