COGEL Talk on Legislative Immunity: Same Goals As Government Ethics, and Not Absolute

Anonymous

Thu, 12/08/2011 - 05:26

Legislative Immunity

Below is the text of a talk I gave at the Council on Governmental
Ethics Laws conference this week. Due to time limitations, I was not
able to share this entire text, so even those who heard the talk may
want to read this and see what they missed. For those who have been following my posts on legislative immunity, this talk not only brings together a lot of information, but also adds a section on how much of a misnomer "absolute" legislative immunity is.

Until 2007, state and local legislators assumed that if their
legislative bodies had passed ethics codes and created ethics
commissions, those codes applied to them and those commissions had
jurisdiction over them. That was a period of innocence. 
 
The End of Innocence 
Then Jeff Arnold and Alex Heaton, two state legislators from New
Orleans, one from each party, with the support of their legislative
leaders, waged a constitutional battle that has jeopardized ethics
commission jurisdiction nationwide. 
 
These legislators sought an injunction against the Louisiana Board
of Ethics to stop its investigation and prevent a hearing on their
participation in matters relating to their family members’ jobs. And
in 2008 they succeeded. A state appellate court in the case I<a href="www.la-fcca.org/Opinions/Pub2008/2008-05/2007CW2342May2008.Pub.11.pdf&q…; target="”_blank”">n
re Arnold</a> found that the state’s equivalent of the federal
Speech or Debate Clause prevented the ethics board from
investigating or making decisions regarding state representatives
participating with a conflict. Or making decisions regarding any
other legislative activity, for that matter. 
 
The federal Speech or Debate Clause (Article I, Section 6) reads as
follows: “[F]or any Speech or Debate in either House [Senators and
Representatives] shall not be questioned in any other Place.” 
 
This was the first time the Speech or Debate Clause was applied to
government ethics enforcement. Since then, what is known as the
legislative immunity defense has been successfully raised in various
states, cities, and counties. This battle to prevent government
ethics commissions and prosecutors from enforcing ethics laws
against members of the bodies that passed them undermines government
ethics programs. Why? Because excluding legislators makes an ethics
program appear unfair. An unfair ethics program will not be
respected by those it does apply to, and the public will lose trust
in legislators who choose not to apply their own ethics laws to
themselves. 
 
What happened after the Louisiana decision? Nothing happened to the
two state legislators, and enforcement authority was taken away from
the ethics board, not just for legislators, but for everyone. In
other words, the issue wasn’t the constitution, it was ethics
enforcement. This is pretty much the case everywhere. 
 
There are two things I want you to leave this room with. One is an
understanding that legislative immunity and government ethics have
exactly the same goal and, therefore, there is no reason to apply
legislative immunity in a government ethics context. 
 
Two is the fact that there are non-litigious ways to prevent the
legislative immunity defense and related defenses from being used.
Right now, government ethics professionals and good government
groups either do not appreciate the problem posed by the legislative
immunity defense or have chosen to lie low, hoping that legislators
will not learn about the defense and that, therefore, its use will
not spread. But use of the defense is spreading. I see the
legislative immunity defense being raised across the country when
legislators with competent counsel decide to fight an ethics
complaint. 
 
Recent Decisions 
But first, for those who are interested, some recent decisions. They
are of two sorts. One group deals with common-law legislative
immunity defenses, which is what an official has to make when there
is no Speech or Debate Clause, as is true in some states, such as
Nevada, and in local governments. The big difference is that
common-law legislative immunity can, according to most decisions, be
waived by the passage of a law, such as an ethics code. This is
known as “institutional waiver.” 
 
Two decisions in 2009 and 2010 involved Baltimore council members
making a common-law legislative immunity defense to the introduction
of evidence of legislative activity in criminal proceedings that
related to ethics matters but applied state criminal law: <a href="http://www.cityethics.org/sites/cityethics.org/files/Baltimore%20Decisi…; target="”_blank”">Maryland
v Dixon</a> (Balt Cir Ct, 2009) and <a href="mdcourts.gov/opinions/cosa/2010/861s09.pdf" target="”_blank”">Maryland v.
Holton</a> (MD Court of Special Appeals, 2010). Included among the
charges were perjury charges for allegedly making false statements
on annual disclosure forms. 
 
