Thursday, August 16, 2007

The Speech and Debate Clause and Honesty

August 16, 2007

Re: The Speech And Debate Clause And Honesty.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

This is the second in a series of postings about some recent federal court decisions that I find either highly objectionable or, at least, in some way deficient. As is the norm for these postings, I shall court denunciation as an inept lawyer by skipping all the legal folderol and legal gobbledygook that a lawyer is supposed to address if he or she is to be called competent by the legal big shots, and shall instead address what I see as the heart of what bothers me.

The case under discussion today has the truly odd name of USA v. Rayburn House Office Building. Who knew that a House Office Building had rights? Who knew that it could sue? Actually the case concerns the FBI’s search of the office in the Rayburn Building of Congressman William Jefferson, the apparently eminently bribable Louisiana Congressman whose apartment freezer was found to have ninety thousand dollars in it. When I was a kid in the ’50s, and home freezers were, I believe, a relatively new post-war phenomenon, my mother used to keep cooked foods in her freezer. Once she asked us how we liked some very good soup and, after we said it was delicious, informed us that it was four years old. It had been in the freezer. Jefferson has clearly gone my departed mother one better, in fact 90,000 ones better.

The problem in the case revolves around the Constitution’s speech and debate clause. That clause protects legislators from being arrested, prosecuted or questioned etc. by the executive because of legislative actions like casting a vote a particular way, making a speech on the floor of Congress, and other legislative duties performed by Congressmen and Senators. Also, as part of its protection, the clause protects so-called legislative materials from being seized by prosecutors, since use of these materials is part of the protected legislative process. Precisely what constitutes protected legislative materials can, one supposes, be a question. A draft of a speech, or research for a speech, should constitute legislative materials, one would think. $100,000 in a freezer at home would not be, one might equally think.

The process of seizing materials from a Congressional office, which has never happened before, necessarily implicates questions of what are and what are not legislative materials. The question of proper procedures for such a seizure of materials - - procedures which will enable prosecutors to seize non legislative materials in the office, but not legislative ones - - therefore got a lot of attention in the case, even most of the attention. I shall not discuss this, however, but rather shall focus on the question of bribery.

Even though the speech and debate clause does not exempt bribery from its protection, it has long been recognized, it probably always was recognized, that bribery is not in fact protected by the clause. Any different result would cause democratic government to be for sale -- as it was in the Gilded Age. The problem, however, seems to me to be that, inevitably, the question of whether there was bribery implicates a Congressman or Senator’s legislative acts. The bribery is the reason for the legislative act -- it is the reason for the vote, for the speech on the floor, for calling an agency in pursuit of legislative oversight responsibilities (e.g., calling the Pentagon to ask why A, not B, got a multi-billion dollar contract, or to urge that B’s bid get deep consideration because it is so excellent). So, a letter offering a legislator shares in a company -- the kind of bribe given in the Gilded Age, when stocks and bonds were spread around -- sheds light on the reason for a subsequent legislative vote favoring the company’s interests or for calling the Pentagon to urge the company’s bid upon it. Further, even the mere existence of the stock ownership, without any such letter, can shed light on the reason behind a legislative act like a vote, a speech, a phone call. The obvious truth of the matter is that this stuff is all mixed up together. That is, the otherwise protected legislative act, and the otherwise protected reason underlying it, are all mixed up with, are one and the same as, the unprotected reason showing bribery and the unprotected act of accepting and carrying out a bribe. The protected legislative act of casting a vote is also the unprotected carrying out of the bribe, and the normally protected reason for favoring company A is also the unprotected reason for favoring it because of a bribe

The court of appeals did not deal with the question of what materials would be legislative and which would not be. (For all I know, the parties might have agreed on this matter in this case, so there was no argument over it. This is hard to believe, however.) Rather than consider the question, the court seemed to elide it by merely saying only that the government could not seize undefined legislative materials but could seize undefined non-legislative materials, and leaving the (expectable?) definitional problems, if any, for future litigation in the case. There was a hint at one point that what was being sought -- just like cash in a home freezer -- was evidence of “financial backing and[/]or concealed payments of cash or equity interests in business ventures located in the United States, Nigeria, and Ghana in exchange for [Jefferson] undertaking official acts as a Congressman while promoting the business interests of himself and the targets.” (Or, as the concurring opinion said, the government’s search warrant “sought only ‘fruits, instrumentalities and evidence of violations of’ various federal bribery and fraud statutes.”) The judicial statements of what was sought by the prosecutors is illustrative of my point that as a realistic matter one cannot really separate reasons and acts into those that are protected and those that are not protected, because they’re all mixed up together and in truth are one and the same: the evidence sought here is both the protected reason for a protected legislative act and the unprotected reason for an unprotected bribe.

