### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 14

- 1923
S COTT R EEDER and the I LLINOIS P OLICY I NSTITUTE , Plaintiffs

- Appellants ,

v.

M ICHAEL J. M ADIGAN , 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

.

____________________
A RGUED N OVEMBER 10, 2014

— D ECIDED M ARCH 11 , 2015

____________________

Before W OOD , Chief Judge , and R OVNER and H AMILTON , Circuit Judges

. W OOD , C hief 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 crede ntials as a writer for the Illinois Policy Institute (IPI) was d enied because IPI was registered as a lobbying entity in Ill inois. Phelon explained that Senate rules required this dec i-2 No. 14

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sion because the rules forbid credentials for anyone associa ted with a lobbying entity. Undaunted, Reeder tried again in January 2014 to obtain media credentials from the Illinois House of Representatives and Senate . H is status had chang ed, he argued, because IPI was no longer registered as a lobbyist. That change was not enoug h to satisfy the Senate

. It took the position that IPI was still required to re gister as a lobbyist given its retention of a lobbying firm that employed the same st aff and of fice 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 Culle rton , 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 p rocess and equal protection. The defen dants moved to dismiss Reeder’s claims on the basis of abs olute legislative immunity. The district court granted that m otion, concluding that the denial of credentials to Reeder qua l ified as legislative activity and th us entitled the defen dants to immunity. W e 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 co me s to us on a m otion to dismiss . See CEnergy

- Gle n more Wind Farm No. 1, LLC v. Town of Gle n more , 769 F.3d 485, 487 (7th Cir. 2014).No. 14

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Reeder is an e xperienced reporter. Since 1988 he has worked for newspa pers in Texas, Iowa, and Nevada. He served for ten years as statehouse bureau chief for an Illi nois 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 say s , he “writes his news commentary from a perspective that favors free markets and limited go vernment.” IPI was registered as a lobbyist in Illinois throug h 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 th is

area , Ree der 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 gua ranteed seat on days when the public galleries are full. As we noted earlier, both Houses denied Reeder’s appl ication. Phelon explained in her March 2013 letter that the Senate’s media guidelines incorporate Senate Rule 4

- 3(d), which disallows access to t he 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 t he Senate’s media guidelines requi re credential appl icants to operate independently of industries and institutions and to refrain from lobby ing

. Phel o n acknowledged that the4 No. 14

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Illinois Lobbyist Registration Act , 25 ILCS 170/1 et seq. , ge nerally exempts newspaper employees from lobbyist registr ation require ments, but there is an exception for people who receive compensation “from some source other than the b ona fide news medium for the purpose of influencing exec utive, legislative, or administrative action.” Id. 170/3(a)(2)

. These rules r equired the rejection of Reeder’s application for creden tials . 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 w as not going to be registering as an Illinois lobbyist in 2014. This meant (he a sserted) that they could no longer deny him creden tials 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

. Ma diar observed that the people who were once IPI lo bbyists 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 Chicag o 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 t he Illinois News Ne twork, as part of IPI, was not “owned and operated ind e-No. 14

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pendently of any industry, institution, association, or lobb ying organi zation ” and thus IPI should have registere d as an Illinois lobbyist for 2014, given its relationship with Illinois Policy Action. In light of all this, Madiar concluded, “it is di fficult to fathom how you [Reeder] operate independently of the Institute per the Senate Media Guidelines.”
The followi ng month Reeder’s attorney received a similar letter citing House rules and the Lobbyist Registration Act from the counsel to the Speaker of the Ill inois House

. The day after this letter arrived, Reeder filed his lawsuit.
II
A The sole issue in this appea l is whether Speaker Mad igan, President Cullerton, and their aides are entitled to abs olute 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 Const itution, which states that with regard to members of Co ngress, “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 discu ssion o r speechmaking on the legislative floor. See, e.g. , Ki lbourn 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 legi slative activity.” Tenney v. Brandhove , 341 U.S. 367, 376 (1951). The Supreme Court has held that this category encompass es acts that are an integral part of the deliberative and co m-6 No. 14

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municative processes by which Members pa rticipate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with r espect to other matters which the Constitution places within the jurisdiction of either House.
Gravel v. Unit ed States , 408 U.S. 606, 625 (1972). The inquiry into the nature of legislative activity is a func tional one. See Rateree v. Rockett , 852 F.2d 946, 9 50 (7th Cir. 1988). Just as the Speech or Debate Clause extend s beyond li teral speech and debate, so too do es it apply to others besides members of the United States Congress. Legislators at the
state , regional, and municipal levels are also entitled to abs olute immunity for their legislative activities. Bogan v. Scott

Harris , 523 U.S. 44, 53

– 54 (1998). The sam e can be true for a ctors on the legislative stage who are not elected officials themselves

. The Supreme Court left little doubt about this in Gravel , whe re 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 61 8

. This represented a shift in emphasis from the Court’s cases only a few years ea rlier, when it observed that legislative immunity is “ less abs olute, although applicable, when applied to officers or e mployees of a legislative body, rather than to legislators the mselves.” Dombrowski v. Eastland , 387 U.S. 82, 85 (1967) (per curiam) ; see also Powell v. McCormack , 395 U.S. 486, 506 (1969) ( holding legislato rs immune from suit but not House sergeant at arms, doorkeeper, or clerk)

