DRAWING THE LINE ON LEGISLATIVE PRIVILEGE: INTERPRETING STATE SPEECH OR DEBATE CLAUSES IN REDISTRICTING LITIGATION.

• Author: Lamberson, J. Pierce

INTRODUCTION

The United States Constitution and forty-three state constitutions include a Speech or Debate Clause granting legislators a legal privilege for their legislative work. (1) Although there is a well-developed body of federal Speech or Debate Clause law granting an absolute privilege to legislators, case law interpreting many state Speech or Debate Clauses is undeveloped. (2) One context in which state Speech or Debate Clauses are tested is redistricting litigation. (3) State courts provide a desirable forum for challengers seeking to expose partisan gerrymandering in redistricting plans. (4) Because the potential for exposing partisan gerrymandering increases if state legislators' statements and legislative documents are accessible, many observers have concluded that Speech or Debate Clause protections should be watered down in the redistricting context. (5) However, failing to strongly enforce state Speech or Debate Clause protections would lead to negative effects for representative democracy. (6) Rather than weaken Speech or Debate Clause protections, a better solution is to restrict the free reign of partisan legislators over the redistricting process by using independent commissions.

Part I of this Note traces the history and development of the federal Speech or Debate Clause and legislative privilege with an emphasis on Supreme Court case law. Part II summarizes major trends in state court interpretation of state Speech or Debate Clause cases. Part III examines state Speech or Debate Clause treatment in the context of redistricting litigation and surveys relevant state supreme court cases. Finally, Part IV proposes a framework for approaching state Speech or Debate Clauses in state redistricting litigation and explores the feasibility of independent redistricting commissions as a solution to redistricting problems.

1. THE HISTORY AND DEVELOPMENT OF THE FEDERAL SPEECH OR DEBATE CLAUSE AND LEGISLATIVE PRIVILEGE

   Part I briefly traces the history and development of the federal Speech or Debate Clause and legislative privilege. It begins by examining the origins of the Speech or Debate Clause in English history and the development of the Speech or Debate Clause in the early American legal tradition. This Part also reviews modern Supreme Court decisions on the Speech or Debate Clause, delineating the Court's key rationales for the legislative privilege and the scope of the privilege.

   The Speech or Debate Clause dates to the sixteenth century in the English Parliament. (7) It was first included in the English Bill of Rights in 1689. (8) The Speech or Debate Clause originated as a means of protecting the will of the people. (9) It developed in the context of Parliament's struggles in seventeenth-century England to assert itself as an independent government body, separate from the Crown. (10) The legislative privilege embodied in the Speech or Debate Clause grew stronger as Parliament became increasingly independent from the Crown in the seventeenth century. (11)

   The Speech or Debate Clause quickly became established in the American colonies. (12) After the Revolutionary War, the legislative privilege was "deemed so essential for representatives of the people" that a Speech or Debate Clause was included in the Articles of Confederation and, later, in the Constitution. (13) The separation of powers and the principle of representative government were two paramount concerns animating the inclusion of the Speech or Debate Clause in the Constitution and state constitutions. (14) These fundamental concerns, coupled with the Speech or Debate Clause's rich history, (15) indicate that any proposed encroachment on the legislative privilege embodied in the Clause should be taken seriously.

   Modern federal case law also justifies a robust Speech or Debate Clause on two main grounds: separation of powers and legislative efficiency. (16) The Supreme Court first interpreted the federal Speech or Debate Clause in the 1881 case, Kilbourn v. Thompson (17) In Kilbourn, the Court applied the federal Speech or Debate Clause to protect members of the House from being sued for false imprisonment after they declared a subpoenaed witness in contempt of Congress and ordered his arrest. (18) The Court found that the House members were acting in their official capacities as legislators, and thus were protected from suit by the Speech and Debate Clause.

