Scott Reeder v. Michael Madigan

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1923
SCOTT REEDER and the ILLINOIS POLICY INSTITUTE,
Plaintiffs-Appellants,
v.
MICHAEL J. MADIGAN, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 14-CV-3041 — Colin S. Bruce, Judge.
____________________
ARGUED NOVEMBER 10, 2014 — DECIDED MARCH 11, 2015
____________________
Before WOOD, Chief Judge, and ROVNER and HAMILTON,
Circuit Judges.
WOOD, Chief Judge. In March 2013, Scott Reeder received
a letter from Rikeesha Phelon, the press secretary for Illinois
Senate President John J. Cullerton. The letter bore bad news:
it informed Reeder that his request for Senate media creden-
tials as a writer for the Illinois Policy Institute (IPI) was de-
nied because IPI was registered as a lobbying entity in Illi-
nois. Phelon explained that Senate rules required this deci-
2 No. 14-1923
sion because the rules forbid credentials for anyone associat-
ed with a lobbying entity. Undaunted, Reeder tried again in
January 2014 to obtain media credentials from the Illinois
House of Representatives and Senate. His status had
changed, he argued, because IPI was no longer registered as
a lobbyist. That change was not enough to satisfy the Senate.
It took the position that IPI was still required to register as a
lobbyist given its retention of a lobbying firm that employed
the same staff and office space as IPI itself. It thus once again
denied Reeder’s application. The Illinois House responded
in kind a few weeks later.
Reeder and IPI (to whom we refer collectively as Reeder)
responded with this lawsuit against Illinois House Speaker
Michael Madigan and Illinois Senate President John Culler-
ton, along with their press secretaries. Invoking 42 U.S.C.
§ 1983, Reeder contended that the defendants had violated
his First Amendment right to freedom of the press, as well as
his rights to due process and equal protection. The defend-
ants moved to dismiss Reeder’s claims on the basis of abso-
lute legislative immunity. The district court granted that mo-
tion, concluding that the denial of credentials to Reeder
qualified as legislative activity and thus entitled the defend-
ants to immunity. We agree with this conclusion and affirm
the district court’s judgment.
I
The following account of the facts, which we have taken
from the complaint and its exhibits, is presented in the light
most favorable to Reeder, as this case comes to us on a mo-
tion to dismiss. See CEnergy-Glenmore Wind Farm No. 1, LLC
v. Town of Glenmore, 769 F.3d 485, 487 (7th Cir. 2014).
No. 14-1923 3
Reeder is an experienced reporter. Since 1988 he has
worked for newspapers in Texas, Iowa, and Nevada. He
served for ten years as statehouse bureau chief for an Illinois
newspaper group. In 2009 he went to work for the Franklin
Center for Government and Public Integrity, where he
served as a reporter and editor. Finally, in 2012 Reeder began
his job at the Illinois News Network (INN), which is part of
IPI. At INN, Reeder says, he “writes his news commentary
from a perspective that favors free markets and limited gov-
ernment.”
IPI was registered as a lobbyist in Illinois through 2013.
At some point in late 2012 or early 2013, Reeder requested
media credentials from both Houses of the Illinois General
Assembly. The credentials he sought would allow him access
to press boxes on the floor of each chamber. Access to this
area, Reeder explains, confers considerable advantages for
journalists: they have the use of seats and desks; they can
take photographs from advantageous angles; they may use
the services of pages to deliver requests to legislators on the
floor; and they have a guaranteed seat on days when the
public galleries are full.
As we noted earlier, both Houses denied Reeder’s appli-
cation. Phelon explained in her March 2013 letter that the
Senate’s media guidelines incorporate Senate Rule 4-3(d),
which disallows access to the floor of the Senate for any
“person who is directly or indirectly interested in defeating
or promoting any pending legislative measure, if required to
be registered as a lobbyist.” The letter also reminded Reeder
that the Senate’s media guidelines require credential appli-
cants to operate independently of industries and institutions
and to refrain from lobbying. Phelon acknowledged that the
4 No. 14-1923
Illinois Lobbyist Registration Act, 25 ILCS 170/1 et seq., gen-
erally exempts newspaper employees from lobbyist registra-
tion requirements, but there is an exception for people who
receive compensation “from some source other than the bo-
na fide news medium for the purpose of influencing execu-
tive, legislative, or administrative action.” Id. 170/3(a)(2).
These rules required the rejection of Reeder’s application for
credentials. Reeder received similar news in a conversation
with Steve Brown, who was press secretary to the Speaker of
the Illinois House.
Reeder applied again for media credentials from the
House and Senate in January 2014. He explained to Brown
and Phelon through his attorney that IPI was not going to be
registering as an Illinois lobbyist in 2014. This meant (he as-
serted) that they could no longer deny him credentials based
on IPI’s status as a lobbyist. Neither chamber was persuaded
that the change made any difference. Eric Madiar, chief legal
counsel and parliamentarian to President Cullerton, wrote
Reeder to explain why his office was again rejecting Reeder’s
request for credentials.
