William McCann v. William Brady

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2175
WILLIAM “SAM” MCCANN and
BRUCE ALAN MCDANIEL,
Plaintiffs-Appellants,
v.
WILLIAM E. BRADY, in his official capacity as
Minority Leader of the Illinois State Senate,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18 C 3115 — Andrea R. Wood, Judge.
____________________
ARGUED OCTOBER 30, 2018 — DECIDED NOVEMBER 26, 2018
____________________
Before WOOD, Chief Judge, and SYKES and BARRETT, Circuit
Judges.
WOOD, Chief Judge. This case takes us deep into the internal
workings of the Illinois State Senate. After Senate Minority
Leader William E. Brady (a Republican) decided to oust Wil-
liam (“Sam”) McCann from the Illinois Senate Republican
Caucus and thereby to deny certain resources to McCann,
2 No. 18-2175
McCann and one of his constituents, Bruce Mcdaniel, sued
Brady under 42 U.S.C. § 1983 for alleged deprivations of their
rights under the First Amendment and the Equal Protection
Clause of the federal Constitution. Brady responded with a
motion to dismiss on the basis of legislative immunity. The
district court agreed that this doctrine blocks all of McCann
and Mcdaniels’s theories and dismissed the case. We affirm.
I
In order to understand why McCann sued, a brief review
of some organizational features of the Illinois General Assem-
bly is necessary. Article IV, § 1 of the Illinois Constitution
vests legislative power in “a General Assembly consisting of
a Senate and a House of Representatives.” It also stipulates
that at the beginning of the General Assembly’s January ses-
sion in odd-numbered years, “the Governor shall convene the
Senate to elect from its membership a President of the Senate
as presiding officer.” ILL. CONST. art. IV, § 6(b). The state con-
stitution also provides for a Minority Leader of the Senate,
who must be “a member of the numerically strongest political
party other than the party to which … the President belongs.”
Id. § 6(c).
Senate rules also enter our picture. Rule 1-10 defines the
term “majority caucus” to include “that group of Senators
from the numerically strongest political party in the Senate”
plus anyone who voted for the President of the Senate. The
“minority caucus” is defined as “that group of Senators from
other than the majority caucus.” Rule 1-16.
These groups are important for many reasons, but our
concern is with the way they are treated for purposes of leg-
islative funding. The state budget includes appropriations for
No. 18-2175 3
legislative operations, including those of the Senate. 15 ILCS
20/50-22(b). In 2017, the General Assembly appropriated ap-
proximately $20 million for “the ordinary and incidental ex-
penses” of both the Senate and the House legislative leader-
ship and associated staff, half to the Senate and half to the
House. Half of the Senate’s share (one-fourth of the total) was
designated for the Senate Minority Leader. In addition, pur-
suant to the Illinois General Assembly Staff Assistants Act,
25 ILCS 160/1a, legislators are authorized to hire staff assis-
tants. Again, half go to each House, and of those designated
for the Senate, half are designated by the Minority Leader. Fi-
nally, each Senator is authorized to spend $73,000 per year
(adjusted for inflation) on personal assistants, office needs,
and the like. 25 ILCS 115/4.
In 2010 McCann was elected on the Republican ticket to
Illinois’s 50th Senate District, which is in the southwest part
of the state. For the first five years of his service, he
participated in the Minority and Republican Caucuses. In
2015, he voted to override Governor Bruce Rauner’s veto of
Senate Bill 1229, which related to public-employee collective
bargaining. Governor Rauner then supported McCann’s
opponent in the 2016 Republican primary election, but
McCann won the primary and sailed back into office
unopposed in the general election. In early 2018, facing a
primary opponent and disillusioned with Governor Rauner,
McCann announced his intention to run for governor under
the banner of a new party. (He carried through with that plan
by running as a member of the Conservative Party, but he lost
in the 2018 election to the Democratic Party’s candidate,
J.B. Pritzker.)
4 No. 18-2175
Minority Leader Brady interpreted McCann’s announce-
ment as a de facto resignation from the Republican party.
