Senate President Joseph Montalbano’s claim of immunity from four Rhode Island Ethics Commission charges directly involving his Senate votes is based on a supposedly expansive view of speech-in-debate immunity recognized by the U.S. Supreme Court in the case of United States v. Brewster…

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.

The true scope of the Brewster ruling, however, cannot be inferred from this single sentence. Before applying a Constitutional immunity to everything considered to be part of a regular legislative process, the Court carefully limited the future application of its decision…

• First, by noting that the ruling was limited to certain types of laws,
• Then, by expressly declining to extend speech or debate immunity to laws narrowly constructed to regulate the conduct of legislators.

This exception is obviously relevant to the Ethics Commission charges against Senator Montalbano.
The Brewster decision drew upon the 1966 U.S. Supreme Court case of United States v. Johnson, where the Court recognized that speech or debate immunity could be applied differently to different kinds of laws. One set of applications was to “general criminal statutes”, i.e. to laws that apply [nominally] to everyone. Here, legislative immunity was to be interpreted broadly, the classic example being the well-established immunity that legislators have from general laws against slander for anything said during legislative debate.
However, the Court in Johnson also made clear that immunity from general criminal laws did not imply immunity from all laws, expressly refusing to extend speech or debate immunity to the subset of laws specifically intended to regulate legislative conduct…

We emphasize that our holding is limited to prosecutions involving circumstances such as those presented in the case before us. Our decision does not touch a prosecution which, though as here founded on a criminal statute of general application, does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them. And, 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.

Though not central to the matter being decided, the Supreme Court reaffirmed the Johnson distinction in its Brewster decision…

The [Johnson] opinion specifically left open the question of a prosecution which, though possibly entailing some reference to legislative acts, is founded upon a “narrowly drawn” statute passed by Congress in the exercise of its power to regulate its Members’ conduct.

Since Senator Montalbano has been charged under a narrowly drawn constitutional grant of authority intended to regulate the conduct of legislators, any broad interpretation of speech-in-debate immunity derived from the Brewster precedent and rulings that follow do not apply to his case.

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There is a second problem with applying the Brewster precedent to Senator Montalbano’s ethics case. The explicit language of the Constitution talks about protecting the speech and debate of legislators. But is it a cut-and-dry matter that voting is really part of “debate”? In the Johnson case, this issue was not central because the defendant was charged with making a floor-speech in return for money. Still, the question remains: does it automatically follow that if a legislator cannot be prosecuted for selling his oratorical skills, he also cannot be prosecuted for selling his vote?
In Federal case history, the extension of speech or debate immunity to the act of voting dates back to the 1880 Supreme Court case of Kilbourn v. Thompson. Here, the Court introduced a broad reading of the scope of speech or debate immunity into Federal law, directly quoting an interpretation taken from the 1808 Massachusetts case of Coffin v. Coffin…

These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office: and I would define the article, as securing to every member exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office; without enquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules. I do not confine the member to his place in the house; and I am satisfied that there are cases, in which he is entitled to this privilege, when not within the walls of the representatives’ chamber.

Again, however, the case being decided concerned immunity from a general statute (Kilbourn was suing legislators who had voted to have him arrested on contempt of Congress charges), not from a law specifically regulating legislator conduct. Today, the scope of the Kilbourn ruling must be viewed in the light of the Court’s opinion in Johnson, re-affirmed by Brewster. While the Kilbourn precedent makes clear that speech or debate immunity protects legislators from being prosecuted for the act of casting ethically challenged votes under general criminal statutes, that same scope of immunity does not necessarily extend to laws narrowly constructed to regulate legislative behavior.

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Because of the clear limits established by the Supreme Court in United States v. Johnson and United States v. Brewster, the existing interpretation of Constitutional “speech or debate” provisions grants legislators no automatic immunity from ethics laws expressly intended to regulate their conduct. Thus, in asking for the ethics charges related to his Senate votes to be thrown out on the basis of Rhode Island’s speech-in-debate clause, Senator Montalbano is not asking for the courts to apply an existing precedent. Rather, he is asking the courts expand immunity for legislators into a realm where it does not currently exist and, ultimately, for the courts to overrule the plain meaning of the Rhode Island Constitution and create a brand-new legal principle that a blanket immunity from ethics laws is necessary for legislatures to carry out their function.