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 recent brief from the U.S. House Ways and Means Committee in S.E.C. v. Ways and Means Committee 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.

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

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.

The Protection of Confidential Information
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 Stop Trading on Congressional Knowledge Act). 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.

Is Even Executive Branch Information Protected?
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 If a legislative staff member gets hold of an unpublished judicial decision on the constitutionality of a statute and gives it to someone who can use it for his financial benefit, is this activity (and related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.

Information Gathering and Disseminating
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."

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.

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.

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?

Misuse of Office
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.

Redress of Grievances
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 this 2014 City Ethics blog post.

A Point of Order Blog post 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.

A Practical Approach
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,

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.

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.

Robert Wechsler
Director of Research-Retired, City Ethics

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