Madiar observed that the people who were once IPI lob-
byists now lobbied for another entity, Illinois Policy Action.
That group, Madiar said, was responsible for advancing IPI’s
interests in Springfield. IPI and Illinois Policy Action shared
offices in Chicago and Springfield, with the same phone
numbers and the same employees listed for both. “In other
words,” Madiar wrote, “Illinois Policy Action serves as the
Institute’s lobbyist, and the Institute is Policy Action’s client.”
Madiar concluded that Reeder was still ineligible for a media
credential. Madiar also noted that the Illinois News Net-
work, as part of IPI, was not “owned and operated inde-
No. 14-1923 5
pendently of any industry, institution, association, or lobby-
ing organization” and thus IPI should have registered as an
Illinois lobbyist for 2014, given its relationship with Illinois
Policy Action. In light of all this, Madiar concluded, “it is dif-
ficult to fathom how you [Reeder] operate independently of
the Institute per the Senate Media Guidelines.”
The following month Reeder’s attorney received a similar
letter citing House rules and the Lobbyist Registration Act
from the counsel to the Speaker of the Illinois House. The
day after this letter arrived, Reeder filed his lawsuit.
II
A
The sole issue in this appeal is whether Speaker Madi-
gan, President Cullerton, and their aides are entitled to abso-
lute legislative immunity from suit for their denials of press
credentials to Reeder. The idea of legislative immunity arises
from the Speech or Debate Clause of Article I of the Consti-
tution, which states that with regard to members of Con-
gress, “for any Speech or Debate in either House, they shall
not be questioned in any other Place.” The protections of this
clause have long been held to extend beyond mere discus-
sion or speechmaking on the legislative floor. See, e.g., Kil-
bourn v. Thompson, 103 U.S. 168, 204 (1880) (“It would be a
narrow view of the constitutional provision to limit it to
words spoken in debate.”). Rather, the Clause’s protections
apply to legislators’ actions that constitute “legitimate legis-
lative activity.” Tenney v. Brandhove, 341 U.S. 367, 376 (1951).
The Supreme Court has held that this category encompasses
acts that are
an integral part of the deliberative and com-
6 No. 14-1923
municative processes by which Members par-
ticipate in committee and House proceedings
with respect to the consideration and passage
or rejection of proposed legislation or with re-
spect to other matters which the Constitution
places within the jurisdiction of either House.
Gravel v. United States, 408 U.S. 606, 625 (1972). The inquiry
into the nature of legislative activity is a functional one. See
Rateree v. Rockett, 852 F.2d 946, 950 (7th Cir. 1988).
Just as the Speech or Debate Clause extends beyond lit-
eral speech and debate, so too does it apply to others besides
members of the United States Congress. Legislators at the
state, regional, and municipal levels are also entitled to abso-
lute immunity for their legislative activities. Bogan v. Scott-
Harris, 523 U.S. 44, 53–54 (1998). The same can be true for ac-
tors on the legislative stage who are not elected officials
themselves. The Supreme Court left little doubt about this in
Gravel, where it stated that the “Clause applies not only to a
Member but also to his aides insofar as the conduct of the
latter would be a protected legislative act if performed by
the Member himself.” 408 U.S. at 618. This represented a
shift in emphasis from the Court’s cases only a few years ear-
lier, when it observed that legislative immunity is “less abso-
lute, although applicable, when applied to officers or em-
ployees of a legislative body, rather than to legislators them-
selves.” Dombrowski v. Eastland, 387 U.S. 82, 85 (1967) (per
curiam); see also Powell v. McCormack, 395 U.S. 486, 506
(1969) (holding legislators immune from suit but not House
sergeant at arms, doorkeeper, or clerk). Since Gravel, the
Court has confirmed that legislative immunity applies to leg-
islative committee staff in addition to legislators themselves.
No. 14-1923 7
See Eastland v. United States Servicemen’s Fund, 421 U.S. 491,
507 (1975); Doe v. McMillan, 412 U.S. 306, 312–13 (1973).
B
These cases support the conclusion that the activity in
question here—the decision whether to confer media creden-
tials on an applicant—was legislative in nature, and integral-
ly so. As the Supreme Court explained in Gravel, legislative
immunity extends to actions that are “necessary to prevent
indirect impairment of such deliberations.” 408 U.S. at 625
(internal quotation marks omitted). The rules that the de-
fendants invoked in their decision with respect to Reeder
demonstrate that his exclusion from the press boxes on the
floor of the Assembly is designed to avoid the impairment of
deliberations there. Illinois House Rule 30(d) says that no
person “required to be registered as a lobbyist ... shall be al-
lowed access to the floor of the House at any time during the
session.” Illinois Senate Rule 4-3(d) says the same thing. The
Illinois Lobbyist Registration Act exempts certain journalists
from the requirement to register with the state as lobbyists,
but not those working for publications “owned by or pub-
lished by ... not-for-profit corporations engaged primarily in
endeavors other than dissemination of news.” 25 ILCS
170/3(a)(2).
