We challenged WA lawmakers to pledge public transparency. Not many took us up on it | Opinion

Should Washington legislators be allowed to employ a dubious legal theory called “legislative privilege” to withhold documents from the public?

More than 80% of Washington residents answered “no” in a Crosscut/Elway poll earlier this year.

But when the nonpartisan Washington Coalition for Open Government (WashCOG) asked each member of the Washington Legislature to pledge that he or she would not employ this so-called privilege, only seven agreed. That’s less than 5%.

This gulf between the will of the people and that of legislators should worry everyone.

This month WashCOG is recognizing the seven legislators who took the pro-democracy pledge: Rep. Frank Chopp, D-Seattle; Rep. Paul Harris, R-Vancouver; Sen. Mark Mullet, D-Issaquah; Sen. Ron Muzzall, R-Oak Harbor; Rep. Tina Orwall, D-Des Moines; Sen. Jamie Pedersen, D-Seattle; and Rep. Gerry Pollet, D-Seattle.

Each will receive WashCOG’s Ballard/Thompson Award, signifying outstanding dedication to government transparency. The award is named in honor of Clyde Ballard, the Republican former House Speaker, and the late Alan Thompson, a Democrat who served as House chief clerk, representative and senator. Both were founding members of WashCOG, a nonprofit organization.

The legislators we honor stand out for protecting the people’s right to know what government is doing on their behalf. Why don’t more legislators stand with the people?

At issue is a provision in the state constitution that legislative leaders in recent years began citing. They allege this provision allows withholding legislative documents sought by citizens under the Public Records Act (PRA). Examples could include text messages and emails about legislation still in development.

The provision they are citing says, “No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.”

Obviously, that’s about speech. Not government documents. But legislative leaders have cited it anyway.

Legislative leaders started using this “legislative privilege” dodge in the last few years after they repeatedly tried other means to escape scrutiny under the PRA. In 2018, legislators rammed through with little debate a bill to exempt the Legislature from the Public Records Act. Some 20,000 outraged Washingtonians successfully urged Gov. Jay Inslee to veto the measure. Before that, legislators lost a lawsuit over the issue.

Here is the pledge WashCOG is asking legislators to make by notifying the public records officer in the their chamber of the Legislature: “In the interest of public transparency and open government, I instruct the records officer not to invoke a legislative privilege on my behalf when responding to public records requests.”

The seven legislators we honor this month sent that directive.

One of them, Sen. Pedersen, told us, “I just did what I think is right.”

It takes courage to stand up against what legislative leaders are pushing.

By contrast, some legislators watered down their language, saying they “have not invoked” or “do not intend” personally to use the provision. But that binds them to nothing. Others demurred, or otherwise effectively said: We’ll let the courts decide this.

They’re referring to two lawsuits challenging “legislative privilege,” one by WashCOG and another by government watchdog Arthur West, an Olympia resident. Trial court judges already have issued disturbing rulings authorizing this “legislative privilege” in these cases.

Openness is the basis of public trust. What is obscured from the public is mistrusted by the public. Does this really need saying?

It’s important to realize that legislators in Washington (and some other states) today are perverting the concept of “legislative privilege,” which traces to the 1600s, before America pioneered modern democracy.

The concept of “legislative privilege” cited today by the Legislature’s lawyers originated in the English Bill of Rights of 1689, a result of the British House of Commons’ struggles against the Tudor and Stuart monarchies. Prior to that, “the English Crown had repeatedly used both the power of prosecution, and its control over the courts, to punish, suppress, or intimidate Members of Parliament who had made statements critical of the Crown during parliamentary debates,” according to Constitution Annotated, an official bipartisan publication of the United States Congress.

Nothing about documents is mentioned there. The 335-year-old protection is from legal action. Outside the legislative arena. Not disclosure of information to the public.

In modern-day Washington state, voters must have access to legislative documents to help weigh whether lawmakers they sent to the statehouse should be punished or rewarded at the ballot box.

Please tell your legislators to take the WashCOG pledge. Use this online tool for contact information. Ask the same of all legislative candidates, too. We would happily give out more Ballard/Thompson awards.

Two other ways you can help:

Please alert your legislators to “Your Right To Know,” WashCOG’s recent comprehensive report on the erosion of public access to government information and how the Legislature is the biggest obstacle to citizen access to documents. Also, please sign up for Citizen Network alerts.

Show legislators that you support the opening passage of the voter-approved Public Records Act:

“The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”

Journalist Robert McClure chairs the Government Committee of the Washington Coalition for Open Government.