Argument preview: Ethics on the City Council
on Apr 26, 2011 at 4:13 pm
The Supreme Court closes out its schedule of oral arguments for the current Term on Wednesday with a one-hour hearing at 10 a.m. on a case testing how much First Amendment protection members of elected government bodies, such as a city council, have for the way they vote on government policy matters. Arguing for a Nevada state ethics agency will be John P. Elwood of Vinson & Elkins’ Washington, D.C., office, and for a city councilman in Sparks, Nev., will be E. Joshua Rosenkranz of Orrick, Herrington & Sutcliffe in New York City. The case is Nevada Commission on Ethics v. Carrigan (10-568).
Background
For a very long time, the Supreme Court has been protecting, with the strongest First Amendment shield, the right to speak out on public issues. An average citizen clearly enjoys that right, speaking as a citizen.  If that citizen goes to work for government, at any level, the right to speak out is not so robust, but it still exists — especially if the public worker is speaking out about an issue that goes beyond internal agency matters.  And, if that citizen runs for public office, campaign speeches usually get the highest constitutional protection; “political speech” is, after all, in the First Amendment’s first rank.
But, once elected, a candidate’s First Amendment right — to speak and to vote on public issues — is not so clear. And now the Supreme Court has agreed to clear it up, in a case involving a city councilman who cast a vote on an issue that could serve the private business interests of his campaign manager, and was officially censured for doing so.
Members of Congress, of course, cannot be questioned — that is, legally disciplined — “in any other place” for what they say or how they vote during the legislative process, but that is a right they get under the so-called “Speech or Debate Clause,” not from the First Amendment. Since the very first Congress, in 1789, however, the rules of the House that govern members’ conduct bar them from voting on any question affecting their personal interests. A similar rule was later adopted in the Senate.
But members of state legislatures, and city and county governments, are not guaranteed any rights of free speech under the national Constitution, unless such a right can be found in the First Amendment’s free speech clause. The Nevada Supreme Court found such a right there, but that is quite an unusual conclusion. Nearly all of the states, in fact, qualify the freedom that elected lawmakers have to cast their votes as an act of political expression by forbidding them to act on matters of private interest.
Such restrictions have a civic theory behind them: in carrying out their public duties, elected lawmakers are not exercising a private right, but a public duty, fulfilling a “trust” that the voters handed to them by electing them.  As Justice Antonin Scalia wrote in 1984, when he was a judge on a federal appeals court, “they wield those powers not as private citizens but only through the public office which they hold.”  Enforcing the public trust, supposedly, is what ethics, or conflict-of-interest, laws or legislative rules of the same kind are all about.
But, as a constitutional matter, could those restrictions go too far? Could they be so tight — or so vague and uncertain — that an elected legislator cannot realistically figure out when or whether his right to vote has been undermined?  That is what Michael A. Carrigan, an elected member of the City Council in Sparks, Nev., wanted to know, when he took his case to the Nevada Supreme Court, and won.
Carrigan was first elected from the city’s Fourth Ward in 1999, and has been reelected three times, most recently last November. In his first three election campaigns, his campaign manager was Carlos Vasquez, who is a business consultant. Among Vasquez’s clients is the Red Hawk Land Co., involved in attempts to develop a hotel and casino in Sparks.   In early 2005, Red Hawk applied to the City Council for permission under the local zoning code to develop the project, known as “Lazy 8.” Specifically, the “Lazy 8” project sought the transfer to it, from another developer, of a piece of property zoned as tourist commercial as well as a right to operate a gaming establishment.
That request was to be considered at a hearing. Because of his links to Vasquez, Carrigan asked the city attorney for guidance; was it, he asked, a conflict of interest for him to vote on the “Lazy 8” matter? Obviously, he asked because a Nevada state law bars all public officers in the state from voting or on advocating passage (or rejection) of “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.”
That law spells out, for example, that votes or advocacy are barred on issues affecting a member of the voting official’s own “household,” or a near relative, and a few other links. A catchall provision also bars voting or advocacy when the relationship involves any tie “substantially similar” to the listed examples.
Carrigan was advised by the city attorney that, at the hearing on the application, he should publicly disclose how he was linked to Vasquez, because of his friend’s role with Red Hawk Land Co.  Carrigan did that, and insisted he would not benefit financially or personally from his vote. He said he believed the disclosure was enough to satisfy the state law. He then voted for the application, saying that a majority of his Fourth Ward constituents favored the new casino project. However, he wound up in a minority; the “Lazy 8” request was rejected 3-2 by the City Council.
