Forget flu season. New England is seeing an outbreak of the “legislative immunity virus.”

Robert Wechsler — research director for City Ethics, a nonprofit that advises local governments on ethics programs — used that phrase in detailing how Massachusetts House Speaker Salvatore F. DiMasi is refusing to cooperate with that state’s ethics commission and invoking a constitutional claim of legislative immunity.

When I read about DiMasi, I thought: Been there, done that, my Bay State friend.

Rhode Island’s former Senate president, William V. Irons, invoked a constitutional claim of legislative immunity from a state Ethics Commission prosecution back in November 2007. And last month, a Superior Court judge dismissed ethics charges against Irons, saying the Ethics Commission can’t prosecute Irons based on his legislative activities because of the “speech-in-debate” clause in the state Constitution.

Until now, few of us have ever had pause to consider that clause. “For any speech in debate in either house,” it says, referring to the House and Senate, “no member shall be questioned in any other place.”

That means legislators “should not be questioned by any other branch of government for their acts in carrying out their legislative duties,” the state Supreme Court said in 1984.

It’s not a new concept. Its origins reach back to the English Bill of Rights of 1689, and the constitutions of the federal government and 43 states contain a similar clause.

But over the past year, legislators in Rhode Island, Massachusetts, Louisiana and Nevada have begun brandishing speech-in-debate clauses to fend off pesky ethics commissions. And here in the Ocean State, the strategy is working.

Irons, an insurance salesman from East Providence, abruptly resigned on Dec. 31, 2003, after two decades in the Senate. He had opposed controversial pharmacy-choice legislation that the CVS drugstore chain had opposed. The Journal disclosed that Irons had collected hundreds of thousands of dollars in commissions since 1997 on a Blue Cross policy covering CVS workers in Rhode Island. At the time, Irons chaired the Senate committee that handled health care and voted on legislation of interest to CVS.

The Ethics Commission found probable cause to believe Irons broke the Code of Ethics by using his public office to financially benefit his business associate, CVS.

But Irons’ lawyer, John A. Tarantino, went to court to block the Ethics Commission’s prosecution. “The long-established principles included in the (speech-in-debate) clause preclude the commission from basing any prosecution against a General Assembly member on past legislative acts, including consideration of, participation in and voting on legislation,” Tarantino wrote in a legal brief.

Ethics Commission lawyers Jason Gramitt and Katherine D’Arezzo disagreed. In a legal brief, they said voters “carved out a narrow exception to legislative immunity” when they amended the state Constitution in 1986 to create the Ethics Commission. The ethics amendment applied to all elected officials — including legislators, they said.

They also quoted a 1992 state Supreme Court ruling that described the historical backdrop for the ethics amendment: “The years preceding the 1986 constitutional convention were marked by scandal and corruption at all levels of government,” the court said. “Indeed, widespread breaches of trust, cronyism, impropriety and other violations of ethical standards decimated the public’s trust in government.”

Certainly, those words echo headlines from the past few years.

In his Oct. 29 ruling, Superior Court Judge Francis J. Darigan said that if the drafters of the 1986 ethics amendment intended to repeal or dilute the speech-in-debate clause, “they could have and should have made that intention explicit.” In other words, it wasn’t enough to say the ethics amendment applies to all elected officials; you had to spell out that the ethics amendment overrides the clause that gives legislators immunity for legislative activity.

But if you can’t go after legislators for legislative activity, what else is there? The annual St. Patrick’s Day/St. Joseph’s Day celebration? Isn’t legislating what legislators do?

In his ruling, Darigan said, “Many of the Ethics Commission’s investigations, complaints or decisions issued over the years have not involved legislative acts.” He said that, “while the speech-in-debate clause undeniably makes prosecutions impossible when legislators are acting in a legislative capacity, it is no bar to investigating improper political activity, bribery, general dishonesty or any violation that is not based upon that legislative activity.”

Plus, Darigan said his job is to enforce the Constitution as it’s written — not to make life easier for prosecutorial agencies like the Ethics Commission.

Ethics Commission lawyers noted that over the previous two decades, no legislators had challenged the commission’s constitutional authority to enforce the ethics amendment against them. For example, the Ethics Commission filed complaints against House Majority Leader Gordon D. Fox in 2003, alleging he violated the ethics code “when he participated in legislation regarding a contract between the Lottery Commission and GTECH at a time when Fox’s law firm was representing GTECH.” Fox did not raise a legislative immunity defense and ended up paying a $10,000 fine.

