“Future Legislative Acts” and the Ninth Circuit’s Narrow Reading of Speech or Debate

In United States v. Renzi, the Ninth Circuit rejected the former congressman’s claim that the Speech or Debate Clause prohibits charging him with having demanded, as a condition of supporting land exchange legislation that two private companies were seeking, that those companies include in the proposed legislation land owned by Sandlin, a Renzi associate (who, unbeknownst to the companies, owed Renzi a substantial sum of money).

The court largely based its holding on United States v. Brewster, 408 U.S. 501 (1972), in which the Supreme Court held that bribery was not protected by Speech or Debate. Specifically, the Brewster Court emphasized that bribery involves the acceptance of money in exchange for the promise to perform a future legislative act (i.e., to sponsor or facilitate the bill that the bribe-giver is attempting to get enacted). The Court reasoned that the there was a distinction between performing a legislative act and promising to perform a legislative act in the future. Therefore, it concluded that the Clause would not prohibit showing that a Member of Congress had taken money in exchange for a promise to support future legislation.

The Ninth Circuit characterizes Renzi as being on all fours with Brewster.  Renzi promised to perform a future legislative act, i.e., introduce and support land exchange legislation, if the companies would pay money to a third person with whom Renzi had a business relationship. Except for the indirect means of payment, the court concludes that Renzi’s actions were exactly the same as those involved in Brewster. And the court finds no legal relevance to the fact that Renzi’s scheme was “more refined, more sophisticated,” i.e., that “[r]ather than selling his office for cash, he was wise enough to at least attempt to conceal his crime by using more indirect means of payment.”

The problem is that the Ninth Circuit’s position is premised on a subtle but significant mischaracterization of the charges against Renzi. The court describes the allegations against Renzi (which it doesn’t quote verbatim) as if the congressman had demanded that the private companies purchase the Sandlin property in as a condition of his support of legislation, apart from his insistence that the property be included in the legislation. But the indictment actually alleges that Renzi “insisted that the Sandlin Property must be included in the land exchange legislation if he was to be a sponsor.”

It is true that the indictment clearly lays out that Renzi was aware that the companies would have to purchase the property in order to include it in the legislation and one might infer, though the indictment does not so allege, that Renzi and Sandlin conspired to ensure that the companies had to purchase the property, rather than simply obtaining an option to purchase, in order to fulfill Renzi’s terms. But on its face the indictment can be sustained only if the jury finds that Renzi had an improper motive for insisting that the land exchange legislation be crafted to include the Sandlin property. This makes Renzi’s case distinguishable from Brewster, where the legislator’s motive for crafting, supporting or voting for the legislation was not at issue.

Thus, the Renzi case would seem to pose the question of whether negotiating over the terms of a particular piece of legislation is itself outside the legislative process because it relates only to “future” legislative acts. This is not a question resolved in Brewster and the Ninth Circuit’s position marks a significant expansion of Brewster’s rationale. Indeed, if the Renzi court is correct, there would seem to be very little left of the Speech or Debate privilege outside the corners of formal legislative proceedings, such as committee hearings and debates on the floor.

Finally, it should be noted that this Speech or Debate issue is not the one on which there is a circuit split (I will discuss the latter in a separate post). Nevertheless, it is an important issue that the Supreme Court ought to resolve, particularly if it is going to hear the case anyway.


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