Dysfunction Junction: Should the Courts Rethink the Functional Approach to Legislative Immunity for State Officials?

A state legislative immunity doctrine that affords greater protection from civil liability than the federal common law doctrine clearly interferes with federal law. At first glance, a state\u27s decision to afford less protection than offered under federal law might not appear to interfere with the federal interest in administering federal law, but Supreme Court precedent and public policy considerations still prohibit the abrogation of federal legislative immunity as it pertains to state officials. The potential conflict between state and federal legislative immunity was addressed in Empress Casino Corp. v. Blagojevich, where the Seventh Circuit discussed whether former Gov. Rod Blagojevich was entitled to federal legislative immunity for his role in the enactment of the 2006 Horse Racing Act. The law required that riverboat casinos distribute three percent of earnings to several Illinois horseracing tracks. The Seventh Circuit held that Blagojevich was entitled to federal legislative immunity in the RICO-conspiracy suit against him. The Seventh Circuit was correct in allowing Blagojevich to invoke the federal legislative immunity because the Supreme Court has consistently upheld this application of federal legislative immunity to officials who are acting in a legislative capacity. Further, states have no authority to displace federal legislative immunity without express congressional approval. To allow states to determine the scope of legislative immunity would unfairly prejudice defendant-state officials, and waste valuable federal resources pursuing claims at the behest of the states. Furthermore, exposing state officials to civil liability would be of only marginal deterrent effect, given the severity of existing punishments for government misconduct. While the states are free to develop independent legislative immunity doctrines that afford less protection from state claims, to give the state doctrines controlling effect in federal claims would be to allow the states to define the scope of federal law