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