Opinion analysis: Legislator’s vote not free speech
on Jun 13, 2011 at 10:39 am
Reaffirming more than two centuries of law, the Supreme Court ruled Monday that a legislator’s vote on pending bills, and arguments made during debate on such measures, are not a form of free speech that is protected by the First Amendment. Although the Court was unanimous in overturning a Nevada Supreme Court ruling conferring First Amendment protection for legislative actions, two Justices voiced some reservations about potential implications of the ruling. The case is Nevada Commission on Ethics v. Carrigan (docket 10-568). [Disclaimer: John Elwood, a regular contributor to the blog, serves as counsel to the petitioner. Although Amy Howe, the editor of the blog, served as a judge on one of John’s moots before the argument, Goldstein, Howe, & Russell was not otherwise involved in the case.]
Rules against legislators’ voting on issues in which they have a private, personal interest have been in existence since 1789, and yet the Supreme Court never before had given such restrictions constitutional sanction. It did so in the case of a Sparks, Nev., city councilman who voted on a development project in which his friend and campaign manager had a direct interest. The Court’s main opinion, by Justice Antonin Scalia, said that legislators’ act of voting and debating is not something “personal to the legislator but belongs to the people.” The legislator, Scalia added, is entrusted with that authority as an agent of the sovereign voters.
The decision specifically upheld — at least in part — a Nevada state law that orders public officials in the state not to vote on or advocate the passage of policy measures in which they have a private interest that might put a cloud over their impartiality. The Court, however, rejected only one constitutional challenge to that law: that it was too broad in its reach. The Court did not resolve other challenges — including one that Justice Anthony M. Kennedy, in a separate concurring opinion, suggested was a stronger one. That claim is that such a recusal law might well intrude upon the political relationship that leads voters to favor and vote for a specific candidate, and leads legislators to respond by voting as the supporters had wanted.
Whether that issue remained open for review when the case is returned to the Nevada courts was somewhat unclear, since the state Supreme Court apparently had simply ignored that issue. Another challenge that might remain open was that, as worded, the catchall portion of the Nevada law was so vague as to be invalid under the First Amendment.
Still, the fact that the Court had dealt with only a single constitutional objection did not in any way diminish the importance of the ruling. That came in its flat rejection, by at least seven of the nine Justices, of the argument that action in the legislative arena by an elected lawmaker is shielded by the First Amendment. (Members of Congress, under the Constitution, cannot be legally questioned outside the halls of Congress for their “speech or debate,” but that is a separate issue from whether they are shielded by the First Amendment for how they vote or what debating positions they take in committee or on the floor.)
Justice Kennedy, while joining in the Scalia opinion in full, said he would be seriously concerned if laws such as Nevada’s recusal statute were used to intrude upon the give-and-take between legislators and the voters who support them. If such laws impose “unjustifiable burdens on speech or association protected by the First Amendment,” or operate “to chill or suppress the exercise of those freedoms by reason of vague terms or overbroad coverage, ” Kennedy said, they are invalid. At a minimum, those comments appeared to assure that the claims of associational freedom and protection against vagueness might still work, at least for Justice Kennedy, as challenges to such conflict-of-interest laws.
Justice Samuel A. Alito, Jr., speaking for himself, agreed that the Nevada Supreme Court ruling in the case should be overturned, but his separate opinion argued that restrictions on legislators’ voting were, in fact, restrictions upon legislators’ speech. To illustrate his point, Alito recalled historic acts of “profiles in courage,” including John Quincy Adams’ loss of his Senate seat because he had voted for an embargo law in 1807, and Texan Sam Houston created a furor in the South in 1854 when he voted against a law that gave citizens in territories the right to decide whether to accept slavery.
Those legislative acts, Alito said, spoke “loudly and clearly to everyone who was interested in the bills in question,” and so had “an expressive component.” The Scalia opinion expressly denied that voting or debating in legislative halls had such expressive content.
Monday’s ruling came in the case of Michael A. Carrigan, a city council member in Sparks, Nev., who took part when the council debated and voted in August 2006 on a permit to develop a hotel and casino project, the “Lazy 8,” in the city. Carlos Vasquez, a consultant who included that project among his business clients, had been Carrigan’s campaign manager and was a long-time friend. Before voting on the permit (which he supported with his vote), Carrigan consulted the city attorney, who told him he would not violate the state’s conflict-of-interest law if he disclosed publicly his relationship with Vasquez. He did so, and voted for the permit, although it failed by a 3-2 vote. Carrigan later was censured by the state commission that enforces the recusal law.  His censure was overturned by the state Supreme Court as a violation of Carrigan’s First Amendment rights of free speech.
In taking the case on to the Supreme Court, Carrigan asked the Justices to decide what constitutional test to use in judging the recusal measure’s validity. The Court, in its ruling Monday, did not decide that question, because it concluded, simply, that legislative voting and debating is not protected free speech under the First Amendment.
“Voting by a legislator,” Justice Scalia wrote, “is different from voting by a citizen.” A voter’s casting of a ballot is a personal right, but that of the legislator in considering or passing a bill is no more than the lawmaker’s “apportioned share of the legislature’s power” to pass or reject a proposed measure.
Aside from Justice Kennedy, joining in full in the Scalia opinion were Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Clarence Thomas.
