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COGEL Talk on Legislative Immunity: Same Goals As Government Ethics, and Not Absolute
Thursday, December 8th, 2011
Robert Wechsler
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.
Until 2007, state and local legislators assumed that if their legislative bodies had passed ethics codes and created ethics commissions, those codes applied to them and those commissions had jurisdiction over them. That was a period of innocence.
The End of Innocence
Then Jeff Arnold and Alex Heaton, two state legislators from New Orleans, one from each party, with the support of their legislative leaders, waged a constitutional battle that has jeopardized ethics commission jurisdiction nationwide.
These legislators sought an injunction against the Louisiana Board of Ethics to stop its investigation and prevent a hearing on their participation in matters relating to their family members’ jobs. And in 2008 they succeeded. A state appellate court in the case In re Arnold found that the state’s equivalent of the federal Speech or Debate Clause prevented the ethics board from investigating or making decisions regarding state representatives participating with a conflict. Or making decisions regarding any other legislative activity, for that matter.
The federal Speech or Debate Clause (Article I, Section 6) reads as follows: “[F]or any Speech or Debate in either House [Senators and Representatives] shall not be questioned in any other Place.”
This was the first time the Speech or Debate Clause was applied to government ethics enforcement. Since then, what is known as the legislative immunity defense has been successfully raised in various states, cities, and counties. This battle to prevent government ethics commissions and prosecutors from enforcing ethics laws against members of the bodies that passed them undermines government ethics programs. Why? Because excluding legislators makes an ethics program appear unfair. An unfair ethics program will not be respected by those it does apply to, and the public will lose trust in legislators who choose not to apply their own ethics laws to themselves.
What happened after the Louisiana decision? Nothing happened to the two state legislators, and enforcement authority was taken away from the ethics board, not just for legislators, but for everyone. In other words, the issue wasn’t the constitution, it was ethics enforcement. This is pretty much the case everywhere.
There are two things I want you to leave this room with. One is an understanding that legislative immunity and government ethics have exactly the same goal and, therefore, there is no reason to apply legislative immunity in a government ethics context.
Two is the fact that there are non-litigious ways to prevent the legislative immunity defense and related defenses from being used. Right now, government ethics professionals and good government groups either do not appreciate the problem posed by the legislative immunity defense or have chosen to lie low, hoping that legislators will not learn about the defense and that, therefore, its use will not spread. But use of the defense is spreading. I see the legislative immunity defense being raised across the country when legislators with competent counsel decide to fight an ethics complaint.
Recent Decisions
But first, for those who are interested, some recent decisions. They are of two sorts. One group deals with common-law legislative immunity defenses, which is what an official has to make when there is no Speech or Debate Clause, as is true in some states, such as Nevada, and in local governments. The big difference is that common-law legislative immunity can, according to most decisions, be waived by the passage of a law, such as an ethics code. This is known as “institutional waiver.”
Two decisions in 2009 and 2010 involved Baltimore council members making a common-law legislative immunity defense to the introduction of evidence of legislative activity in criminal proceedings that related to ethics matters but applied state criminal law: Maryland v Dixon (Balt Cir Ct, 2009) and Maryland v. Holton (MD Court of Special Appeals, 2010). Included among the charges were perjury charges for allegedly making false statements on annual disclosure forms.
The worst part of these decisions was the courts’ finding that common-law legislative immunity is “co-extensive” with constitutional legislative immunity. It is hard to take this too seriously, however, since the decisions did not even mention waiver, which is the principal difference between common-law and constitutional legislative immunity.
This lack of understanding about legislative immunity appears to be catching, too. This year, the Virginia Supreme Court in Isle of Wight County v. Nogiec found that local legislators have an "absolute" rather than common-law legislative privilege, but it was not an ethics case. And also this year, a court in Oklahoma dismissed a citizens’ suit against the Tulsa council regarding a violation of the open meetings act, on the grounds of "absolute" legislative immunity. See the next section for how unabsolute "absolute" really is.
