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Fall 2007, Volume 13, Number 2 Journal of the American Society of Legislative Clerks and Secretaries Volume 13, Number 2 Fall 2007 Information for Authors ……………………………………..….. 2 Charles Robert and Blair Armitage PERJURY, CONTEMPT AND PRIVILEGE –OH MY! Coercive Powers of Parliamentary Committees………………… 3 D. Wes Sullenger Silencing the Blogosphere: A First Amendment Caution to Legislators Considering Using Blogs to Communicate Directly with Constituents….….….….….….….….….….….…… 19 Steven T. James Government by Consensus – Restrictions on Formal Business in the Massachusetts Legislature Inspire Innovative Ways to Govern … 69 Professional Journal Index ……………………………………… 76 Journal of the American Society of Legislative Clerks and Secretaries 2007-2008 Staff Co-Chair: Nathan Hatfield, VA Senate Calendar Clerk Co-Chair: Maryann Horch, VA Senate Systems Analyst Vice Chair: Annette Moore, UT Senate Secretary Recorder: Inga Emerson, DE House Journal Clerk Editorial Board Polly Emerson (TX) Jeff Finch (VA) Hobie Lehman (VA) Tara Perkinson (VA) Committee Members Tom Forster (OR) Karen Goldman (CO) Nellie Humphries (AL) Mary Phillips (NV) Ron Smith (LA) Fall 2007 © JOURNAL OF THE AMERICAN SOCIETY OF LEGISLATIVE CLERKS AND SECRETARIES Page 1 INFORMATION FOR AUTHORS SUBMISSION The editor of the Journal of the American Articles should be submitted electronically to: Society of Legislative Clerks and Secretaries welcomes manuscripts which would be of Nathan Hatfield, Co-Chair interest to our members and legislative staff, nhatfield@sov.state.va.us including topics such as parliamentary or procedures, management, and technology. Maryann Horch, Co-Chair Articles must be of a general interest to the mhorch@sov.state.va.us overall membership. Photographs should be emailed in .jpeg or .gif Contributions will be accepted for consideration format or mailed flat with appropriate cardboard from members of the American Society of backing to: Legislative Clerks and Secretaries, members of other National Conference of State Legislatures Nathan Hatfield, Co-Chair staff sections, and professionals in related fields. Maryann Horch, Co-Chair Senate of Virginia All articles submitted for consideration will P.O. Box 396 undergo a review process. When the Editorial Richmond, VA 23218 Board has commented, authors will be notified of acceptance, rejection or need for revision of Inquiries from readers and potential authors are manuscripts. The review procedure will require encouraged. You may contact the editor by a minimum of four to six weeks. Two issues are telephone at (804) 698-7470 or email at printed annually – one in the spring and the nhatfield@sov.state.va.us or other in the fall. mhorch@sov.state.va.us. Letters to the editor are welcomed and will be published to provide a STYLE AND FORMAT forum for discussion. Specialized jargon should be avoided. Readers will skip an article they do not understand. Follow a generally accepted style manual such as the University of Chicago Press Manual of Style. Articles should be word processed in Word 2000 or WordPerfect 8.0, and double- spaced with one-inch margins. Number all references as endnotes in the order in which they are cited within the text. Accuracy The Journal of the American Society of and adequacy of the references are the Legislative Clerks and Secretaries (ISSN 1084- responsibility of the author. 5437) consists of copyrighted and uncopyrighted material. Manuscripts accepted for publication Authors are encouraged to submit a photograph become the property of the American Society of with their article, along with any charts or Legislative Clerks and Secretaries. All rights graphics which may assist readers in better reserved. Reproduction in whole or part without understanding the article’s content. permission is strictly prohibited. Page 2 © JOURNAL OF THE AMERICAN SOCIETY OF LEGISLATIVE CLERKS AND SECRETARIES Fall 2007 PERJURY, CONTEMPT AND PRIVILEGE –OH MY! Coercive Powers of Parliamentary Committees Charles Robert and Blair Armitage* This paper explores the history and issues surrounding privilege and the swearing in witnesses. In summary, it argues that: Contempt powers available to committees are not always enough to compel the appearance or testimony of witnesses; • That by legislating the power to administer oaths; by exempting sworn testimony from the usual protections of privilege when it is used in the case of perjury; and by giving the responsibility for prosecuting perjury cases to the courts, Canada has created a more effective mechanism for punishing those who lie to a parliamentary committee; • That the Charter’s provisions guaranteeing the rule of law and due process may conflict with Parliament’s coercive powers; that other claimed powers, such as the ability to fine offenders, may also