Capital Closeup: Legislative immunity is an age-old, but misunderstood, protection for lawmakers

From time to time, a legislator makes headlines by invoking “immunity” when he or she is stopped by law enforcement. The news stories almost always bring up this question: Do lawmakers really have a “get out of jail free” card? The answer is, almost always, “no.” Most states have in their constitutions privilege for legislators, but the actual protections can be misunderstood by law enforcement, the public and lawmakers alike.
Legislative privilege has historical roots that date back to 17th-century Britain, says Steven Huefner, a professor at The Ohio State University. That tradition eventually took hold in the United States, but today, the immunity language in state and federal constitutions has very little relevance.
“It’s a bit of a historical anachronism from when there existed a ‘civil arrest’ to detain people. We no longer even have that in any meaningful sense; if you’re being arrested by the police, they have probable cause [for criminal arrest],” he says.
But the provision still grabs headlines today.
In Minnesota, for example, controversy arose last year over “legislative immunity” cards carried by lawmakers. A bill was introduced to clarify that certain crimes, including drunken driving, are not covered by the state Constitution’s privilege clause.

The Minnesota attorney general issued an opinion stating that legislators already are not immune from arrest for any criminal activity, making the bill unnecessary. (The secretary of state, who was in charge of issuing the cards, eventually decided to stop providing them.)

“Legislative privilege was never meant to provide an immunity against criminal conduct,” Huefner says. “It was to prevent [members of the Parliament] from being harassed by the crown and court.” But while legislators usually are not immune from arrest, there is a form of privilege that Huefner says is “underappreciated” and far more relevant: protection against being questioned about statements made or actions taken while carrying out their duties.  

Huefner spent six years in the U.S. Senate advising members about their rights under the “speech or debate” clause of the U.S. Constitution. Forty-three states have similar provisions in place, he says.

The general goal of such provisions is to protect legislators from having to answer questions in a court of law about what they have said or done in the course of their work.

“They allow legislators to do their work without fear that a hostile executive or judicial branch, or a constituent, is going to make a particular legislator defend their work in court,” Huefner says, “or be faced with a subpoena to respond to hostile questioning.” 

Without such protections, for example, lawmakers could be subject to litigation from a constituent with grievances over a particular bill.    

“That is an untenable way for us to govern,” according to Huefner.                                                                                                                                                                                                                                                                                                                                                                                                               At the federal level, the U.S. Constitution has been interpreted to protect statements made not just on the chamber floor, but during committee hearings, speeches and other essential legislative work. States’ constitutional “speech and debate” protections vary in scope, largely depending on the era in which they were written (see map).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Even in states with similar constitutional language, Huefner adds, differences can arise in how the courts interpret these legal protections for legislators.




Capital Closeup is a regular series of articles produced by CSG Midwest that highlights institutional issues in state governments.
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