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Scott Mooneyham: Peering behind legislative curtain legally difficult

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RALEIGH — Throughout the debate of a sweeping voter ID and elections law bill, Republican supporters said it was an attempt to restore public confidence in the election process.

Democrats, at the state and national level, called it a thinly-veiled attempt to suppress Democratic votes.

Not surprisingly, a lawsuit was filed challenging the law. Knowing what the bill sponsors and key supporters said in public, those who brought the lawsuit now want to know what they said in private.

They have filed court motions seeking emails and other correspondence about the legislation.

They may never get them.

Thirteen legislators have sought to squash the subpoenas by claiming “legislative immunity.”

They didn’t invent that claim out of thin air. In fact, those lawmakers can fall back on state law, common law, a provision of the federal constitution and state court decisions as they fight the requests.

The idea that legislators ought to be free from legal harassment regarding legislative debate and the passage of laws goes back more than 600 years, to Merry Olde England.

A provision of the U.S. Constitution proclaims that speech or debate in Congress “shall not be questioned in any other Place.”

Meanwhile, a state law says that members of the legislature “shall have freedom of speech and debate in the General Assembly, and shall not be liable to impeachment or question, in any court or place out of the General Assembly, for words therein spoken.”

The point of the state law and the provision of the U.S. Constitution is that lawmakers ought to be free to fully debate legislation without the threat that they will face some future legal sanction based on their words.

But as any lawyer will tell you, most legal protections are not absolute.

Those laws, for example, don’t prevent a legislator from being prosecuted from selling a vote or other types of malfeasance related to their office-holding.

A couple of years ago, a staff attorney at the General Assembly, Walker Reagan, in a presentation to the National Conference of State Legislatures, discussed the concept of legislative immunity and a couple of examples of when it came into play in North Carolina.

One was the criminal case that was assembled against former House Speaker Jim Black, and three subpoenas from a federal grand jury seeking emails and other records. Black and the General Assembly complied.

Another case arose when Waste Industries sued the state over two laws that affected its plans to build a landfill in northeastern North Carolina. The company requested legislative emails involving the passage of the bills. Legislative leaders refused.

Reagan noted that the company did not ask the court to rule on the General Assembly’s refusal as it appealed a lower court ruling.

What all this means is anyone’s guess, although the folks who want this information would seem to have a tough legal row to hoe.

Then again, maybe they hope that just asking the question will cause the public to ask another: What do you legislators have to hide?

Capitol Press Association