Mike Carrigan is a City Councilman in Sparks, Nevada, and back in 2006 one of the issues he had to vote on was on the rezoning of the "Lazy 8," a proposed hotel/casino project. Carrigan's campaign manager happened to also be a business consultant for the project, so Carrigan wanted to know if he was conflicted out of voting on it given the Nevada state law which barred public officials from voting on or advocating for/against “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.”
Carrigan was told by the City Attorney that he could vote on the project, voted yes, and lost 3-2. Nevertheless, complaints were filed against him with the Nevada Commission on Ethics, arguing that Carrigan had used his position on the City Council to benefit himself and his campaign manager, and the Commission censured him. Carrigan's appeal made it to the Nevada Supreme Court, which held that Carrigan's act of voting is a core legislative function protected by the First Amendment, upon which any restrictions had to withstand strict judicial scrutiny, and as such the ethics provision was vague, unconstitutionally overbroad and enforceable, striking it down.
Today, the Supreme Court of the United States reversed the Nevada decision, holding that the act of legislative voting does not constitute a speech act, and as such has no First Amendment protection. Justice Scalia wrote the opinion of the Court, for everyone save Justice Alito (concurring, but reading like a dissent):
[H]ow 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. As we said in Raines v. Byrd (1997) ... the legislator casts his vote “as trustee for his constituents, not as a prerogative of personal power.” 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.”
Carrigan and Justice Alito say that legislators often “ ‘us[e] their votes to express deeply held and highly unpopular views, often at great personal or political peril.’ ” 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. 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.
Justice Alito reasons as follows: (1) If an ordinary citizen were to vote in a straw poll on an issue pending before a legislative body, that vote would be speech; (2) if a member of the legislative body were to do the same, it would be no less expressive; therefore (3) the legislator’s actual vote must also be expressive. This conclusion does not follow. A legislator voting on a bill is not fairly analogized to one simply discussing that bill or expressing an opinion for or against it. The former is performing a governmental act as a representative of his constituents; only the latter is exercising personal First Amendment rights.
So Nevada (and every other state) gets to keep its conflict-of-interest laws, but we're not quite done yet. First, Justice Kennedy (again) gets to sing a hymnal to Democracy and The Courts
The statute may well impose substantial burdens on what undoubtedly is speech. The democratic process presumes a constant interchange of voices. Quite apart from the act of voting, speech takes place both in the election process and during the routine course of communications between and among legislators, candidates, citizens, groups active in the political process, the press, and the public at large. This speech and expression often finds powerful form in groups and associations with whom a legislator or candidate has long and close ties, ties made all the stronger by shared outlook and civic purpose. The process is so intricate a part of communication in a democracy that it is difficult to describe in summary form, lest its fundamental character be understated....
But legislators, Justice Kennedy explains, are different from judges:
The Court has held that due process may require recusal in the context of certain judicial determinations, see Caperton v. A. T. Massey Coal Co. , 556 U. S. _ (2009); but as the foregoing indicates, it is not at all clear that a statute of this breadth can be enacted to extend principles of judicial impartiality to a quite different context. The differences between the role of political bodies in formulating and enforcing public policy, on the one hand, and the role of courts in adjudicating individual disputes according to law, on the other, may call for a different understanding of the responsibilities attendant upon holders of those respective offices and of the legitimate restrictions that may be imposed upon them.
And because it's a First Amendment case, Justice Alito writes something that no other Justice will agree with
, finding that a vote is
speech but still not protected speech, since "legislative recusal rules were not regarded during the founding era as impermissible restrictions on freedom of speech."
Prof. Rick Hasen explains:
The opinion generally means that garden-variety conflict of interest rules for legislators may not be questioned on First Amendment grounds unless there can be another claim made with it, for example, that the conflict rules were being applied in a viewpoint discriminatory manner, that the conflict rules are unconstitutionally vague, or that conflict rules impinge on the rights of association between an elected official/candidate and her supporters.
The most significant aspect of this case is likely what the Court, and particularly Justice Kennedy in his separate concurrence, says about judicial recusal rules. The Court leaves room for special judicial recusal rules that are stricter than the rules which would apply to legislators....
What's next? This case returns to the Nevada Supreme Court, where Kerrigan can still argue that the statute was unconstitutionally vague as applied to him, or that this particular provision violates his First Amendment freedom of association
with his supporters.
Still to come from the Court this term: decisions on violent video games, the constitutionality of Arizona's Clean Elections law; a global warming question; and the class-action discrimination claim against Walmart.