When this court and others avoid dealing explicitly with or talking explicitly about the all-mixed-together nature of these things, and instead in effect say or assume that bribery is only bribery and can be punished, there is a vital matter at the root of this statement or assumption: the dire need for honest government instead of government sold to the highest bidder. (During the Gilded Age, there literally were bidding contests for the votes and support of Congressmen and Senators.) Perhaps avoidance of discussing the need for honest government occurs because, once you start discussing this essential, you’ve opened a fantastic can of worms -- a can which in my view should be opened. At the narrowest level, you might have to say that, despite the fear of using prosecutorial powers to pressure or punish politically dissenting legislators, the overriding necessity for honest government means that, where the executive can show a good faith belief in the existence of possible bribery or corruption (as it did when getting a search warrant in the Jefferson case), it can search for and seize even materials that represent or relate to a legislative act (such as a phone call to the Pentagon or questions asked in committee). Having to say this would be a sea change from the courts’ heretofore understandable, historically based fear of allowing prosecutors to question legislative acts.

That, as I say, is the narrow problem (even though it is an important problem). The broader, even more consequential, problem is that to say we must have honest government inevitably implicates -- and is a principle that ultimately might have to be carried over to deal with -- the broader problem that our entire government runs on bribery and dishonesty (and everyone in politics and the media knows it). This bribery and dishonesty are called campaign contributions. Campaign contributions are nothing but a form of bribery that has been legalized because of the view that privately donated monies, donations now occurring by the scores and hundreds of millions of dollars, are essential to politics, and that we cannot or shall not have governmental financing of campaigns in order to remove the fantastic, albeit legalized, bribery called campaign contributions. We are, I think, many years beyond having to argue that the big and medium hitters -- the ones who give tens, scores, and hundreds of thousands of dollars -- do so without expectation that their interests will accordingly be rewarded. Of course, everybody on all sides is usually too smart to create a hard copy or electronic evidentiary trail by putting expectations or promises down on paper or on computers, but does anyone believe that putting matters on paper or computers is necessary? Does anyone believe that the hitters give without expectation of benefit, or continue to give simply in the name of good government even though they are not getting the benefits they desire? If anyone believes any of this, there are a few companies (making a bundle in Iraq?) that they should perhaps talk to.

The most fundamental problem, then, that inevitably would ultimately be implicated if courts began talking about the need for honest government in the context of the speech and debate clause is that we do not in fact have honest government. We have a corrupt, morally crooked system designed to benefit the rich guy. Money talks and the non affluent guy walks. It is the historical fact in this country that under our corrupt and crooked system the small men -- who in number exceed by scores of millions and more the big and medium hitters -- are ignored, and their interests are screwed over by the pols, until quite literally there is fear of untameable revolution in the streets, of revolution that the powers may be unable to quell (though often they can quell it by governmental violence (as in the Gilded Age).) This is how it was in in the Gilded Age, how it was in the time of the depression, how it was in the time of the Civil Rights movement, how it was in the time of Viet Nam. One suspects that the reason the Iraq war goes on and on is that there is not a threat of revolution in the streets.

So talk in speech and debate cases of a need for honesty in government would have repercussions -- including, incidentally, as occurred with Viet Nam, bitter comments about the hypocrisy of asserting a given principle in one area while ignoring it at home. (In Viet Nam, the talk was of, among other things, the hypocrisy of fighting for freedom in Nam while denying it to blacks and others at home.) It might also have certain other “lesser” repercussions (in addition to “narrower” problems discussed above). For example if honesty is regarded as important in government -- and elsewhere -- it becomes much harder to justify the vast overuse of rules of privilege that have often fostered dishonesty by enabling the truth to be hidden. Overused doctrines of executive privilege and attorney client privilege spring readily to mind here.

So the bottom line here is that, were courts to begin to talk in speech and debate cases about the need for honesty in government, they would be unleashing an idea that could have repercussions broad and narrow over a wide range of fronts (of which I’ve mentioned only a few). So it is too much, one supposes, to expect such talk in such cases. No more than anyone else in power do courts want to unleash the tiger. I’ve explained many times on this website, however, and therefore need not explain again in this posting, that honesty is the tiger that must be unleashed and ridden if this society is to improve. And, truth be told, I do not find the need for honesty any less desirable or important in speech and debate clause cases than anywhere else.

I conclude, as was previously said in the post on access to experimental medicines, by saying again that commentators should tell people who the judges were on each side of a case. Here, therefore, are the names, dates of appointment and appointing presidents of the judges in the Jefferson case:
Majority

Name Date of Appointment Appointing President
Douglas Ginsburg 1986 Reagan
Karen LeCraft Henderson 1990 GHW Bush

Concurrer

Judith Rogers 1994 Clinton


*This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@mslaw.edu.

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