The worst part of these decisions was the courts’ finding that
common-law legislative immunity is “co-extensive” with
constitutional legislative immunity. It is hard to take this too
seriously, however, since the decisions did not even mention waiver,
which is the principal difference between common-law and
constitutional legislative immunity. 
 
This lack of understanding about legislative immunity appears to be
catching, too. This year, the Virginia Supreme Court in <a href="http://www.courts.state.va.us/opinions/opnscvwp/1091693.pdf" target="”_blank”">Isle
of Wight County v. Nogiec</a> found that local legislators have an
"absolute" rather than common-law legislative privilege, but it was
not an ethics case. And also this year, a court in Oklahoma
dismissed a citizens’ suit against the Tulsa council regarding a
violation of the open meetings act, on the grounds of "absolute"
legislative immunity. See the next section for how unabsolute "absolute" really is. 
 
The other group of decisions deal with constitutional challenges not
based on the Speech or Debate Clause. This group of decisions
includes one based on a constitutional Discipline Clause, which
gives to the legislature the exclusive right to discipline its own
members (this argument succeeded in <a href="http://caselaw.findlaw.com/nv-supreme-court/1096560.html" target="”_blank”">Nevada
in in Commission on Ethics v. Hardy</a>, 212 P.3d 1098 (2009)).
Hardy also made an argument based on separation of powers, but this
was not adjudicated; however, since this defense is closely related
to the legislative immunity defense, it can be dealt with in the
same way if a future court recognizes the defense. Another decision
was based on First Amendment free speech, an argument that was,
thank goodness, rejected by the U.S. Supreme Court in <a href="www.supremecourt.gov/opinions/10pdf/10-568.pdf" target="”_blank”">Nevada
Commission on Ethics v. Carrigan</a> (June 13, 2011). 
 
More important than the judicial decisions is the fact that
legislators and other officials across the country are making
legislative immunity defenses and suing or threatening to sue in
order to get an ethics complaint against them dropped or settled.
The expense of constitutional litigation is enough to make most
ethics commissions cave in. This year, for example, a finance board
and a council member in Stamford, Connecticut tried this approach,
as did the mayor of Washington, D.C. with respect to allegations
regarding his time as council president. An attempt was also made to
get the Virginia legislature to apply the state Speech or Debate
Clause to local officials, in order to give them "absolute"
legislative immunity. 
 
Absolutely Not 
Legislative immunity is usually referred to as “absolute,” implying
that there are no exceptions and that the values and goals of
legislative immunity may not be balanced against other
considerations, such as preventing corruption or the appearance of
corruption. The word “absolute” is wishful thinking rather than an
accurate description of the Supreme Court's interpretation of the Speech or Debate Clause. 
 
The Supreme Court in <a href="http://supreme.justia.com/us/383/169/" target="”_blank”">United States v.
Johnson</a>, a 1966 case involving charges of conspiracy to
defraud brought against a congressman, effectively said that laws
limiting legislative immunity should be given strict scrutiny,
making legislative immunity no more “absolute” than the First
Amendment. The case also involved conflict of interest charges, but
the government did not ask the Court to deal with them. Here is the
what the court wrote:<ul>

we expressly leave open for consideration . . . a prosecution which,
though possibly entailing inquiry into legislative acts or
motivations, is founded upon a narrowly drawn statute passed by
Congress in the exercise of its legislative power to regulate the
conduct of its members.</ul>

This clearly opens the door for a determination that the Speech or
Debate Clause does not apply in a government ethics context, because
a government ethics code is a narrowly drawn statute passed by a
legislature to regulate the conduct of its members. But these words
haven’t opened any doors yet, because they haven’t been quoted in
any of the decisions relating to government ethics, even though the
Johnson decision itself was often quoted in these decisions. 
 
