Iowa Lawsuit Tests Boundaries of Legislative Privilege

UPDATE: On February 23, 2023, the Iowa Supreme Court unanimously ruled that legislative privilege “protects legislators from compelled document production and that the privilege extends to communications with third parties where the communications relate directly to the legislative process of considering and enacting legislation.” The court did not decide whether the legislative privilege is absolute or qualified. 

On September 14, the Iowa Supreme Court will hear oral arguments in a case that considers the scope of legislative privilege under state law. The court will decide whether 11 current and former Republican state legislators must turn over their private communications with members of the public regarding two Iowa election laws. The laws are being challenged by the League of United Latin American Citizens of Iowa (LULAC), which successfully got a trial court to order the legislators to comply with subpoenas in the case. 

At issue in Smith v. Iowa District Court for Polk County is whether Iowa legislators enjoy an absolute or qualified privilege against disclosing their communications, and if the privilege is qualified, whether the ordered disclosure was reasonable. In many states, and as applies to Congress, the scope of legislative privilege is often the subject of conflicting or unclear precedents. Smith presents a novel question for Iowa’s high court with potentially broad significance for civil rights litigation in the state. 

Underlying the subpoena dispute is LULAC’s challenge under the Iowa Constitution to two state election statutes enacted in 2021. In its brief, LULAC claims the laws “impose an unconstitutional burden on the fundamental right to vote” and discriminate on the basis of viewpoint by targeting voters who are more likely to vote for Democrats. During discovery, LULAC sought communications between the Iowa legislators and lobbyists, advocates, and other members of the public about the challenged laws to support their claim that the law was passed with invidious purpose. 

After the legislators refused to comply, the trial court largely sided with LULAC. In February 2022, it ordered the legislators to produce most of the requested communications, subject to a protective order to keep the documents confidential. The lawsuit is currently paused as the legislators take their appeal against the subpoena order to the state’s highest court. 

 The case provides an opportunity for the Iowa Supreme Court to determine whether state legislators enjoy an “absolute” legislative privilege against discovery in state civil court proceedings, such that they can refuse to respond to subpoenas. The legislators ground their argument in separation of powers principles, relying heavily on a 1996 case involving an open records request for legislative phone records. There, the Iowa Supreme Court ruled that the judiciary lacked “the power to interfere with or contradict” the state senate’s determination that the records were confidential. 

 For its part, LULAC emphasizes the absence of any explicit mention of absolute legislative privilege in Iowa’s written law or court precedent. Notably, unlike the federal Constitution and 43 state constitutions, Iowa’s constitution lacks a Speech or Debate Clause, which is what many other jurisdictions have applied as a basis for establishing legislative privilege. Common law principles, LULAC argues, support at most only a qualified privilege that must yield under appropriate circumstances. As for the public records case relied upon by the legislators, LULAC argues it can be distinguished because in the case of legislative privilege, separation of powers considerations go in both directions, as the refusal by legislators to respond to lawful subpoenas implicates judicial powers. 

 Beyond the larger disagreement over absolute legislative privilege, the parties are also debating whether this case warrants an exception to even a qualified privilege. LULAC argues in its brief that communications between legislators and third parties aren’t covered by legislative privilege to begin with, and even if they were, that privilege “must yield given the needs of the case and important constitutional rights at stake.”

 A key question is the relevance of individual legislators’ intent to LULAC’s claims and whether, as the legislators argue (and as echoed by an amicus brief filed by several GOP committees), individual legislators’ intent can never be used to assess the constitutionality of a statute. LULAC argues — and the trial court agreed — that because it claims that the laws were passed with a discriminatory purpose, the legislative decision-making process is at issue and individual legislators’ intent is relevant. 

 The Iowa Supreme Court’s ruling will undoubtedly shape the landscape of legislative transparency and separation of powers in Iowa. More broadly, how it rules on the question of legislators’ intent could have broader implications for the avenues available to civil rights advocates challenging seemingly discriminatory laws. 

Gabriella Sanchez is a staff writer and editor at the Brennan Center for Justice.