“Lifting the Legislative Rug”: A Proposal for Congressional Abrogation of State Legislative Privilege in Discrimination Cases Under § 1983

Originally enacted in 1871 as part of the Ku Klux Klan Act, 42 U.S.C. § 1983 today serves as one of the primary vehicles for litigants to raise civil rights claims. The statute creates a cause of action to sue “[e]very person” who under color of state law acts in violation of a constitutional right. In recent years, plaintiffs have attempted to use the statute to hold state legislators accountable for taking discriminatory action, such as racial gerrymandering and banning the instruction of critical race theory. But many of these claims have hit a dead end because of the doctrine of legislative privilege. The privilege, which federal courts have extended to state legislators as a matter of federal common law, is an evidentiary protection that shields legislators from having to testify and provide evidence related to their legislative activity. Many courts have held that the privilege is absolute in civil cases, meaning that legislators can invoke its evidentiary protections even in contexts when legislative immunity would not offer protection—such as when legislators are third parties to discovery and face no threat of personal liability. When legislators invoke the privilege in discrimination cases, it frequently leaves plaintiffs with their hands tied: they must prove that lawmakers acted with intent to discriminate, yet they are effectively blocked from obtaining from legislators any evidence pertaining to their legislative acts and their motivations behind them. Solutions are necessary to safeguard constitutional rights in these discrimination cases. This Note suggests that one solution to this problem could lie in congressional abrogation of state legislative privilege pursuant to § 1983.