Senator Irons' Flawed Defense

Former Rhode Island Senate President William Irons' initial line of defense against charges brought against him by the Rhode Island Ethics Commission rests, first, on a claim of immunity that has never before been recognized in the law and, second, on a claim that a judge can use an interpretation of the law without precedent to nullify the plain language of the state constitution.

1. According to (most recently) Bruce Landis of the Projo, the Rhode Island Ethics Commission has proceeded against Senator Irons for his casting of votes on legislation that directly affected a company he was taking commissions from, in their view, a violation of state ethics rules...

The Journal reported that Irons received $70,000 in commissions on a Blue Cross health-insurance policy for CVS employees in 2000 and 2001, and another $25,000 in 1999. Irons chaired the Senate Corporations Committee that handles health-care legislation, and opposed a controversial pharmacy-choice bill that Blue Cross and CVS also opposed.

2. The Ethics Commission derives it power to bring such cases from a 1986 amendment to the Rhode Island Constitution (Article III, section 8)...

Ethics commission -- Code of ethics. -- The general assembly shall establish an independent non-partisan ethics commission which shall adopt a code of ethics including, but not limited to, provisions on conflicts of interest, confidential information, use of position, contracts with government agencies and financial disclosure. All elected and appointed officials and employees of state and local government, of boards, commissions and agencies shall be subject to the code of ethics. The ethics commission shall have the authority to investigate violations of the code of ethics and to impose penalties, as provided by law; and the commission shall have the power to remove from office officials who are not subject to impeachment.

3. In defense, the lawyers for Senator Irons claim that the Ethics Commission can have no jurisdiction over official acts of legislators, due to the speech-in-debate immunity for legislators that is an original part of the Rhode Island Constitution (Article VI, section 5)...

Immunities of general assembly members. -- The persons of all members of the general assembly shall be exempt from arrest and their estates from attachment in any civil action, during the session of the general assembly, and two days before the commencement and two days after the termination thereof, and all process served contrary hereto shall be void. For any speech in debate in either house, no member shall be questioned in any other place.

In today's Projo article, Senator Irons' lawyer John Tarantino explains his client's basic position on speech-in-debate immunity vs. the Ethics Commission…

Tarantino said that because the Constitutional Convention delegates didn’t explicitly set aside the legislators’ immunity under the “speech in debate” doctrine, that immunity continues and legislators can’t be prosecuted for the way they vote.

4. The principle of speech in debate immunity is well-established in American jurisprudence. Courts have long held that the immunity extends beyond words spoken in floor and committee session, out to any official act associated with lawmaking. The key affirmation of this principle cited in the Irons case comes from the United States Supreme Court 1972 ruling in United States v. Brewster, where the Court made clear that speech in debate immunity prevented legislators from having their motivations for the votes probed by any branch of government seeking to enforce general statutes...

It is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process, and into the motivation for those acts.

In other words, as offensive as it may be to the sensibilities of honest citizens, it is established precedent in American law that a legislator cannot be sued or prosecuted under general statute for voting a certain way based on the influence of cold hard cash, instead of concern for the common good.

The Brewster decision was brought into Rhode Island law in 1984 by the Rhode Island Supreme Court in its decision in Holmes v. Farmer.

5. However, in its Brewster ruling, the Supreme Court also made clear that speech in debate immunity did not place the official acts of legislators above every law imaginable. The Brewster decision reaffirmed a principle established six years earlier, in the case of United States v. Johnson, that speech-in-debate immunity did not automatically extend to laws whose specific purpose is regulating the conduct of legislators...

Without intimating any view thereon, we expressly leave open for consideration when the case arises a prosecution which, though possibly entailing inquiry into legislative acts or motivations, is founded upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members.

6. It's a dubious proposition, at best, to ever allow judges to circumvent the plain language of the Constitution, but in this case, the proper decision is especially a no-brainer:

The 1986 amendment to the Rhode Island Constitution charged the legislature with creating an ethics commission, specifically and narrowly empowered to create rules for the conduct of legislators. At that time the constitution was amended, the applicability of speech-in-debate immunity to laws specifically regulating legislator conduct had not been decided. The inclusion of direct language into the constitution subjecting legislators to Ethics Commission jurisdiction, therefore, resolved an ambiguity in the law -- using the most decisive means our system of government allows, a Constitutional amendment -- without creating any conflict with the existing body of speech-in-debate immunity law.

The only way for a court to rule that speech-in-debate immunity trumps the Constitutionally established powers of the Rhode Island Ethics Commission would be for that court to strike down the plain language of the constitution while ignoring established precedent at the same time. For the sake of the rule of law, let's hope that this attempted double-bank shot by Senator Irons and his lawyers doesn't hit its target.