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.

Is government ethics no different from criminal prosecution, no different from civil suits?

Narrowly-Drawn Statutes Such as Ethics Codes
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 United States v. Johnson, 383 U.S. 169, 185 (1966)


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.

Now, in Louisiana, Rhode Island, Nevada, Massachusetts, and Baltimore, they have. The statutes in question were government ethics codes.

And what have courts said about how this important distinguishing language in Johnson applies to ethics codes? The Louisiana court said nothing. The Rhode Island court said nothing. The Nevada court (1, 2) said nothing. And yet each of these courts cited the Johnson decision for other purposes.

Ethics Commissions, With No Independent Power, Cannot Intimidate Legislators
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.

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).

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?

Ethics Commissions, Not Constitutionally Required, Are Completely Under the Legislature's Thumb
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.

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?

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.

But not from ethics commissions.

Robert Wechsler
Director of Research-Retired, City Ethics

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