The other group of decisions deal with constitutional challenges not based on the Speech or Debate Clause. This group of decisions includes one based on a constitutional Discipline Clause, which gives to the legislature the exclusive right to discipline its own members (this argument succeeded in Nevada in in Commission on Ethics v. Hardy, 212 P.3d 1098 (2009)). Hardy also made an argument based on separation of powers, but this was not adjudicated; however, since this defense is closely related to the legislative immunity defense, it can be dealt with in the same way if a future court recognizes the defense. Another decision was based on First Amendment free speech, an argument that was, thank goodness, rejected by the U.S. Supreme Court in Nevada Commission on Ethics v. Carrigan (June 13, 2011).
More important than the judicial decisions is the fact that legislators and other officials across the country are making legislative immunity defenses and suing or threatening to sue in order to get an ethics complaint against them dropped or settled. The expense of constitutional litigation is enough to make most ethics commissions cave in. This year, for example, a finance board and a council member in Stamford, Connecticut tried this approach, as did the mayor of Washington, D.C. with respect to allegations regarding his time as council president. An attempt was also made to get the Virginia legislature to apply the state Speech or Debate Clause to local officials, in order to give them "absolute" legislative immunity.
Absolutely Not
Legislative immunity is usually referred to as “absolute,” implying that there are no exceptions and that the values and goals of legislative immunity may not be balanced against other considerations, such as preventing corruption or the appearance of corruption. The word “absolute” is wishful thinking rather than an accurate description of the Supreme Court's interpretation of the Speech or Debate Clause.
The Supreme Court in United States v. Johnson, a 1966 case involving charges of conspiracy to defraud brought against a congressman, effectively said that laws limiting legislative immunity should be given strict scrutiny, making legislative immunity no more “absolute” than the First Amendment. The case also involved conflict of interest charges, but the government did not ask the Court to deal with them. Here is the what the court wrote:
The U.S. Supreme Court applied the Johnson language in 1972 with respect to bribery in the case of U.S. v. Brewster:
The Goals of Legislative Immunity and Government Ethics Are the Same
Let’s go back in time to see how the Speech or Debate Clause came into existence. It was a response to worries about the British situation, where the executive (the king) could threaten members of Parliament (MPs) with civil suits or arrest and, thereby, get them to do the king’s bidding. What such threats did was to put the MP’s personal interest in not being sued or arrested ahead of the public interest in having an MP represent his constituents. It also forced the MP to show preferential treatment to the King. In other words, it put the MP into a classic conflict situation.
The drafters of the Constitution worried that a future president, or someone else with an interest in a matter before Congress, could put the same sort of pressure on members of Congress. Since the option of withdrawing from participation would not be available to representatives conflicted in this way, the drafters prevented the conflict from coming into existence by prohibiting suits and arrests. Without the power to sue or arrest, a president’s threats would be meaningless. An excellent solution.
But it is not an excellent solution when the potential threat is a government ethics proceeding. The reason is that the goal of government ethics is exactly the same as the goal of legislative immunity. Both seek to protect the public from effectively losing their representation due to their representative’s personal interests.
Prohibiting an ethics proceeding against a legislator due to legislative immunity allows a legislator to act in his or another’s personal interest rather than on behalf of his constituents. Interpreting the Speech or Debate Clause to apply to ethics proceedings therefore undermines the goal of this constitutional protection.
Here’s another way to look at this. A suit or arrest, or the threat of a suit or arrest, based on legislative activity is an imposition of a conflict from the outside. It is similar to a gift from a restricted source, which also creates a conflict where one did not exist before. In one case, the public is protected by protecting the legislator from suit or arrest. In the other case, the public is protected by prohibiting the gift. In both cases, instead of the usual withdrawal where a conflict already exists, the law prevents the conflict from coming into existence.
Only a legalistic approach, with no interest in the goals of either government ethics or the Speech or Debate Clause, and blinded by the supposed “absolute” nature of legislative immunity, could interpret this clause as allowing legislators to put their personal interest above the public interest by participating with a conflict.
Practical Responses
So what can be done to prevent everyone from state and local legislators to governors and mayors, agency officials, and school and planning board members from trying to exclude themselves and evidence about their legislative activities from ethics enforcement and disclosure? Here are four approaches.
