Only some WA state lawmakers say they will commit to transparency. Is your lawmaker one of them?

Less than half of Washington state lawmakers said they will commit to transparency in a new survey of all 147 legislators conducted by McClatchy and the Seattle Times.

Of the total lawmakers in the statehouse, about 40% told the news outlets they would not invoke “legislative privilege,” a newly adopted concept used by state legislators to withhold documents from the public under a broad interpretation of the constitution, and a practice they were sued twice for last year after it was revealed by McClatchy that they were secretly invoking the practice.

Lawmakers won the first round of litigation in both lawsuits, but both cases are being appealed and will likely end up before the state Supreme Court to determine if the privilege exists.

And while Washington voters may not agree on an exhaustive list of issues, 82% of respondents in a recent Crosscut/Elway poll including Democratic, Republican and Independent voters, disapproved of lawmakers’ use of the privilege despite the two Superior Court Judges’ rulings last year, leading some to wonder why elected officials continue to pursue such an unpopular policy.

Survey results

In a joint effort by McClatchy and the Times, lawmakers were emailed a brief survey asking if they had used legislative privilege in the past, and why. The survey also asked if lawmakers intended on using the exemption moving forward.

Few lawmakers said outright that they would not use the privilege.

Rep. J.T. Wilcox, R-Yelm, told the Times that he hasn’t felt the need to assert the privilege, and that he doesn’t like the policy. He thinks the privilege is useful for a majority party that “doesn’t want people to know everything.”

“Well, we’ve got so many people that don’t trust the government now, and sometimes we give ‘em reasons,” Wilcox said. “And it just seems like clinging to privilege is one more time when we’re giving people reasons to distrust.”

Others shared the same sentiment.

“No, I do not intend to invoke legislative privilege because I think that transparency is important in the work we do and helps store faith in government,” wrote Rep. Tina Orwall, D-Des Moines.

“The only privilege I enjoy in the Legislature is the privilege of serving the people of the 35th District and the state of Washington,” wrote Rep. Travis Couture, R-Allyn. “I am a firm believer in open government and will always be 100% transparent with the people of Washington state.”

Some lawmakers would not outright commit to not using the exemption, claiming that the privilege exists in the state constitution.

The basis for their argument, lawmakers and their attorneys say, exists in the state constitution’s Speech and Debate Clause, which says that members of the legislature are not liable for any civil action or criminal prosecution for “words spoken in debate.” The clause does not speak specifically to public records, such as emails and texts, held by legislators, however.

The U.S. Constitution has a similar Speech or Debate Clause, and federal courts have interpreted the provision to apply to “actions by any Member of Congress.”

Sen. Jeff Wilson, R-Longview, said he hasn’t invoked the privilege, but couldn’t make a full commitment not to use it in the future because “only the foolish say ‘never’” and noted that judges at a lower level have deemed it constitutional.

Several lawmakers based their justification of the privilege from a 20-year-old paper titled The Neglected Value of the Legislative Privilege in State Legislatures, which argues that legislative privilege exists in several states, but that state judicial interpretations of the exemption “have departed from federal interpretations of the privilege, failing to apply it broadly to protect the legislative process and instead unduly favoring ideals of open government.”

The author of the paper, Professor Steven F. Huefner, a legislation clinic director at the Moritz College of Law, presented his interpretation of the exemption’s legal framework to the state’s public records task force in 2018, just months after lawmakers tried to fast track an exemption for themselves from the state Public Records Act during the legislative session.

Using a passage from Huefner’s paper, Rep. Suzanne Schmidt, R-Spokane Valley, claimed the privilege is not an exemption from public disclosure laws but instead it is “a tool to ‘provide legislators a fundamental constitutional protection that allows them to work independently and unimpeded by threats of judicial or executive intervention.’”

Some lawmakers who previously had records withheld under the privilege acknowledged they had used it before, but fell short of committing to not using it again.

Sen. Patty Kuderer, D-Bellevue, wrote that while she had used it before, she subsequently waived it.

“When legislative privilege is used, I believe it should be used very sparingly and that the goal should always be to land on the side of transparent and open government,” Kuderer added.

Some lawmakers even seemed confused by the purpose of the privilege.

Rep. David Hackney, D-Seattle, admitted to not understanding the privilege, and said that he once invoked it “out of caution” despite the misunderstanding of the exemption. He said he will continue to use the privilege “if there is sensitive information that falls within the privilege.”

“I do not believe in a blanket privilege, but I would like to protect others from embarrassment,” Hackney wrote.

More than 30 lawmakers did not respond at all to the survey, despite a deadline extension by McClatchy and the Times, and reminder emails to lawmakers and their staff. Others responded but declined to comment.

Why do lawmakers need another exemption?

Speaker of the House Laurie Jinkins, D-Tacoma, told McClatchy and the Times that elected officials in the Legislature should have the ability to invoke the exemption because it “exists in the constitution.”

Jinkins would not respond to a question asking what types of documents she has kept redacted out of view of public scrutiny, but said she believed that invoking the privilege benefits constituents because it allows lawmakers to have a “full deliberative process” before deciding which options should be pursued with regards to legislation.

Records obtained by McClatchy and the Times showed that the Speaker has used the privilege to withhold documents related to the disastrous 2021 Redistricting Commission, as well as a drug possession law that did not pass in the House before the legislative session adjourned last year.