That was in August 2006. The next month, a number of complaints were filed against Carrigan, with the Nevada Commission on Ethics, arguing that Carrigan had used his position on the City Council for himself and for his campaign manager, and contending that Vasquez had “undue influence” over the councilman. The Commission, ruling that Carrigan had violated the “catch-all” provision of the conflict-of-interest law, censured him. Because Carrigan had consulted the city’s lawyer, the Commission concluded that he had not intentionally violated the law, so it imposed no fine. A lower state court upheld the censure ruling.
The Nevada Supreme Court, however, acting on Carrigan’s appeal, concluded — in a brief discussion — that “the act of voting by a public officer is protected speech under the First Amendment.” It relied on two federal Circuit Court rulings to that effect, and commented: “Because voting is a core legislative function, it follows that voting serves an important role in political speech,” and, as such, is shielded by the First Amendment. Striking down the state law’s “catch-all” provision, the state Supreme Court, by a 5-1 vote, found that provision too broad, concluding that there is no way that specific clause could be enforced constitutionally. It had used the most rigorous test under the First Amendment: “strict scrutiny.” For that part of its ruling, the state court majority relied in part upon a comment the Supreme Court had made in its controversial campaign finance decision last year in Citizens United v. Federal Election Commission; the Supreme Court had said there that “laws that burden political speech are subject to strict scrutiny.”
The dissenting justice noted that the Supreme Court had never ruled that the First Amendment protects an official’s vote as a government act, and no other published decision had done so, either.
The state ethics commission then appealed to the Supreme Court.
Petition for Certiorari
The Nevada Commission on Ethics’ petition for review, filed last October, raised a single issue, testing whether a restriction on voting by a law like Nevada’s ethics code should be judged by “strict scrutiny,” by a test that balances the free speech rights against the government’s interest, or by a lowest-tier standard, the rational basis test.  The petition argued that, like the Nevada court, the Fifth Circuit Court had adopted the strict scrutiny approach, three federal Circuit Courts had embraced the balancing test, and two had gone for mere rational basis.
That split in lower court views, the state agency said, is actually more acute for Nevada’s attempt to police conflicts of interest, since the state Supreme Court and the Ninth Circuit Court, which has jurisdiction in Nevada, are on different sides of that approach. The Ninth Circuit is one of those embracing the balancing test, the commission said.
The petition forecast a wide impact of a ruling like that in the Nevada court, saying it raised constitutional questions about conflict laws in 37 states, and about a series of regulations that state and federal programs impose on local officials. Moreover, it argued, the expansion of local government officials’ free speech rights could put in jeopardy state laws that take some policy issues out of the hands of local government, and would undermine a host of federal programs imposing obligations on local officials as they carry out federal programs.
Ultimately, the commission appeared to be urging the Justices to embrace no more restrictive standard on conflict-of-interest laws than the Ninth Circuit’s use of the balancing test, drawn mainly from the Supreme Court’s precedents on the free speech rights of government employees — especially Pickering v. Board of Education, a 1968 ruling.
The petition drew the prompt support of eight states, arguing that “it is important that ethics laws have a firm constitutional grounding and that their beneficent purposes not be undermined.” If the Court did not intervene, those states argued, states would be threatened by “further costly and burdensome litigation.”
Councilman Carrigan, in response, argued that the Justices should not take the case, noting that the state Supreme Court in the decision being challenged by the commission had not settled other challenges to the state law by Carrigan, and those were now being contested before the state court. The provision at issue in the commission petition, the city councilman contended, may yet be struck down on other grounds, making this case less than an ideal vehicle for Supreme Court review.
On the merits of the basic constitutional question, though, the councilman asserted that the First Amendment provided “nearly absolute protection… to the speech of elected officials.” It went on: “A vote cast by an elected representative on a legislative measure exists at the confluence of all other types of political speech.” The entire electoral system, the brief in opposition argued, is carried out as a prelude to that “singular moment” when the winners of the seats vote yes or no on a matter of legislative policy. That, it summed up grandly, “is the essence of self-government and the foundation of the American Republic; it is the pinnacle of political speech.”
Merits Briefs
The Ethics Commission’s brief on the merits opened with the argument that the protection given by the Nevada Supreme Court to the act of voting by an elected official has no support in any Supreme Court precedent, and threatens disqualification rules for legislators and policymakers across the Nation. No legislator, it contended, can claim a personal right in the acts they take while carrying out the public trust given to them by their election. In fact, some of the wording used in the agency’s brief seemed to suggest that the Court should not give those actions any “heightened” level of protection, and thus restrictions should be judged on a much more tolerant rational basis.
