As I’ve already noted, there are two questions to be answered regarding DiMasi’s invocation of Article 21 as a basis for not turning over records to the State Ethics Commission:
- Does Article 21 apply to the records at issue? And, if so,
- Does Article 21 entitle DiMasi to refuse to produce the records?
As I’ve also already noted, the Supreme Judicial Court has not considered Article 21 for exactly 200 years, since its 1808 decision in Coffin v. Coffin. Coffin turns out to be quite an important case upon which the U.S. Supreme Court has relied fairly heavily in construing the federal Speech or Debate Clause — more on that later. But the point is that we have little to go on in guessing what the modern SJC is going to say about Article 21. That said, here’s what I’ve got.
Does Article 21 apply to the records requested by the State Ethics Commission?
To answer that question, we’d first need to know exactly what the Ethics Commission has requested. And, of course, we can’t know that, because the proceedings are secret. But if we assume — as seems reasonable — that the Ethics Commission is interested in records relating to the award of a government contract to Cognos, then it seems to me that the case for Article 21 encompassing those records is quite weak.
One of the things we do know from the 200 year old Coffin decision is that immunity under Article 21 extends only to things “said or done by him, as a representative, in the exercise of the functions of that office.” And the U.S. Supreme Court in 1972 used that language to sharply limit the activities of legislators that are protected under the federal Speech or Debate Clause (emphasis mine):
It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include a wide range of legitimate “errands” performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called “news letters” to constituents, news releases, and speeches delivered outside the Congress. The range of these related activities has grown over the years. They are performed in part because they have come to be expected by constituents, and because they are a means of developing continuing support for future elections. Although these are entirely legitimate activities, they are political in nature, rather than legislative, in the sense that term has been used by the Court in prior cases. But it has never been seriously contended that these political matters, however appropriate, have the protection afforded by the Speech or Debate Clause. Careful examination of the decided cases reveals that the Court has regarded the protection as reaching only those things “generally done in a session of the House by one of its members in relation to the business before it,” Kilbourn v. Thompson, supra, at 204, or things “said or done by him, as a representative, in the exercise of the functions of that office,” Coffin v. Coffin, 4 Mass. 1, 27 (1808).
So if this were a case under the federal Speech or Debate Clause, and if the Ethics Commission is indeed after records relating to “assistance in securing Government contracts,” it seems fairly clear that no immunity would be available. We can’t be sure that the SJC would follow the U.S. Supreme Court’s lead, but there’s also no reason to think they wouldn’t, especially since the U.S. Supreme Court relied on Coffin for its decision. So far, not looking good for Mr. Speaker.
If the records are within Article 21, is the Speaker entitled to withhold them?
There is little doubt that any records protected by Article 21 cannot be the basis of an ethics investigation, prosecution, or other legal action. That, after all, is the purpose of Article 21. In a remarkable case from 1966, the Supreme Court held that the Speech or Debate Clause prevented a congressman from being prosecuted for accepting a bribe in exchange for giving a speech on the floor of the House of Representatives. So the immunity conferred by the Clause on actions or documents within the Clause’s ambit appears to be absolute.
But the question of prosecution is not the same as the question whether records with the Clause’s protection are entitled to secrecy. As an example, we’re all familiar with the Fifth Amendment‘s protection against self-incrimination, which prevents a person from having to disclose information that might result in the person being criminally charged. But we also know that Congress sometimes confers immunity from prosecution in exchange for testimony — and at that point, the person must testify or face being cited for contempt. So immunity from prosecution does not always carry with it a guarantee of secrecy.
However, on the question whether Article 21 includes the right to keep documents secret, the SJC has said nothing at all, and as far as I know, the U.S. Supreme Court has been similarly mute. Some of the lower federal courts have addressed it; the D.C. Circuit in Washington has concluded (pdf) that there is a “non-disclosure” privilege, but other federal courts have disagreed. So this question remains completely unresolved.
I’ve already given reasons why I think that Article 21 should not necessarily extend to non-disclosure. In brief, Article 21 and similar protections for speech and debate in other constitutions are primarily about encouraging free and open debate on issues that come before the legislature. They are about protecting things said in public. To transform that protection into a way of keeping records secret seems backward to me, yet I can see the argument the other way, and so did the D.C. Circuit.
To sum up, then, in order to prevail on the Article 21 argument, the Speaker has to do two difficult things: he has to convince the SJC that the U.S. Supreme Court was wrong in excluding “assistance in securing Government contracts” from the purview of Article 21; and he has to win an argument on a completely unresolved issue of Massachusetts law regarding non-disclosure. A tall order.
Which begs the question: why is he doing this at all? The Speaker has a lot riding on the outcome of this investigation. As he himself has said, his reputation is on the line as long as this Cognos business is hanging around. Furthermore, his job is on the line, since there are at least two representatives eyeing his job and lining up votes. Why stake all of that on a highly technical, quite arcane, and in my view difficult-to-win legal point? Why not just hand over the records to the Ethics Commission and be done with it?
One of the things we all remember about the Clinton presidency is the debate about what the meaning of “is” is. Surely Speaker DiMasi doesn’t want a legacy like that.