These rules reflect a judgment on the part of the Illinois
General Assembly that certain persons or entities engaged in
reporting must register as lobbyists and work under the
rules that apply to lobbyists, including the rule forbidding
presence on the floor. The rules spell out why this prohibi-
tion exists: these people are “directly or indirectly interested
in defeating or promoting any pending legislative measure.”
It can easily be inferred from the Lobbyist Registration Act,
8 No. 14-1923
along with the House and Senate rules, that the legislature
believes that the presence of lobbyists risks an impairment of
deliberations. The policy therefore has as its basis an im-
portant legislative purpose. The IPI is plainly an advocacy
organization, and even though it did not register as a lobby-
ist in 2014, both the House and Senate determined that it
should have. It is hardly a stretch to characterize control of
access to the legislative floor as a core legislative function.
Reeder’s primary argument to the contrary—that the ac-
tion to deny him credentials was administrative in nature,
not legislative—finds little support in the case law or in the
slim record before us. Reeder’s conception of the scope of
legislative immunity is too restrictive. He argues, for exam-
ple, that denial of media credentials is unlike speaking, de-
bating, voting on the legislative floor, or conducting a legis-
lative investigation. That set of activities, he assumes, ex-
hausts the possibilities for legislative activity, and so any-
thing not within the set must be administrative. Yet the Su-
preme Court has never held that the Speech or Debate
Clause is so limited. Although it has stated that the Clause
does not confer immunity upon absolutely everything done
in the legislature, it also has said that the Clause should re-
ceive “a practical rather than a strictly literal reading.”
Hutchinson v. Proxmire, 443 U.S. 111, 124 (1979).
The Illinois legislature’s decision to exclude lobbyists and
those associated with lobbying groups from its legislative
floor was enacted to prevent interference with the same core
legislative activities Reeder lists—voting, conferring, making
speeches, and so on. These activities are all integral to the
legislative endeavor. A contrary rule would make it nearly
impossible for a legislature to function, as it would potential-
No. 14-1923 9
ly subject legislators and their aides to liability for every
floor-access decision they make. It is not surprising, there-
fore, that the First and District of Columbia Circuits agree
with us. See Nat’l Ass’n of Soc. Workers v. Harwood, 69 F.3d
622, 632 (1st Cir. 1995) (holding “it is beyond serious dis-
pute” that denying press credentials based on need to keep
lobbyists off House floor is legislative); Consumers Union of
U.S., Inc. v. Periodical Correspondents’ Ass’n, 515 F.2d 1341
(D.C. Cir. 1975).
Nor are we persuaded that Powell v. McCormack, on
which Reeder relied extensively at oral argument, requires
the opposite result. Briefly, Powell concerned the decision of
the U.S. House of Representatives to disallow one of its
members (Adam Clayton Powell, Jr.) from taking his seat.
Powell sued several of his House colleagues as well as the
doorkeeper, sergeant-at-arms, and clerk for barring him
from the chamber. Relevant to our purposes, the defendants
asserted that the Speech or Debate Clause provided them
with immunity from Powell’s suit. The Supreme Court
adopted a more nuanced rule. Although it held that the
Clause required that legislators be free from the burden of
defending themselves, it did not similarly protect the speci-
fied House employees. See Powell, 395 U.S. at 504–06.
Yet the Court in Powell explicitly declined to consider the
question whether the decision to exclude Powell was legisla-
tive in nature. Id. at 501–02. Moreover, since Powell the Court
has definitively rejected the notion that legislative aides (as
opposed to staff such as the doorkeeper or sergeant-at-arms)
are not entitled to the same degree of immunity as legislators
themselves in cases after Powell. See, e.g., Gravel, 408 U.S. at
616–17 (noting that “the day-to-day work of such aides is so
10 No. 14-1923
critical to the Members’ performance that they must be treat-
ed as the latter’s alter egos; and that if they are not so recog-
nized, the central role of the Speech or Debate Clause … will
inevitably be diminished and frustrated”). Gravel compels us
to find that the immunity that protects Cullerton and Madi-
gan from suit in this case extends to Phelon and Brown, their
press secretaries. It would be a mistake to read too much in-
to Powell in any event, because it raised the exceedingly un-
usual situation of a duly elected member of Congress who
was barred from taking his own seat. Reeder’s access to the
floors of the Illinois Senate and House raises a more mun-
dane matter that was always subject to the approval of the
legislature.
