December 16, 2015 at 3:27 p.m.
The very real dangers of legislative privilege
The very real dangers of legislative privilege
We're all aware how much Republicans hate openness. That much has become obvious. They've become much like the emperor who beheaded people because they dared to say out loud he was wearing no clothes.
Republicans this past summer were so annoyed that citizens wanted to know what they were doing on the taxpayers' dime that they popped a cork and even tried to do away with the open records law entirely.
In so doing, a number of them have probably done away with themselves; it was suicide, by any other name. The corpses won't officially be buried until the next election, but everybody knows who the walking stiffs are, if not the reasons they decided to blow their political brains out.
Anyway, as our stories show, even if they can't get away with repealing the law, lawmakers and legislative bureaucrats think they have found another way to keep records secret: a little thing called legislative privilege.
Legislative privilege is a constitutional provision that protects lawmakers from being detained or harassed or subjected to various kinds of litigation based on their normal activities as lawmakers. It is rooted in the U.S. Constitution's speech-and-debate clause, but the courts have extended the privilege to written documents produced by lawmakers and their staff members, in addition to actual speech and debate.
To some, namely to those who hate open government, this means that all legislative records - internal correspondence, bill drafting records, policy memos and emails, communications with constituents - are subject to legislative privilege, and that means lawmakers don't have to disclose them.
As the LRB's Michael Gallagher put it in a presentation on the subject last year (see story in today's paper), "That is, once it is determined that the activities of a legislator fall within the 'sphere of legitimate legislative activity,' the protection is absolute - there is no balancing test applied to weigh the merits of use or disclosure against the interests protected by the privilege."
Yikes! If they are right, that would be convenient, for it would make it impossible to access any records legislators didn't want to give out. It's the same mind set that was behind the GOP's attempt earlier this year to seal away all "deliberative" records from the public, aka all records.
Unfortunately for these geniuses, and fortunately for the rest of us, they are wrong.
To be sure, both state and federal courts have applied legislative privilege to written records, and it's just as obvious that any legislative records, including the aforementioned records now routinely released, could be subject to the privilege.
But just because they can be subject to the privilege doesn't mean they always are, or even usually are.
Indeed, all the relevant court cases deal with records that could embroil lawmakers in litigation, either as a party to a lawsuit or as a witness. In other words, in situations that could be trumped up to embarrass or hinder a legislator or staff member from doing the public's work.
Those kinds of lawsuits are designed to silence outspoken lawmakers and to use the courts as weapons to keep them cornered. As a safeguard, the courts have held lawmakers immune from those suits, even as witnesses.
That is as it should be, but at this point the proponents of an expansive legislative exemption make a giant leap. Not only is the lawmaker protected in any such legal action, they say, but so are the documents giving rise to the litigation.
Some courts have indeed ruled this way, but the Supreme Court hasn't, and it's a position that open-records advocates need to aggressively dispute. As one legal expert in our story wrote, a close reading of the text of the speech-and-debate clause clearly protects people, not things such as records, and, as Kelly McGuire points out in the Washington and Lee Law Review, applying the privilege to records would stand the intent of the Framers on its head.
"According to (Thomas) Jefferson, in order for the people to actively participate in government through their legislators, they must be adequately informed," McGuire wrote. "Consequently, the legislative privilege was included to encourage legislators to provide voters with essential information by reducing their fear that other branches of government will punish them."
That is to say, the Framers enacted the clause so lawmakers would be free to openly debate and to say what's on their minds. They were free to express their deliberative actions and reveal the process of those deliberations. The clause promoted communications with constituents and also nurtured accountability. At its heart, then, the speech-and-debate clause was about preserving openness.
However, including documents in the clause collapses the distinction between the need to protect the independence of the Legislature and the very separate need to protect the public's right to accountability.
It doesn't stop there. In his LRB presentation in 2014, Gallagher suggests that the privilege covers all legislative documents, all those bill drafts and emails and communications, not merely those potentially giving rise to litigation, and those of legislative staff as well: "Undoubtedly, when we draft proposed legislation, or perform other related work, we are acting as the legislator's alter ego, so to speak. We are performing core legislative functions on the legislator's behalf. Also, the privilege can be claimed to prevent compelled disclosure of covered communications or other information, whether or not the legislator is 'liable' as a party in a case."
In his mind, apparently, because any document is conveniently privileged by this broad interpretation, lawmakers should assert that privilege as soon as a document is requested, because, as soon as the privilege is asserted, he contends, it is absolute. There is no balancing test. There is no questioning it: "The document or information is off limits, period, unless expressly waived by the member."
That is very dangerous thinking indeed. Suddenly documents that citizens request in an attempt to understand what is happening on an issue or to understand their representative's approach and position are off limits, even when the request has nothing to do with impeding the work of the lawmaker.
Rather than providing protection for lawmakers against a rogue executive branch or judiciary, this expansive interpretation would have us believe the people themselves are rogue, and lawmakers must be protected from inexcusable attempts to find out what they are doing.
After all, such a request might have a chilling effect on a lawmaker's ability to do his job or discuss things openly with her staff. It might lead to litigation by a constituent. These are the exact arguments the Walker administration has made in several open records request denials.
Suddenly legislators need to be protected not merely from the other branches of government, but from the people themselves. This is an absurd position.
At the end of the day, we believe no documents deserve an exemption from disclosure, even those implicating lawmakers in civil suits or other litigation. That's not to say all documents should be disclosed at all times. Those records that deserve an exemption based on the specific and existing exemptions in the open records law should be withheld, but that is the criteria that should be used, not whether the document might potentially expose a lawmaker to a distracting legal process or to public shaming.
The position of those who withhold such documents defies logic, for there is no consequence for disclosing a document that would implicate a lawmaker in a legal process if the privilege immunes the lawmaker whether the document is disclosed or not.
Justice Patience Roggensack described that outcome best in the decision she wrote for the majority in NTSB v. State:
"Furthermore, we conclude that even when (legislative privilege) does apply, it provides only use immunity, i.e., immunity from prosecution based on use of the communications, and not secrecy, for communications of government officials and employees."
She then underscored the distinction as a necessity in the age of open government, to use Gallagher words: "Because Wisconsin has a long history of open government that is now provided by statute as well as case law, ... we conclude that in this case, if it is later determined that (legislative privilege) applies to communications within the possession of the LTSB, it provides only use immunity, not a right to keep all legislative communications secret," Roggensack wrote.
In the end, we sympathize with the need to preserve an independent and robust Legislature in the face of increasingly activist courts and imperial executive branches. But that is best done by standing up to establishment politicians everywhere, and telling the truth about that imperialism and its accompanying legislative cronyism, not by surrendering the one element indispensable to a free and democratic republic: accountability and openness.
An extension of legislative privilege to government documents takes us in the wrong direction. It takes us back to the time of the emperors who wore no clothes.
Obviously, many of today's legislative staff and many in the GOP are just as naked as that old Emperor. Should we dare tell them?
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