The Neglected Value of the Legislative Privilege in State Legislatures

Forty-three state constitutions contain a provision, analogous to the U.S. Constitution's Speech or Debate Clause (Article I, Section 6, Clause 1), granting state legislators a legal privilege in connection with their legislative work. While some of these states' provisions have never been applied, recent judicial interpretations in other states have departed from settled federal interpretations of the legislative privilege, failing to apply it broadly to protect the legislative process and instead unduly favoring ideals of open government. This Article defends the value of a broad constitutional privilege for state legislators to protect the integrity of the deliberative process, and presents a framework for state courts to use in applying the privilege to state legislatures. The Article's analysis is particularly relevant given the increased pressures facing state legislatures today, and also the growing appetite of litigants to compel public access to the inner workings of government institutions, often under statutory open government provisions. The Article concludes that to protect representative democracy, the legislative privilege merits a more robust application at the state level than some state courts have been willing to give it.