by Gary Taylor
Nevada Commission on Ethics v Carrigan
(United States Supreme Court, June 13, 2011)
The Nevada Commission on Ethics administers and enforces Nevada’s Ethics in Government Law, Nev. Rev. Stat. §281A.420(2), which requires public officials to recuse themselves from voting on, or advocating the passage 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…his commitment in a private capacity to the interests of others,” which includes a “commitment to a [specified] person,” such as a member of the officer’s household or the officer’s relative, or “any other commitment or relationship that is substantially similar.”
In 2005 the Commission investigated Michael Carrigan, an elected member of the Sparks, Nevada city council, who voted to approve a hotel/casino project proposed by a company that used Carrigan’s long-time friend and campaign manager as a paid consultant. The Commission concluded that Carrigan had a disqualifying conflict of interest under the “any other commitment or relationship that is substantially similar” catchall provision of the Ethics in Government Law. The Commission censured him for failing to abstain from voting on the project, but did not impose a fine on him because the violation was not willful (the Sparks city attorney had advised Carrigan that disclosing the relationship with his campaign manager would satisfy his obligation under the law). Carrigan sought judicial review, arguing that the Nevada law violated the First Amendment. The State District Court denied the petition, but the Nevada Supreme Court reversed, holding that voting is protected speech, and that the law’s catchall definition was unconstitutionally overbroad.
The United States Supreme Court disagreed with the Nevada Supreme Court. The Court found restrictions on legislators’ voting are not restrictions on legislators’ protected speech. 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. He casts his vote “as trustee for his constituents, not as a prerogative of personal power.” Moreover, voting is not a symbolic action, and the fact that it is the product of a deeply held or highly unpopular personal belief does not transform it into First Amendment speech. Even if the mere vote itself could express depth of belief (which it cannot), the Court noted that in previous cases it had rejected the notion that the First Amendment confers a right to use governmental mechanics to convey a message.
The Court found support for its decision in “early congressional enactments,” which offer “contemporaneous and weighty evidence of the Constitution’s meaning.” Within 15 years of the founding, both the United States House and the Senate adopted recusal rules. Federal conflict-of-interest rules applicable to judges also date back to the founding. “[A] ‘universal and long-established’ tradition of prohibiting certain conduct creates ‘a strong presumption’ that the prohibition is constitutional.” The notion that Nevada’s recusal rules violate legislators’ First Amendment rights is also inconsistent with long-standing traditions in the States, most of which have some type of recusal law.
The Court also found that laws that prohibit a legislator who has a conflict from advocating its passage or failure are also valid. If it is constitutional to exclude an elected official from voting, then his exclusion from advocating during a legislative session is similarly constitutional. Such speech limitations are reasonable time, place, and manner limitations.
The U.S. Supreme Court reversed and remanded the case.