A Ninth Circuit Decision on Legislative Immunity and Legislative Acts

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."

A "Legislative Act"
The definition of "legislative act" has been relatively broad, but the U.S. Supreme Court in U.S. v. Brewster, 408 U.S. 501 (1972), said it had never indicated that “everything that ‘related’ to the office of a Member was shielded by the Clause.” The Court said that a "legislative act" is "limited to an act which was clearly a part of the legislative process—the due functioning of the process,” and thus did not include "a wide range of legitimate ‘errands’ performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called ‘news letters’ to constituents, news releases, and speeches delivered outside the Congress. The range of these related activities has grown over the years. They are performed in part because they have come to be expected by constituents, and because they are a means of developing continuing support for future elections. Although these are entirely legitimate activities, they are political in nature rather than legislative."

In addition, completed acts are protected by the S&D Clause, but not promised acts. So if a legislator takes money without a promise, and then advocates and votes for what the briber wanted, the legislator is in the clear. Hmm.

And that's what happened in the Renzi case:  Renzi had promised to act, but hadn't acted yet, so he can't hide behind the S&D Clause. But the former congressman had more arguments up his sleeve. He argued that "negotiating" with private entities over future legislative acts is like negotiating with legislators over a bill, and is therefore protected. He also argued that prosecutors should not be allowed to impugn later legislative acts. Clever, but the analogy doesn't hold, and it would appear that the congressman's later legislative acts would have effectively impugned him themselves, even if they were to protect him from prosecution.

The Supreme Court in Brewster (p. 526) said very baldly, "Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator."

Conflicts of Interest
With respect to conflicts of interest, doesn't the same hold true? If taking a bribe is not part of the legislative process, isn't voting to give yourself, your family, or your business associate equally not part of the legislative process? With conflicts, there is no promise-act dichotomy, because no promise is necessary. Nor is a bribe. But the result is just the same:  using one's legislative position to benefit oneself. Is there any reason the two should be treated differently?

Another way to put this is, If a legislator benefits financially, is making a deal with someone else really less desirable than self-dealing? I don't believe the S&D Clause was intended to protect either those who take a bribe or those who participate with a conflict.

What the More Refined Legislator Is Arguing Today
The next thing the court in Renzi says is worth sharing for its humor value alone:

One might think that this would be the end of the matter—that Renzi would concede that Brewster forecloses his claim. Instead, Renzi contends that his pre-legislative “negotiations” are not doomed to the same fate as Brewster’s because he was charged with extortion, not bribery. He reasons that Brewster was premised on the idea that there was no legitimate explanation for Brewster’s acceptance of a bribe, and that, unlike Brewster, he has a legitimate explanation for his deeds. In short, Renzi relies on the fact that, as charged, his deceit was more refined, more sophisticated, than Brewster’s. Rather than selling his office for cash, he was wise enough to at least attempt to conceal his crime by using more indirect means of payment. We think Renzi relies on a distinction without a difference.

Distraction from Legislative Activity
The decision raises another issue, whether distraction from legislative activity by itself is enough of a reason to apply the S&D Clause's privilege against testifying. The D.C. Circuit's Jefferson decision, the infamous case where a congressman put his bribe in his freezer, considered such distraction a "touchstone" of the clause. The ninth circuit judges believe that distraction is not the primary ill to be solved by the Clause.

More to the point, the court believes that if the underlying activity is not protected by the clause, "other legitimate interests exist, most notably the ability of the Executive to adequately investigate and prosecute corrupt legislators for non-protected activity" and that, in fact, this interest is of paramount importance to the legislature, as well.

The Integrity of the Legislative Process
The court then quotes the words of the U.S. Supreme Court in Brewster that cannot be quoted too often:

[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 difference between my view and the courts' is that I do not think this should stop at bribery or extortion. Participating with a conflict equally threatens the independence and integrity of the legislative process, and undermines the public's right to honest representation.

Robert Wechsler
Director of Research-Retired, City Ethics

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