   Following the Kilbourn decision, eleven Supreme Court decisions greatly expanded judicial treatment of the Speech or Debate Clause in a narrow window of time concentrated in the late 1960s and early 1970s. (19) Each of these decisions references the historic separation of powers rationale, and the cases often invoke the "central role" of the Speech or Debate Clause "to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary." (20) In Tenney v. Brandhove, the Court first formulated the legislative efficiency rationale, stating that "[t]he privilege would be of little value if [legislators] could be subjected to the cost and inconvenience and distractions of a trial." (21) Supreme Court opinions on the Speech or Debate Clause following Tenney have continued to emphasize legislative efficiency. (22)

   The separation of powers and legislative efficiency rationales underlying federal Speech or Debate Clause opinions emphasize the importance of protecting the integrity of the legislative process. First, a broad legislative privilege protects the legislative process from harmful intrusions by the other branches of government. (23) Second, it allows legislators to deliberate more "candidly and creatively" during the legislative process. (24)

   The ultimate purpose of the legislative privilege is not to further the interests of individual legislators, but rather to protect representative democracy. (25) Coffin v. Coffin, an 1808 decision of the Massachusetts Supreme Judicial Court that heavily influenced later Court decisions, reasoned that "[t]hese privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions." (26) For this reason, the legislative privilege afforded by the Speech or Debate Clause does not extend to all actions of federal legislators, but only those within the "sphere of legitimate legislative activity." (27) In Gravel v. United States, the Court clarified that the Speech or Debate Clause shields legislative activity that is "an integral part of the deliberative and communicative processes by which Members participate" in legislative proceedings and any other matters within the jurisdiction of either House. (28) Moreover, Gravel extended the legislative privilege to encompass the legislative activities of congressional staff. (29)

   Based on the important principles underlying the legislative privilege, the Supreme Court has consistently "read the Speech or Debate Clause broadly to effectuate its purposes." (30) Once a member of the legislature is determined to be acting within the "legitimate legislative sphere," the Speech or Debate Clause serves as an absolute bar to lawsuits against the legislator based on those actions. (31) This absolute bar relieves an official of any obligation to justify his or her action by allowing the official to dismiss the suit on a Rule 12(b)(6) motion. (32) Thus, the privilege almost entirely eliminates the burden and expense of litigation. (33)

   One clear exception to the legislative privilege is that state legislators charged under federal criminal law do not receive absolute protection in federal court. (34) Some commentators have emphasized of this deviation. (35)

   However, the impact of this exception to absolute privilege is limited and likely to arise only when a state legislator runs afoul of a federal criminal law. (36)

2. INTERPRETATION OF STATE SPEECH OR DEBATE CLAUSES BY STATE COURTS

   Today, forty-eight states have constitutional provisions privileging state legislators to some degree from legal liability relating to legislative activities. (37) The majority of states have maintained a version of the legislative privilege since their founding. (38) Professor Steven Huefner has helpfully grouped state legislative provisions into five categories:

   (1) twenty-three states whose privilege exists under a constitutional provision essentially identical in text to the federal Speech or Debate Clause; (2) three states--Massachusetts, New Hampshire, and Vermont--that continue to employ a "deliberation, speech and debate" formulation of the privilege that ... shortly predates the federal model; (3) twelve states that give legislators immunity "for words spoken [or uttered or used] in debate," a formulation that appears to date from the middle of the nineteenth century; (4) five states that employ a formulation that protects legislators from being made "liable to answer" for their legislative statements; and (5) seven states entirely without any constitutional language granting the privilege. (39)

   Despite considerable textual variation in legislative privilege provisions used by states, the nature of the privilege is relatively consistent across states. (40) While an in-depth state-by-state examination of the legislative privilege is beyond the scope of this Note, legislative privilege derived from a Speech or Debate Clause has been a consistent mainstay of the majority of state constitutions, even through periods of sustained pressure to restrain legislative power. (41)

   Nevertheless, Professor Heufner's review of state cases interpreting Speech or Debate Clauses in various states is evidence that some state courts interpret the legislative privilege more narrowly than federal courts. (42) Recent departures from federal jurisprudence include New York trial courts holding that state...