The Defense of the Nevada Legislative Immunity Amendment Falls Short
I listened yesterday to the testimony of Kevin Powers, a member of the Nevada
Legislative Counsel's office, to the House Committee considering the
legislative immunity amendment I discussed in <a href="http://www.cityethics.org/node/728" target="”_blank”">yesterday's blog post</a>. He was very impressive, with all the facts and laws at his fingertips. But his defense and explanations fell short of convincing me (but apparently not the legislators) that the amendment is appropriate.<br>
<br>
One thing that he emphasized, and I did not mention, is the fact that
the amendment expressly points (in Section 1(3); see attachment to
yesterday's blog post) to U.S. Supreme Court precedents for
interpreting Nevada legislators' legislative immunity in an ethics
context.<br>
<br>
Supreme Court precedents are indeed valuable. However, (i) the Supreme Court has not yet
interpreted legislative immunity in an ethics context, and (ii) it has
made it clear that there are important differences between legislative
immunity based on a Speech or Debate Clause and legislative immunity
that is not based on a Speech or Debate Clause. And Nevada does not
have such a clause, which is why its legislators feel this amendment is
necessary.<br>
<br>
Powers mentioned only in passing what he
referred to as the testimonial aspect of legislative immunity, which,
he did not say, takes legislative immmunity beyond what he called the core
legislative functions. The state ethics commission not only lacks jurisdiction over a state legislator's voting (e.g., when she
has a conflict of interest), but in addition the ethics commission
cannot ask for any evidence related to a core legislative function to
help prove unethical conduct that occurred outside of the core
legislative function.<br>
<br>
Due to this testimonial aspect of legislative immunity, it can be very
difficult to find ethics violations even where the legislator was not even
acting in an official capacity. For example, an ethics commission
cannot look at a legislator's datebook, because it contains materials
about legislative activities.<br>
<br>
And, of course, Powers, in explaining the purpose of legislative
immunity, failed to explain that its purpose is the same as that of
ethics laws: to take the legislator's personal interest out of
the equation of representation of her constituents. Without legislative
immunity, the legislator's personal interest would involve not doing something that
might lead to arrest or a lawsuit. Without ethics laws, the legislator's personal
interest would involve voting to help oneself or one's friends instead
of one's constituents. Both legislative immunity and ethics laws make
the public interest predominant.<br>
<br>
Of course, the legislature can enforce ethics laws against its own members. But, unlike legislative immunity, ethics laws have the additional, more important purpose of gaining the public's trust in the
government. Legislative immunity in an ethics context
undermines this trust, because no one trusts a legislature that insists on regulating its
own ethics. Ethics self-enforcement undermines the ethics program's most important goal.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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