Below is the text of a talk I gave at the Council on Governmental Ethics Laws conference this week. Due to time limitations, I was not able to share this entire text, so even those who heard the talk may want to read this and see what they missed. For those who have been following my posts on legislative immunity, this talk not only brings together a lot of information, but also adds a section on how much of a misnomer "absolute" legislative immunity is.

Another serious problem posed by making a legislative immunity defense in the local government ethics context can be seen from reading the recommendation of the investigating panel of the Stamford (CT) board of ethics. In the section that provides reasons for dismissal of a complaint brought against a council member, the panel wrote:

The case also presents significant legal issues arising from [the respondent's] assertion of legislative immunity and First Amendment protection for his actions.  Whether or not [the respondent's] positions are correct, these issues are likely to result in costly and protracted legal proceedings.  The City will be forced to expend very significant financial resources to pursue this matter not only at the Board of Ethics level, but likely in court as well.

Did you know that the District of Columbia has its own Speech or Debate Clause? I learned this from reading the Motion for a Protective Order on Behalf of Mayor Vincent C. Gray filed on Thursday in the case of Payne v. District of Columbia. Gray, a former council president, is seeking to be protected from testifying in a case involving alleged retaliation against a whistleblower. A principal argument for protection is based on an unusual form of legislative immunity, based on a local ordinance rather than on a constitutional provision or common-law immunity.

The paths of justice have some odd twists to them. Consider these twists. As I wrote in a blog post almost exactly a year ago, both parties to a case involving a Baltimore council member's alleged acceptance of a bribe argued that a statutory provision entitled "Action for defamation against local government official" was not relevant to the case. Here is the text of that provision (§5-501):

A civil or criminal action may not be brought against a city or town councilman, county commissioner, county councilman, or similar official by whatever name known, for words spoken at a meeting of the council or board of commissioners or at a meeting of a committee or subcommittee thereof.

Without the title, this would appear, at first glance, to be an application of legislative immunity to local legislators. But the title and the language both make it clear it's only about actions for defamation. By "language," I refer to the fact that it says that actions may not be brought "for words spoken," not that a local legislator's "speech or debate" (the constitutional language applicable to state legislators) which is far broader, cannot be brought into evidence in actions against local legislators.

Despite the parties' agreement that this statutory provision was not relevant to the case, the court of special appeals applied it and found it effectively an application of the state's legislative immunity protection given to state legislators. That is, the court extended this limited statute not only beyond defamation, but also beyond "words spoken," to include all legislative activity.

Yesterday, the Ninth Circuit, in its decision in U.S. v Renzi, considered what constitutes a "legislative act" with respect to the constitutional Speech or Debate Clause, which provides legislative immunity to legislators by preventing the executive and judicial branches from investigating or hearing matters involving legislative acts. The case involved a former congressional representative, but defining what is a "legislative act" is important for dealing with the S&D Clause at every level of government.

As the court said on p. 12, "Because the protections of the Clause apply absolutely when they apply, the limits of what may constitute a protected 'legislative act' is of fundamental importance."

Reading the Supreme Court majority and dissent opinions in McComish v. Bennett (attached, see below; actually Arizona Free Enterprise Club's Freedom Club PAC v. Bennett at the Supreme Court level) is a very jarring experience that I highly recommend to anyone interested in government ethics. One opinion presents the world as we know it. The other opinion exists in a different world, a world without action and inaction on the part of legislative officials that can be tied directly to contributions in support of their campaigns. The other opinion also does not acknowledge the real-world fact that most competitive candidates will not participate in a public campaign financing program that does not have a trigger provision.

The 5-4 majority decision declares these trigger provisions unconstitutional. Trigger provisions provide additional grants to match certain expenditures by nonparticipating candidates and independent groups (the court calls trigger provisions "matching fund provisions").