In a less ambitious vein, Reeder also contends that the ac-
tions under review were not legislative because they repre-
sented mere enforcement of a rule, not its promulgation—a
distinction that he believes the Supreme Court adopted in
Supreme Court of Va. v. Consumers Union of U.S., Inc., 446 U.S.
719 (1980). But the Court in Supreme Court of Virginia made
no such pronouncement. The case dealt in part with the Vir-
ginia Supreme Court’s authority to initiate disciplinary pro-
ceedings against attorneys for alleged violations of rules the
court itself promulgated. The promulgation of rules is enti-
tled to legislative immunity, the U.S. Supreme Court noted,
but the Virginia Supreme Court’s power to enforce those
rules via disciplinary proceedings was prosecutorial in na-
ture. Prosecutors, the Court continued, “enjoy absolute im-
munity from damages liability” but not from section 1983
injunctive suits, because “they are the state officers who are
threatening to enforce and who are enforcing the law.” Id. at
736. Thus the Virginia Supreme Court, like any prosecutor,
did not enjoy absolute legislative immunity for its “enforce-
No. 14-1923 11
ment capacities.” Id.
Reeder’s argument falls flat because it does not take into
account the raison d’être of the Court’s decision in Supreme
Court of Virginia. The defendants’ decision to deny him cre-
dentials was nothing like a prosecution. It did not impose
any kind of liability on him, nor did it deprive him of a li-
cense or permit. We agree with the First Circuit’s conclusion
that when “a legislative body adopts a rule … that bears up-
on its conduct of frankly legislative business, we think that
the doctrine of legislative immunity must protect legislators
and legislative aides who do no more than carry out the will
of the body by enforcing the rule as a part of their official
duties.” Harwood, 69 F.3d at 631. Although it does not matter
in light of our conclusion, the fact is that Reeder appears to
be challenging both the promulgation and enforcement of
the rules here. Even he appears to concede that his argument
is meritless as applied to the promulgation of the rules.
Reeder also contends that federal legislators are entitled
to a broader legislative privilege than their state counter-
parts have. In quoting Supreme Court of Virginia for this point,
however, Reeder omits that the Supreme Court said this was
true only “in criminal actions.” 446 U.S. at 733. Admittedly,
we skipped over that qualification in Bagley v. Blagojevich,
646 F.3d 378, 396–97 (7th Cir. 2011), although it was not dis-
positive in that case, nor is it in this one. There is no reason
to find that legislators such as Speaker Madigan and Presi-
dent Cullerton along with their aides are entitled to lesser
protection than their peers in Washington. See Bogan,
523 U.S. at 53–54 (extending the protections of legislative
immunity to municipal legislators).
Several final matters require our attention. First, Reeder
12 No. 14-1923
makes a late attempt in his reply brief to raise a factual issue.
He contends that the defendants have not adequately shown
that media credentials actually permit journalists to affect
floor proceedings in the General Assembly. Had the case
gone further, Reeder argues, he could have presented evi-
dence that the press boxes in Springfield have a separate en-
trance and “high partitions” between journalists and the rest
of the floor, and so journalists using them have no special
access to legislators. New contentions in a reply brief are dis-
favored, but Reeder’s argument suffers from more funda-
mental problems. It requires far more of defendants than the
law requires in order to be entitled to immunity. The Su-
preme Court has never held that those claiming legislative
immunity must substantiate the rationales for their legisla-
tive actions with evidence. And it is an odd argument for
Reeder to press, since if accepted, it would suggest that ac-
cess he wants is of little or no value. We refrain from saying
any more about it, since it was raised too late.
Second, Reeder insists that our approval of the district
court’s dismissal of his case will provide cover for the legis-
lature to reject other credential requests for invidious rea-
sons, such as the race or sex of the applicant. Yet he concedes
that these risks exist whenever legislative immunity is in-
voked. He does not argue that any such thing happened
here, nor does he explain why we should speculate about the
proper way to resolve a hypothetical conflict between two
different constitutional commands. We can safely save that
issue for another day.
Finally, Reeder has not argued that Ex parte Young, 209
U.S. 123 (1908), overcomes the defendants’ legislative im-
munity in this case. This omission is striking because the de-
No. 14-1923 13
fendants asserted in their brief that they are not responsible
for the enforcement of the Lobbyist Registration Act, which
is the source of the rules both Houses follow, and thus that
no injunction under Young would be proper. Brief of Defend-
ants-Appellees at 14–15 n.3. Reeder made no response to this
argument in his reply brief, and so we need say no more
about it.
III
The defendants’ decisions to deny press credentials to
Reeder were inseparable from their core legislative activities.
They were intimately related to the shared goal of the Illinois
Senate and House to regulate access to the floors of the state
House and Senate. The defendants are thus entitled to abso-
lute legislative immunity from suit in this case, and we
AFFIRM the judgment of the district court to this effect.