The Virginia Supreme Court recently issued a decision in Edwards v. Vesilind, No. 160643 (Va. Sept. 15, 2016), a case involving the application of the Virginia constitution’s speech or debate clause to a subpoena for documents directed to Virginia state senators and the Division of Legislative Services (DLS), a legislative agency that provides legal and other research services to the Virginia General Assembly. The subpoena, which arose from a lawsuit alleging that certain state house and senate districts violated the Virginia constitution, sought written communications and other documents related to the legislature’s formation of these districts, including documents that discussed (1) compactness, population and other criteria used to form the districts; (2) the role played by partisan or incumbent-protection considerations; and (3) the process of preclearance through the Virginia attorney general.
The Virginia senators and DLS objected to the subpoenas based on the Virginia speech or debate clause, which provides “Members of the General Assembly . . . for any speech or debate in either house shall not be questioned in any other place.” The trial court, however, narrowly construed this privilege as applying only to “purely internal legislative communications solely among legislators, and between legislators and legislative staff.” Moreover, it defined “legislative staff” as “legislative assistants and/or aides who are employed and paid by the individual legislators, a legislative committee, or the legislature as a whole.” It found DLS and its employees to fall outside these parameters and therefore held that agency entirely unprotected by legislative privilege. It further found that the senators could not withhold communications with DLS, political consultants or other third parties.
The trial court’s ruling was certified for direct appeal to the Virginia supreme court because of the importance of the questions presented, which were ones of first impression concerning the scope of the Virginia speech or debate clause. The supreme court’s ruling as to the scope of the privilege and who may invoke it is also of wider interest because it construed the Virginia clause as co-extensive with the federal Speech or Debate Clause. As the court noted, the language in the Virginia constitution is derived from the federal Clause, and “[b]oth provisions afford similar protections because they are based on the same historical and public policy considerations.” Slip op. at 8.
The Edwards court rejected the trial court’s narrow reading of legislative privilege. The court begins by reviewing the English antecedents of the speech or debate privilege and its incorporation into both the Articles of Confederation and the U.S. Constitution:
The Clause was not introduced into the Constitution of Virginia devoid of history or context, nor should it be interpreted as if it had. Rather, it is deeply rooted in British and American law. To ignore this rich history in favor of a narrow interpretation would flout the framers’ obvious intent. The Clause is an integral piece of the separation of powers framework, one of the most central and enduring principles of the Constitution of Virginia.
Slip op. at 10.
Further, “[l]egislative privilege necessarily must be robust in order to preserve constitutional separation of powers and prevent interference with the legislative process.” Slip op. at 11. The court also agreed with federal courts that have held the privilege protects against the compulsory production of evidence, including documentary evidence, in addition to providing a shield against civil or criminal liability.
With regard to the scope of activities protected by the privilege, the supreme court notes that “speech or debate” has long been viewed as a “term of art” signifying far more than statements made by legislators on the floor. It is understood “to apply to the many facets of the legislative process,” including not just literal speech or debate but activities such as proposing and voting on legislation, making, publishing, presenting and using legislative reports, authorizing investigations and issuing subpoenas, conducting hearings, etc. As the court explains, “[i]t would be of little use to protect speech or debate between legislators on the floor of either house but not to protect other communications or functions integral to the legislative process.” Slip op. at 15-16.
With respect to the scope of the privilege, the Edwards court states that “[a] legislator’s communication regarding a core legislative function is protected by legislative privilege, regardless of where and to whom it is made.” Slip op. at 17. On the other hand, a legislator’s communication about something other than a “core legislative function” will not be protected “unless it is made during an official legislative proceeding.” Thus, a conversation between two legislators about “reelection strategy or vacation plans” would not be protected “unless the conversation occurred, for example, on the floor of a chamber while it is in session.” Id.
With respect to who can invoke the privilege, the court explains that the privilege belongs to the legislators, who decide whether it should be invoked or waived. With a legislator’s permission, a non-legislator can invoke the privilege on the legislator’s behalf, but only if he or she qualifies as the legislator’s “alter ego.”
The trial court erred in holding that an “alter ego” had to be a legislative staffer directly employed and paid by a legislator, legislative committee or legislative body. Instead of such a formalistic test, the Edwards court held that the trial court should have considered a variety of factors (including, but not limited to, employment and pay status) to determine whether the individual asserting the privilege was functioning “as an extension of the legislator.” Slip op. at 21. As long as they are acting on behalf of the legislator and not some other person or interest, third parties such as consultants and even constituents could qualify as alter egos.
In order to assert privilege as an alter ego, the communication or information in question must be within the “legislative sphere.” Communications involving constituent service, election matters and media relations are political matters that fall outside the legislative sphere. Although it acknowledged the difficulty of drawing “fine lines between policy and politics,” the court noted that “to the extent that particular communications can be considered policy oriented, they are likely to fall within the legislative sphere.” Slip op. at 21. Thus, policy consultants are more likely to qualify as alter egos than media or political consultants. The court also observed that “[a] lawyer working for the legislative branch is more likely to be working in the legislative sphere than someone who specializes in information technology.” Id.
The Edwards court held that the lower court erred in finding DLS employees could not be alter egos as a matter of law. While not conclusively resolving the question, the supreme court strongly suggested that DLS employees would be able to assert the privilege: “Legislators must be free to accomplish legislative tasks through agents, including and especially to obtain assistance in legislative drafting from the experienced staff at DLS.” Slip op. at 24. This is consistent with federal caselaw that has extended speech or debate protection to congressional support agencies such as the Congressional Research Service.
Finally, one thing that remains unclear in the court’s opinion, at least to me, is whether the scope of communications protected by the privilege is limited to communications among legislators and alter egos. Some of the court’s language suggests that a legislator could assert the privilege as to communications with any third party so long as it falls within the legislative sphere. This would be consistent with federal caselaw that allows legislators, under some circumstances, to protect communications with third parties, such as witnesses and executive agencies, that do not qualify as alter egos. At some points, however, it seems as if the Edwards court would limit protection to communications that are solely among legislators and/or alter egos. Perhaps this will be clarified by the trial court on remand.