McCann said that it was no such thing, at least for the time
during which he was working on establishing his new party.
But Brady promptly expelled McCann from the Senate Re-
publican Caucus. This had the effect, McCann asserts, of cut-
ting off his access to a wide array of services enjoyed by Re-
publican and Minority Caucus members, including staff anal-
ysis of bills, the coordination and movement of active bills,
drafting assistance for a senator’s own bills, detailed status re-
ports and schedules, and help with communications, photog-
raphy, in-district events, and other constituent services. We
refer to these in the aggregate as the Party Resources.
McCann greeted Brady’s decision with dismay. In his
view, without access to the Party Resources that Brady con-
trolled, he could no longer effectively perform his duties as a
senator. Those duties included moving along 24 bills for
which he was a primary sponsor, serving on a number of sen-
ate committees and sub-committees, and representing his
constituents’ interests during the (contentious) negotiations
over Illinois’s budget. Although he concedes that he still has
access to his modest allotment for personal staff and to pub-
licly available information about scheduling and bill move-
ment, that is a poor substitute for the many resources from
which he is now barred.
Upon filing this suit, McCann and his constituent Mcdan-
iel asked for a temporary restraining order requiring the res-
toration of his access to the Party Resources. The district court
concluded that their likelihood of success on the merits was
negligible, because Brady was protected by absolute legisla-
tive immunity from suit. It therefore denied their request for
No. 18-2175 5
a TRO and at the same time dismissed the suit with prejudice.
(The plaintiffs had also sued the Illinois Senate Republican
Caucus itself, but that body never appeared, and all claims
against it have now been dismissed with prejudice. We thus
have no more to say about that part of the case.)
II
This case turns on the scope of legislative immunity, and
so we begin with a brief discussion of that doctrine. At the
federal level, the doctrine is reflected in the Speech or Debate
Clause found in Article I, section 6, clause 1 of the Constitu-
tion. That Clause says simply that Senators and Representa-
tives “for any Speech or Debate in either House, … shall not
be questioned in any other Place.” The scope of the Clause,
however, “extend[s] beyond mere discussion or speechmak-
ing on the legislative floor.” Reeder v. Madigan, 780 F.3d 799,
802 (7th Cir. 2015). Even so, there are limits: it applies only to
“legislators acting in their legislative capacity.” Rateree v.
Rockett, 852 F.2d 946, 950 (7th Cir. 1988). Actions taken in an
administrative capacity are therefore not protected. The Su-
preme Court has held that “[w]hether an act is legislative
turns on the nature of the act, rather than on the motive or
intent of the official performing it.” Bogan v. Scott-Harris,
523 U.S. 44, 54 (1998).
Bogan is an important case for our purposes, because it
confirms that legislative immunity is not something that is
confined to federal legislators. Indeed, the Court opened its
opinion in Bogan with the statement that “[i]t is well estab-
lished that federal, state, and regional legislators are entitled
to absolute immunity from civil liability for their legislative
activities,” id. at 46, and the issue in the case concerned the
availability of immunity for a city official. Reaching back to
6 No. 18-2175
the “taproots” of the privilege in 16th- and 17th-century Eng-
land, the Court found that the actions of the local officials
were legislative in nature and thus were entitled to absolute
legislative immunity. We may therefore draw on the Supreme
Court’s guidance in this area without worrying about the
level of government at which the legislator was operating.
Years before Bogan, in the case of Gravel v. United States,
408 U.S. 606 (1972) (otherwise famous because it dealt with
the Pentagon Papers), the Supreme Court had to decide
whether some assistants to Alaska Senator Mike Gravel were
entitled to invoke legislative immunity to avoid testifying in
response to grand-jury subpoenas. The Court first confirmed
that for purposes of the privilege, the Senator and his aides
were to be “treated as one.” Id. at 616 (quoting United States v.