And a great pitch for BMG.
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p>As to DiMasi, I was troubled when the cable coverage of the House and then Senate went away.
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p>I was more troubled when all amendments became consolidated amendments drafted by staff and passed out in room 348 behind closed doors.
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p>While it is not clear whether DiMasi, like President Grant, trusted “friends” who were not trustworthy, or was himself trying to follow the Martin Lomasney credo of “doing good while doing well” – with holding documents, if he has them, is actually harmful all around.
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p>DiMasi need not explain and should not whine – but if he has the documents, he must turn them over.
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p>I have been in the position of being asked for e-mails I never printed out, which were on the hard drive of a long dead computer [and that was before I had a “one button backup] set up – so being asked for what he doesn’t have, he should just say he doesn’t have whatever the document or documents are – or why.
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p>Article 21 clearly protects against being prosecuted for the core activities of governance. It does not, however, create a cloak of silence and invisibility based on my read of both Article 21, and such case law as there is [not a lot].
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p>Good governance requires openness – bring back the cable coverage of both chambers and all committees – and when watch dogs ask for your records, make sure you have nothing to hide and turn them over. Besides, if the records are no more then deliberative exchanges, openness is the best remedy for suspicion.
That is the crucial question. If the Speaker has a real argument — as opposed to this ridiculous claim of privilege — he should make it. Another unfortunate analogy that might be drawn is not to Clinton’s wrangling about the meaning of the word “is” … but to Nixon’s failed claim of privilege when faced with legitimate and well publicized demands for disclosure.
The bloviating on this subject by fellow progressives who often seem to lose their standards of justice when it comes to our political leaders is amazing…
1. Too many people seem to think that constitutional principles should be cast aside in consideration of the expediency of the moment. Does this sound familiar?
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p>2. If you sift through all the news and commentary out there, and talk to some real lawyers, you actually find some people who think that defining this issue through the courts is larger than the plight of a single legislator (don’t expect to find that perspective in the Globe).
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p>3. This issue has not been ajudicated here recently and the way the legislature operates in 2008 is a lot different than 200 years ago.
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p>4. We have courts for this very reason. While all the Hot Stove political commentary here makes for interesting, and even at times enlightening reading, this is not the same as judging the Manny trade where everybody can have the right opinion, and often two or three. Judges will decide this issue, as they should.
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p>This a repost. I put it in the wrong place earlier.
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p>——————————————————————————–
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p>Yes, it does sound all too familiar!!!
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p>DiMasi strikes me a self-serving hypocrite as he attempts to hide behind a flimsy interpretation of the constitution. (The legal arguments put forth by David-the-lawyer and past SJC clerk seem very sound to me.) The gall of DiMasi trying to hide behind the state constitution when it’s public knowledge that he and his cohort of other untrustworthy hacks on Beacon Hill seemingly had no problem defying the law and trampling on Article 48 of the state constitution not long ago when they denied the health care amendment its second required vote on its merits…
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My bet on Beacon Hill is that someone is trying to save himself.
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p>Obviously, there is some housekeeping needed in the House. Do they need a dust pan or a shovel?
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p>P. S. Nice legal analysis.
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You leave out the most important fact. The legislature was involved because the Department of Education needed money in the supplemental budget, $6 million plus, to pay for the software it needed to buy from Cognos or a competitor. That is why DeLeo may be dragged into this. It had to come through Ways and Means and therefore Dickie McDonough probably met with him.
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p>Sooooooo
because this was related to legislation, the supplemental budget, the Speech and Debate Clause applies. And of course the Mass constitution has always been interpreted more liberally than the U.S. const. which pretty much mirrors it.
is that this activity might be both related to legislation and related to securing a government contract. But that obviously does not answer the question whether it falls within Article 21 — it simply requires the Court to figure out where to draw the line. Furthermore, I could see a court finding a difference between ordinary legislation and a specific appropriation that was to be directed to a specific contractor — that is an area that seems particular susceptible to improper influence and that perhaps is therefore less deserving of immunity.
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p>In other words, more unanswered questions. And so I ask again: why stake your career on a very iffy legal proposition? Just to make a point?
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p>Legislation is legislation. You would need a constitutional amendment to define differfent types of legislation.
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p>I ain’t buying your argument David.
The only opinions that matter on this are those of the SJC Justices. I’m giving my reasons why I think they’ll go a certain way because I think it’s an interesting question; you’re giving your reasons why you think they’ll go a different way. All well and good. But I couldn’t care less whether you “buy” my argument — nor, I suspect, does anyone else.
You conveniently ignore the fact that there was a piece of legislation surrounding these discussions.
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p>You seem to just ‘walk on by’ this material fact.
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p>Who benefits from the legislation and a legislator working so somone or something is the beneficiary of the piece of legisaltion yet to pass the legislature is how it works on Beacon Hill and Capitol Hill. It’s called the legislative process my good man.
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p>Now you want the Court to go in a parcel out what parts of what conversations were about the legislation and what parts of what conversations were about who benefits from the legislation?
