Legislative Immunity: The Courts Are Wrong to Not Distinguish Ethics Enforcement from Prosecution and Civil Suits
One thing that keeps striking me about the recent decisions in the
legislative immunity cases relating to government ethics is how
little they attempt to distinguish cases outside the ethics field from
these cases in the ethics field.<br>
<br>
Is government ethics no different from criminal prosecution, no
different from civil suits?<br>
<br>
<span>Narrowly-Drawn Statutes Such
as Ethics Codes</span><br>
It is true that legislatures write criminal laws just as they write
ethics laws, but criminal laws are not written to apply exclusively to
government officials and employees. The Supreme Court clearly
distinguished these two kinds of laws in <a href="http://supreme.justia.com/us/383/169/" target="”_blank”">United States v.
Johnson</a>, 383 U.S. 169, 185 (1966)<br>
<br>
<div>we
expressly leave open for consideration when the case arises a
prosecution which, though
possibly entailing inquiry into legislative acts or motivations, is
founded upon a narrowly drawn statute passed by Congress in the
exercise of its legislative power to regulate the conduct of its
members.<br>
</div>
<br>
Legislative counsel in the current cases have pointed out that no court
has made a legislative immunity decision with respect to such a
narrowly drawn statute. The reason is that, until very recently, no
legislator
made a legislative immunity defense against enforcement of such a
narrowly drawn statute.<br>
<br>
Now, in Louisiana, Rhode Island, Nevada, Massachusetts, and Baltimore,
they have. The statutes in question were government ethics codes.<br>
<br>
And what have courts said about how this important
distinguishing language in Johnson applies to ethics codes? The <a href="http://www.la-fcca.org/Opinions/Pub2008/2008-05/2007CW2342May2008.Pub.1…; target="”_blank”">Louisiana
court </a>said nothing. The <a href="http://www.courts.state.ri.us/superior/pdf/07-6666.pdf" target="”_blank”">Rhode
Island court</a> said nothing. The Nevada court (<a href="http://www.northhaveninfo.org/resources/Nevada+decision+1+1208.pdf" target="”_blank”">1</a>,
<a href="http://www.northhaveninfo.org/resources/Nevada+decision+2+1208.pdf" target="”_blank”">2</a>)
said nothing. And yet each of these courts cited the Johnson decision
for other purposes.<br>
<br>
<span>Ethics Commissions, With No
Independent Power, Cannot Intimidate Legislators</span><br>
Another principal difference between either prosecution or civil suit
is that ethics enforcement (i) does not involve the judiciary, which
removes one piece of the separation of powers problem, and (ii) does
not involve prosecutors or civil plaintiffs who might be political,
vengeful people who have loyalties to branches other than the
legislature and who are outside the legislature's control.<br>
<br>
Ethics commissions are independent bodies whose members are selected or
confirmed by the legislature, who have no institutional loyalty or
responsibility to either non-legislative branch (in fact, their budgets
also come from the legislature), and who are not elected officials
themselves (as prosecutors are).<br>
<br>
In short, legislative immunity is intended to protect legislators from
intimidation by others that themselves have power. The concept began
when legislators needed protection from the king. This protection also
seemed reasonable from a powerful executive. But can a legislature make
the argument that it needs protection from an ethics commission, that
its members are intimidated by such a great power center?<br>
<br>
<span>Ethics Commissions, Not
Constitutionally Required, Are Completely Under the Legislature's Thumb</span><br>
Let me look at this one final way. The executive and judicial branches
are constitutionally required. The legislature has control over their
budgets, but otherwise it has no control over them. An independent ethics
commission, outside of Rhode Island, is not constitutionally required.
With one vote of the legislature, Poof!, it no longer exists.<br>
<br>
Could this possibly be what legislative immunity was intended to
protect legislators from? No way. So then why did none of the judges in
these cases try to distinguish ethics enforcement from the
very different proceedings with which past courts had been faced?<br>
<br>
This is probably the most telling question hanging over these legislative immunity decisions. Will the appellate judges act differently? They didn't in Louisiana. In fact, they aren't required to,
because they do have a great deal of power, which is why legislators
should be protected from them.<br>
<br>
But not from ethics commissions.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
---</p>