The Washington Senate’s Republican minority leader said he’d welcome an independent investigation into Democrats’ use of ‘legislative privilege.’

By Joseph O’Sullivan / / February 8, 2023

State Republican legislative leaders Tuesday questioned how some of Washington’s most powerful Democratic politicians are using a newfangled, and legally untested, secrecy clause to hide documents and messages from the public.

The remarks by state Senate Minority Leader John Braun, R-Centralia, and Rep. J.T. Wilcox, R-Yelm, come as questions have been raised in the Senate Democratic caucus about who is redacting lawmakers’ records citing “legislative privilege.”

Crosscut is still reviewing a thousand pages of Senate documents obtained Friday afternoon via records requests related to the Senate’s use in 2022 of “legislative privilege.”

While Republicans such as Braun have defended the concept of a constitutional right to shield some documents according to narrow parameters, Republicans have used the practice sparingly, according to Senate documents and House records that were previously obtained by Crosscut.

On the other hand, Democratic leaders – including Senate Majority Leader Andy Billig and House Speaker Laurie Jinkins – have been among those authorizing the practice to mark up or completely black out hundreds of pages of emails, memos and text chats.

Those documents include communications related to the capital-gains tax passed by Democratic majorities that is currently facing a legal challenge before the state Supreme Court, and Washington’s infamous redistricting fiasco of 2021. Text and electronic chats between lawmakers have been redacted on some records that have been released. Also subject to the purported constitutional secrecy clause are records related to last year’s proposal to designate a Chinese American History month. That bill stalled in the House after the Senate voted unanimously to pass it.

Over the past month, several Democratic lawmakers whose records were redacted say they never requested the use of a constitutional secrecy privilege.

Democratic Sens. Javier Valdez of Seattle, Jamie Pedersen of Seattle and Karen Keiser of Des Moines have told Crosscut they don’t know who blacked out emails sent to them or other communications on documents related to the capital-gains tax or Chinese American History month.

In emails to Crosscut, Sens. Emily Randall, D-Bremerton, and Yasmin Trudeau, D-Tacoma, said they have never invoked a constitutional secrecy clause, and that in at least one case, Billig did it on their behalf.

“I didn’t assert legislative privilege,” Randall wrote in her email Monday about text chats of hers obtained by Crosscut that had been blacked out. “Transparency is important to me, and while I believe in the theory of legislative privilege, I don’t have any intention of claiming it. I think you’ve had a conversation with Sen. Billig today about how the original redaction occurred.”

In an interview Monday, Billig acknowledged that he reviewed at least one batch of group electronic chats for the Democratic caucus to assert privilege to redact some messages written by other lawmakers.

In 2019, the Washington Supreme Court ruled that lawmakers are subject to the state’s 1972 voter-approved Public Records Act. In their order, the judges ruled that each individual lawmaker’s office is an agency, and thus each of those offices are subject to the transparency law that was approved by 72% support at the ballot box.

Billig’s decision to assert a constitutional right to redact other lawmakers’ records flies in the face of how the Republican leaders said they understand the concept of “legislative privilege.”

In a regularly scheduled news conference Tuesday, both Braun and Wilcox said legislative privilege does not bestow a constitutional right to redact the documents of other elected officials.

Asked whether the Washington state constitution gives him the authority to black out the messages of other elected officials, Braun answered in one word: “No.”

Wilcox made an analogy about walking into Braun’s office, which is considered a separate agency per the court ruling, to black out records over there.

“I don’t see why me walking into John’s office gives me the right to redact his stuff,” said Wilcox.

Billig has maintained that his actions are lawful, although he declined on Monday to explain the parameters of how “legislative privilege” is used. He cited the lawsuit filed against the Legislature after The Tacoma News Tribune and The Olympian first broke the story of “legislative privilege.”

“Because there’s a lawsuit, I don’t want to talk about what the justification of legislative privilege is,” Billig said Monday in his corner office in the Capitol building in Olympia.

When the Senate released its records last Friday to Crosscut, the documents included a surprise – an unspecified number of lawmakers had waived their secrecy privilege, allowing for what appears to be a duplicate batch of the records showing them unredacted.

But it remains unclear which lawmakers lifted their privilege for the records to be released to Crosscut.

The responses came in two sets of documents – each one 797 pages long – with one set redacted and one set unredacted. Those records were a compilation of the batches of emails, memos, chats and other documents that were released last year in response to various people who had requested them. That sort of mixing – intentional or not – makes it harder for the public to identify which lawmakers might have had an interest or who might have received a request to exert privilege on any given document. On top of that, some of the records within those PDFs were arranged in a different order.

Asked about that, Braun said, “This is the first I’ve heard of it, so I’m not sure I’m in a position to comment.”

“Whether it’s lawful or not, I can’t tell you,” Braun said. “Whether it’s the best way to do it, it seems haphazard and unorganized.”

Braun said he would welcome the Senate to commission an independent investigation, but “we are not the ones who get to make that decision.”

Wilcox agreed, pointing out that when one party controls all the levers of power, they are sometimes reluctant to investigate themselves.

“When we have single-party government, they never really hold each other accountable,” said Wilcox.

In a regularly-scheduled news conference Tuesday afternoon, Billig said there was no need to commission an independent review.

“There’s been no allegation of wrongdoing, everything that’s been done was lawful,” Billig said. He added: “I’ve said many times, and continue to say, whatever the court says, we will follow.”

With the unredacted records released to Crosscut, “Every record has been released related to any of these records you’re talking about,” said Billig, except for a small number of pages that had been withheld by Sen. Doug Ericksen. A Republican from Ferndale and longtime legislator, Ericksen died in late 2021.

In an email, newly elected Washington State Democratic Party Chair Shasti Conrad said she couldn’t comment about Billig’s practice of redacting other lawmakers’ records or whether the Senate should commission an investigation to examine its secrecy practices.

“Unfortunately, I don’t have any insight to offer on this issue,” Conrad wrote in an email. “I just got elected a week ago, and spent all of last week in Philadelphia at the DNC, so I’m not up to speed on what’s happening on the official side in Olympia on this particular issue at the moment.”

Gov. Jay Inslee’s office says it doesn’t know who redacted the records of Valdez, Pedersen or Keiser.

“Our office doesn’t have any knowledge of or involvement with the handling of records within the legislative branch, nor of the offices of separately elected officials,” Inslee spokesperson Jaime Smith wrote in an email. “The governor is not personally involved in any redaction decisions within the governor’s office or other executive agencies.”

Smith added that, “We would defer to legislators to work with their leadership and administrators on establishing policies, procedures and oversight protocols for ensuring records are handled properly.”

After taking office in 2013, Inslee waived executive privilege that had been granted to the governor in a 2013 state Supreme Court ruling, known as Gregoire v. Freedom Foundation. The Legislature has cited that as well as another case – a 2006 Snohomish County Superior Court ruling – that the Legislature believes will sanctify its practice.

Inslee, now in his third term and the highest-ranking elected Democrat in Washington state government, waived that executive privilege and has never used it.

“Transparency is an important value to him,” Smith wrote in an email. “In the past 10 years, we have not found that waiving the privilege has interfered with our work and, honestly, because we’ve never used the privilege, it’s the only way we know how to operate.”

FEATURED IMAGE: The Washington State Capitol in Olympia on Thursday, Jan. 5, 2023. (Amanda Snyder/ Crosscut)

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