Doe, 455 F.2d 753, 761 (1st Cir. 1972)). It then held that the Sen-
ator’s alleged arrangement with a private press was not pro-
tected by the Speech or Debate Clause. Id. at 622. What is of
greatest interest to us, however, is the Court’s discussion of
what the Clause does cover: “anything ‘generally done in a
session of the House by one of its members in relation to the
business before it,’” id. at 624 (quoting Kilbourn v. Thompson,
103 U.S. 168, 204 (1880)), and “conduct at legislative commit-
tee hearings.” Id. It then summarized the principle more
broadly:
The heart of the Clause is speech or debate in
either House. Insofar as the Clause is construed
to reach other matters, they must be an integral
part of the deliberative and communicative pro-
cesses by which Members participate in com-
mittee and House proceedings with respect to
the consideration and passage or rejection of
No. 18-2175 7
proposed legislation or with respect to other
matters which the Constitution places within
the jurisdiction of either House.
Id. at 625.
The question here is whether Minority Leader Brady’s de-
cisions about who is included within the Minority or Repub-
lican Caucus, and how to allocate resources to those people,
are protected by the privilege. We conclude that they are.
Simply to list the resources is to show how intimately they are
tied to the legislative process. Recalling from Gravel that aides
are protected by the privilege, we conclude that the minority
staff analyses of bills are a valuable input into the legislative
process. As Minority Leader, Senator Brady was attempting
to use his party’s resources as effectively as possible in fur-
thering the party’s legislative agenda. Setting legislative pri-
orities for the minority party, including when to schedule
bills, how to ensure that senators are ready to vote on them,
is also quintessentially legislative activity. Drafting assistance
is likewise legislative.
The organization of district events, coverage of local activ-
ities, and assistance with communications about legislative
achievements is somewhat more removed from the ultimate
act of legislating, but we are not being asked to evaluate
Brady’s immunity for any such constituent contacts. See
United States v. Brewster, 408 U.S. 501, 512 (1972) (preparation
of news letters to constituents, news releases, and speeches
delivered outside the Congress are not protected legislative
activities). Instead, the focus is on Brady’s decisions about
how to allocate the staff resources available to Illinois’s Repub-
lican senators. Those decisions, we think, fit within the ambit
of the “things generally done in a session of the [legislative
8 No. 18-2175
body] by one of its members in relation to the business before
it.” Id. at 532–33. Extra help in the form of staff resources is
part of the leader’s toolkit for managing his troops. We see no
objective standard that we could use to second-guess the lead-
ership’s judgment about how and to whom those resources
should be distributed. We note as well that the facts of our
case are a far cry from those in Brewster, where the Court de-
cided that legislative immunity does not protect a legislator
who is under indictment for taking a bribe.
Modern state legislatures in the United States, including
Illinois’s General Assembly, rely heavily on the two-party
system for their internal organization. The law of Illinois re-
flects this fact. The very statute that governs the allocation of
staffing resources during the legislative session grants “the
legislative leadership of the respective parties” the authority
to assign staff assistants “to perform research and render
other assistance to the members of that party on such commit-
tees as may be designated.” 25 ILCS 160/2(a) (emphasis
added). And as we noted earlier, Senate Rule 1-10 defines the
term “majority caucus” to include “that group of Senators
from the numerically strongest political party in the Senate,”
and Rule 1-16 defines the minority caucus as anyone not in
the majority caucus. Political party, in other words, is an es-
sential defining characteristic—and it is worth noting that the
question whether someone is “really” a Republican, a Demo-
crat, or something else, is not one of constitutional dimension.
Allowing politics to play a role in politics does not violate the
First Amendment. Moreover, the legislature is not required to
operate as a free-for-all. Illinois law allows each caucus to se-
lect its leadership, and the leaders organize the legislative
work. Thus, when Minority Leader Brady concluded that
McCann’s decision to split from the Republican Party meant
No. 18-2175 9
that he was no longer entitled to the minority party’s re-
sources for pushing legislation, he was acting in a legislative
capacity.