The U.S. Supreme Court applied the Johnson language in 1972 with
respect to bribery in the case of <a href="http://supreme.justia.com/us/408/501/" target="”_blank”">U.S. v. Brewster</a>:<ul>

[T]he purpose of the Speech or Debate Clause is to protect the
individual legislator, not simply for his own sake, but to preserve
the independence and thereby the integrity of the legislative
process. But financial abuses by way of bribes, perhaps even more
than Executive power, would gravely undermine legislative integrity
and defeat the right of the public to honest representation. 
 
Depriving the Executive of the power to investigate and prosecute
and the Judiciary of the power to punish bribery of Members of
Congress is unlikely to enhance legislative independence.</ul>

Note the balancing of the threat of executive power abuse against the threat of corruption to legislative integrity and independence, and which wins out. If bribery is enough to make it acceptable for the executive branch
to arrest an official, why shouldn’t accepting a gift make it
acceptable for an ethics commission to investigate an official who
has voted for a contract that will benefit the giver of the gift? In
other words, why haven’t courts applied the same reasoning to ethics
enforcement as the Supreme Court has to criminal enforcement of
bribery laws? The principal reason is that no one has asked them to.
No one has yet to make this argument. 
 
The Goals of Legislative Immunity and Government Ethics Are the Same 
Let’s go back in time to see how the Speech or
Debate Clause came into existence. It was a response to worries
about the British situation, where the executive (the king) could
threaten members of Parliament (MPs) with civil suits or arrest and,
thereby, get them to do the king’s bidding. What such threats did
was to put the MP’s personal interest in not being sued or arrested
ahead of the public interest in having an MP represent his
constituents. It also forced the MP to show preferential treatment
to the King. In other words, it put the MP into a classic conflict
situation. 
 
The drafters of the Constitution worried that a future president, or
someone else with an interest in a matter before Congress, could put
the same sort of pressure on members of Congress. Since the option
of withdrawing from participation would not be available to
representatives conflicted in this way, the drafters prevented the
conflict from coming into existence by prohibiting suits and
arrests. Without the power to sue or arrest, a president’s threats
would be meaningless. An excellent solution. 
 
But it is not an excellent solution when the potential threat is a
government ethics proceeding. The reason is that the goal of
government ethics is exactly the same as the goal of legislative
immunity. Both seek to protect the public from effectively losing
their representation due to their representative’s personal
interests. 
 
Prohibiting an ethics proceeding against a legislator due to
legislative immunity allows a legislator to act in his or
another’s personal interest rather than on behalf of his
constituents. Interpreting the Speech or Debate Clause to apply to
ethics proceedings therefore undermines the goal of this
constitutional protection. 
 
Here’s another way to look at this. A suit or arrest, or the threat
of a suit or arrest, based on legislative activity is an imposition
of a conflict from the outside. It is similar to a gift from a
restricted source, which also creates a conflict where one did not
exist before. In one case, the public is protected by protecting the
legislator from suit or arrest. In the other case, the public is
protected by prohibiting the gift. In both cases, instead of the
usual withdrawal where a conflict already exists, the law prevents
the conflict from coming into existence. 
 
Only a legalistic approach, with no interest in the goals of either
government ethics or the Speech or Debate Clause, and blinded by the
supposed “absolute” nature of legislative immunity, could interpret
this clause as allowing legislators to put their personal interest
above the public interest by participating with a conflict. 
 
Practical Responses 
So what can be done to prevent everyone from state and local
legislators to governors and mayors, agency officials, and school
and planning board members from trying to exclude themselves and
evidence about their legislative activities from ethics enforcement
and disclosure? Here are four approaches. 
 
1. Separate Legislative and Executive Ethics Commissions. This is
the only approach that has been taken in multiple jurisdictions.
Having two separate legislative and executive branch ethics
commissions solves both legislative immunity and separation of
powers problems, but it is expensive and usually (although not
necessarily) means self-regulation or a lack of ethics commission
independence. If done responsibly, it could work well. But the
likelihood is small, and this approach doesn’t work for cities,
counties, or regional ethics commissions. 
 
