The technical legal question before the Court in Nevada Comm'n on Ethics v. Carrigan, No. 10-568 (June 13, 2011) was whether legislative voting by an elected official was "speech" and if so, whether the First Amendment allowed him to vote for a casino development proposal in which his campaign manager and personal friend was the developer's paid "consultant."
The Court's opinion, however, revealed that what was at stake in the case was much more than metaphysical First Amendment questions and "good government" laws, because the heart of the opinion reaffirmed the core principle of representative government: when casting votes, elected and appointed officials are not speaking for themselves, but are exercising power "that belongs to the people."
Justice Scalia, writing for CJ Roberts, and Justices Kennedy, Thomas, Ginsburg, Breyer, Sotomayor, and Kagan, concluded that a legislator's vote is not speech because a city council member is not "saying" anything by voting, and because a vote is not speech it may be regulated, or in this case prohibited.
Thus, in accordance with the Nevada Ethics in Government statute, the council member should have recused himself from voting on the casino proposal. That statute requires recusal when a legislator has a "commitment in a private capacity to the interests of others." The council member's relationship with the consultant did not fall within any of the expressly defined categories such as family members, business associates, or household members, but the Ethics Commission concluded it was within the statute's "catch-all" provision because it was "substantially similar" to those relationships. The council member disclosed the relationship, but voted to approve the project.
What Would The Founders Do?
The opinion began with the tautology that the First Amendment prohibits laws abridging the freedom of speech, "[b]ut the Amendment has no application when what is restricted is not speech." Slip op. at 3. The Court agreed with the Nevada Supreme Court's conclusion that voting by elected officials is a "core legislative function," but reached the opposite conclusion about what that means. The Nevada court concluded that since voting was the essence of a legislator's political action, it meant her vote is protected political speech, and any laws restricting that right are subject to strict judicial scrutiny. Justice Scalia and colleagues viewed voting as only action with little or no expressive content, at least not one that a legislator is entitled to claim, because when voting, government officials are acting as trustees for consituents, not exercising personal speech rights:But how can it be that restrictions upon legislators’ voting are not restrictions upon legislators’ protected speech? The answer is that 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.Slip op. at 8. (Yes, Justice Scalia starts a sentence with "But." And you can, too.)
The Court held it was "dispositive" that legislative recusal rules have been around since the birth of the republic, "and such rules have been commonplace for over 200 years." Slip op. at 4. The opinion supported this assertion by noting the the U.S. Senate and House of Representatives adopted recusal rules "within 15 years of the founding." Id.
The Court also seemed swayed by the fact that "virtually every State has enacted some type of recusal law, many of which, not unlike Nevada's require public officials to abstain from voting on all matters presenting a conflict of interest." Slip op. at 7. Reviewing the Nevada ethics law under the strict scrutiny standard would also subject those laws to serious challenge, and the Court appears to have been convinced that there is no need to do so.
If We Can Get Recused, You Can Too
The Court also asserted that "[f]ederal conflict-of-interest rules applicable to judges also date back to the founding," id., and cited the current codification of the federal judicial recusal statute, 28 U.S.C. § 144, for the notion that recusal requirements are old hat, even though the Court acknowledged that "[t]here are of course difference between a legislator's vote and a judge's, and thus between legislative and judicial recusal rules." Slip op. at 6. The Court seems to be saying that if we of the black robes are subject to these restrictions, you legislators are too. (Interesting, because although federal district judges are subject to section 144, Supreme Court Justices are not, and recent allegations of conflicts of interest by the Justices have highlighted the lack of clear standards in that department. See this letter from 44 House Democrats to Associate Justice Thomas, signed by the now-disgraced Twitterer Anthony Weiner.)
Restrictions On Legislative Advocacy
The Court also concluded that recusal laws which prohibit an official from "advocating the passage or failure" of legislation in addition to requiring recusal from voting do not violate free speech rights, even though they expressly prohibit speech:
Neither Carrigan nor any of his amici contend that the prohibition on advocating can be unconstitutional if the prohibition on voting is not. Legislative sessions would become massive town-hall meetings if those who had a right to speak were not limited to those who had a right to vote. If Carrigan was constitutionally excluded from voting, his exclusion from "advocat[ing]" at the legislative session was a reasonable time, place and manner limitation.
