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The Defense of the Nevada Legislative Immunity Amendment Falls Short
Friday, May 1st, 2009
Robert Wechsler
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 yesterday's blog post. 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.
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.
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.
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.
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.
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.
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.
Robert Wechsler
Director of Research-Retired, City Ethics
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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.
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.
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.
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.
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.
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.
Robert Wechsler
Director of Research-Retired, City Ethics
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