2. The Same Place. A cheaper and easier solution is to have the
legislative body appoint (but not necessarily select) all ethics
commission members, and have the commission expressly made part of
the legislative branch, so that it is not an “other place,” the term
used in the Speech or Debate Clause. There is no equivalent
executive immunity. If the executive branch were to raise a
separation of powers issue, the legislative body could designate
independent community groups to select ethics commission members to
be appointed by the governor or mayor with the approval of the
legislative body, and expressly make the ethics commission a hybrid
body that is part of both branches. If the local government has a
council-manager form, there is no separation of powers issue. 
 
3. Personal Waiver. Another approach is to have all officials who
participate in legislative activity, including high-level executive
officials and certain board and commission members, and their staff,
include with their oath of office a statement that they are fully
subject to the jurisdiction of the ethics commission and will not
raise any procedural or constitutional defense to the jurisdiction
of the ethics commission, including a legislative immunity defense.
An official could refuse to make this statement, but it would make
him look suspect in the eyes of the public. Appointing bodies and
officials could make this statement a requirement of each employment
or contracted position. 
 
Although the Supreme Court has recognized personal waiver (and such a waiver occurs every time a legislator does not raise a legislative immunity defense), it is
possible that someone would raise a concern about the legality of
this waiver, since legislative immunity has been held to protect the
public rather than the legislator. If this clever but bogus argument was to succeed in a particular jurisdiction, a referendum on the
issue could be held, so that it is the public itself that requires
local officials to personally waive legislative immunity on the
public’s behalf. Because such a referendum would be supported
everywhere, I doubt any elected official would ask for one to be
held. 
 
4. Institutional Waiver. Since institutional waiver is acceptable
with respect to common-law legislative immunity, the simplest
approach for a local government or a state without a Speech or
Debate Clause would be a state statute, local charter amendment, or
local ordinance that expressly excepts the ethics commission from
application of common-law legislative immunity or expressly makes
officials subject to ethics commission jurisdiction despite
common-law legislative immunity. 
 
A state statute is best, since it covers all local governments. This
would save an enormous amount of energy, but it might be strenuously
fought by state municipal associations. The statute approach was
taken in 2009 in Nevada, at the same time state legislators were
excepted from the state ethics commission’s jurisdiction. 
 
Conclusion 
The last forty years have seen an enormous growth in government
ethics programs across the country. State and local legislators, on
the whole, have not welcomed it and do not like it. The legislative
immunity defense is a godsend for those seeking to exclude
themselves from ethics commission jurisdiction. The fact that the
Speech or Debate Clause and government ethics have the same goal is
immaterial to those seeking to have an ethics complaint against them
dismissed. And, for some reason, this argument has not been
sufficiently made, nor have the words of the Supreme Court in the
Johnson and Brewster opinions been quoted to show that even
constitutional legislative immunity is far from “absolute.” 
 
If necessary, these arguments should be attempted in the future and,
perhaps, the decisions may start going against officials seeking to
have ethics complaints dismissed. But litigation is an expensive and
difficult way to stop this extremely damaging trend. There are other
ways to keep those participating in legislative activity within an
ethics program. 
 
At first it will take work and some creativity, but once there are
precedents, it will become much easier. It might become a common
part of government to have personal waivers of the legislative
immunity defense in a government ethics context. Or it might become
common for ethics commissions to be officially part of the
legislative branch. And at the local level, a simple sentence could
be added to every ethics code expressly stating that legislators may
not raise a legislative immunity defense in or regarding an ethics
proceeding. 
 
But none of this will happen if the government ethics community
keeps its head in the sand. If it continues to do this, it will be
responsible for the serious damage to ethics programs that
accompanies the exclusion of any group from its jurisdiction,
especially a group of elected officials who are supposed to be
representing the public, not themselves. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
203-859-1959

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COGEL Talk on Legislative Immunity: Same Goals As Government Ethics, and Not Absolute

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