by Jason Gelender and Patti Dahlberg

Under article V, section 16 of the Colorado constitution, legislators cannot be “questioned” for any speech or debate in either house or in any committee. Referred to as “legislative immunity,” this privilege is designed to preserve the integrity of the legislative process and protect the legislative branch from intimidation. Courts have interpreted it broadly to grant legislators immunity from civil lawsuits and state criminal prosecution, but not federal criminal prosecution, and a privilege against being compelled to testify or produce documents in legal proceedings with respect to matters that fall within the “sphere of legitimate legislative activity.”

The “sphere of legitimate legislative activity” includes actions taken during official legislative proceedings conducted in accordance with constitutional procedural requirements and other activities that are integral to the legislative (i.e., lawmaking) function. It does not include actions taken outside of official legislative proceedings that are not integral to the legislative function, such as town hall meetings or publishing newsletters. Courts have considered these actions more political than legislative because they are undertaken to stay in touch with constituents and help legislators get reelected.

Seems easy enough. Here are some hypothetical situations for your consideration:

Situation #1.  During heated floor debate on a controversial bill that would repeal all state restrictions on private swimming pools near busy intersections, a legislator who opposes the bill claims that the bill sponsor is only carrying the bill because a Colorado-based swimming pool manufacturer bribed him.

Does legislative immunity protect the legislator who made the accusation of bribery from liability in a civil lawsuit for defamation filed by the bill sponsor?

1. NO, because the legislator accused the bill sponsor of bribery, a crime that is a felony, legislative immunity does not apply.
2. NO, because the purpose of legislative immunity is to protect the General Assembly from intimidation by the executive and judicial branches of government and private parties, it does not apply to a statement made or other action taken by a legislator against another legislator.
3. YES, because a legislator who takes bribes directly impacts the integrity of the legislative process, it is important to allow other legislators to “blow the whistle” without fear of legal repercussions if they think that another legislator is taking a bribe, even if the charge later proves to be false.
4. YES, because the legislator made the claim during an official legislative proceeding while acting as a lawmaker, legislative immunity protects the legislator from liability in a civil lawsuit for defamation filed by the bill sponsor.

The correct answer is d. Because the legislator made the claim during an official legislative proceeding while acting as a lawmaker, legislative immunity protects the legislator from liability in a civil lawsuit for defamation filed by the bill sponsor. However, while this is technically correct in the context of potential liability in a civil lawsuit, a legitimate question exists as to whether the legislator’s claim is, in fact, ethical. The question and answer are illustrative of the tension between what is legal and what is ethical that legislators often face in the course of their legislative activities.

Situation #2.  During heated floor debate on a controversial bill that would repeal all state restrictions on private swimming pools near busy intersections, a legislator who opposes the bill claims that the bill sponsor is only carrying the bill because a Colorado-based swimming pool manufacturer bribed him.

Assuming that the accusation of bribery is true, does legislative immunity prevent criminal prosecution of the accused legislator?

1. NO, legislative immunity does not protect a legislator from criminal prosecution. It only protects a legislator from being a defendant in a civil lawsuit or from otherwise being questioned as part of a civil proceeding.
2. NO, legislative immunity does not prevent criminal prosecution of the legislator. Prosecution for bribery does not require a protected inquiry into a legislator’s motives for the legislative acts of sponsoring or voting on a bill because the alleged crime occurred when the legislator accepted money in exchange for a promise to sponsor the bill and could be proven even if the legislator had not actually sponsored the bill.
3. YES, the purpose of legislative immunity is to prevent intimidation of legislators through, among other things, questioning of their motives for taking legislative actions. Because sponsorship of legislation is a legitimate legislative function that is within the “sphere of legitimate legislative activity,” a legislator’s improper motivation for sponsoring legislation cannot form the basis of a criminal prosecution of the legislator.
4. NO, because a legislator’s compensation is prescribed by law in accordance with article V, section 6 of the Colorado Constitution and such compensation does not include bribes. Taking a bribe as compensation for what is normally a legislative act of sponsoring legislation makes the sponsorship of the legislation violate a constitutional rule of procedure that governs the legislative process and therefore places the sponsorship outside of the protected “sphere of legitimate legislative activity.”

The correct answer is b. Legislative immunity does not prevent criminal prosecution of the legislator.