Such examples provide further proof that legislators themselves intended a narrow exception to legislative immunity, the Ethics Commission lawyers said.

But Darigan said it doesn’t matter whether a right has been raised before or not. If it’s a right, it’s a right.

Irons’ lawyer, Tarantino, made that point in reminding the judge of Gideon v. Wainwright, a landmark U.S. Supreme Court case from 1963. Clarence E. Gideon, a drifter charged in a pool-hall burglary, successfully argued that the Constitution requires state courts to provide lawyers in criminal cases for defendants who can’t afford to hire their own lawyers. Tarantino said a judge questioned why Gideon would have that right when thousands had come before him and never asked for court-appointed counsel. But like Irons, Gideon had every right to invoke a right, regardless of whether others had invoked it in the past, he said.

I see Tarantino’s point about Gideon, whose case inspired the book Gideon’s Trumpet, by Anthony Lewis. But somehow Irons’ case doesn’t seem quite as noble. I doubt there will ever be a bestseller called Bill Irons’ Bugle.

To be sure, there is a principle at stake here. Tarantino noted that in 1984 the state Supreme Court said the speech-in-debate clause was not intended to protect legislators for their own benefit. Rather, the clause aims “to support the rights of the people by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal,” the court said.

But Wechsler, of City Ethics, said, “It might be time to take a closer look at a very old common-law concept that might have outlasted its era. This is an era of government transparency, and everyone knows that these cases have nothing to do with a legislator’s freedom to vote as he or she pleases. There is no constituency for the speech-in-debate clause, except among legislators and constitutional lawyers who don’t believe constitutional law should change.”

On the Web site cityethics.org, Wechsler said there’s no question the judicial and executive branches lack jurisdiction over legislative activity, but he said the Ethics Commission is neither judicial nor executive. “It has a special position in government, and its purpose is not to deal with the content of any activity, but only with the public goal of preventing conflicts of interest from affecting the public trust, especially through voting,” he wrote.

The issue is not how Irons voted — it’s that he voted at all when he allegedly had a conflict, Wechsler said.

In an interview, Tarantino said, “We don’t agree with the charge that [Irons] did anything wrong. But irrespective of whether he did anything wrong — and we are saying he did not — he is immune from the prosecution by the Ethics Commission.”

In an interview, Gramitt said the Ethics Commission plans to appeal Darigan’s decision to the Rhode Island Supreme Court.

Gramitt said that if you ask anyone who voted for the ethics amendment in 1986, they’ll tell you they wanted the Ethics Commission to be able to prosecute conflicts of interest involving legislators.

If Irons’ legal argument prevails, Gramitt said, “then it’s a sad day for Rhode Island because it’s saying, ‘Well, maybe you intended for the Ethics Commission to have this power, but through a drafting mistake you don’t get it 22 years later.’ And to subvert the will of the people that way would be crushing, really.”

Gramitt said the only remedy would be another constitutional convention “to clarify what the people meant 22 years ago.”

In an interview, former Supreme Court Justice Robert G. Flanders, co-author of “The Rhode Island State Constitution: A Reference Guide,” said the 1986 constitutional amendment took legislative power away from the General Assembly and gave it to the Ethics Commission, and it made the ethics code binding on all branches of government. “But at same time, they did nothing to modify the speech-in-debate clause,” he said. “And normally repeals by implication are not favored.”

I don’t know if the Ethics Commission is going to win this appeal. The Irons case could end up providing us with one more reminder that legislators have privileges. But let’s keep in mind that it’s a privilege to be a legislator.

I agree we need to protect legislators from meddling by other branches of government, especially from whatever politician happens to be governor. But should we protect legislators from an independent, nonpartisan Ethics Commission?

I’m sure legislators would appreciate that protection. But given the potential for a part-time legislature to have conflicts of interest involving legislative activities, I don’t think that protection is warranted. Not now. Not when, for the first time in history, two top legislators — former House Majority Leader Gerard M. Martineau and former Senate Corporations Committee Chairman John A. Celona — are behind bars for corruption.

As they say at the State House, “out of an abundance of caution,” Rhode Island needs an Ethics Commission with a full set of teeth.

efitzpat@projo.com