Still debating “speech and debate”

First of all, remember that there are two questions: (1) does Article 21 apply to the records at issue, and (2) if it does, does it allow DiMasi to keep those records secret (or, alternatively, does it simply confer immunity from prosecution)?  Ernie’s point goes to the first question; the second, as I’ve already explained, is entirely unresolved in Massachusetts.  So let’s just focus on the first question: in light of Ernie’s point, do the records fall within Article 21?

The analysis is made much more difficult by the fact that we simply do not know exactly what the Ethics Commission is looking for.  I would agree that records that say nothing about Cognos, but specifically mention the supplemental budget, are most likely within Article 21.  I assume (but cannot be sure) that Ernie would agree that records specifically mentioning Cognos, and not mentioning the budget, would not be covered.  That may resolve the issue for some documents, emails, and whatever else the Ethics Commission is after.

But there may well be records that both mention Cognos and talk about the budget.  Consider, for example, the email from Education Commissioner Driscoll reported by the Globe a couple of days ago:

Subject: E: H.4440 (SUPP BUDGET)

We may have blown an opportunuity. The Speaker was very interested in our bid for the data wharehouse. Now – his interest was in making sure we did not pick a bidder he does not have confidence in – but nonetheless he had Lida Harkins call me twice. We are close to awarding the contract to Cognos (which he is OK with) and I believe we could get his support for a $6m supp. when the next one is considered which I suspect would be around Feb. if revenues remain up – right Tony?

If DiMasi is holding records like that (imagine the worst case scenario, like an email from DiMasi to Driscoll along the lines of “You’re not getting the $6M supp unless Cognos gets the contract”), what do you do with them?  Where is the line between core legislative matters that are within Article 21, and ancillary matters that, while in some sense “related” to legislation, are nonetheless not at the “core” of the legislative function and therefore not protected?

Our 200-year-old friend Coffin v. Coffin gives us at least a little bit of guidance on this question.  In that case, the facts were as follows (as charmingly related by the early 19th century reporter):

From the report of the judge who sat in the trial, it appears that the facts in the case were testified to by Benjamin Russell, a member of the House of Representatives, and were in substance as follows: That in the session of the Legislature, June, 1805, William Coffin, the plaintiff, with whom the witness had some acquaintance, and of whose integrity he had a high opinion, applied to him to move a resolution in the House, authorizing the appointment of an additional notary public for Nantucket. The witness asked and obtained leave to lay on the table a resolution for that purpose. Micajah Coffin, the defendant, rose in his seat and asked where the member (meaning the witness) obtained his information of the facts upon which the proposed resolution was founded. In reply, the witness observed that his information came “from a respectable gentleman from Nantucket.” The resolve passed, and the speaker had taken up some other business, when the defendant crossed the house, and came to the place where the witness was standing…. On perceiving the plaintiff sitting without the bar, behind the speaker’s chair, the witness pointed to him, and told the defendant that was the gentleman from whom he received the information. The defendant looked towards him, and said, “What, that convict?” The witness was much surprised at the expression, and asked the defendant what he meant: he replied, “Don’t thee know the business of the Nantucket bank?” The witness replied, “Yes, but he was honorably acquitted.” The defendant then said, “That did not make him the less guilty, thee knows.”

With respect to these facts, the Court reasoned as follows:

Was Coffin, the defendant, in speaking the defamatory words, executing the duties of his office? Or, in other language, was he acting as a representative? If he was, he is entitled to the privilege he claims: If he was not, but was acting as a private citizen, as a private citizen he must answer….

[T]he house had proceeded to other business; and the subject matter of the resolution, or of the information, was not in fact before the house; although it is certain that any member might have moved to rescind the resolution…. But to pursue the evidence: the defendant was answered: whatever was his motive, he had received the information. If upon it, he intended again to call up the resolution, he might have done it. But no motion, for that purpose, was ever made. He then utters to Russell the defamatory words. What part of his legislative duty was he now performing? … I cannot therefore assign to the defendant any other motive for his indiscreet language, but to correct Russell for giving to the plaintiff the appellation of a respectable gentleman; and to justify the correction by asserting that an honourable acquittal, by the verdict of a jury, is not evidence of innocence. It is not therefore possible for me to presume that the defendant, in using thus publickly, the defamatory words, even contemplated that he was in the discharge of any official duty. This enquiry by the defendant, and his replies might have been made, for all the purposes intended by him, in State-Street, or in any other place, as well as in the representatives’ chamber: and it is not easy for me to conceive that any language or conduct of a representative must be considered as official, merely because he chooses the representatives’ chamber for the scene.

