Legislative Immunity: The Constitutional Approach in R.I. and the Discipline Clause

I have treated the legislative immunity litigation in Rhode Island as the least relevant to other states and to local governments, because the ethics program was set up pursuant to a special constitutional convention. But an amicus brief filed this week by Common Cause of RI and the League of Women Voters of RI made me realize that a constitutional convention or, at the local level, a charter revision process, is a valuable alternative to consider for creating an independent ethics commission.

The amicus brief describes in detail the process and the reasons by which the current RI ethics commission was created in 1986. According to the state Supreme Court in In re Advisory Opinion to Governor (Ethics Commission), 612 A.2d 1,2 (R.I. 1992), "widespread breaches of trust, cronyism, impropriety, and other violations of ethical standards decimated the public's trust in government[,]" resulting in "the public perception ... that government lacked the ability to control ethical conduct among its own members."

One thing this brief points out, to which I have not given much consideration, is the Discipline Clause. The federal constitution has one (Art. I, Sec. 5, clause 2), and it is mirrored in many states, including Rhode Island: : "Each House may determine the Rules of its Proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member."

This clause shows a clear constitutional policy favoring the disciplining of legislators, and a preference for self-discipline, upon which the Speech or Debate Clause stands. But what happens when the legislature is unwilling or unable to discipline its members? Does a legislature such as this merit the independence given by the Speech or Debate Clause when it fails to allow the public to have trust in its members?

It's important to recognize that although the RI constitutional amendments created a state ethics commission to discipline legislators, as well as all state and local government officials, they did not remove from legislators the right of self-discipline, to the extent consistent with ethics laws. Legislators still may discipline their members. What the people of Rhode Island did by changing the constitution was to place the need for trust in government above the need for legislators' absolute immunity, which they were abusing.

The Speech or Debate Clause was intended to prevent a strong executive or interfering judiciary (or individuals using the judiciary to hamper legislators) from intimidating legislators away from effectively and independently representing their constituents. It was never intended to prevent the people from holding their representatives accountable for acting in the public interest rather than in their personal interests.

Many people say that's what voting is for. But how can voters know about legislators' unethical conduct if no one investigate legislators' conduct? Is voting based on rumors and accusations what anyone really wants?

It is worth emphasizing that the Speech or Debate Clause does not create a right for legislators. As the brief states (p. 9), it is "more accurate to understand the Clause as a privilege or right of the people, than it is to view it as a privilege or right of an individual legislator. Thomas Jefferson explained that it was necessary for the people's representatives to be free from the coercion of the coordinate branches 'in order to give the will of the people the influence it ought to have.'"

For local governments it is important to recognize that the people, through the charter revision process, can ensure that their local legislative bodies have no basis for questioning the authority of local ethics commissions. In fact, it is common for charters to require an ethics code and an independent ethics commission to enforce it.

One final thing this brief points out, which is of interest to government ethics, is the recent development in the U.S. Congress, which has finally taken a step to allow its members to be questioned outside of Congress and by non-legislators (however, the investigating office will have no teeth). "On March 3, 2008 the United States House of Representatives approved the establishment of an Office of Congressional Ethics. H.R. Res. 895th 110th Cong. §I (2007) (enacted pursuant to H.R. Res. 1031 110th Cong. (2008)). ... The resolution provides that it will be an "independent office" that will "assist [ ] the House in carrying out its responsibilities under article I, section 5, clause 2 of the Constitution (commonly referred to as the "Discipline Clause").

"The Office will consist of a board of three people appointed by the House Speaker and three by the minority leader, 'without regard to political affiliation and solely on the basis of fitness to perform their duties[,]' who are not lobbyists, Members of the House, or officers or employees of the federal government. H.Res. 895 at § I (b)(I), (b)(4)(A), (b)(4)(B)(i). ... The board is authorized to hire "such professional nonpartisan staff as it considers necessary to perform its duties," id. at § I (h), and investigations may be initiated by the concurrence of any two board members. Id at §1(b)(9)(c)(I )(A). After a preliminary investigation the board will send a report to the House Committee on Standards of Official Conduct...."

This is a small step in the realm of government ethics, but a big step for Congress, and a clear step away from applying the Speech or Debate Clause too narrowly or considering legislative immunity absolute.

Robert Wechsler
Director of Research-Retired, City Ethics

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