This is obvious, to the extent that Brady decided that
McCann could no longer participate in the Illinois Senate Re-
publican Caucus—McCann had announced his intention to
forswear the Republican party and to form his new Conserva-
tive Party. Brady’s decision to evict McCann from the Minor-
ity Caucus is a little less plain, insofar as that caucus is defined
to include anyone not in the Majority Caucus. But Brady and
his fellow minority legislative leaders reasonably could con-
clude that the rules relating to the Majority and Minority Cau-
cuses were created against the backdrop of a two-party sys-
tem, and that they did not force the dominant minority party
(the Republicans, in this case) to accept Green Party, Socialist
Party, or Humane Party representatives into the Minority
Caucus. Anyone elected from a third party is still entitled to
the basic staff assistance and public resources of the General
Assembly. Nonetheless, legislative leadership could surely
block such a person from the internal deliberations of the
dominant minority party—including, as in this case, its own
staff’s analyses of legislative proposals and its guidance as to
how best to advance them—without straying outside the
boundaries of absolute legislative immunity.
Imagining what would happen if we were to adopt
McCann’s position demonstrates why legislative immunity
must apply here. McCann would have the federal courts mi-
cro-manage exactly which resources, and in what amount, the
legislative leaders of the two major political parties dole out
to their members. This is emphatically not our job. The Speech
or Debate Clause, and the doctrine of legislative immunity on
10 No. 18-2175
which it rests, essentially tells the courts to stay out of the in-
ternal workings of the legislative process. The separation of
powers principle reflected in Article II, section 1 of the Illinois
Constitution, and inherent in the federal Constitution, re-
quires us to accept the final output of the legislature without
sitting in judgment about how it was produced. See Fletcher v.
Peck, 10 U.S. 87, 131 (1810).
Finally, we comment on several additional arguments
McCann has presented. First, we do not regard this as a case
in which the decisions of the minority leader have construc-
tively evicted McCann from the state Senate. As Brady points
out, McCann has been entitled at all times to his personal staff,
modest though those resources are, as well as the drafting as-
sistance made available to all senators by the Legislative Ref-
erence Bureau. He also has full access to the public schedules
of the General Assembly. Wherever the line for constructive
eviction may lie, it has not been crossed here. Second, as we
indicated earlier, the actions Brady took with respect to the
resources of the minority party were not administrative in na-
ture, as that term is used in Speech or Debate cases, nor were
they ultra vires. Bogan gave as an example of an administrative
action “the hiring or firing of a particular employee.” 523 U.S.
at 56. That is not the type of thing under attack in McCann
and Mcdaniels’s suit.
Last, we note that our decision adopts the same approach
that the Third Circuit took in Youngblood v. DeWeese, 352 F.3d
836 (3d Cir. 2003), where that court decided that “two state
representatives enjoy[ed] legislative immunity from another
representative’s claim that they unfairly allocated the legisla-
ture’s office-staffing appropriation in violation of her civil
rights.” Id. at 837. The defendant representatives’ allocations
No. 18-2175 11
of district office funds from the legislative appropriation was,
the court concluded, a legislative act and hence entitled to im-
munity. Those allocations, the court said, were not the type of
“extracurricular” activities mentioned in Brewster. Rather, it
said, “the allocation activities fit the description the Bogan
Court used to describe a substantively legislative act: ‘a dis-
cretionary, policymaking decision implicating the budgetary
priorities of the [House].’ Bogan, 523 U.S. at 55–56.” 352 F.3d
at 842. We agree with that analysis.
III
We have focused in this opinion on McCann’s arguments,
because he is the person most directly affected by Brady’s de-
cisions. We add here that we find nothing in Mcdaniels’s po-
sition that would require a different result. Indeed, it is not
even clear whether he has been affected directly enough to
complain about the internal workings of the Minority and Re-
publican Caucuses. McCann has continued to be his State Sen-
ator, and we have rejected the argument that McCann’s lack
of access to the Party Resources of the caucuses amounts to
McCann’s constructive eviction. Even if Mcdaniel can show
some form of concrete injury from the challenged acts, he
would run into the barrier of legislative immunity for Minor-
ity Leader Brady’s decisions.
We therefore AFFIRM the judgment of the district court
dismissing this action with prejudice.