Should Legislator-Lobbyist Communications Be Subject to the Legislative Immunity Privilege?

The Speech or Debate Clause of the U.S. Constitution protects
activities within the "legislative sphere" from being heard outside
the legislature, and prevents the introduction of evidence of
legislative activity in any such hearing. <a href="http://www.pointoforder.com/wp-content/uploads/2014/07/House-response-t…; target="”_blank”">A
recent brief from the U.S. House Ways and Means Committee</a> in <i>S.E.C.</i>
v. <i>Ways and Means Committee</i> argues (on pp. 30, 34-37) that
communications between industry lobbyists and the staff director of
the committee's subcommittee on health are privileged and may not be subpoenaed by the
SEC in an investigation of alleged insider trading-related leaks.<br>
<br>

On p. 34 of its brief, the committee asserts:<blockquote>

Communications with lobbyists, of course, are a normal and routine
part of Committee information-gathering. ... Any communications [the
staff director] may have had with lobbyists — or any information he
may have received from them — regarding the impact of the MA payment
rates on industry falls squarely within the realm of protected
legislative information-gathering, i.e., the gathering of
information to inform the Committee's views on the necessity for,
and appropriate content of, legislation.</blockquote>

<b>The Protection of Confidential Information</b><br>
Note two unusual things in this quote. One is the argument that
information given by Congressional staff to lobbyists is protected,
even though that information is confidential (as with the
allegations here, that the information enabled insider trading and,
therefore, violated the <a href="http://insidertrading.procon.org/files/STOCKActFinal.pdf&quot; target="”_blank”">Stop
Trading on Congressional Knowledge Act</a>). This would mean that
there could be no limits on the communication by legislators or their staff of confidential
information for the purposes of someone personally benefiting from
it, which is a basic conflict of interest rule.<br>
<br>
<b>Is Even Executive Branch Information Protected?</b><br>
Two is the fact that the information that was provided was executive branch information, not legislative
branch information. Yes, as the committee argues in its brief,
Congress deals with executive branch information all the time. But
how could legislative immunity protect activity involving the
early dissemination of executive branch information, which it is not the
legislature's role to disseminate? This is not legislative activity;
this is the questionable activity of someone who happens to be a
legislative staff member. If a legislative staff member gets hold of
an unpublished judicial decision on the constitutionality of a
statute and gives it to someone who can use it for his financial
benefit, is this activity (and related communications) also
protected by legislative immunity, even though the staff member had
no legislative reason to have or disseminate this information at the
time of the dissemination? It's notable that the House calls on a clause that embodies separation of powers, but does not want separation of powers to apply to it.<br>
<br>
<b>Information Gathering and Disseminating</b><br>
The committee's brief concludes that "the activity at issue, into
which the SEC seeks to probe, is routine information gathering to
inform the Committee regarding an issue on which legislation could
be had (and, in fact, has been developed and actively pursued), and
that is quintessential legislative conduct protected by the Speech
or Debate Clause, as the SEC's own cases recognize."<br>
<br>
There is no doubt that one role of lobbyists to provide information
to legislators and their staff. But is this a legislative activity,
a lobbying activity, or something else? Note that here, the brief
only mentions information gathering, even though earlier it says
that all communications, whichever direction information travels, is
protected.<br>
<br>
It really shouldn't matter which direction information
goes in.
If the lobbyist is providing information, that information is no
different from that provided by any citizen, whether in testimony at
a public hearing, written testimony, a letter, or a phone call. Why
should information provided in public testimony be public and
information provided in private communications be protected? Is
there any difference that matters with respect to the Speech or
Debate Clause? I don't think there is. Citizen information to a
legislator, when the citizen is not representing that legislator as personal legal
counsel, should not be protected by the Speech or Debate Clause.<br>
<br>
As for information going in the other direction, from legislative
staff to lobbyist, the committee brief does not even inform us what
sort of legislative activity this is. If a staff member answers a
question, say, about the content of a bill or a deadline for
submitting testimony, is this information protected as legislative
activity? Why would it be? It is public information. If the staff
member tells someone from another party that a deadline is tomorrow,
when it is actually next week, should this false information be
protected as legislative activity? If the staff member tells her
sister that her legislator is about to sneak a clause into a
bill, which will provide a huge subsidy to ethanol producers, should
this financially valuable information be protected as legislative activity?<br>
<br>
<b>Misuse of Office</b><br>
No, because in both cases this is an abuse of special access to important
information. It is a misuse of office. How could a constitutional
clause — intended to protect constituents from having their
representative fail to act in their interest due to their personal
interest in being sued or arrested — protect this representative from
misusing his office for his or others' personal interests? As soon
as you acknowledge what the Speech or Debate Clause is for, it is
clear that it should not apply to investigations of the
communication of personally valuable information between legislative
staff and lobbyists.<br>
<br>
<b>Redress of Grievances</b><br>
On p. 34 of its brief, the committee also asserts that lobbyists are
"carrying out a role contemplated by the First Amendment, i.e.,
petitioning the government for a redress of grievances." This is the
only mention of this personal right. It would have been embarrassing
to argue that communications relevant to insider trading involved
the redress of grievances or any personal right. For more on the
extent to which paid lobbyists petition for a redress of grievances,
see <a href="http://www.cityethics.org/content/winter-reading-zephyr-teachouts-forgo…; target="”_blank”">this
2014 City Ethics blog post</a>.<br>
<br>
A <a href="http://www.pointoforder.com/2014/07/08/the-legislator-lobbyist-privileg…; target="”_blank”">Point
of Order Blog post</a> by Michael Stern notes that there is very
little case law that defines either what is meant by informal
information gathering or the extent to which information gathering
is protected by the Speech or Debate Clause. Therefore, this is a
perfect opportunity to acknowledge that the clause is a government
ethics provision before applying it to a government ethics situation
such as the misuse of confidential information.<br>
<br>
<b>A Practical Approach</b><br>
There is an excellent comment to this post by Joe Dowley, who says
that he was a member of the same committee's staff and is now a
registered lobbyist. Dowley takes a very practical approach to
staff-lobbyist communications, and concludes that no one considers
them privileged and, therefore, that "heightened ethical awareness"
is required in order to determine "what information is appropriate
to convey and when." He writes,<blockquote>

I never gave any thought to privilege in such settings, regardless
of the side of the desk I was on. As a staff guy, anything I might
have said to a lobbyist, in nearly every setting, I had to conclude
would be repeated or used in some fashion, or was fair game to be
made public. That instilled its own discipline. As a lobbyist, it
would never occur to me that something told to me by a staff person
enjoyed any protection other than if he or she admonished me not to
say anything. Everyone knows we get paid to share information. To
extend the Speech and Debate Clause protection to these
relationships appears to me, also, to be a real stretch. Are we to
protect bar-stool conversations because they happen to be partially
about legislation, or a hearing? What this case points up is the
need for heightened ethical awareness regarding what information is
appropriate to convey and when. With instant communications should
come increased focus. When commercial interests are affected, as
they so often are, by government decisions, it is incumbent on staff
and Members to insure that release of that information isn’t done in
a selective manner such that some interests are improperly
advantaged over their competitors. Sticking to official channels of
communication tends to avoid that result. But, this is Washington,
where information is gold, so things are going to happen. It just
seems unwise to me to extend a protection intended to cover official
actions to this time-honored practice.</blockquote>

It is my hope that judges faced with this issue will look at the
Speech or Debate Clause as a government ethics provision; consider
the House committee's argument as a request for a privilege that has
never existed; and take a practical approach to the issue, as Mr.
Dowley has done, and as others in his present and past positions do every
day.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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