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p>BTW, Who cares that you don’t care that I’m not buying it?
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p>It is not about you David.
I knew you would respond with that.
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p>You guys are soo easy.
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p>And avoiding the 800 lb gorilla. I mean the supplemental legislation.
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p>A first year student at Mass School of Law would kick your ass in this one. I mean take advantage ot your selective facts.
in my first response (which, if you missed it, is here). You ignored my response, fixating instead on my secondary point.
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p>No, what I am saying is there was legisation. You never mentioned it. Why? You don’t think its important?
WTF.
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p>Your responsde was not a response. Legislators routinely check up onm how propoesed legislation will be implemented. That is what Sal did because the Cognos contract was directly related to legislation.
Nice to see discussion is alive and well here ast BMG.
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p>You make an argument and I disagree and point out a material fact left out of your argument’s premise.
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p>Rather than respond you attack me and refuse to rebut this nice piece of evidence I presented.
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p>The you resort to fifth grade antics and say,
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p>
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p>David, pretend I was an appeals court judge and you just made your oral argument.
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p>Now pretend I, the judge, said, “Mr. Kravitz, what role does the fact that the basis of the meetings was legislation, specifically the supplemetal budget?”
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p>C’mon David, ignoring it is not a response.
Surely you aren’t saying the supplemental budget legislation is a red herring.
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p>And I know you would agree that is has to be addressed by the Ethics Commission’s lawyers. So what would say?
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p>Besides saying you won’t respond. That doesn’t sit well with appeals court judges.
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p>I give your moot court presentation a D for this glaring ommission of a material fact.
just like you are doing.
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p>Unfortuantely for you David, I have more credibilty on here than you do.
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p>Our little dialogue going on here is a great example. Your convenient way of hiding material facts that are fatal to your argument is disingenuous if not bizarre.
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p>Carry on with the fantasy. And the BMGers will keep telling you how great you are.
Maybe on Planet Ernie.
I meant the people who read this site objectively. Not the mutual admiration society made up of the usual tools who constantly tell you how great you are David.
the speech and debate clause could apply to prevent punishment of the Speaker. But even if the ethics inquiry cannot result in punishment, I still don’t see where the speech and debate clause creates any protection from disclosure. In fact, I think the point of the speech and debate clause is to prevent punishment for statements already publicly disclosed. I guess that begs the question, if the Speaker is required to disclose it to the ethics inquiry, but the inquiry cannot result in punishment, then would the information ever become public?
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p>Then a populist prosecutor or head of an agency with subpoena powers good ask for notes from meetings of politicians in atempt to intimidate legislative outcome. Our elected officials need some protection to act freely and in out best interest. Of course with power comes those that are corrupt and take advantage of it. Corrupt cops but we still give cops the power of arrest. Corrupt judges but we still let judges make decisions. Corrupt NBA opfficials but we still hjave them.
Why, for government and society to work effectively it needs at times to rely on personal decisions by indivisuals who we hope are not corrupt and acting in our best interst.
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p>That is why we have checks and balances. But there will will always be opportunities for those with larceny in their heart.
but with respect to this particular clause, it applies to “deliberation, speech and debate, in either house of legislature.” I think it’s intended to prevent punishment for public statements made during the legislative process, not to shield the legislative process from the public. I just don’t see where any privilege or confidentiality is created here.
this is the second issue I raised, which the SJC has said nothing about. However, as I noted in the post, some federal courts have concluded that a privilege of non-disclosure goes along with the federal Speech or Debate Clause; others have disagreed. No idea what the SJC will do.
If this investigation was about the security of the Commonwealth or something with consideration that needs to be kept in secrecy, then this could make sense. However this is about a education contract, not national security. This process should be transparent to all. There is no reason for secrecy and closed door meetings about this contract. Dimasi wants these emails and such hidden for his personal advantage, not because he’s protecting the state in anyway. The court needs to bring this all out into the open and let the cards fall where they may.
Is this a big problem, in your opinion? Did that case, in effect, legalize bribery for legislative activities?
limited her activities to “legislative matters”, and not futzes around with Boston City Hall?
because it’s a federal prosecution, and the feds don’t have to respect state constitutional privileges. But yes, this clause does create a prosecution-free zone with respect to state-level law enforcement.
The e-mails and records and oral examination before a grand jury can be compelled from non legislatore like Dickie McDonough and Cognos officials, and sals law partner. That is how you do it. It really isn’t a big deal and the Ethics Commission should be able to get the info from these other sources without fighting this issue. (except of course grand jury testimony)
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p>Boy david, you should know better than calling this a “prosecution free zone”. That would be true if the prosecutors were incompetents.
is that a legislator cannot be sued or prosecuted based on materials within Article 21’s protection, even if those materials are publicly available. In fact, that’s the usual case, since when the case is literally about “speech” or “debate,” it’s all out in the open. For instance, legislators can make (and have made) statements in speeches that would otherwise constitute slander, and they cannot be sued, as long as the speech was with respect to business before the House.
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p>That’s all I meant by a “prosecution-free zone.” May God forgive me for speaking colloquially on a blog.