Legislative Immunity

As we move into negligence in Torts, I’ve begun thinking again about a question I had a year or so ago but managed to forget about. Having worked in the state legislature and seen how laws are made, I believe that there often might be a strong case for legislative negligence. Lawmakers unquestionably have extraordinary power over the daily lives of citizens — and this is especially true at the local level, where the laws are frequently more invasive.

Great power, as we all know, breeds great responsibility — and shirking one’s responsibility is a form of negligence. If that lapse leads to damages, should citizens be able to sue their legislators?

The answer, unfortunately, is no. Let’s say a legislator proposes a bill that provides little or no benefit to anyone — except for maybe a tiny and influential special interest — but will result in the loss of jobs by his constituents. If this legislator gets the bill enacted into law and, in so doing, other representatives or senators vote yes on it without reading the full text or carefully considering its impact, is strikes me as perfectly reasonable that they should be held accountable for damages suffered when hardworking folks are put out of work.

The trouble is, the courts have recognized something called “legislative immunity.” In effect, it says that lawmakers are immunity from lawsuits arising from their votes. If they act criminally, they’re still on the hook just like anyone else. But, no matter how much damage their terrible decisions make, they can’t be sued for negligence.

The rational for this precedent is understandable. Because they have so much power over such a large group, it is likely that each of their decisions will cause detriment to somebody. The number of civil cases resulting could be overwhelming. These guys need to make their votes and propose their laws free from such paralyzing concerns.

But shouldn’t the line be drawn somewhere? Is it really true that, no matter how negligently a lawmaker acts, he is immune regardless of the severity of the impact? My legal research skills so far have not proven up to the task of definitively answering this question. If anyone has any example of a lawmaker being successfully sued, I’d love to hear about it. Gut reaction leads me to think that there has to be some line that can be crossed.

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