The neglected value of the legislative privilege in state legislatures.

• Author: Huefner, Steven F.

ABSTRACT

Forty-three state constitutions contain a provision, analogous to the U.S. Constitution's Speech or Debate Clause (Article I, Section 6, Clause 1), granting state legislators a legal privilege in connection with their legislative work. While some of these states' provisions have never been applied, recent judicial interpretations in other states have departed from settled federal interpretations of the legislative privilege, failing to apply it broadly to protect the legislative process and instead unduly favoring ideals of open government. This Article defends the value of a broad constitutional privilege for state legislators to protect the integrity of the deliberative process, and presents a framework for state courts to use in applying the privilege to state legislatures. The Article's analysis is particularly relevant given the increased pressures facing state legislatures today, and also the growing appetite of litigants to compel public access to the inner workings of government institutions, often under statutory open government provisions. The Article concludes that to protect representative democracy, the legislative privilege merits a more robust application at the state level than some state courts have been willing to give it.

INTRODUCTION

In a number of recent cases, (1) state courts have construed the absolute privilege that attaches to a legislator's work more narrowly than federal courts have interpreted the corresponding privilege found in the U.S. Constitution's Speech or Debate Clause. (2) The constitutions of forty-three states contain a privilege for state legislators analogous to the privilege that the federal Constitution provides members of Congress, and the common law has frequently recognized a similar protection as well. (3) These legislative privileges (4) provide legislators a fundamental constitutional protection that allows them to work independently and unimpeded by threats of judicial or executive intervention, thereby sparing them from unnecessary burdens and distractions of their energy, and freeing them to legislate without the distorting influence of an inquisitorial executive or hostile judiciary.

Although issues of legislative privilege received little judicial or scholarly attention for most of the country's first two centuries, between 1966 and 1979 the U.S. Supreme Court addressed the scope of the federal Speech or Debate Clause in ten separate decisions. (5) Lower federal courts have continued to address legislative privilege issues on many subsequent occasions, giving rise to a relatively stable federal jurisprudence. (6) It is now well settled that the U.S. Constitution's Speech or Debate Clause protects both legislators and their staff against civil and criminal liability, as well as against compelled questioning or document production, concerning all matters that are "an integral part of the deliberative and communicative processes" (7) of legislating. Interpretive questions continue to surface at the margins, but the essential contours of the Clause--including the Court's instruction that it must be interpreted "broadly to effectuate its purposes" (8)--are clear.

By contrast, judicial interpretations of the legislative privilege at the state level have been infrequent to date, and in almost every state the jurisprudence remains unsettled. (9) When interpretations have occurred, some state courts have narrowed their legislative privilege to deny state legislators protections that members of Congress would receive under the federal Speech or Debate Clause. For instance, in a major departure from federal jurisprudence, New York trial courts in at least two cases have construed their legislative privilege to protect state legislators only from liability, and not from compelled questioning about their legislative work in cases in which the legislators were not themselves a party. (10) In Ohio, courts have twice refused to protect legislative staff from compelled questioning about the state legislature's revisions to a statutory public school funding formula. (11) Other state courts similarly have construed their legislative privilege to be inapplicable for broad categories of cases, such as for committee files and records, or for actions seeking only declaratory relief. (12) These evolving issues of legislative privilege in the state legislatures have yet to receive any systematic analysis. (13)

This is an especially appropriate time to consider the scope of state legislative privileges because litigation involving the privilege has begun to expand. The increased professionalization of state legislatures, combined with the growing complexity of issues facing them and the devolution of authority from the federal government to the states, are propelling more issues of state legislative privilege into the courts. In addition, society's increasing propensity to litigate and contemporary distrust of government almost guarantee that disaffected individuals--and even some political opportunists--will seek creative ways to gain relief through, extract information from, or merely harass or burden, elected state representatives.

In particular, new issues of state legislative privilege are likely to arise as a result of the trend towards open government. All states now have some form of freedom of information statute analogous to the federal Freedom of Information Act (FOIA), as well as a variety of open meeting and other "sunshine" laws. (14) Behind this trend is the powerful idea that in a democracy, good government requires transparency and greater access for citizens to the workings of their government. (15) In this context, the Speech or Debate provisions may seem like anomalous safeguards of secrecy, rather than fundamental constitutional protections, especially to the extent that these provisions are construed not only to protect legislators against liability but also to prohibit judicial inquiries concerning nonpublic aspects of the deliberative process. Indeed, interpreting the legislative privilege broadly to prohibit compelled questioning of, or document production from, legislators about their work appears to stand in direct opposition to the ideal of open government.

Yet a proper understanding of the legislative privilege reveals the importance of a broad interpretation to promote the robust functioning of representative democracy and allow elected representatives to serve their constituents more effectively. In part, the privilege exists to protect legislators from the burdens and diverting influences of a variety of potential judicial and executive intrusions upon their work. In addition, the privilege serves to free legislators to deliberate more thoughtfully and with greater autonomy about thorny legislative issues. As James Wilson argued over two hundred years ago,

In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence.(16) It is no less important today that our elected representatives have the same freedom of unfettered, creative deliberation, and the same broad protection from the resentments that their policymaking will inevitably occasion. This Article explores the crucial issue of how to secure these legitimate interests in the face of the important value of open government.

Part I of the Article briefly reviews the origins and purposes of the legislative privilege, categorizes the formal variations among state legislative privilege provisions, and summarizes a variety of pressures on the privilege today, especially the movement towards greater openness in government. Part II summarizes recent U.S. Supreme Court and lower federal court applications of the U.S. Constitution's Speech or Debate Clause, and identifies important ways contemporary state court jurisprudence is diverging.

Part III presents a defense of a vigorous state legislative privilege at least as broad in its protections as the federal Speech or Debate Clause, notwithstanding competing values of open government. This Part argues that a broad interpretation is important for accomplishing one of the legislative privilege's central purposes, namely protecting individual legislators' freedom to deliberate, brainstorm, and strategize creatively and confidentially with staff and colleagues. Building on this predicate, Part IV develops a framework with which state courts can assess the proper scope of their legislative privilege, and proposes categories of protected acts and actors. It argues that the privilege should insulate legislators and their staff not only from legal liability but also from declaratory relief and compelled testimony or document production. In addition, the protections should extend both to a legislator's own legislative positions and judgments, and also to such matters as staff analyses, internal documents, and other sources of information concerning potential legislation. The Article concludes that despite competing interests, the value of a robust legislative privilege for state legislators remains as great as ever, and that the proper scope of this privilege therefore needs to be more carefully understood, especially as state courts confront these issues with increasing frequency.

1. THE PLACE OF THE LEGISLATIVE PRIVILEGE IN AMERICAN LEGISLATURES

   Although it received little judicial attention during most of the country's first two centuries, the legislative privilege of free speech and debate has been a crucial element of American legislative institutions from their beginnings. Specific formulations of the privilege at the state level vary, but its purpose of protecting legislative independence has remained constant through periods of significant government...