Follow Up: Legislator Privilege When Legislature is in Session

44 state and the United States constitutions* contain legislative privilege. Minnesota, as I mentioned in “MN State Legislators,” is one of those states.

This topic came up recently in Colorado and in Arizona according to “Legislative Privilege: Not So Popular.”

This article explains extremely well the origins of legislative privilege, basing the explanation on the behavior of British royalty toward parliament members they disagreed with**. It also highlights other times when their privileges are unjust – like the following incident:

That came into question in Arizona in 2010 after the majority leader of the Arizona Senate got into a donnybrook with his girlfriend. Rep. Scott Bundgaard told police he was a state senator and had legislative privilege. They uncuffed him, released him and took his girlfriend into custody. She went to jail. Bundgaard just resigned his Senate seat in January.

One man quoted seems to think that, because the future is unknowable, the privileges need to stay in place:

“Legislative privilege has a very important 400-year-old history in a democratic government and the separation of powers,” said Rep. Bob Gardner. “One can’t predict the future in Colorado or in the United States and what the political climate will be and for the reason those constitutional protections are important.”

Gardner believes lawmakers need to watch each other’s behavior to see if the privilege is being stretched.

But in this day and age, can anyone really expect us to believe lawmakers are going to watch each others’ behavior and not just watch each others’ backs?

Democratic Representative Clair Levy had this to say to CBS4:

“I think it’s worth having a conversation about whether that has outlived its purpose … Maybe we need to get rid of them either that or narrow them down because there’s always the risk that somebody’s going to misuse it.”

Her analysis is right on, in my opinion. We need to critically examine if this is serving a purpose or just creating a situation in which disincentives for certain behaviors don’t apply to lawmakers during sessions. As Levy said, maybe we need to get rid of it, maybe it needs to be narrowed down.

*See Article I, Section 6. Thanks to the Inactive Activist for pointing that out to me and leading me to check into legislative privilege a little further.

**Although I also think of the French royalty and their propensity to use the Bastille as a home for political dissidents. Most of my knowledge of this, sadly, comes from fiction.