1. Separate Legislative and Executive Ethics Commissions. This is the only approach that has been taken in multiple jurisdictions. Having two separate legislative and executive branch ethics commissions solves both legislative immunity and separation of powers problems, but it is expensive and usually (although not necessarily) means self-regulation or a lack of ethics commission independence. If done responsibly, it could work well. But the likelihood is small, and this approach doesn’t work for cities, counties, or regional ethics commissions.
2. The Same Place. A cheaper and easier solution is to have the legislative body appoint (but not necessarily select) all ethics commission members, and have the commission expressly made part of the legislative branch, so that it is not an “other place,” the term used in the Speech or Debate Clause. There is no equivalent executive immunity. If the executive branch were to raise a separation of powers issue, the legislative body could designate independent community groups to select ethics commission members to be appointed by the governor or mayor with the approval of the legislative body, and expressly make the ethics commission a hybrid body that is part of both branches. If the local government has a council-manager form, there is no separation of powers issue.
3. Personal Waiver. Another approach is to have all officials who participate in legislative activity, including high-level executive officials and certain board and commission members, and their staff, include with their oath of office a statement that they are fully subject to the jurisdiction of the ethics commission and will not raise any procedural or constitutional defense to the jurisdiction of the ethics commission, including a legislative immunity defense. An official could refuse to make this statement, but it would make him look suspect in the eyes of the public. Appointing bodies and officials could make this statement a requirement of each employment or contracted position.
Although the Supreme Court has recognized personal waiver (and such a waiver occurs every time a legislator does not raise a legislative immunity defense), it is possible that someone would raise a concern about the legality of this waiver, since legislative immunity has been held to protect the public rather than the legislator. If this clever but bogus argument was to succeed in a particular jurisdiction, a referendum on the issue could be held, so that it is the public itself that requires local officials to personally waive legislative immunity on the public’s behalf. Because such a referendum would be supported everywhere, I doubt any elected official would ask for one to be held.
4. Institutional Waiver. Since institutional waiver is acceptable with respect to common-law legislative immunity, the simplest approach for a local government or a state without a Speech or Debate Clause would be a state statute, local charter amendment, or local ordinance that expressly excepts the ethics commission from application of common-law legislative immunity or expressly makes officials subject to ethics commission jurisdiction despite common-law legislative immunity.
A state statute is best, since it covers all local governments. This would save an enormous amount of energy, but it might be strenuously fought by state municipal associations. The statute approach was taken in 2009 in Nevada, at the same time state legislators were excepted from the state ethics commission’s jurisdiction.
Conclusion
The last forty years have seen an enormous growth in government ethics programs across the country. State and local legislators, on the whole, have not welcomed it and do not like it. The legislative immunity defense is a godsend for those seeking to exclude themselves from ethics commission jurisdiction. The fact that the Speech or Debate Clause and government ethics have the same goal is immaterial to those seeking to have an ethics complaint against them dismissed. And, for some reason, this argument has not been sufficiently made, nor have the words of the Supreme Court in the Johnson and Brewster opinions been quoted to show that even constitutional legislative immunity is far from “absolute.”
If necessary, these arguments should be attempted in the future and, perhaps, the decisions may start going against officials seeking to have ethics complaints dismissed. But litigation is an expensive and difficult way to stop this extremely damaging trend. There are other ways to keep those participating in legislative activity within an ethics program.
At first it will take work and some creativity, but once there are precedents, it will become much easier. It might become a common part of government to have personal waivers of the legislative immunity defense in a government ethics context. Or it might become common for ethics commissions to be officially part of the legislative branch. And at the local level, a simple sentence could be added to every ethics code expressly stating that legislators may not raise a legislative immunity defense in or regarding an ethics proceeding.
But none of this will happen if the government ethics community keeps its head in the sand. If it continues to do this, it will be responsible for the serious damage to ethics programs that accompanies the exclusion of any group from its jurisdiction, especially a group of elected officials who are supposed to be representing the public, not themselves.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
Until 2007, state and local legislators assumed that if their legislative bodies had passed ethics codes and created ethics commissions, those codes applied to them and those commissions had jurisdiction over them. That was a period of innocence.
