Academic journal article William and Mary Law Review

The Neglected Value of the Legislative Privilege in State Legislatures

Academic journal article William and Mary Law Review

The Neglected Value of the Legislative Privilege in State Legislatures

Article excerpt


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.


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. …

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