When asked why the public isn’t entitled to know the options lawmakers are weighing behind the scenes, Jinkins claimed that those different options “would all come up during the course of a hearing on a piece of legislation,” still allowing lawmakers to talk about “why they chose the one they chose.” If the Supreme Court rules in favor of the privilege, lawmakers could then decide “what kind of a view they want to provide” into their thinking, she said.

As reporters and engaged citizens know, issues brought up during hearings don’t always paint the full picture of what’s going on with legislation behind the scenes. But Jinkins pushed back on that idea, saying she wasn’t aware of any members who aren’t forthcoming with information on a bill when asked.

Jinkins was then asked how she thinks legislative privilege is compatible with the state’s Public Records Act, which specifically states that public servants do not have the right to decide what information is good for the public to know. She then questioned reporters instead.

“How do you get a court case if the privilege is never used?” Jinkins asked. “Honestly, I’m asking you a question. I’m not looking to be quoted by that. I’m looking to ask you a question back: how do you think we would get court guidance?”

The Speaker admitted to being frustrated at reporters for suggesting that lawmakers have been using the privilege without guardrails, adding that if the reporters knew how lawmakers are supposed to get court guidance “without exercising a privilege,” she was “happy to hear it.”

While lawmakers wait on a higher court’s decision, Jinkins says will continue to use the exemption for public records from her office, and said she believes she may have used it more than other lawmakers because she wants the courts to be able to look at different circumstances to provide legislators with “really good guidance on the use and limits.”

“I think that in every circumstance that I’ve used it, I’ve been aware that it could be litigated,” Jinkins said.

What did other caucus leaders say?

All three other caucus leaders have clung to the idea of a constitutional framework for the exemption as well, and were non-committal in their responses when asked if they would use the privilege moving forward.

When pressed on the issue during a news conference in January, Senate Minority Leader John Braun, R-Centralia, said he believes some records are privileged to a limited amount under the constitution. Still, it’s something he thinks should be used “sparingly or not at all,” he said.

Senate Majority Leader Andy Billig, D-Spokane, wrote in his response to the survey that the only pledge he will take is the oath of office, so he would not pledge to not use the exemption in the future.

While he believes legislative privilege exists and could be used in certain limited circumstances, Billig said he tries to “err on the side of disclosure” and that he “cannot currently imagine a situation that would require the use of it.”

The newest member of the four caucuses, House Minority Leader Rep. Drew Stokesbary, R-Auburn, said he has no intent to use the exemption, and that he hasn’t encountered any issues during his five terms in the House where he would need to invoke it.

But Stokesbary also quoted the constitutionality of the privilege outlined in Huefner’s 2003 article, and noted the Washington judges’ rulings in favor of lawmakers. He previously declined to assert privilege in one instance, he added.

“I am reluctant to preemptively abandon a tool that could one day prove necessary to protect the legislative branch from an inquisitorial executive or hostile judiciary,’” Stokesbary said.

What does this mean for voters and the public?

There currently are no parameters for how the privilege can be applied to lawmakers’ documents, allowing them to withhold documents that would not otherwise be exempt under the state’s Public Records Act, a law that was adopted by an initiative of the people in 1972.

Lawmakers have already used the privilege to withhold a multitude of items including documents related to a failed legislative staff unionization bill, 136 pages of a draft amendment on a bill that updated the Uniform Unclaimed Property Act and documents regarding a Chinese American History Month bill.

Robert McClure, a board member for the Washington Coalition for Open Government and co-founder of InvestigateWest, called lawmakers’ latest move to hide public records “discouraging.”

“That’s a legislature that certainly seems hostile to the Public Records Act,” he said.

WashCOG recently released a report that noted the urgency of the erosion of the people’s right to know, and added that “every legislative session involves a battle by the public to stop further erosion to open government laws.”

The report had its own recommendations for elected officials including a “pledge to support open government in addition to pledging to defend and strengthen the PRA.”

Michele Earl-Hubbard, an attorney who represented media outlets in a 2017 lawsuit against state lawmakers, said she hopes the state Supreme Court justices will understand the harm of allowing a legislative privilege for lawmakers.

Ultimately, voters might need to elect people who understand that their job is to be transparent to constituents, she said.

And voters are paying attention.

In emails obtained by McClatchy from a records request, many constituents urged their lawmakers to maintain transparency by not invoking the privilege.

“If we want information, we are entitled to the information,” read one email to several lawmakers. “This isn’t about your self-declared legalities and justifications— it’s about the righteous power that we inherently hold, regardless of your opinion. It’s about an ethical line that should not be crossed.”

Earl-Hubbard said that the materials lawmakers are hiding using legislative privilege isn’t earth shattering, sometimes it is just embarrassing things they don’t want the public to see, and “they’re looking for a veil of secrecy.”

“It’s never that the sky will fall. It’s never that our national security will be at risk,” Earl-Hubbard continued. “It’s that ‘I’m embarrassed and I want to keep you out of the process.’”

She pushed back on the notion of privilege because everything would go “underground” if the exemption is allowed, she said.

“And when things go underground, bad things are enacted, bad things are said and bad decisions are made,” Earl-Hubbard added. “At least if they know we might look over their shoulder someday…maybe they will pass better laws and behave better.”

This joint report was produced in collaboration with The Seattle Times.