Nevada, like most states, has ethics requirements for legislators. Among those ethics requirements are recusal rules. In the case of Nevada, those rules prevent a legislator from voting on, or advocating for or against, legislation if
“…a reasonable person in his situation would be materially affected by…his commitment in a private capacity to the interests of others…”
The statute defines interests of others as including members of a legislator’s household, relatives, employers, those with a common business interest and “[a]ny other commitment or relationship that is substantially similar”.
Michael Carrigan was an elected member of the City Council of Sparks, Nevada who voted to approve a new hotel/casino in the city. His long time friend and campaign manager was a paid consultant for the hotel/casino interests. Prior to casting his vote, Carrigan consulted with the city attorney. Based on advice from the city attorney, he disclosed his relationship with the consultant before casting his vote.
Carrigan was censured by the Nevada Commission on Ethics. He was not subjected to civil penalty because his conduct was determined not to have been willful since he was following the advice of the city attorney. Carrigan challenged his censure in court. The Nevada Supreme Court overturned the censure on the grounds that Nevada’s ethics statute violated Carrigan’s First Amendment free speech rights. The Ethics Commission applied to the U. S. Supreme Court for review.
The U. S. Supreme Court unanimously reversed the Nevada Supreme Court, finding that a legislator’s vote was not constitutionally protected speech. Two concurring opinions by Kennedy and Alito raise concerns about where the decision could lead, though they joined the decision on the facts of this case.
Justice Scalia wrote the opinion for the Court. In substance, he distinguished between a vote cast in a representative capacity and free speech. While a representative vote may reflect a deeply held personal belief in some instances, that is not necessarily always the case. Scalia walks through a variety of instances where a vote may not reflect personal beliefs, including re-election considerations, the interests of campaign donors, and conforming to party discipline. He also distinguished representative voting by a legislator from individual voting on a referendum or petition signing by individual voters.
The opinion contains a brief history lesson on recusal rules. These date back to the first Congress of the United States and Thomas Jefferson’s rules of the Senate which contained recusal requirements. From that Scalia concludes that the intent of the constitutional framers did not recognize representational voting as protected by the First Amendment. As a note on constitutional interpretation, Scalia fancies himself a textualist. This is one of those cases where he crosses over from textualism to the interpretational philosophy known as original intent, a philosophy he sometimes has been known to disavow.
In concurring in the opinion, Justice Kennedy raises concerns about the extent to which statutes like Nevada’s ethics law may restrict legislators from accomplishing the tasks for which they were elected. He points out that a person may work with a specific group which, in turn, may encourage him/her to run for public office to advance the purposes of the group. The person may also develop close personal friendships in that context and have those people assist in his/her campaign. As an examples consider an individual who has worked for years with an environmental group.
Kennedy asks the pertinent question of whether someone in that situation, having campaigned specifically on those issues, could be prevented from voting on legislation affecting those issues because of the close personal relationships. His argument is based on the law perhaps being unconstitutionally vague. But, as Scalia points out in the main opinion, constitutional vagueness was not properly raised before the U. S. Supreme Court and was not considered in arriving at the decision.
Kennedy calls out laws like Nevada’s as an invitation to selective enforcement. His concurrence is worth reading for well rounded and thoughtful consideration of the issue.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.