Massachusetts Catches the Legislative Immunity Virus - Is it Time to Take a Fresh Look at the Ancient Speech & Debate Clause?

This week, another state ethics commission is facing a defense of legislative immunity. The state is Massachusetts, and the legislator happens to be the speaker of the house, Sal DiMasi.

According to an article in the Boston Globe, one allegation against DiMasi (filed, at least in part, by the opposing political party) is that associates of his, including his accountant, were given large payments by a software firm that got a $13-million contract with the state from a 2007 bill, not a procurement. The attorney general's office is also investigating. Another allegation is that DiMasi's accountant accepted payments from ticket brokers seeking to gut state antiscalping laws.

DiMasi has refused to turn over to the ethics commission records relating to passage of the 2007 bill, arguing legislative immunity, and he has refused to say anything about the case, arguing that by state law he is required to keep the case confidential. This last argument is not true. The subject of an investigation is allowed to say anything he or she wants, according to the ethics commission. But making this argument does allow DiMasi to say that he's not hiding anything.

DiMasi's plea of legislative immunity is based on a more extensive than usual Speech and Debate Clause in the Massachusetts constitution:


But according to the Globe article, the last time a Massachusetts court deal with this issue was 1808.

This matter, unlike the matters in the Louisiana and Nevada cases, goes beyond a typical conflict of interest, whereby the legislator should have recused himself. In those cases, how the legislator voted is not important, only the fact of voting, which is not as clearly protected by the Speech and Debate Clause. The records being sought by the ethics commission may actually be protected. I don't believe that any such records were required in the other two cases, because there was no disagreement about facts, only about jurisdiction.

Also, here the matter is more one of bribery, either before or after the fact, and it is likely that the matter will, in the end, be turned over to the attorney general's office. In other words, there may not be a judicial look at how the state's Speech and Debate Clause affects ethics commission jurisdiction. However, the ethics commission has sought a court order to force DiMasi to produce the records. In any event, DiMasi's defense creates a precedent for future ethics commission investigations relating to legislators, and it is certainly another indication that legislators are using the legislative immunity defense more and more now, and that it won't be long before local government legislators will be trying it out, as well.

For an excellent look at how ordinary people respond to a defense of legislative immunity (it ain't pretty), see the comments to the Globe article.

It might be time to take a closer look at a very old common-law concept that might have outlasted its era. This is an era of government transparency, and everyone knows that these cases have nothing to do with a legislator's freedom to vote as he or she pleases. There is no constituency for the Speech and Debate Clause, except among legislators and constitutional lawyers who don't believe constitutional law should change.

The question is, is the government ethics community well situated to recommend ways to bring the Speech and Debate Clause into the twenty-first century?

For some background on this issue, see my blog entry on the Louisiana case.

Robert Wechsler
Director of Research-Retired, City Ethics

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