A civil rights organization, the League of United Latin American Citizens of Iowa (LULAC), sued the Iowa Secretary of State and Attorney General, challenging the constitutionality of legislative changes to voting procedures in Iowa.[1] To support its challenges, LULAC served subpoenas on several non-party Iowa legislators, seeking discovery of the legislators’ communications with third parties related to the legislators’ consideration and enactment of the challenged legislation. When the non-party legislators objected to the subpoenas, LULAC moved to compel. The district court granted in part the motion to compel, reasoning that discovery into individual legislators’ intent was highly relevant to LULAC’s First Amendment claim that the legislation was motivated by intentional viewpoint discrimination. The legislators appealed to the Iowa Supreme Court, arguing that there is a legislative privilege under the Iowa Constitution that protects them from being compelled to produce documents in this way.[2] In a unanimous opinion, the Iowa Supreme Court agreed with the legislators and directed the district court to quash the subpoenas.[3]

The legislators and their amici argued the court should “find that an absolute legislative privilege exists premised on principles of separation of powers and Article I, Section 20 of the Iowa Constitution, which protects “[t]he people[’s] . . . right . . . [to] make known their opinions to their representatives.”[4] LULAC countered that any legislative privilege under the Iowa Constitution was qualified, and that the district court properly abrogated it here given LULAC’s claims.[5]

The court first held that the Iowa Constitution contains a legislative privilege that can protect legislators from compelled document production.[6] This was an issue of first impression for the court.[7]

Writing for the court, Justice Dana Oxley traced the origin of the federal legislative privilege to the U.S. Constitution’s Speech or Debate Clause and its underlying rationale, the doctrine of separation of powers: “To safeguard ‘legislative immunity and to further encourage the republican values it promotes,’ courts have recognized a corresponding privilege ‘against compulsory evidentiary process’ that can be applied ‘whether or not the legislators themselves have been sued.’”[8] This rationale, the court noted, goes “back to political problems in the English Parliament, predating the United States Constitution.”[9]

Legislative privilege is key to effectuating the separation of powers. But the Iowa Constitution, unlike the federal Constitution and the constitutions of forty-three other states, lacks a speech or debate clause.[10] The court reasoned that the absence of such a clause in the Iowa Constitution does not foreclose the existence of a constitutional legislative privilege. Instead, the court reasoned that—like Florida and other states without a similar clause—Iowa has a constitutional legislative privilege based on the doctrine of separation of powers, the same doctrine that provides the historical foundation for the federal privilege.[11]

The court pointed to three provisions of the Iowa Constitution to support its conclusion.[12] First, the Iowa Constitution expressly provides for separation of powers.[13] Second, article III, section 11, which gives Iowa’s legislators a “privilege[] from arrest during the session of the general assembly,” “serves a similar purpose as the [federal] Speech or Debate Clause.”[14] This Iowa clause “enables legislators to exercise their constitutional duties free from threats to their personal liberty that could unduly affect the legislative decision-making process.”[15] Finally, article I, section 20 of the Iowa Constitution “protect[s] the right of the people ‘to assemble together to counsel for the common good; to make known their opinions to their representatives and to petition for a redress of grievances.’”[16] This clause protects “the citizens’ role in the legislative process.”[17] From these three provisions, the court reasoned that “a legislative privilege inherently flows from the Iowa Constitution.”[18]

Next, the court considered the scope of Iowa’s legislative privilege, holding that “the privilege extends to communications with third parties where the communications relate directly to the legislative process of considering and enacting legislation.”[19] The district court had determined that the legislative privilege should be pierced to enable LULAC to litigate its claim.[20]

The Iowa Supreme Court reversed and held that the “subject of the communication” sought is what matters, not the identity of the parties making and receiving the communication.[21] The court determined this limiting principle is supported by many recent federal appellate court decisions, which reason that the ultimate question is not whether a legislator communicated outside the legislature, but whether the legislator communicated to third parties outside the legislative process.[22] The fact that Iowa’s legislative privilege flows, in part, from Iowa’s constitutional protection of citizens’ involvement in the legislative process further supports the conclusion that communicating with third parties alone cannot abrogate the legislative privilege.[23]

Though LULAC limited its subpoenas to legislators’ communications with third parties (excluding communications between legislators), all the requested communications related directly to the “enactment and consideration of the election legislation.”[24] The information sought thus fell within the “sphere of legislative activity regardless of whether it originated from persons outside the legislature,” and so it all was protected by legislative privilege.[25]

Finally, the court considered it unnecessary to decide whether the legislative privilege was absolute or qualified, because even a qualified privilege would have protected the legislators from LULAC’s subpoenas.[26] This part of the inquiry turned on the nature of the underlying constitutional claims to be supported by the subpoenas. LULAC argued the requested discovery was necessary to assess the motive or purpose of individual legislators.[27] But for LULAC’s underlying claims—challenges to voting procedures—the proper analytical lens was the Anderson-Burdick balancing test, which does not consider legislative intent.[28] “[D]elving into the motive or purpose of individual legislators to determine the constitutionality of legislative action,” the court said, “is confined to cases where such inquiry is required by the very nature of the constitutional question presented.”[29]

Anderson-Burdick, the proper framework for assessing “challenges to voting regulations as burdening individual voters’ access to the polls,” balances the “character and magnitude” of the injury to the individual voters’ rights against the state’s justification for the changes.[30] “Under the Anderson-Burdick framework, legislative intent is not part of the court’s analysis.”[31] And because “individual legislators’ intent has little, if any, relevance to LULAC’s claims,” the Iowa Supreme Court held there was no compelling interest to support piercing the constitutional legislative privilege.[32] The subpoenas seeking legislators’ communications with third parties relating to the legislative process should have been quashed because of the legislative privilege implicit in Iowa’s constitution. 

This unanimous Iowa Supreme Court opinion brings Iowa’s precedent in line with that of the supermajority of states by recognizing a legislative privilege under the state constitution. Whether that privilege is absolute, however, is a question the court left for another day.

 

[1] League of United Latin American Citizens v. Pate, et. al, Case No. CVCV061476 (Iowa Dist. Ct. Polk Cnty.).

[2] The subpoenaed Iowa legislators filed an original certiorari action in the Iowa Supreme Court to challenge the district court’s order to compel as illegal. See Iowa R. App. Pro. 6.107 (providing for original certiorari proceedings to challenge a district court’s illegal act).

[3] See Smith v. Iowa Dist. Ct. for Polk Cnty., 3 N.W.3d 524 (Iowa 2024).

[4] Id. at 529.

[5] Id.

[6] Id at 527.

[7] Id.

[8] Id. at 531 (citing EEOC v. Wash. Suburban Sanitary Comm’n, 631 F.3d 174, 181 (4th Cir. 2011)).

[9] Id. at 530.

[10] Id. at 532–33.

[11] Id. at 533–34.

[12] Id. at 534–35.

[13] Id. at 534 (citing Iowa Const. art. III, § 1).

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 535.

[18] Id.

[19] Id. at 527.

[20] Id. at 528.

[21] Id. at 535–36.

[22] Id.

[23] Id. at 536 (citing Iowa Const. art. I, § 20).

[24] Id.

[25] Id.

[26] Id.

[27] Id at 535.

[28] Id. at 527, 537–38. See Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992).

[29] Smith, 3 N.W.3d at 536–37.

[30] Id. at 538–39.

[31] Id. at 540.

[32] Id. at 527, 540.

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