The End of Innocence
Then Jeff Arnold and Alex Heaton, two state legislators from New Orleans, one from each party, with the support of their legislative leaders, waged a constitutional battle that has jeopardized ethics commission jurisdiction nationwide.
These legislators sought an injunction against the Louisiana Board of Ethics to stop its investigation and prevent a hearing on their participation in matters relating to their family members’ jobs. And in 2008 they succeeded. A state appellate court in the case In re Arnold found that the state’s equivalent of the federal Speech or Debate Clause prevented the ethics board from investigating or making decisions regarding state representatives participating with a conflict. Or making decisions regarding any other legislative activity, for that matter.
The federal Speech or Debate Clause (Article I, Section 6) reads as follows: “[F]or any Speech or Debate in either House [Senators and Representatives] shall not be questioned in any other Place.”
This was the first time the Speech or Debate Clause was applied to government ethics enforcement. Since then, what is known as the legislative immunity defense has been successfully raised in various states, cities, and counties. This battle to prevent government ethics commissions and prosecutors from enforcing ethics laws against members of the bodies that passed them undermines government ethics programs. Why? Because excluding legislators makes an ethics program appear unfair. An unfair ethics program will not be respected by those it does apply to, and the public will lose trust in legislators who choose not to apply their own ethics laws to themselves.
What happened after the Louisiana decision? Nothing happened to the two state legislators, and enforcement authority was taken away from the ethics board, not just for legislators, but for everyone. In other words, the issue wasn’t the constitution, it was ethics enforcement. This is pretty much the case everywhere.
There are two things I want you to leave this room with. One is an understanding that legislative immunity and government ethics have exactly the same goal and, therefore, there is no reason to apply legislative immunity in a government ethics context.
Two is the fact that there are non-litigious ways to prevent the legislative immunity defense and related defenses from being used. Right now, government ethics professionals and good government groups either do not appreciate the problem posed by the legislative immunity defense or have chosen to lie low, hoping that legislators will not learn about the defense and that, therefore, its use will not spread. But use of the defense is spreading. I see the legislative immunity defense being raised across the country when legislators with competent counsel decide to fight an ethics complaint.
Recent Decisions
But first, for those who are interested, some recent decisions. They are of two sorts. One group deals with common-law legislative immunity defenses, which is what an official has to make when there is no Speech or Debate Clause, as is true in some states, such as Nevada, and in local governments. The big difference is that common-law legislative immunity can, according to most decisions, be waived by the passage of a law, such as an ethics code. This is known as “institutional waiver.”
Two decisions in 2009 and 2010 involved Baltimore council members making a common-law legislative immunity defense to the introduction of evidence of legislative activity in criminal proceedings that related to ethics matters but applied state criminal law: Maryland v Dixon (Balt Cir Ct, 2009) and Maryland v. Holton (MD Court of Special Appeals, 2010). Included among the charges were perjury charges for allegedly making false statements on annual disclosure forms.
The worst part of these decisions was the courts’ finding that common-law legislative immunity is “co-extensive” with constitutional legislative immunity. It is hard to take this too seriously, however, since the decisions did not even mention waiver, which is the principal difference between common-law and constitutional legislative immunity.
This lack of understanding about legislative immunity appears to be catching, too. This year, the Virginia Supreme Court in Isle of Wight County v. Nogiec found that local legislators have an "absolute" rather than common-law legislative privilege, but it was not an ethics case. And also this year, a court in Oklahoma dismissed a citizens’ suit against the Tulsa council regarding a violation of the open meetings act, on the grounds of "absolute" legislative immunity. See the next section for how unabsolute "absolute" really is.
The other group of decisions deal with constitutional challenges not based on the Speech or Debate Clause. This group of decisions includes one based on a constitutional Discipline Clause, which gives to the legislature the exclusive right to discipline its own members (this argument succeeded in Nevada in in Commission on Ethics v. Hardy, 212 P.3d 1098 (2009)). Hardy also made an argument based on separation of powers, but this was not adjudicated; however, since this defense is closely related to the legislative immunity defense, it can be dealt with in the same way if a future court recognizes the defense. Another decision was based on First Amendment free speech, an argument that was, thank goodness, rejected by the U.S. Supreme Court in Nevada Commission on Ethics v. Carrigan (June 13, 2011).
