I’m back after a tiring but somewhat exciting legislative session in Texas and the resulting aftermath. It is my hope to begin posting at least two times a week, if not more. I will be counting on Kevin and Zac to hold me to this schedule even tho both of them should be studying and not reading blawgs.

I will have a longer post about the Texas Senate’s adoption of its rules for the 81st Legislature and the controversial decision to exempt “voter identification” legislation from the 2/3rds rule. In watching the proceedings this afternoon and evening, I was struck by the almost-absolute inability of Senators and the Presiding Officer to observe regular legislative procedure. The experience was similar to watching a high school middle school student council meeting. Having closely observed the Senate since the late 1980s, but not so much of late, I was very surprised.

Light blogging thru the holidays. Enjoy yourselves!

Not strictly legislative law today, but it’s close.

The Associated Press is quoting defense counsel for embattled Illinois Gov. Rod Blagojevich as saying that the governor will not appoint anyone to the U.S. Senate seat left vacant by President-elect Barack Obama. The governor’s spokesman neither confirmed nor denied that was the governor’s present intention. And the idea of taking the appointment from the governor and instead punting to a special election seems dead, since the Illinois Senate cancelled a vote on the idea and then adjourned.

The status for now is that the governor will not make an appointment, he has not yet been impeached, and there is no clear path to passing legislation for a special election. So how does Illinois get a new U.S. Senator by January?

Blago does the little side-step, temporarily.

The Illinois Constitution contains a mechanism to permit Blagojevich to temporarily step aside, permit the Lieutenant Governor to make the appointment, and then resume his office. “Whenever the Governor determines that he may be seriously impeded in the exercise of his powers, he shall so notify the Secretary of State and the officer next in line of succession. The latter shall thereafter become Acting Governor with the duties and powers of Governor. When the Governor is prepared to resume office, he shall do so by notifying the Secretary of State and the Acting Governor.” Ill. Const. art. V, § 6(c).

This procedure has apparently never been used. See Calvin Bellamy, Presidential Disability: The Twenty-Fifth Amendment Still an Untried Tool, 9 B.U. Pub. Int. L.J. 373, 387, 396-397 (2000). But that doesn’t mean it couldn’t be tried, especially under these circumstances where his pre-appointment actions are alleged to be criminal. Obama has already resigned, and Illinois currently only has one vote in the U.S. Senate. Use of this constitutional “side-step” provision would permit the vacancy to be filled now, while removing the appearance of any impropriety in the appointment process. And since Illinois Lieut. Gov. Pat Quinn and Blagojevich don’t exactly see eye-to-eye now (if they ever did), it seems that Quinn’s appointment would not be seen as delivering on any promises allegedly extracted by Blagojevich from prospective candidates.

There is a third way to resolve this crisis, if the principal figure decides he wants to. Time will tell.

**Update below.**
The financial management of the Pedernales Electric Cooperative has been the focus of countless newspaper articles, legislative hearings and at least one lawsuit. The Austin American-Stateman reported today on the release of a 390-page report by an outside consultant that “offered a sweeping indictment . . . of the utility’s old regime and a critical portrayal of former General Manager Bennie Fuelberg while raising new questions about past actions by former executives and insiders.”

Senate Business & Commerce Chairman Troy Fraser, the cooperative’s chief legislative critic, told the paper that “[n]ow it’s time to put people under oath.”

Now, the paper didn’t say, and the Horseshoe Bay Republican didn’t elaborate on, who would be administering the oath or in what forum. Let’s assume, however, that the Senator meant that he would be calling those “former executives and insiders” to testify under oath before his committee. And although the paper didn’t say so, it earlier reported on the pending criminal investigation. So, let’s assume for a moment that a parade of coop executives and insiders are called before the committee next year.

Friendly advice to those called: You might want to show up, assert that what you are about to say will incriminate you, and tell all.

Why? Because Texas law provides that you cannot be “indicted or prosecuted for any transaction, matter, or thing about which the person truthfully testified or produced evidence.” Tex. Govt. Code § 301.025(c). The privilege is absolute; it applies regardless of whether the witness testified under subpena or voluntarily. Op. Tex. Atty. Gen. No. M-206 at 2 (1968). A witness must answer truthfully and responsively for the immunity to apply. Id.

This privilege is provided because “[a] witness called . . . by a legislative committee does not have a privilege to refuse to testify to a fact” by asserting the witness’s Constitutional rights against self-incrimination. See Tex. Govt. Code  § 301.025(a). The only way the Legislature can take away those rights is by providing the absolute immunity from criminal proceedings. Ferrantello v. State, 256 S.W.2d 587, 594  (Tex. Crim. App. 1952).

The statute makes sense because it permits adequate inquiry by the legislature by removing the self-incrimination obstacle. Consider allegations of prosecutorial misconduct, such as failing to refrain from prosecuting or threatening to prosecute a charge that a prosecutor knew was not supported by probable cause or other conduct involving dishonesty, fraud, deceit, or misrepresentation or otherwise constituting obstruction of justice. A witness must be able to testify fully and freely about the prosecutor’s actions without worrying that the prosecutor would attempt to imidate him with prosecution on trumped-up charges.

