Several state attorneys general have been asked, or plan, to investigate the deal struck by Senator Ben Nelson to permanently exempt Nebraska from paying Medicaid expenses in exchange for his voting for Obamacare.
An investigation of the Nelson deal would likely have two focuses. First, is the Nebraska exemption unconstitutional under Article I, Section 8, Clause 1 of the Constitution, which requires “all Duties, Imposts and Excises shall be uniform throughout the United States?” Secondly, did the deal constitute a form of corruption?
Whether the Nebraska exemption constitutes unlawful corruption obviously depends on the facts surrounding how Senator Nelson cut his deal. However, even a pure constitutional challenge would benefit from a clear understanding and presentation of the facts underlying how and why the Nebraska exemption was reached.
If an investigation about unlawful corruption were to proceed, it would of course be critical to question Senator Nelson himself. Senator Nelson – and Harry Reid – would assuredly invoke the Speech and Debate Clause (Article I, Section 6, Clause 1 of the Constitution) to block such an investigation.
The Speech and Debate Clause provides that members of Congress:
shall in all Cases, except Treason, Felony and Breach of Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same, and for any Speech or Debate in either House, they shall not be questioned in any other Place.
(Emphasis added.)
The Speech and Debate Clause was written so an overly aggressive executive would not suppress and intimidate critical legislators. The Founders, however, did not envision a Congress as gluttonous and corrupt as the one we have today.
The Speech and Debate Clause has been construed by the courts more broadly than its text to include legislative acts and congressional staff within its protections. Given how too many members of Congress have demonstrated contempt for the first principles embodied in our Constitution, and how they’ve exhibited disdain towards limits on power, perhaps the Speech and Debate Clause needs to be reformed by way of amendment.
The most recent high-profile example of use of the Speech and Debate Clause involved now-imprisoned former Democratic Congressman, William Jefferson, along with former Republican House Speaker, J. Dennis Hastert, who invoked the Clause after Jefferson’s congressional office was raided by the FBI using a judge-authorized search warrant. A United States District Court declared the FBI raid unconstitutional. Congressman Jefferson, however, was unsuccessful in later using the Speech and Debate Clause to challenge his conviction of bribery.
Unfortunately, the Speech and Debate Clause has come to be abused all too frequently. Many members of Congress engage in otherwise actionable defamation to bully and impugn witnesses at congressional hearings, or even members of the public. Emboldened by constitutional immunity, and obviously not respecting their offices as representatives of the people, members of Congress frequently degrade hearings into circuses of false charges more suitable for banana republics than the United States.
The more serious degradation of the Speech and Debate Clause, however, may be that it is used to protect corruption under the guise of official activity in Congress. Even if the promise of ‘transparency’ weren’t an utter joke, there are billions of taxpayer dollars being used for payola. Just look at ACORN as one example, where public money is traded for political endorsements.
The states and the people, from whom Congress derives its enumerated powers by their consent, should be able to question their representatives under oath under certain well-defined circumstances, such as when taxpayer money may have been spent unconstitutionally, or as quid pro quo. The Ben Nelson deal appears to be both, and Americans deserve answers under oath, not in response to fluff from a press favoring Obamacare.
I’ve been critical of some state attorneys general, such as former New Yorker AG Eliot Spitzer, for abusing their investigatory powers over private entities and people. However, if state attorneys general may not investigate federal elected officials when corruption may be present, and question them under standards of reasonable cause when there appears to be corruption, then who’s to stop it?
It seems it’s time for a limited amendment to the Speech and Debate Clause, one that fosters the original intent of the Founders in spirited debate among our representatives, yet does not allow – or even encourage – corruption and abuse of the offices representing the people.
A constitutional amendment is no small matter or accomplishment, but the Founders never intended any provision in the Constitution to protect government corruption on the scale we see today. The Speech and Debate Clause should no longer give corrupt elected officials cover, especially because the Constitution was created by men far more honorable and respectful than they.
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