Bidding for public attention among Republican state legislators appears astonishingly intense. Consider Colorado State Representative Dave (not David) Williams. On first encounter, Williams appears to be just another standard issue ‘guns, fetuses and homophobia’ Republican. His issue page endorses the Second Amendment as defense against enemies “foreign and domestic.” How he squares appeals to Red Dawn wingnut fantasies with his national party leader being in the pocket of President Vladimir Putin is anyone’s guess. Abortion is straightforwardly decried with the claim that “radical liberals” threaten the “unborn” to desensitize the country to life and death issues. Civil rights protection for members of LGBT communities is opposed using more euphemistic language: “religious liberty” is endorsed against “special interests.” His problem is that none of that allows him to stand out from the crowd.
Williams’s sole success in attention seeking was achieved by introducing legislation that has little hope of becoming law but that appeals to xenophobic hostility to undocumented Hispanics and general antipathy toward government. His proposed HB 17 ‘Colorado Politician Accountability Act’ would create a right to bring civil suits for compensatory damages against local elected officials who establish a sanctuary city. If an undocumented immigrant commits a criminal act in a sanctuary city that isn’t cooperating with Federal immigration authorities, an individual claiming harm could then bring an action against the local elected officials. The bill would also prohibit local governments “from adopting a law, ordinance, rule, policy, or plan or taking any action” restricting communication with Federal immigration authorities about the “immigration status of an individual residing in the state.”
HB 17 would thus make local government employees serve as agents of the national government with respect to immigration law enforcement. That should raise constitutional legal objections from anyone who has read the U.S. Constitution and understood the basic division of authority in its federal structure. Local governments are creatures of state government. State governments and the national government possess different kinds of authority. On that both liberals and conservatives generally agree. Conservatives have long argued for ‘state’s rights,’ for much greater autonomy for state governments from the national government. HB 17 radically reverses that position. But then historical memory and logic seem symptoms of some sort of liberal bias in 21st America.
HB 17 also violates the centuries old tradition that the proper sanction against elected officials who support controversial or unpopular legislation is losing the next election. What any competent student of the law knows is that legislators are immune from civil or criminal liability for performing their legislative duties under doctrines called parliamentary privilege and parliamentary immunity. The obvious reason for that immunity is that the legislative process would grind to halt if legislators feared being sued for doing what legislators are supposed to do. Elected local officials who adopt ordinances and budgets are legislators. Thus the 13 members of the Denver City Commission – Denver is described as a sanctuary city though the term lacks a legal definition – are legislators because their work is by its very nature legislative. Without appropriate immunity they cannot act as representatives of the people they govern.
Respect for the U.S. Constitution and the norms of parliamentary privilege and immunity seem a little abstract for most populist conservatives, but chances are they still understand the old adage that ‘what comes around goes around.’ Imagine a state law allows the victims of mass shootings to bring civil actions against state legislators who weakened or blocked gun safety legislation. Or imagine a state law allowing women forced to bear a child conceived from rape or incest by anti-abortion laws to bring civil actions for child support, loss of income and emotional trauma against state legislators who passed them.
A Republican state legislator less ambitious than Williams would have been reluctant to propose legislation that both ignores an important restraint on government power in the U.S. Constitution and upends a fundamental norm necessary for representative government. So he deserves his moment in the public spotlight. He also deserves the contempt of freedom loving Americans. There is an appropriate sanction for his ambition, and it can be found not in the courts but in the voting booth.