Capitol Blacklist?
Updated: Apr 25, 2020
On Friday Speaker Osborne and Senate President Stivers said they are considering how to implement the requirement of those testifying in front of committee to take an oath. This would be in an effort to cut down on what they call blatant lies and misinformation. They say the have the authority to do so right now. We have looked through the Kentucky Constitution and have found nothing about requiring and oath for those who testify; however, Section 39 does allow them to set up rules, and there is a bit of leeway in that regard. In Section 39 it says they can punish someone who attempts through corrupt means control or influence the vote. So lying to the committee could possibly fall under that provision.
In order to do something like this we believe whatever rules they make regarding it has to be crystal clear. We also have a few concerns about trying to implement this kind of policy. First who determines what was a lie? Who determines if there was intent to lie? Who determines what is factual and what is not? As you can see that can get quite messy, and charging someone for perjury is serious business, so if the legislature plans on doing this they might get themselves ready for some legal battles. Secondly they talk about referring someone to the Ethics Commission, but that can't be done unless that person testifying falls under the Jurisdiction of the Ethics Commission. So they cannot be reporting average citizens who decide to testify because it is likely they are not subject to any of those rules. Finally and this seems to be most telling, if the person is to have been found lying (again who determines what?) that individual could be kept from testifying in the future. Now this is starting to sound like a Blacklist or Blackballing effort to keep people away from committees hearings the legislature doesn't want them to testify in.
What we find most interesting is the legislators themselves won't be held responsible for the same behavior they are supposedly tired of dealing with from everyone else, as they have immunity when representing their own bills. However, Section 39 allows for the punishment a member for disorderly behavior by expelling them. It also says any person who does a litany of other items that the legislature doesn't like including corrupt means to control the vote can be imprisoned for at least until the end of the legislative session. We see nothing in there exempting legislators from punishment.
It is one thing to want to pursue perjury charges against someone but it is an entirely different thing to just put them on a blacklist barring them from testimony, there is no due process when it comes to their first amendment rights to petition government.
We would advise the Legislature to be extremely careful when creating and implementing a policy of this nature.