More important than the judicial decisions is the fact that legislators and other officials across the country are making legislative immunity defenses and suing or threatening to sue in order to get an ethics complaint against them dropped or settled. The expense of constitutional litigation is enough to make most ethics commissions cave in. This year, for example, a finance board and a council member in Stamford, Connecticut tried this approach, as did the mayor of Washington, D.C. with respect to allegations regarding his time as council president. An attempt was also made to get the Virginia legislature to apply the state Speech or Debate Clause to local officials, in order to give them "absolute" legislative immunity.
Absolutely Not
Legislative immunity is usually referred to as “absolute,” implying that there are no exceptions and that the values and goals of legislative immunity may not be balanced against other considerations, such as preventing corruption or the appearance of corruption. The word “absolute” is wishful thinking rather than an accurate description of the Supreme Court's interpretation of the Speech or Debate Clause.
The Supreme Court in United States v. Johnson, a 1966 case involving charges of conspiracy to defraud brought against a congressman, effectively said that laws limiting legislative immunity should be given strict scrutiny, making legislative immunity no more “absolute” than the First Amendment. The case also involved conflict of interest charges, but the government did not ask the Court to deal with them. Here is the what the court wrote:
-
we expressly leave open for consideration . . . 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.
The U.S. Supreme Court applied the Johnson language in 1972 with respect to bribery in the case of U.S. v. Brewster:
-
[T]he purpose of the Speech or Debate Clause is to protect the
individual legislator, not simply for his own sake, but to preserve
the independence and thereby the integrity of the legislative
process. But financial abuses by way of bribes, perhaps even more
than Executive power, would gravely undermine legislative integrity
and defeat the right of the public to honest representation.
Depriving the Executive of the power to investigate and prosecute and the Judiciary of the power to punish bribery of Members of Congress is unlikely to enhance legislative independence.
The Goals of Legislative Immunity and Government Ethics Are the Same
Let’s go back in time to see how the Speech or Debate Clause came into existence. It was a response to worries about the British situation, where the executive (the king) could threaten members of Parliament (MPs) with civil suits or arrest and, thereby, get them to do the king’s bidding. What such threats did was to put the MP’s personal interest in not being sued or arrested ahead of the public interest in having an MP represent his constituents. It also forced the MP to show preferential treatment to the King. In other words, it put the MP into a classic conflict situation.
The drafters of the Constitution worried that a future president, or someone else with an interest in a matter before Congress, could put the same sort of pressure on members of Congress. Since the option of withdrawing from participation would not be available to representatives conflicted in this way, the drafters prevented the conflict from coming into existence by prohibiting suits and arrests. Without the power to sue or arrest, a president’s threats would be meaningless. An excellent solution.
But it is not an excellent solution when the potential threat is a government ethics proceeding. The reason is that the goal of government ethics is exactly the same as the goal of legislative immunity. Both seek to protect the public from effectively losing their representation due to their representative’s personal interests.
Prohibiting an ethics proceeding against a legislator due to legislative immunity allows a legislator to act in his or another’s personal interest rather than on behalf of his constituents. Interpreting the Speech or Debate Clause to apply to ethics proceedings therefore undermines the goal of this constitutional protection.
Here’s another way to look at this. A suit or arrest, or the threat of a suit or arrest, based on legislative activity is an imposition of a conflict from the outside. It is similar to a gift from a restricted source, which also creates a conflict where one did not exist before. In one case, the public is protected by protecting the legislator from suit or arrest. In the other case, the public is protected by prohibiting the gift. In both cases, instead of the usual withdrawal where a conflict already exists, the law prevents the conflict from coming into existence.
Only a legalistic approach, with no interest in the goals of either government ethics or the Speech or Debate Clause, and blinded by the supposed “absolute” nature of legislative immunity, could interpret this clause as allowing legislators to put their personal interest above the public interest by participating with a conflict.
