A Ninth Circuit Decision on Legislative Immunity and Legislative Acts

Anonymous

Thu, 06/30/2011 - 13:22

Conflicts

Yesterday, the Ninth Circuit, in <a href="http://articles.law360.s3.amazonaws.com/0253000/253524/10-10088.pdf" target="”_blank”">its
decision in U.S. v Renzi</a>, considered what constitutes a
"legislative act" with respect to the constitutional Speech or Debate
Clause, which provides legislative immunity to legislators by preventing the executive and judicial branches from investigating or hearing matters involving legislative acts. The case involved a former congressional representative, but
defining what is a "legislative act" is important for dealing with the
S&D Clause at every level of government. 
 
As the court said on p. 12, "Because the protections of the Clause
apply absolutely when they apply, the limits of what may constitute a
protected 'legislative act' is of fundamental importance."

A "Legislative Act" 
The definition of "legislative act" has been relatively broad, but the
U.S. Supreme Court in <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0408_0501_ZS.ht…; target="”_blank”">U.S.
v. Brewster</a>, 408 U.S. 501 (1972), said it had never indicated that
“everything that ‘related’ to the office of a Member was shielded by
the Clause.” The Court said that a "legislative act" is "limited to an
act which was clearly a part of the legislative process—the due
functioning of the process,” and thus did not include "a wide range of
legitimate ‘errands’ performed for constituents, the making of
appointments with Government agencies, assistance in securing
Government contracts, preparing so-called ‘news letters’ to
constituents, news releases, and speeches delivered outside the
Congress. The range of these related activities has grown over the
years. They are performed in part because they have come to be expected by constituents, and because they are a
means of developing continuing support for future elections. Although
these are entirely legitimate activities, they are political in nature
rather than legislative." 
 
In addition, completed acts are protected by the S&D Clause, but
not promised acts. So if a legislator takes money without a promise, and then advocates and votes for what the briber wanted, the legislator is in the clear. Hmm. 
 
And that's what happened in the Renzi case: Renzi had promised to
act, but hadn't acted yet, so he can't hide behind the S&D Clause.
But the former congressman had more arguments up his sleeve. He argued that
"negotiating" with private entities over future legislative acts is like
negotiating with legislators over a bill, and is therefore protected.
He also argued that prosecutors should not be allowed to impugn later
legislative acts. Clever, but the analogy doesn't hold, and it would
appear that the congressman's later legislative acts would have
effectively impugned him themselves, even if they were to protect him from prosecution. 
 
The Supreme Court in Brewster (p. 526) said very baldly, "Taking a
bribe is, obviously, no part of the legislative process or function; it
is not a legislative act. It is not, by any conceivable interpretation,
an act performed as a part of or even incidental to the role of a
legislator." 
 
Conflicts of Interest 
With respect to conflicts of interest, doesn't the same hold true? If
taking a bribe is not part of the legislative process, isn't voting to
give yourself, your family, or your business associate equally not part
of the legislative process? With conflicts, there is no promise-act
dichotomy, because no promise is necessary. Nor is a bribe. But the
result is just the same: using one's legislative position to
benefit oneself. Is there any reason the two should be treated
differently? 
 
Another way to put this is, If a legislator benefits financially, is
making a deal with someone else really less desirable than
self-dealing? I don't believe the S&D Clause was intended to
protect either those who take a bribe or those who participate with a
conflict. 
 
What the More Refined Legislator Is Arguing Today 
The next thing the court in Renzi says is worth sharing for its humor value alone:<ul>

One might think that this would be the end of the matter—that Renzi
would concede that Brewster forecloses his claim. Instead, Renzi
contends that his pre-legislative “negotiations” are not doomed to the
same fate as Brewster’s because he was charged with extortion, not
bribery. He reasons that Brewster was premised on the idea that there
was no legitimate explanation for Brewster’s acceptance of a bribe, and
that, unlike Brewster, he has a legitimate explanation for his deeds.
In short, Renzi relies on the fact that, as charged, his deceit was
more refined, more sophisticated, than Brewster’s. Rather than selling
his office for cash, he was wise enough to at least attempt to conceal
his crime by using more indirect means of payment. We think Renzi
relies on a distinction without a difference.</ul>

Distraction from Legislative Activity 
The decision raises another issue, whether distraction from legislative
activity by itself is enough of a reason to apply the S&D Clause's
privilege against testifying. The D.C. Circuit's Jefferson decision,
the infamous case where a congressman put his bribe in his
freezer, considered such distraction a "touchstone" of the clause. The
ninth circuit judges believe that distraction is not the primary ill to
be solved by the Clause. 
 
More to the point, the court believes that if the underlying activity
is not protected by the clause, "other legitimate interests exist, most
notably the ability of the Executive to adequately investigate and
prosecute corrupt legislators for non-protected activity" and that, in
fact, this interest is of paramount importance to the legislature, as well. 
 
The Integrity of the Legislative Process 
The court then quotes the words of the U.S. Supreme Court in Brewster
that cannot be quoted too often:<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>

The difference between my view and the courts' is that I do not think
this should stop at bribery or extortion. Participating with a conflict equally
threatens the independence and integrity of the legislative process,
and undermines the public's right to honest representation. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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A Ninth Circuit Decision on Legislative Immunity and Legislative Acts

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