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Legislator’s vote not considered free speech

Michael C. Dorf

In the case of Nevada Commission on Ethics v. Michael A. Carrigan, the U.S. Supreme Court on Monday upheld a Nevada state ethics law prohibiting legislators from voting on matters they have an interest in or are affected by.

The case came from the Nevada Supreme Court, which ruled that an elected public officer had a protected First Amendment guarantee of free speech in voting.

Carrigan, a city councilman, voted to approve a casino development that employed his campaign manager.

As Justice Antonin Scalia pointed out in the opinion, the nation has had recusal laws in the House and Senate nearly since its founding and they have withstood the test of time.

“Restrictions on legislators’ voting are not restrictions on legislator’s protected speech,” Justice Scalia said. “He casts his vote as trustee for his constituents not as prerogative of personal power.

“The Nevada Supreme Court’s belief that recusal rules violate legislator’s First Amendment rights is also inconsistent with long-standing traditions in the states,” Justice Scalia added.

Christopher D. Thomas, partner with Nixon Peabody LLP, said it was a “common sense decision,” that’s “good from an open government perspective” utilizing Justice Scalia’s strict constructionist and love-of-history approach.

“It does a nice job of putting a bold line under the fact that we are a country of laws not a country of men and women.” Thomas said. “It shows the First Amendment isn’t going to be used to strike down good government rules like this one.”

Thomas said it’s important that legislators’ votes “belong to us, not the individual.”

Michael C. Dorf, a professor at Cornell University Law School, said that while the decision wasn’t especially surprising, it would have been very surprising if the court had decided to invalidate “recusal laws (that have been in place) for hundreds of years at every level.” Since state and local legislative jobs are essentially part-time jobs, the potential for conflict of interest in legislative voting has been going on for a long time.

But for now, and in the future, Dorf said “[i]t shows what will happen if states start adopting more recusal laws for legislators and judges.”

Dorf said although New York is beginning to go in a similar direction as Nevada in requiring recusals from voting in matters where there have been campaign contributions, he does not believe the new New York ethics bill requires a legislator’s recusal from voting on matters of potential conflict. Dorf said the decision and Justice Anthony Kennedy’s concurring opinion may also provide courts with support for campaign finance regulation.

In his concurring opinion, Justice Samuel Alito disagreed with the holding that legislative voting is not free speech but agreed that longstanding recusal laws provide permissible restrictions on that speech.

“The fact that the court was unanimous on this means there are many ways they could have gotten to this result,” Dorf said. 

At the First Amendment Center at Vanderbilt University in Nashville, attorney David Hudson agreed the decision shows how important history and tradition are to the Roberts’ court. Hudson also said it’s a decision the “man on the street” can identify with.

“It ensures the constitutionality of recusal rules but it leaves open the question of free association rights in the future,” Hudson said. That’s still on the table.”

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