“I swear to tell the truth, the whole truth, and nothing but the truth, so help me God.”
1819 News recently reported that State Rep. Margie Wilcox (R-Mobile), co-chair of the Legislature’s Sunset Committee, said that those who testify before her committee will be required to testify under oath, and that other legislative committees may adopt this practice as well.
“We feel like that in the past some people have made remarks that were not truthful. I personally feel like some people were given a script and told us things that they were told to tell us that they did not actually know for a fact themselves,” Wilcox said. “We’re going to start holding people accountable for untruthful comments or rhetoric or just flat-out fibs and lies.”
Who could possibly object to that?
Maybe I could.
Here’s why.
The U.S. Constitution contains a Speech and Debate Clause which provides that “for any Speech or Debate in either House, they [the legislators] shall not be questioned in any other Place.” The intent behind the clause was to prevent prosecutions or defamation lawsuits against legislators for things they said in the course of their duties. The Framers wanted to ensure that Congress considered all possible information and ideas before voting on legislation, so that no legislator felt intimidated from expressing their thoughts.
Suppose Congress is considering a $20 billion appropriation for a new military aircraft. One senator might want to object that he has heard that previous aircraft manufactured by a certain company have been unsafe or that there may be corruption in the company that has inflated their prices. If the aircraft company could sue him for defamation for making that statement, or have him prosecuted for perjury, he might be tempted to keep silent, even though this is information Congress should consider in making its decision.
The Framers thought it best to let debate flow freely in Congress and let the legislators determine what is true and what is false. And in Gravel v. United States (1972) the U.S. Supreme Court held that the protections of the Speech and Debate Clause apply to legislative aides as well as to the legislators themselves.
The Alabama Constitution, Section 56, has an almost identical speech and debate clause, and in passing Section 29-6-7.1, the Alabama Legislature applied the Gravel ruling to state legislative aides as well.
I don’t deny that legislatures, both national and state, have the power and the duty to investigate and fully inform themselves before enacting legislation. Congress can compel sworn testimony but usually confines that practice to investigations and confirmation hearings. Sworn testimony before Congress is the exception rather than the rule.
My point is that Wilcox wants to apply a standard to those who testify before legislative committees that the legislators do not apply to themselves.
Over the last 30 years, I’ve testified before Alabama legislative committees (some of which included my former law students) dozens of times. I’ve listened to others testify, and I’ve heard some pretty inane and ridiculous comments. I’ve heard people testify to things that I could definitively prove were false. But I can’t foreclose the possibility that they really believed what they were saying, even though their research was sloppy or nonexistent.
I’ve heard some equally inane and ridiculous comments by legislators themselves, including outright fabrications. One legislator even made a statement to his committee that I know he knew was false, because he admitted the exact opposite to me the preceding day.
Should the Alabama Legislature require witnesses to testify under oath under threat of prosecution for perjury but impose no such requirement upon themselves?
Of course, we want the Alabama Legislature to find the truth. But I suggest that they can best determine the truth by hearing all testimony, then sorting the truth from falsehood, rather than threatening or intimidating those who might present controversial or unpopular views.
There’s a broader issue here – the growing tendency of elected officials to distance themselves from those who elect them. Several decades ago, legislative committees were much more accessible to those who came to present their views than they are today. Increasingly, committee chairmen limit testimony to two or three minutes and sometimes limit the number of witnesses. I’ve attended scheduled public hearings at which people who traveled well over 100 miles were not allowed to testify. “We’re too busy,” is the excuse legislators give. They’re often also too busy to answer or return phone calls, emails, or texts. May I remind them that they campaigned for their legislative seats and thus have a duty to listen to their constituents?
This distancing is not limited to legislators. School boards, library boards, zoning commissions, and other public bodies increasingly treat those who come before them as enemies, barely tolerating them, if not outright silencing and suppressing them. This is not what representative government is supposed to look like.
With all due respect, Rep. Wilcox, I urge you to forego this oath requirement and listen to those who come before you. If you suspect that they are mistaken or lying, question them and challenge them. Remember that they are sincerely concerned about the bills you are considering, and they are giving up their day and their gas money to bring their concerns before you. Some may be very articulate, some less so, some the very opposite – but they all deserve to be heard.
And then, having heard all of the evidence and argumentation, you and your fellow legislators, not some judicial body, can determine who is right.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Pastor of Woodland Presbyterian Church of Notasulga, Ala., (woodlandpca.org). He may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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