Perhaps this seems like letting a wrong-doer off easy, and that will surely be the result at least once, and might be the result here. However, the Legislature can often act much faster than the courts or even the Executive branch. As the branch closest to the people and directly responsible to them like none other (even considering our elective plural executive or our elective judiciary), the Legislature is in an unique position to remedy the situation at the coop. Since legislative changes to the coop’s governance and operations are  needed, the Legislature needs a full record of the misdeeds and wrongdoing in order to craft its enactments accordingly. The absolute immunity thus aids the Legislature in providing quick, effective relief to citizens. For that, the tradeoff is worth it.

UPDATE: A reader asks some good questions I will briefly answer. The first question is “Do you have to be called to testify to be covered by the privilege?” The answer is no, you do not have to be called by the committee; your presence may be voluntary and the privilege applies. The second question is “What if you just sign up as a witness,and start blabbing the truth after saying what you’re about to say possibly will incriminate you, do you get immunity?” Probably not, since the incriminating testimony needs to be in response to a question by a committee member that is relevant to the proceedings. For example, I don’t think immunity applies to a person confessing to a murder when appearing before House Ways & Means to discuss the franchise tax. The third question is “Has a legislator ever called a witness explicitly so that the witness can get immunity (in an effort to help that person avoid prosecution)?” While this is almost like trying to prove a negative, I do not have any notes where someone has made this allegation.

The Boston Globe notes GOP vice presidental nominee Sarah Palin’s response to a second grader’s question about the duties of job she seeks: “But also, they’re in charge of the United States Senate, so if they want to, they can really get in there with the senators and make a lot of good policy changes that will make life better for Brandon and his family and his classroom. And it’s a great job and I look forward to having that job.”

While technically the vice president could function as the Senate’s equivalent of the Speaker of the House and exert major influence over legislation and policymaking, senators would have to grant her that power. And historically, senators have refused to do it.

For example, the Vice President generally has no independent right to address the Senate from the chair absent unanimous consent or other indulgence of the Senate. Riddick, Senate Procedure at 1390, 1391-1392. It is true that the Vice President has made “long statements from the chair” in the past. Id. at 1391. An examination of those precedents show that the statements were made by Vice President Alben Barkley, who was held in high esteem by his colleagues since his days as Senate leader under Roosevelt. The seminal episode demonstrating this came during World War II when he famously resigned his post as leader because he could not support FDR’s veto of a tax bill. After he voted with his colleagues to override the veto, they re-elected him as leader. There may be other times when the Vice President spoke at length of the chair, but I cannot readily locate them in the Senate’s published precedents.

Unlike Tom Craddick, Palin could not attempt to control debate by refusing recognition because the Senate Rules require the Vice President to recognize the first Senator who asks the chair for recognition. U.S. Sen. R. XIX  § 1(a) (providing that “[w]hen a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him“) (emphasis added.)

Further, Palin cannot exert control over policymaking because she has no role in appointing the Senate committees that have the greatest control over shaping policy thru legislation — the Senate itself appoints committees and committee chairs by a resolution embodying the selections of the majority and minority party caucuses. See id. at R. XXIV § 1.

Finally, I would note that Lyndon Johnson, who went from powerful majority leader to figurehead vice president, asked his former colleagues to allow him to be the “permanent presiding officer” of the Senate Democratic Caucus in 1961 in an attempt to keep operating as a “super-leader.” The request was approved by less than unanimous consent after bitter debate showing that the senators didn’t like the idea and Johnson gave up trying to lead the Senate as vice president.

If Lyndon couldn’t do it, I doubt Sarah can.

Seems there might be some drafting problems with Senate Banking Chairman Christopher Dodd’s bailout bill, according to Jim Lundgren at Volokh Conspiracy.

The Legal Profession Blog is reporting two recent developments involving bar discipline of lawyers who held public positions. In the first case, a former state senator with “a felony conviction for misconduct in office and being party to campaign contributions in excess of the legal limits” was reinstated as a member of the Wisconsin Bar after serving a two year suspension. In the second case, the Illinois Attorney Registration and Discipline Commission is seeking to discipline a lawyer who served as a non-lawyer municipal official in Chicago. In her municipal offices, the lawyer was responsible for hiring and promoting employees. She allegedly met with the city’s government relations office to receive lists of persons politically connected to City Hall and then bent the city’s civil service system to ensure those with political juice were hired. This politically sensitive hiring ran afoul of a Federal court consent decree barring patronage employment.

Added to my stack of reading: Unenumerated Duties, a new article by Professor Robin L. West (Georgetown University Law Center discussing the nature of a legislator’s duty to legislate for the public good, whether that duty matters, and how to deal with breaches of that duty. Recommended by Legal Theory Blog.

Professor Christopher Lund of Mississippi College of Law has posted a draft article discussing the history of  Congressional chaplains. As Professor Lund notes, this is important because the Supreme Court used the history of prayers in Congress to justify the use of prayer by state legislatures. Another printout for the ever-growing read pile.