Freedom and federalism: the First Amendment's protection of legislative voting.

• Author: Sherr, Steven N.

Public discussions of public issues, together with the spreading of

information and opinion bearing on those issues, must have a freedom

unabridged by our agents. Though they govern us, we, in a deeper

sense, govern them. Over our governing, they have no power. Over

their governing we have sovereign power.

Alexander Meiklejohn(1)

Introduction

The ideal of popular sovereignty inspired the creation of the American Republic.(2) In an ideal republican government, elected representatives express and implement the people's will through legislative speech and activities. However, an elected legislator's ability to perform these representative functions depends largely upon her ability to speak freely and to make independent choices. In short, republican government requires legislative indpendence.(3) It follows that constraints on independent legislative speech or voting undermine the legislature's representative function.

As an institutional approximation of the republican ideal, the American constitutional system depends upon legislative independence for sustenance and legitimacy. American legislatures, the political institutions most responsive to the public due to regular and frequent elections, supposedly infuse the people's will into the machinery of government. As institutions designed to facilitate decision through debate, legislatures channel rich public debate into effective democratic self-government. As a result, more than any other institution of republican government, legislatures thrive when debate inside their walls is "uninhibited, robust, and wide-open."(4) Conversely, coercion of legislative activity--especially voting, by the executive branch or a superior level of government, such as Congress--threatens the constitutional function of legislatures by distorting debate and undermining their capacity to represent the true sovereign, the people.

Until recently, legal protection of legislative independence rested exclusively on the United States Constitution's Speech or Debate Clause,(5) similar state constitutional provisions,(6) and common law notions of legislative immunity. Stepping beyond these traditional notions of legislative immunity, however, three recent federal decisions have concluded that the First Amendment(7) provides a separate constitutional safeguard for the uniquely expressive act of legislative voting.(8) This Note agrees with their conclusion and futher argues that federal statutes that condition funding for states on the enactment of particular legislation should trigger First Amendment scrutiny.(9)

Part I explores traditional constitutional and common law foundations for protecting legislative speech and voting. Part II summarizes the major issues presented in Clarke v. United States, which is the first federal decision to find a federal conditional spending measure invalid because it violated legislators' First Amendment rights.(10) Finally, Part III Examines the scope of the First Amendment's protection of legislative voting and suggests that courts can use traditional First Amendment balancing tests to weigh governmental interests in imposing particular conditions on state against the interests of free expression and rich public debate in state and local legislatures.

1. Foundations for the Protection of Legislative Speech and Voting:

   Separation of Powers, Federalism, and Self-Government

   Although the notion that the First Amendment protects legislative voting has only limited precedential support,(11) it comports with well-established principles of legislative independence. The scarcity of precedent affording First Amendment protection for legislative voting initially discourages adoption of a doctrine allowing judicial review of conditional spending measures that give Congress substantial leverage over the states.(12) However, as discussed below, shielding state legislators from congressionally-imposed liability actually reinforces the Constitution's preservation of state legislators as political counter-balances to the national government and as prolocutors of the people's will. Also, a review of more traditional forms of legislative immunity will demonstrate that constitutional and common law protections of legislative independence have already strengthened the separation of powers and the structure of federalism in the American system. Specifically, the Speech or Debate Clause of the U.S. Constitution and similar provisions in many state constitutions help maintain the separation of powers between legislative and executive branches in both federal and state governments.

   1. Speech or Debate Clause: Separation of Powers and the Scope of Legislative Immunity

      The Founding Fathers considered freedom of speech in the national legislature integral to the maintenance of a republican government.(13) Following England's lead,(14) they considered legislative independence from the coercive powers of the executive a necessary component of the separation of powers which comprised the structural core of the new constitutional system.(15) Thus, in order to shield the deliberative process within Congress from interference by the executive branch, the Founders drafted the Speech or Debate Clause of the U.S. Constitution.(16) Indeed, the fundamental purpose of the Speech or Debate Clause is "freeing the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator."(17)

      The fact that the constitutions of every state except Florida and North Carolina provide some form of protection for legislators underscores this national commitment to legislative independence.(18) Massachusetts may have the most acclaimed state legislative immunity provision because the earliest and most famous interpretation of such a provision appeared in that state's 1808 case of Coffin v. Coffin.(19) The Coffin opinion, often cited for establishing the parameters of legislative immunity,(20) specifically included "the giving of a vote" as one of the representative functions protected under the state's immunity clause.(21)

      Although it is a state court's interpretation of a state constitution's legislative immunity provision, Chief Justice Parson's Coffin opinion, written "so early after the formation of the Federal Constitution,"(22) has influenced nearly all subsequent interpretations of the U.S. Constitution's Speech or Debate Clause. Not surprisingly, when the U.S. Supreme Court addressed the Constitution's Speech or Debate Clause for the first time in Kilbourn $V Thompson,(23) it adopted a relatively broad view of legislative immunity which included the votes of legislators.(24) While some Supreme Court decisions have since propounded a more restrictive view of the Clause than expressed in Coffin and Kilbourn,(25) no court has questioned the inclusion of legislative voting as an activity protected by the Speech or Debate Clause.(26)

      Thus, from the early days of the Republic, courts have recognized that the Speech or Debate Clause and state constitutional legislative immunity provisions are integral to the separation of powers. Courts have also consistently interpreted these provisions to include voting within the scope of protected legislative activity.

   2. Tenney v. Brandhove: Legislative Immunity and Federalism

      While Coffin and Kilbourn explain how legislative immunity reinforces the separation of powers, the Supreme Court's extension of the federal immunity doctrine to state legislators in Tenney v. Brandhove(27) has important federalism implications. In Tenney, the Court found that the California State Senate Fact-Finding Committee on Un-American Activities (the "Tenney Committee") and its individual members were not civilly liable for alleged violations of Brandhove's civil liberties resulting from his compelled appearance before the Committee.(28) Framing its holding as a rule of statutory construction, the Court determined that federal common law legislative immunity limited Congress' authority to make state legislators answerable in causes of action based on federal statutes. In enacting the Reconstruction Era civil rights statutes under which Brandhove sued, Congress may not have had the power to impinge on the common law tradition of "legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here . . . ."(29) Furthermore, the Court held that even claims that a state legislature acted with an "unworthy purposes" do not destroy the legislative privilege which exists for the "public good."(30) This result comports with the historically expansive reading of legislative immunity established by the Speech or Debate Clause. Since the Tenney Committee's investigation of Brandhove fell within "the bounds of legislative power" and did not usurp "functions exclusively vested in the Judiciary or the Executive," the Committee could "assert a right to call [Brandhove] before it and examine him."(31)

      Although Tenney did not alter the scope of activities covered by legislative immunity, it transformed the doctrine of legislative immunity from a rule reinforcing the separation of powers into a principle of federalism. For the purposes of this Note, Tenney's extension of the federal immunity doctrine to state legislations established a common law predicate for the notion that the federal rights enshrined in the First Amendments might also shield state and local legislative activities from congressional enroachments.

      To be sure, a constitutionally enforceable legislative privilege would buttress the role of state legislatures and state legislators as independent sources of political power in the federal system. Such a result, however, is not radical. The notion that the "legislative" activities of popularly elected state legisltors enjoy legal protection against federal intrusion has both constitutional and historical support.

      From the early years of the American Republic, state...