Stubborn WA state lawmakers choose the ‘black hole’ of secrecy again | Opinion

Anyone who reads through Washington’s state Constitution or, more efficiently, does a keyword search, won’t find the phrase “legislative privilege.”

Anyone, that is, except state lawmakers who crave secrecy and two Thurston County judges willing to squint.

Legislators have collaborated to manufacture a right to keep the public in the dark about legislative affairs that will diminish the people’s ability to hold elected officials accountable.

We can only hope the state Supreme Court has better sense and commitment to reading the plain language of the law.

Lawmakers invoked legislative privilege this year so they could deny requests for records related to the legislative process. Good government advocates sued, but the courts sided with lawmakers.

If readers take only one thing away from this editorial, let it be this: Washington’s lawmakers are choosing secrecy.

Even if legislative privilege exists, there’s nothing in the Constitution or state law that compels lawmakers to use it. It’s their choice.

They could just as easily choose transparency and uphold the intent of the voter-adopted Public Records Act, but they don’t.

Lawmakers choose secrecy because they don’t want the public to know when they coordinate with special interests, introduce “model legislation” written by partisan organizations, negotiate a tax increase by email or complain about each other and their constituents in a text message.

If the public can’t find out, there’s no chance voters will get upset and vote for someone else.

There’s also far less chance that watchdogs will discover corruption, incompetence and deception that might disqualify someone from public trust.

This is just the latest in a years-long legislative effort to hide records from the public. In 2018, lawmakers passed a bill to exempt themselves from the Public Records Act.

Gov. Jay Inslee vetoed it after public outcry, much to lawmakers’ consternation. A year later, the state Supreme Court ruled that individual lawmakers are in fact subject to the Public Records Act.

Now they’ve come up with legislative privilege. They base their claim in Article II, Section 17 of the state Constitution, which reads, “Freedom of Debate. No member of the Legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.”

It’s a reasonable provision that allows unfettered legislative debates. The U.S. Constitution has a similar clause.

But notice that Article II, Section 17 mentions neither written records nor legislative privilege.

Lawmakers conjured up that part, and two judges in Thurston County declared their fantasy legal, first in October and then on Nov. 17.

These weren’t narrow rulings. Joan Mell, the attorney who represented the plaintiffs in the more-recent case, warned that lawmakers might now be able to sweep a lot of records under the rug.

“It’s gone. It’s all in the black hole, all sucked into the ether where elected officials can do as they please and you can’t find out about it,” Mell said after the decision. “It’s really far-reaching. I think that the court ignored my plea not to kill democracy.”

It bears repeating that this is all a choice. Lawmakers choose to keep you in the dark. Remember their hypocrisy the next time they complain about some big company not being transparent.

The Washington Coalition for Open Government or one of the other plaintiffs almost certainly will appeal.

When the case lands before the Supreme Court, justices should issue a clear, definitive ruling that legislative privilege is fiction and lawmakers must be transparent like every other part of government. Democracy flourishes only if voters can see what their government does.

This story was originally published November 24, 2023 at 9:09 AM.