Slip op. at 3-4. Justice Kennedy concurred separately "to note that the opinion does not, and on this record should not consider" the argument that the Nevada ethics law might impose burdens on First Amendment speech rights by restricting actions other than casting a vote. This indicates that the majority's conclusion is not quite as sweeping as the quoted passage above might indicate, and that there may be other First Amendment problems with ethics laws that restrict speech outside the context of an official's vote.
What's Left?
The majority opinion left open two questions that seemed to take up much of the Court's attention at oral arguments. First, whether the Nevada statute's catch-all provision impermissibly burdened Carrigan's right to political association by in effect penalizing him after the fact for his relationship with the developer's consultant. Second, whether as a matter of due process, the catch-all provision was too vague to provide notice of what relationships will result in recusal. The Court addressed neither, concluding that Carrigan waived them:
Whatever the merits of these arguments, we have no occasion to consider them. Neither was decided below: The Nevada Supreme Court made no mention of the former argument and said that it need not address the latter given its resolution of the overbreadth challenge. Nor was either argument raised in Carrigan's brief in opposition to the petition for writ of certoirari. Arguments thus omitted are normally considered waived[.]
Slip op. at 11 (citations omitted). Which proves to us that (1) as a petitioner/appellant if you must lose below, it's better to lose ugly, and (2) as the issue window narrows as you travel up the appeal chain, you best consider which arguments you keep and which you omit.
Justice Alito filed an opinion concurring in part and concurring in the judgment: "I concur in the judgment, but I do not agree with the opinion of the Court insofar as it suggests that restrictions upon legislators' voting are not restrictions upon legislators' speech," but "the Court demonstrates that legislative recusal rules were not regarded during the founding era as impermissible restrictions on freedom of speech. On that basis, I agree that the judgment below must be reversed." Alito, J., concurring at 3.
Of course it wouldn't be a Justice Scalia opinion without some snarkiness, and in the final pages of the decision he stays true to form. He rhetorically and sarcastically responds to Justice Alito's contention:
Carrigan and JUSTICE ALITO say that legislators often "'us[e] their votes to express deeply held and highly un-popular views, often at great personal or political peril.'" Post, at 1 (opinion concurring in part and concurring in judgment) (quoting Brief for Respondent 23). How do they express those deeply held views, one wonders? Do ballots contain a check-one-of-the-boxes attachment that will be displayed to the public, reading something like "( ) I have a deeply held view about this; ( ) this is probably desirable; ( ) this is the least of the available evils; ( ) my personal view is the other way, but my constituents want this; ( ) my personal view is the other way, but my big contributors want this; ( ) I don’t have the slightest idea what this legislation does, but on my way in to vote the party Whip said vote 'aye'"? There are, to be sure, instances where action conveys a symbolic meaning—such as the burning of a flag to convey disagreement with a country’s policies, see Texas v. Johnson, 491 U. S. 397, 406 (1989). But the act of voting symbolizes nothing. It discloses, to be sure, that the legislator wishes (for whatever reason) that the proposition on the floor be adopted, just as a physical assault discloses that the attacker dislikes the victim. But neither the one nor the other is an act of communication.
Slip op. at 8-9 (emphasis original).
Talking Points
We'd be remiss if in a case about free speech we didn't provide you some talking points for your next cocktail party, or hallway chit-chat before your hearing. What this case means:
- The Court reminded politicians that they work for us.
- A legislator's vote is not "speech," but a legislator's advocacy could be.
- Even though the Court took the Scarlett O'Hara approach ("I'll think about that tomorrow."), a recusal requirement might implicate speech concerns if it is not content-neutral like Nevada's, it might implicate associational concerns if it penalizes an official's relationships, and it might be unconstitutional if it is so vague that no reasonable official could figure out what it allows and what it prohibits.
Hope these help.