But it has been urged, that the privilege must extend to a representative giving information to a brother member, on any subject before the house; or which may be expected to come before the house; for the information may be necessary to enable the member informed to discharge his official duty with ability and propriety. Without remarking the essential distinction between a man’s seeking information on subjects relating to his office, and his actual execution of its functions: and without observing the extreme difficulty of supposing that defamatory words, maliciously uttered, can ever be considered as useful information: I do clearly admit, that a representative will certainly be entitled to his privilege in all cases, where he shall give information in the discharge of his official duty; although the manner may be irregular, and against the rules of the house. But when a representative pleads his privilege, to entitle himself to it, it must appear that some language or conduct of his, in the character of a representative, is the foundation of the prosecution, for in no other character can he claim the privilege….

But to consider every malicious slander, uttered by a citizen, who is a representative, as within his privilege, because it was uttered in the walls of the representatives’ chamber to another member, but not uttered in executing his official duty, would be to extend the privilege farther than was intended by the people, or than is consistent with sound policy; and would render the representatives’ chamber a sanctuary for calumny: an effect, which never has been, and I confidently trust, never will be endured by any house of representatives of Massachusetts.

I’ve quoted the Coffin opinion at some length (though th
ere’s still a lot that I edited out), in part because it’s hard to condense it and still get the essentials due to the 19th century style, but also to show just how finely even the 1808 SJC was trying to parse words and actions that are protected under Article 21 from those that are not.  The difficult exercise of line-drawing in Speech or Debate Clause cases has continued in the federal courts.  The 1972 case I discussed yesterday, U.S. v. Brewster, cuts it about as finely as one can imagine.

In that case, here’s what happened:

Appellee, a former United States Senator, was charged in five counts of a 10-count indictment.  Counts one, three, five, and seven alleged that, on four separate occasions, appellee, while he was a Senator and a member of the Senate Committee on Post Office and Civil Service,

directly and indirectly, corruptly asked, solicited, sought, accepted, received and agreed to receive [sums] . . . in return for being influenced in his performance of official acts in respect to his action, vote, and decision on postage rate legislation which might at any time be pending before him in his official capacity . . . in violation of Sections 201(c)(1) and 2, Title 18, United States Code.

Count nine charged that appellee

directly and indirectly, asked, demanded, exacted, solicited, sought, accepted, received and agreed to receive [a sum] . . . for and because of official acts performed by him in respect to his action, vote and decision on postage rate legislation which had been pending before him in his official capacity . . . in violation of Sections 201(g) and 2, Title 18, United States Code.

Seems pretty straightforward, right?  He took a bribe in exchange for voting in a particular way on legislation that came before him.  Obviously that’s bad conduct, but voting on a bill is about as “core” legislative action as you can get, so the prosecution can’t go forward under the Speech or Debate Clause.  Just like the Johnson case, where a congressman couldn’t be prosecuted for being bribed to make a speech.

Not so fast.

An examination of the indictment brought against appellee and the statutes on which it is founded reveals that no inquiry into legislative acts or motivation for legislative acts is necessary for the Government to make out a prima facie case…. Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act…. Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legislative act, as here, or, as in Johnson, for use of a Congressman’s influence with the Executive Branch. And an inquiry into the purpose of a bribe “does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them.” 383 U.S. at 185…. To sustain a conviction, it is necessary to show that appellee solicited, received, or agreed to receive, money with knowledge that the donor was paying him compensation for an official act. Inquiry into the legislative performance itself is not necessary; evidence of the Member’s knowledge of the alleged briber’s illicit reasons for paying the money is sufficient to carry the case to the jury…. The Speech or Debate Clause does not prohibit inquiry into illegal conduct simply because it has some nexus to legislative functions.

The only reasonable reading of the Clause, consistent with its history and purpose, is that it does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself. Under this indictment and these statutes, no such proof is needed.

Got that?  OK, so on which side of the line does our hypothetical DiMasi email fall?

Easy, says Ernie: determining the content of the supplemental budget is “part of the legislative process itself,” so anything mentioning the budget is within Article 21, even if it also mentions Cognos.  

Easy, says David: trying to ensure that an executive branch agency awards a government contract to a particular private individual or company is not part of the “legislative process itself”; it is, rather, “assistance in securing Government contracts,” which was specifically mentioned in Brewster as an ancillary and unprotected activity.  So anything specifically mentioning Cognos is outside of Article 21, even if it also mentions the budget — such records may have a “nexus to legislative functions,” but they are only “casually or incidentally related to legislative affairs.”

And there you have it.  I will give you this: Ernie’s point is a good one, and it renders the question whether Article 21 includes any records that mention Cognos but also relate to the budget foggier than I initially thought.  And don’t forget that the second question — non-disclosure — is entirely unresolved in Massachusetts.

Of course, as I noted yesterday, the SJC will not necessarily follow the U.S. Supreme Court’s lead.  It might interpret the clause more broadly, to confer a more sweeping immunity on legislators.  Or it might interpret it more narrowly, in order to afford more protection to the public from legislators who betray the public trust.

What a morass.  Maybe the Speaker will do the right thing by just handing the records over to the Ethics Commission, thereby conserving scarce judicial resources!