Monday, June 13, 2011

Legislative Vote is not Protected Speech, Court Rules

The Supreme Court ruled today in Nevada Commission on Ethics v. Carrigan that a legislative vote is not protected speech under the First Amendment and that a state recusal statute therefore did not violate the Constitution.

The ruling leaves untouched the widespread practice in states and Congress to require legislators to recuse themselves from voting when they have a conflict of interest.  The Nevada law at issue here reached farther than most--perhaps any--other recusal law.  And so the ruling, unanimous on the core holding that recusal laws do not violate the First Amendment, gives wide latitude to states and Congress in their efforts to enact and enforce aggressive and expansive recusal laws.

The case involved Nevada's Ethics in Government Law, which requires public officials to recuse themselves from voting on, or advocating the passage of or failure of, "a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by . . . [h]is commitment in a private capacity to the interests of others."  Under the Law, such commitment includes, e.g., a member of the officer's household or the officer's relative and--at issue here--"[a]ny other commitment or relationship that is substantially similar."

Petitioner Michael Carrigan was an elected member of the Sparks City Council.  As a Commissioner, Carrigan voted to approve an application for a hotel and casino project, the "Lazy 8."  But, as it turned out, Carrigan's long-time friend and campaign manager, Carlos Vasquez, was a paid consultant for the Red Hawk Land Company, which proposed the Lazy 8 project and would benefit from it.  Thus the conflict.


Before the vote, Carrigan consulted with the City Attorney, who advised him that disclosing the relationship would satisfy his obligations under the Law and that he could go ahead and vote on the measure.  But after Carrigan voted, the Nevada Commission on Ethics initiated an investigation and found that Carrigan violated the Law. 

Carrigan sued in state court, arguing that the Law violate the First Amendment.  A divided Nevada Supreme Court agreed, applied strict scrutiny, and ruled the Law unconstitutionally overbroad.

The Supreme Court reversed.  In a unanimous opinion by Justice Scalia, the Court held that the Law did not violate the Speech Clause in the First Amendment.  All but Justice Alito joined Justice Scalia's opinion that Carrigan's legislative vote wasn't even protected speech; Justice Alito concurred in part and concurred in the judgment, but wrote that Carrigan's legislative vote was speech (but that the Law did not violate the First Amendment).

Justice Scalia wrote that early congressional recusal laws and rules--including laws and rules that were in place when Congress voted on the First Amendment--along with the absence of any objection to such laws on speech grounds suggest that recusal laws are consistent with the First Amendment.  Moreover, states have a long tradition of enacting recusal laws. 

Justice Scalia wrote that Carrigan's vote wasn't speech, because he was simply channeling the will of his constituents (and not engaging in an independent expressive act):

[A] legislator's vote is the commitment of his apportioned share of the legislature's power to the passage or defeat of a particular proposal.  The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it. . . .  In this respect, voting by a legislator is different from voting by a citizen.  While "a voter's franchise is a personal right," "[t]he procedures for voting in legislative assemblies . . . pertain to legislators not as individuals but as political representatives executing the legislative process.

Op. at 8.

Justice Alito concurred in the judgment, but disagreed that a legislative vote isn't speech.  Referencing Doe v. Reed (2010), holding that disclosure of signatures on referendum petitions does not violate the First Amendment, Justice Alito wrote,

Just as the act of signing a petition is not deprived of its expressive character when the signature is given legal consequences, the act of voting is not drained of its expressive content when the vote has a legal effect.  If an ordinary citizen casts a vote in a straw poll on an important proposal pending before a legislative body, that act indisputably constitutes a form of speech.  If a member of the legislative body chooses to vote in the same straw poll, the legislator's act is no less expressive than that of an ordinary citizen.  And if the legislator then votes on the measure in the legislative chamber, the expressive character of that vote is not eliminated simply because it may affect the outcome of the legislative process.

Op. at 3 (op. of Justice Alito).  But Justice Alito came to the same result as the others--that the recusal law did not violate the First Amendment--because of Justice Scalia's evidence from early Congresses and from state practices. 

Justice Kennedy concurred with Justice Scalia's opinion but wrote separately to warn that the Nevada Law could be applied to restrict or to chill protected speech and association.  But the problems he raised were not before the Court.


[Image: Sparks City Hall, City of Sparks web-site]

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