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.