Although sponsoring legislation falls within the “sphere of legitimate legislative activity,” the United States Supreme Court has found that “[t]aking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act (U.S. v. Brewster, 92 S. Ct. 2531, 2544 (1972)). In this hypothetical, because a successful bribery prosecution requires only proof that the accused legislator accepted money in exchange for a promise, fulfilled or unfulfilled, to sponsor a bill, and does not require examination of the legislator’s legislative act of actually sponsoring the legislation, legislative immunity does not prevent criminal prosecution of the legislator.

Situation #3.  The CEO of a privately held swimming pool company testifies during a meeting of a special Interim Committee on Swimming Pools Near Busy Intersections that imposing a statewide ban on these pools will drive swimming pool companies out of Colorado and severely damage Colorado’s economy. In response, a legislator on the committee who supports a statewide ban on all swimming pools calls the CEO a “greedy child-killing liar” who is concerned only about the bottom line and says that “you don’t even care that swimming pools near busy intersection pose a clear safety hazard to children!” The CEO sues the legislator for defamation.

Does legislative immunity prevent the legislator from being found liable for defamation?

1. NO, because interim committees are study committees rather than committees of reference and only have the power to act regarding proposed legislation that has not yet been introduced and assigned a bill number, the legislator’s allegedly defamatory statements were not made within the “sphere of legitimate legislative activity.”
2. NO, because the legislator’s allegedly defamatory statements were so outrageous that the “outrageous conduct” exception to legislative immunity applies.
3. YES, because the interim committee meeting at which the legislator made the allegedly defamatory statements was an official legislative proceeding. The legislator was acting within the “sphere of legitimate legislative activity” and cannot be found liable for the statement in a civil lawsuit.
4. YES, because the allegedly defamatory statements were made in the context of a discussion about public policy options that could reasonably expect to lead to legislation being proposed, they fall within the “sphere of legitimate legislative activity.”

The correct answer is c. The interim committee meeting at which the legislator made the allegedly defamatory statements was an official legislative proceeding and, therefore, within the sphere of legitimate legislative activity. Statements made during a legislative committee meeting almost always fall within the sphere of legitimate legislative activity, and legislative immunity protects a legislator who makes such a statement from being held liable for the statement in a civil lawsuit.

And, in case you were wondering, there is no “outrageous conduct” exception to legislative immunity.

Situation #4.  The CEO of a privately held swimming pool company testifies during a meeting of a special Interim Committee on Swimming Pools Near Busy Intersections that imposing a statewide ban on these pools will drive swimming pool companies out of Colorado and severely damage Colorado’s economy. In response, a legislator on the committee who supports a statewide ban on all swimming pools calls the CEO a “greedy child-killing liar” who is concerned only about the bottom line and says that “you don’t even care that swimming pool near busy intersection pose a safety hazard to children!” The CEO sues the legislator for defamation. Following the completion of the Interim Committee on Swimming Pools Near Busy Intersections’ meetings, the committee, with the assistance of Legislative Council Staff, issues a written final report that quotes as part of a summary of proceedings the allegedly defamatory statements made by the legislator. The CEO then amends his defamation complaint to include both the other legislators who served on the committee and the legislative staff who prepared the report as defendants.

Does legislative immunity prevent the legislators and legislative staff from being found liable for defamation?

1. NO, although the legislator who made the allegedly defamatory statements is entitled to legislative immunity because the statements were made during an official legislative proceeding, the other legislators and legislative staff are not entitled to legislative immunity because they republished the statements outside of the meeting.
2. YES, because the republication of the allegedly defamatory statements occurred in an official legislative report it falls within the “sphere of legitimate legislative activity.” And legislative privilege applies to legislative staff to the same extent it applies to legislators.
3. YES and NO. Because the republication of the allegedly defamatory statements occurred in an official legislative report, it falls within the “sphere of legitimate legislative activity” and the legislators cannot be found liable for defamation. But the legislative staff may be found liable for defamation because legislative immunity only protects legislators.
4. NO, legislative immunity does not protect the other legislators and staff from being found liable for defamation. But under the law of defamation itself, the other legislators and legislative staff cannot be found liable for defamation because only the person who originally makes an allegedly defamatory statement may be held liable for the statement

The correct answer is b. Republication of the allegedly defamatory statements occurred in an official legislative report. The preparation, adoption, and publication of the official report of a legislative interim committee falls within the “sphere of legitimate legislative activity.” Consequently, legislative immunity protects both the legislators and the staffers from being found liable for defamation for actions taken in preparing, adopting, and publishing the report.

If you want to read more about legislative privilege and immunity, check out “A Look at the Limits of Legislative Immunity.”

Want to learn more about legislative ethics? Take the Legislative Ethics Tutorial.