Good Question: Why is there a legislative privilege?

Written by Alan Gionet

DENVER (CBS4) – Ask around and you won’t find a lot of support for the idea of legislative privilege.

“It’s a double standard,” said one Denverite.

“We should all have fair and equal treatment under the law… no matter who we are, no matter how much money we make, no matter what position we serve,” said a one woman.

Legislative privilege came up with the Jan. 25 traffic stop of Rep. Laura Bradford.

Police pulled her over for an illegal turn. Police say she told an officer she’d been drinking. She was given a roadside sobriety test. Bradford said she was on her way home after a legislative dinner and was headed back to the capitol the next day.

Soon after things ground to a halt. A supervisor said she was entitled to legislative privilege.

There was no further breathalyzer or blood alcohol test because she would have had to have been arrested first. She was sent home in a cab with a ticket for the improper turn.

RELATED: Police: State Rep. Changed Story During DUI Stop

For her part Bradford maintains she wasn’t drunk and told me the lack of a test for alcohol deprived her of the opportunity to prove that.

“It’s a different class of person,” said a woman outside the Capitol.

“When they are in their private life, they’re like you and I,” explained Colorado State University Prof. John Straayer, a political science expert. “When they are in their official public life, they aren’t.”

Legislative privilege comes right out of Section 16 of the Colorado Constitution.

“The members of the General Assembly shall, in all cases except treason or felony, be privileged from arrest during their attendance at the sessions of their respective houses, or any committees thereof, and in going to and returning from the same…”

In fact, it’s in the constitutions of 44 states and in the U.S. Constitution. So what gives?

“It goes back to the conflicts between the crown, between the kings and the emerging parliaments,” said Straayer.

Kings like Charles I in the early 1600s, who decided that since he didn’t like what Parliament was doing, he’d just lock a few of them up.

“He’d just pick them up, with no due process, and put them in the tower, maybe they’d come out someday, maybe they wouldn’t come out some day,” said Straayer. That will leave a mark in the minds of the constitutional authors.

There’s another aspect of the provision that protects lawmakers while they are in debate. It means they can’t be arrested for slander in the heat of debate in chambers. But once they leave the legislature and head home, they’re on the hook for what they say like the rest of us.

The reality is the constitutional protections were written in long ago.

“It may be a little far-fetched to say you’re going to have a local sheriff or an agent of a governor some place who wants to prevent a vote or shut somebody up or get even with somebody over something so you go out and grab them,” said Straayer.

But don’t go changing, said the Republican head of the House Judiciary Committee.

“Legislative privilege has a very important 400-year-old history in a democratic government and the separation of powers,” said Rep. Bob Gardner. “One can’t predict the future in Colorado or in the United States and what the political climate will be and for the reason those constitutional protections are important.”

Gardner believes lawmakers need to watch each other’s behavior to see if the privilege is being stretched.

“The purpose of the privilege is not to give legislators a free pass on speeding tickets. The purpose of the privilege is to ensure that the executive branch can’t interfere with legislators doing their legislative duties.”

That came into question in Arizona in 2010 after the majority leader of the Arizona Senate got into a donnybrook with his girlfriend. Rep. Scott Bundgaard told police he was a state senator and had legislative privilege. They uncuffed him, released him and took his girlfriend into custody. She went to jail. Bundgaard just resigned his Senate seat in January.

A few Colorado lawmakers over the years have talked about some changes.

Democratic Rep. Clair Levy told CBS4 “I think it’s worth having a conversation about whether that has outlived its purpose … Maybe we need to get rid of them either that or narrow them down because there’s always the risk that somebody’s going to misuse it.”

Bradford still points out she was not the one to invoke the privilege. True –and police concur on that. But she did start get the conversation about it going.

Additional Resources

I located guidelines in the Denver police manual for dealing with matters that may involve legislative privilege. Here’s what it says:

205.07 Violations by Colorado Legislators
(1) Pursuant to Article 5, Section 16 of the Colorado Constitution, no member of the Colorado General Assembly may be arrested while in route to or from legislative sessions, except for treason or felony violations.
(2) Traffic citations may be issued, however the legislator shall not be detained for an undue amount of time.
(3) Should an officer have reason to believe a legislator is driving under the influence AND there is an accident with serious injuries or a fatality involved, the legislator will be arrested and processed for the suspected felony; DUI violation.
(4) In the absence of felony violations, should an officer have reason to believe a legislator is driving under the influence, the officer may cite for a violation which caused an accident or was the reason for a traffic stop. For the safety and welfare of the public and the legislator, the officer will arrange for other transportation for the legislator and his/her vehicle will be parked and locked.