Corruption and Distrust as Leitmotifs of the Strategically Uncertain Judicial Interpretation of Legislative Immunity in the United States
Dr. Asim Jusic
Kuwait International Law School
Abstract:
This article analyzes the judicial interpretation of legislative immunity in the United States. The main argument is that judicial interpretation has transformed the Speech or Debate Clause (the Clause) from a tool of protection of popular democratic sovereignty and, to a lesser extent, separation of powers, into a tool for preservation of institutional stability under the watchful eye of the courts. An increase in legislative corruption has lain behind this development, which entrenched the judicial distrust of political – and even democratic – processes as inherently flawed. Courts seized the opportunity, and engaged in strategically uncertain interpretation of the Clause, reducing, on the one hand, legislative immunity by inventing unsustainable distinctions between past and future legislative acts and political acts, while, on the other, increasing procedural protections for legislative immunity by barring executive and judicial inquiry into legislative motivation, and extending evidentiary and disclosure privileges from civil suits into criminal process. This judicial balancing placed courts in a position to simultaneously frustrate and satisfy executive and legislative ambitions and vices. In doing so, to some extent American courts mimicked processes through which English courts passed when assuming the mantle of arbitrators of the contours of parliamentary privileges, and have, in turn, influenced English courts’ decisions on legislative corruption.
The article then questions the wisdom of the judicial limitation of legislative immunity as a tool for the prevention of political corruption. The strongest argument in its favor is that it prevents legislators from being ‘the judge in their own case’ by addressing the social perception that legislative immunity is merely a mantle for corruption. However, given the inherent institutional, procedural, and communicative weaknesses of the judiciary and the judicial process, using judicial limitation of legislative immunity to cure political corruption is advisable only when background conditions allow, which effectively means that it is inadvisable for most societies.
Keywords:
Legislative immunity, parliamentary privilege, Speech or Debate Clause, judicial interpretation of constitution