. Since Gravel , the Court has confirmed that legislative immunity applies to le gislative committee staff in addition to legislators themselves.No. 14

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See Eastland v. U nited S tates Serviceme n’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 crede ntials on an applicant

— was legislative in nature, and integr a lly 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 d efendants 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 a llowed 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 t he state as lobbyists, but not those working for publications “owned by or pu blished by ... not

- for

- profit corporations engaged primarily in endeavors other than dissemination of news.” 25 ILCS 170/3(a)(2).
Th ese 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 prohib ition exis ts: these people are “directly or indirectly interested in defeating or promoting any pending legislative measure.” It can easily be in ferred from the Lobbyist Registration Act
,8 No. 14

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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 i mportant legislative purpose

. The IPI is plainly an advocacy organization, and even though it did not register as a lobb yist in 2014, both the House and S enate determined that it should have. It is hardly a stretch to characterize c ontrol of
access to the legisla tive floor a s a core legislative function.
Reeder’s primary argument to the contrary

— that the a ction 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 exa mple, that denial of media credential s is unlike speaking, d ebating, voting on the legislative floor, or conducting a legi slative investigation

. That set of activities, he assumes, e xhaust s the possibilities for legislative activity, and so an ything not within the set must be administrative . Yet the S upreme Court ha s 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 t hat the Clause should r eceive “a practical rather than a stri ctly lit eral 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 f loor 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 leg islature to function, as it would potentia l-No. 14

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ly subject legislators and their aides to liability for eve ry floor

- access decision they make. It is not surprising, ther efore, that the First and District of Columbia Circuits agree with us. See Nat’l Ass’n of So c. Workers v. Harwood , 69 F

. 3d 622, 632 (1st Cir. 1995) (holding “it is beyond serious di spute” 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 persuad ed 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 w ell as the doorkeeper, sergeant

- at

- arms, and clerk for barring hi m 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. A lthough it held that the Clause required that legislators b e free from the burden of defending themselves, it did not similarly protect the spec ified House employees. See Powell , 395 U.S. at 504

– 06.
Yet the Court in Powell explicitly decli ned to consider the question whether the decision to exclude Powell was legi sl ative in nature

. I d. at 501

– 02 . Moreover, since Powell the Court has definitively rejected the notion that legislative aides (as opposed to staff suc h as the doorkeeper or sergeant

- at

- arms) are not entitled to the same degree of immunity as legislators
t hemselves 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 so10 No. 14

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critical to the Members ’ performance that they must be trea ted as the latter ’ s alter egos; and that if they are not so reco gnized, 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 Mad igan from suit in this case extends to Phelon and Brown, their press secretaries. I t would be a mistake to read too much i nto 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 Hous e raises a more mu ndane matter that was always subject to the approval of the legislature

. In a less ambitious vein, Reeder also contends that the a ctions under review were not legislative because they repr esented mere enforcement of a rule, not its promul gation

— 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)

. B ut t he Court in Supreme Court of Virginia made no such pronouncement . The case dealt in part with the Vi rginia S upreme Court’s authority to initiate disciplinary pr oceedings against attorneys for alleged violations of rules the court itself promulgated. The promulgation of rules is ent itled to legislative immunity, the U.S. Supreme Court noted, but the Virginia Supr eme Court’s power to enforce those rules via disciplinary proceedings was prosecutorial in n ature. Prosecutors, the Court continued, “enjoy absolute i mmunity 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 “enforc e-No. 14

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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 cr edentials was nothing like a prosecution

. I t did not impose any kind of liability on him, nor did it deprive him of a l icense or permit. We agree with the First Circuit’s conclusion that when “a legislative body adopts a rule ... that bears u pon its conduct of frankly legislative business, we think that the doctrine of legislative immunity m ust 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 Re eder appears to be challenging both the promulgation and enforcement of the rules here. E ven 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 counte rparts 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 di spositive in th at case, nor is it in this one

. T here is no reason
to find that legislators such as Speaker Madigan and Pres ident Cullerton along with t heir 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 legisla tors).
Several final matters require our attention. First, Reeder12 No. 14

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makes a late attempt in his reply brief to raise a factual issue. He contends that the defendant s 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 ev idence that the press boxes in Springfield have a separate e ntrance and “high partitions” between journalists and the rest of the floor, a nd so journalists using them have no special access to legislators. Ne w contentions in a r eply brief are di sfavored, but Reeder’s argument suffers from more fund amental problems. It requires far more of defendants than the law requires in order to be entitled to immunity

. T he S upreme Court has never held that those claiming legislative immunity must substantiate the rationales for their legisl ative actions with evidence

. And it is an odd argument for Reeder to press, since if accepted, it would suggest that a ccess he wants is of little or no value. We refrain from saying any more about it, since it was raised too late. Second, Reeder insist s that our approval of the district court’s dismissal of his case will provide cover for the legi sl a ture to reject other credential requests for invidious re asons, such as the race or sex of the applicant. Yet he concedes that these risks exist whenever legislative immunity is i nvoked. 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 i mmunity in this case. This omission is striking because the d e-No. 14

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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. Br ief of Defen dants

- 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 defendant s ’ 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 acces s to the f loor s of the state House and Senate

. The defendants are thus entitled to abs olute legislative immunity from suit in this case, and we A FFIRM the judgment of the dis trict court t o this effect

.