Massachusetts Catches the Legislative Immunity Virus - Is it Time to Take a Fresh Look at the Ancient Speech & Debate Clause?
This week, another state ethics commission is facing a defense of
legislative immunity. The state is
Massachusetts, and the legislator happens to be the speaker of the
house, Sal DiMasi.<br>
<br>
According to <a href="http://www.boston.com/news/local/articles/2008/11/07/dimasi_asserts_imm…; target="”_blank”">an
article in the Boston Globe</a>, one allegation against DiMasi (filed,
at least in part, by the opposing political party) is that associates
of his, including his accountant, were given large payments by a
software firm that got a $13-million contract with the state from a
2007 bill, not a procurement. The attorney general's office is also
investigating. Another allegation is that DiMasi's accountant accepted
payments from ticket brokers seeking to gut state antiscalping laws.<br>
<br>
DiMasi has refused to turn over to the ethics commission records relating
to passage of the 2007 bill, arguing legislative immunity, and he has
refused to say anything about the case, arguing that by state law he is
required to keep the case confidential. This last argument is not true.
The subject of an investigation is allowed to say anything he or she
wants, according to the ethics commission. But making this argument
does allow DiMasi to say that he's not hiding anything.<br>
<br>
DiMasi's plea of legislative immunity is based on a more extensive than
usual Speech and Debate Clause in the Massachusetts constitution:<br>
<br>
<div>Article 21: The freedom of
deliberation, speech and debate, in either house of the Legislature, is
so essential to the rights of the people, that it cannot be the
foundation of any accusation or prosecution, action, or complaint, in
any other court or place whatsoever.<br>
</div>
<br>
But according to the Globe article, the last time a Massachusetts court
deal with this issue was 1808.<br>
<br>
This matter, unlike the matters in the Louisiana and Nevada
cases, goes beyond a
typical conflict of interest, whereby the legislator should have
recused himself. In those cases, how the legislator voted is not important,
only the fact of voting, which is not as clearly protected by the
Speech and Debate Clause. The records being sought by the ethics
commission may actually be protected. I don't believe that any such records were required in the other two cases, because there was no
disagreement about facts, only about jurisdiction.<br>
<br>
Also, here the matter is more one of bribery, either before or after
the fact, and it is likely that the matter will, in the end, be turned
over to the attorney general's office. In other words, there may not be a judicial look at how the state's Speech and Debate
Clause affects ethics commission jurisdiction. However, the ethics commission has sought a court order to force DiMasi to produce the records. In any event, DiMasi's defense creates a
precedent for future ethics commission investigations relating to legislators, and it is
certainly another indication that legislators are using the legislative
immunity defense more and more now, and that it won't be long before
local government legislators will be trying it out, as well.<br>
<br>
For an excellent look at how ordinary people respond to a defense of
legislative immunity (it ain't pretty), see <a href="http://people.boston.com/articles/cityandregion/?p=articlecomments&acti…; target="”_blank”">the
comments to the Globe article</a>.<br>
<br>
It might be time to take a closer look at a very old common-law concept
that might have outlasted its era. This is an era of government
transparency, and everyone knows that these cases have nothing to do
with a legislator's freedom to vote as he or she pleases. There is no
constituency for the Speech and Debate Clause, except among
legislators and constitutional lawyers who don't believe constitutional law should change.<br>
<br>
The
question is, is the government ethics community well situated to
recommend ways to bring the Speech and Debate Clause into the
twenty-first century?<br>
<br>
For some background on this issue, see <a href="http://www.cityethics.org/node/450" target="”_blank”">my blog entry</a> on the Louisiana case.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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