be questionable; and that the power to punish for contempt and to fine can no longer be asserted with certainty until they are tested in the courts. • In remedy, the paper suggests a comprehensive review of the privileges and powers of Parliament with respect to its committees and that consideration be given to ensuring that they are properly equipped to function in the legal and human rights constructs that comprise the Charter era. Introduction Some of Parliament’s privileges The Canadian Parliament, as the and coercive powers apply to non- principal representative assembly of the members when they participate in the nation, necessarily possesses certain work of Parliament as witnesses privileges and powers in order to support testifying before committees.1 As its two fundamental roles: to make laws witnesses, non-members are entitled to for the welfare of the country and to hold the same protection of freedom of the government of the day to account. speech as members. At the same time, These privileges and powers are part of they are subject to the discipline of the the Constitution and are derived from Senate or the House of Commons British parliamentary practices and through the exercise of the contempt traditions. Most of these powers have power if they do not cooperate to the remained fundamentally unchanged committee’s satisfaction. Like members, since they were established following they can be admonished or reprimanded Confederation. Fall 2007 © JOURNAL OF THE AMERICAN SOCIETY OF LEGISLATIVE CLERKS AND SECRETARIES Page 3 and, if necessary, they can also be pretend to be comprehensive; nor does imprisoned. Maingot really consider whether these coercive powers are still appropriate When committees function in an today, even though he was sensitive to investigative manner, they can profit the altered legal environment brought from the use of Parliament’s contempt about by the incorporation of the Charter power, and more specifically the oath into the Constitution.2 Should these power. Inquiries that are fact-based coercive powers be retooled to maximize investigations need to establish the truth their usefulness in the contemporary or sequence of events. Such context? Has there been any impact on investigations are in many ways akin to them as a result of the proclamation of a judicial inquiry, but they operate in a the Charter with the guarantee of parliamentary (political) setting. individual rights, including due process However, fact-based inquiries are not the and the protection of self incrimination? common fare of committees. Most This paper seeks to address some of committees spend the majority of their these questions through an explanation time hearing the opinions of witnesses, of the purpose, origin and application of seeking their advice on bills or policies. the contempt power and the This may explain why witnesses are not administration of oaths in today’s often heard under oath or affirmation. parliamentary and constitutional Nonetheless, if the powers are thought to environment. be important still, it would be worthwhile to consider the current The British Experience “environment” to determine if they should be retained, discarded or updated. The House of Commons in England has exercised contempt powers The use of coercive powers by for centuries.3 As a constituent part of Parliament has two identifiable the High Court of Parliament, it had an functions, to compel or to punish. inherent right to insist on the complete Compulsion can be used with witnesses cooperation of witnesses called before who may be hesitant or reluctant to the bar of the House or before one of its cooperate; it deals with the immediate committees. Failure to comply with its situation. Punishment is used after the demands for information could lead to fact against witnesses whose behaviour various punishments including has been found to offend the dignity of admonishment, reprimand and, not the committee. The option to use either infrequently, imprisonment. remains entirely at the discretion of the committee, subject to confirmation by As it happened, Parliament’s the House. successful assertion of its supremacy in The history of these coercive the late 17th century confirmed these powers and their effectiveness has not powers, and also contributed to their been the focus of much study or excessive use. The judgment of comment. Joseph Maingot’s Stockdale v. Hansard includes a list of Parliamentary Privilege in Canada is some of these abuses spanning a one of the few to have reviewed the century.4 Among the more egregious subject, but this analysis does not examples were violations of members’ Page 4 © JOURNAL OF THE AMERICAN SOCIETY OF LEGISLATIVE CLERKS AND SECRETARIES Fall 2007 private property, such as poaching and ensure that
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