We all know that there are certain confidential and intimate relationships that the law deems worthy of special protection. These include the clerical privilege (also known as priest-penitent), the attorney-client privilege, the doctor-patient privilege and of course the spousal privilege. The House of Representatives would like to expand that list to include the legislator-lobbyist relationship, which involves the kind of “pillow talk” that DC considers most precious.
OK, I exaggerate, but not by that much. In its opposition to the SEC subpoena enforcement action, the House argues all the information sought by the SEC, including information about conversations between members or staff of the Ways & Means Committee and private lobbyists, is protected by the Speech or Debate Clause. See House Brief at 30, 34-37.
The House’s argument begins with the premise that the Ways & Means Committee, and its Health subcommittee, have jurisdiction over the agencies and laws related to the “inside information” the SEC believes was leaked, namely the Centers for Medicare and Medicaid’s decision and announcement regarding 2014 reimbursement rates for Medicare Advantage. I assume that no one would dispute this point, and the House brief demonstrates that in early 2013 the committee was actively engaged in legislative and programmatic oversight regarding this and many related issues. So far, so good.
Next the House argues that the Speech or Debate Clause protects all activities within the “legislative sphere,” including committee investigations and oversight regarding matters within their jurisdiction. This statement is pretty much black-letter law. The House then explains that Speech or Debate protections do not merely apply to formal methods of investigation, such as issuing subpoenas and holding hearings, but to less formal methods of “information-gathering.” This gets a little dicier.
There is certainly language in the case law suggesting that informal information-gathering can be protected by the Speech or Debate Clause, and no one can fault the House for advancing this general proposition. But there is very little case law to flesh out exactly what is meant by informal information-gathering or the extent to which it is protected by the Clause. After all, a member or staffer could informally gather information virtually anywhere—at casual lunches with colleagues in the Longworth Cafeteria, in town hall meetings with constituents, at fundraising dinners with donors and, of course, in meetings with lobbyists. How exactly would one tell if these activities should be considered part of protected “information-gathering”? Is any conversation in which a staffer picks up a potentially useful tidbit of information therefore informal information-gathering? Or any conversation where the staffer might pick up such information?
The House doesn’t say, but it seems to believe that conversations with lobbyists are a vital part of the informal information-gathering process and therefore should be either automatically or presumptively protected by the Speech or Debate Clause. Specifically, the House argues that any conversations between Brian Sutter, the staff director of the Ways & Means subcommittee, and a lobbyist for Greenberg Traurig (Firm Motto: “Jack Abramoff doesn’t work here any more”) are protected.
The House explains:
Communications with lobbyists, of course, are a normal and routine part of Committee information-gathering. Lobbyists present to Congress the views of various stakeholders regarding existing or potential legislation and, in that capacity, carry out a role contemplated by the First Amendment, i.e., petitioning the government for a redress of grievances. Any communications Mr. Sutter may have had with lobbyists—or any information he may have received from them—regarding the impact of the MA payment rates on industry falls squarely within the realm of protected legislative information-gathering, i.e., the gathering of information to inform the Committee’s views on the necessity for, and appropriate content of, legislation.
House Brief at 34.
Now bear in mind that the SEC is not investigating whether Sutter received information from lobbyists, but whether a lobbyist received information from Sutter (namely advance information regarding CMS’s decision on reimbursement rates). Even if it were true that the Speech or Debate Clause protects the former, which would be an aggressive but defensible extension of existing law, it is unclear how it could protect the latter.
In Chastain v. Sundquist, 833 F.2d 311 (D.C. Cir. 1987), the court held that a congressman’s letters to executive branch officials and agencies were not protected by Speech or Debate when they “did not seek information or otherwise attempt to aid a congressional investigation,” but merely tried “to influence the conduct of federal agencies.” If a congressman’s attempt, within the scope of his official duties, to influence federal agencies is not within the scope of Speech or Debate, it is hard to see how a staffer’s giving confidential information to a lobbyist would be.
Furthermore, the Supreme Court long ago held that evidence of a member’s statements about non-legislative matters could be introduced against him without violating the Speech or Debate Clause, even if they were part of a document or conversation in which legislative matters were also discussed, so long as the legislative information is excised. U.S. v. Helstoski, 442 U.S. 477, 488 n.7 (1979). Thus, if Sutter had a conversation with a lobbyist in which he both gathered information and disclosed information, it would seem that he could at least be questioned regarding the latter.
The only way to get around this, it would seem, is to say that certain types of conversations are, by their very nature, “legislative” and therefore protected in their entirety even if non-legislative matters are discussed. Perhaps the House’s paean to the special role of lobbyists in “petitioning the government for the redress of grievances” is meant to suggest that discussions with lobbyists merit this privileged status. If so, it’s not that much of an exaggeration to say that the House would create a new legislator-lobbyist privilege.
Well written. As a former W&M staff person and now a registered lobbyist, I never gave any thought to privilege in such settings, regardless of the side of the desk I was on. As a staff guy, anything I might have said to a lobbyist, in nearly every setting, I had to conclude would be repeated or used in some fashion, or was fair game to be made public. That instilled its own discipline. As a lobbyist, it would never occur to me that something told to me by a staff person enjoyed any protection other than if he or she admonished me not to say anything. Everyone knows we get paid to share information. To extend the Speech and Debate Clause protection to these relationships appears to me, also, to be a real stretch. Are we to protect bar-stool conversations because they happen to be partially about legislation, or a hearing? What this case points up is the need for heightened ethical awareness regarding what information is appropriate to convey and when. With instant communications should come increased focus. When commercial interests are affected, as they so often are, by government decisions, it is incumbent on staff and Members to insure that release of that information isn’t done in a selective manner such that some interests are improperly advantaged over their competitors. Sticking to official channels of communication tends to avoid that result. But, this is Washington, where information is gold, so things are going to happen. It just seems unwise to me to extend a protection intended to cover official actions to this time-honored practice.