Practical Responses
So what can be done to prevent everyone from state and local legislators to governors and mayors, agency officials, and school and planning board members from trying to exclude themselves and evidence about their legislative activities from ethics enforcement and disclosure? Here are four approaches.
1. Separate Legislative and Executive Ethics Commissions. This is the only approach that has been taken in multiple jurisdictions. Having two separate legislative and executive branch ethics commissions solves both legislative immunity and separation of powers problems, but it is expensive and usually (although not necessarily) means self-regulation or a lack of ethics commission independence. If done responsibly, it could work well. But the likelihood is small, and this approach doesn’t work for cities, counties, or regional ethics commissions.
2. The Same Place. A cheaper and easier solution is to have the legislative body appoint (but not necessarily select) all ethics commission members, and have the commission expressly made part of the legislative branch, so that it is not an “other place,” the term used in the Speech or Debate Clause. There is no equivalent executive immunity. If the executive branch were to raise a separation of powers issue, the legislative body could designate independent community groups to select ethics commission members to be appointed by the governor or mayor with the approval of the legislative body, and expressly make the ethics commission a hybrid body that is part of both branches. If the local government has a council-manager form, there is no separation of powers issue.
3. Personal Waiver. Another approach is to have all officials who participate in legislative activity, including high-level executive officials and certain board and commission members, and their staff, include with their oath of office a statement that they are fully subject to the jurisdiction of the ethics commission and will not raise any procedural or constitutional defense to the jurisdiction of the ethics commission, including a legislative immunity defense. An official could refuse to make this statement, but it would make him look suspect in the eyes of the public. Appointing bodies and officials could make this statement a requirement of each employment or contracted position.
Although the Supreme Court has recognized personal waiver (and such a waiver occurs every time a legislator does not raise a legislative immunity defense), it is possible that someone would raise a concern about the legality of this waiver, since legislative immunity has been held to protect the public rather than the legislator. If this clever but bogus argument was to succeed in a particular jurisdiction, a referendum on the issue could be held, so that it is the public itself that requires local officials to personally waive legislative immunity on the public’s behalf. Because such a referendum would be supported everywhere, I doubt any elected official would ask for one to be held.
4. Institutional Waiver. Since institutional waiver is acceptable with respect to common-law legislative immunity, the simplest approach for a local government or a state without a Speech or Debate Clause would be a state statute, local charter amendment, or local ordinance that expressly excepts the ethics commission from application of common-law legislative immunity or expressly makes officials subject to ethics commission jurisdiction despite common-law legislative immunity.
A state statute is best, since it covers all local governments. This would save an enormous amount of energy, but it might be strenuously fought by state municipal associations. The statute approach was taken in 2009 in Nevada, at the same time state legislators were excepted from the state ethics commission’s jurisdiction.
Conclusion
The last forty years have seen an enormous growth in government ethics programs across the country. State and local legislators, on the whole, have not welcomed it and do not like it. The legislative immunity defense is a godsend for those seeking to exclude themselves from ethics commission jurisdiction. The fact that the Speech or Debate Clause and government ethics have the same goal is immaterial to those seeking to have an ethics complaint against them dismissed. And, for some reason, this argument has not been sufficiently made, nor have the words of the Supreme Court in the Johnson and Brewster opinions been quoted to show that even constitutional legislative immunity is far from “absolute.”
If necessary, these arguments should be attempted in the future and, perhaps, the decisions may start going against officials seeking to have ethics complaints dismissed. But litigation is an expensive and difficult way to stop this extremely damaging trend. There are other ways to keep those participating in legislative activity within an ethics program.
At first it will take work and some creativity, but once there are precedents, it will become much easier. It might become a common part of government to have personal waivers of the legislative immunity defense in a government ethics context. Or it might become common for ethics commissions to be officially part of the legislative branch. And at the local level, a simple sentence could be added to every ethics code expressly stating that legislators may not raise a legislative immunity defense in or regarding an ethics proceeding.
But none of this will happen if the government ethics community keeps its head in the sand. If it continues to do this, it will be responsible for the serious damage to ethics programs that accompanies the exclusion of any group from its jurisdiction, especially a group of elected officials who are supposed to be representing the public, not themselves.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
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