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Fresh off a disaster in which one of his Assistant Attorneys General, Seth Hollander, was referred by a judge to Connecticut’s Statewide Grievance Committee for having knowingly misled a court, Attorney General William Tong, all by his lonesome, is trying in a separate court filing to extend congressional immunity to Connecticut’s Freedom of Information Commission.
Mark Pazniokis of CTMirror puts it this way: “The
office of Attorney General William Tong is asking a Connecticut court to rule
for the first time in the 50-year history of the state Freedom of Information
Act that all records relating to the “legitimate legislative activities” of the
General Assembly are exempt from public disclosure.
“At issue is the meaning of the 55-word “speech or
debate clause’ of the Connecticut Constitution. Like a similar provision in the
U.S. Constitution, the clause creates a legislative privilege intended to
protect legislators from arrest or other interference by the executive or judicial
branches.”
The constitutional provision reads: “The senators
and representatives shall, in all cases of civil process, be privileged from
arrest, during any session of the general assembly, and for four days before
the commencement and after the termination of any session thereof. And for any
speech or debate in either house, they shall not be questioned in any other
place.”
“U.S. Supreme Court,” the Courant adds, “has defined the core protection of the
federal speech or debate clause as providing lawmakers immunity for statements
made in legislative debate (emphasis mine), plus “protection against civil as
well as criminal actions, and against actions brought by private individuals”
and “the Executive Branch.”
The constitutional provision, state and federal,
provides 1) an immunity from prosecution to legislators engaging in proper
legislative activity, and 2) the provision facilitates constitutional
legislative activity and prevents undue interference with such activity by a
co-equal and separate branch of government, namely, the judiciary or executive
branches.
Here is the problem with Tong’s apparent
misinterpretation of the FOI law: The Freedom of Information Commission has no
prosecutorial authority, and it takes a fanciful stretch of the imagination to
suppose that the dissemination to the public of public proceedings can be in
conflict with the so called “separation of powers” doctrine. There is a
sundering difference between the prevention of legitimate congressional
activity and the dissemination to the public of public data, the province of
the Freedom of Information Commission.
Rigorously applied, Tong’s misunderstanding of the
scope and purpose of the Freedom of Information Commission’s legislative
mandate would tuck under a bed of non-disclosure all legitimate legislative
proceedings and by doing so emasculate the very purpose of a Freedom of
Information Commission. Only a few legislators would mind draping themselves in
a cloak of invisibility, even though doing so would require the destruction of
the legislative mandate that is the backbone of the Freedom of Information
Commission.
Some may find it odd that an immunity sheltering
police from frivolous but costly lawsuits has disappeared, supplanted by a
provision that allows complainants to attach the assets of individual
policemen, while a broader immunity is now being draped around the shoulders of
legislators to protect them from public scrutiny by an agency that cannot sue
or prosecute members of the greatest deliberative body on earth. Have members
of the “No King’s” movement fallen asleep? Why have we suddenly become bored
with claims of undemocratic, authoritarian behavior?
“House Speaker Matt Ritter, D-Hartford, House
Minority Leader Vincent J. Candelora, R-North Branford, and Senate Minority
Leader Stephen Harding, R-Brookfield,” we are told, “all said they never had
used legislative privilege to withhold documents. None said they were consulted
by Tong’s office.” And, “There is a legislative management committee co-chaired
by Martin Looney and Matt Ritter, the two top leaders of the Assembly. Ritter
was uncertain if it should have been consulted by Tong’s office.”
Asked by a reporter for his response to Tong’s
well-guarded appeal of a decision made that struck down Tong’s previous
objections to an FOI decision, Ritter placidly replied, “Maybe the court case
is helpful to spell out when it [unchecked immunity on behalf of legislators]
should be applied. Maybe it will help provide better clarification of when it
can be used.”
But there is no reason why decisions on important
legislative matters should be decided by a court rather than a legislature. One
of the oldest of legislative rules is that a law cannot be infinitely extended
in one direction without colliding eventually with another law. If Ritter wants
to provide a General Assembly dominated by Democrats with an immunity that
would crush the independence of the Freedom of Information Council like an
insect beneath the hobnailed boot of the Attorney General’s office, he may do so
by legislative means. Why wait on a court decision?
Senate President Pro Tem Martin M. Looney’s response
to Tong’s appeal was, to put it mildly, tortuous. According to the Courant
report, Looney acknowledged that “lawyers for his Senate Democratic majority
caucus had been consulted, though they were deferring to Tong’s office on the
question of whether to appeal. The legislature, he said, has a legitimate
interest in preserving a measure of privacy.
“’We have to have people be able to communicate with
each other candidly,’ Looney said without citing a single instance in the past
when a decision made by the FOI Commission deprived Looney of his ability to
confer privately with his Democrat comrades in Democrat Party caucus rooms
closed to reporters and the public.
And where oh where has U.S. Senator Dick Blumenthal
been? For 20 years, Blumenthal was the voice of moral suavity and probity as
Connecticut’s Attorney General. What cat has got the tongue of the man about
whom it has been said “There is no more dangerous spot in Connecticut than that
between Blumenthal and a TV camera?”
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