“Strict scrutiny,” the brief argued, “is not the default mode for reviewing every law that affects expression, but is reserved for laws that regulate speech based on its content or communicative effect and pose a real risk of suppressing expression.“
Compounding the problem it found with the state Supreme Court ruling in Carrigan’s favor, the commission said, was the fact that the judges there had misapplied the First Amendment doctrine of “overbreadth.”  That doctrine, it said, should apply only when a government regulation of expression sweeps so widely that it will inhibit not only the conduct that the legislature wanted to restrict, but other forms of protected expression as well. The Nevada law, it insisted, is written clearly and is narrowly applied to specific kinds of acts demonstrating a conflict of interest. In short, it argued, no one’s free speech rights are subject to any “chill.”
As in its petition for review, the agency’s merits briefs catalogs the wide array of regulations of legislative conduct that it perceives to be jeopardized by the state court’s ruling.
Councilman Carrigan’s merits brief is a combined effort to minimize the ethics problem that the ethics agency found in his vote for the casino project, and to enlarge the threat that the state commission’s censure poses to the whole idea of representative government.
On the first point, the brief argued that the issue on which Carrigan cast his vote was the issue that dominated the election just prior to the City Council vote. The project, it noted, was to be located in his ward, and he had taken an active part from the beginning to persuade the developer to turn the project into a mixed-use effort that he believed would benefit the residents of his ward. His vote was challenged, it suggested, by a campaign instigated by another local casino that wanted the “Lazy 8” project scuttled.
Carrigan’s censure, the brief went on, was over “a political relationship,” and that relationship actually was not as strong as that of campaign manager. Rather, it said, Vasquez’s relationship to Carrigan as a candidate could more accurately be described as “key campaign volunteer.” Vasquez “performed the same function for multiple other campaigns, while also holding down several day jobs.” The implication of this description, of course, was to suggest that Vasquez hardly had the power to corrupt the City Councilman.
On the second point, the impact of the finding of censure, the Carrigan brief argued that that will put “every candidate and his campaign volunteer to an untenable — and unconstitutional — choice. They both have a First Amendment right to associate to advance the candidate’s election. But if they do, the volunteer must be prepared to check his right to petition the government at the campaign door. And the candidate must be prepared to miss crucial votes on any issue that may turn out to be of interest to the volunteer.”
The Nevada ethics agency drew the amici support of 14 states (up from eight at the petition stage), as well as the Nevada legislature, a group of new organizations arguing that the elevation of the First Amendment rights of legislators on the votes they cast on public issues will threaten open government laws and other laws and regulations of public officials’ conduct, and the government reform and consumer advocacy group, Public Citizen.
Councilman Carrigan was supported by the International Municipal Lawyers Association, urging the Court to consider, in addition to First Amendment issues, the due process implications of a vague law like Nevada’s ethics code, and by two groups that have grown increasingly active in challenging limits on campaign speech and finance: the James Madison Center and the Center for Competitive Politics.
Analysis
For all the rhetoric that the Supreme Court has used over the decades about how “speech on public issues occupies the highest rung of the hierarchy of First Amendment values,” it has never yet ruled that this rhetoric applies fully to the act of voting on a legislative measure by an elected legislator. And, while this is a Court that takes very seriously the need to keep such debate going robustly, and has made some very controversial decisions defending that principle, it may well hesitate before extending that theme to the act of government that is a legislator’s public vote. In 1990, four of the Justices acknowledged a “communicative element,” but they went on to say they were not persuaded that that made the act of voting by an official fit under traditional First Amendment doctrine.
Because the Nevada Supreme Court has now struck out boldly to make that fit, the Court may feel itself obliged to decide the question explicitly.  There does not appear to be a way for the Court to decide which level of constitutional scrutiny to apply to a legislative conflict-of-interest restriction unless it has something to say about how much speech it is protecting for the “communicative element” of legislative voting.
The Court, though, does have the option of “assuming, without deciding,” that there is such a communicative element, and then move on to spell out which standard of review is to be applied to a restriction on that element. Councilman Carrigan’s lawyer, it would seem, would have to be especially persuasive to get the Court to embrace a “strict scrutiny” standard. There are just too many existing laws and rules that seek to eliminate conflicts-of-interests for legislators that might not survive that rigorous standard.
On the other hand, the Court may well be reluctant to lower the standard of review all the way down to mere rational basis.  Public employees’ free speech rights are routinely judged by the Pickering balancing test, and elected legislators probably can count on getting at least that much First Amendment protection for the act of voting. Whether a law as open-ended as Nevada’s “catch-all” provision could survive that test may be quite doubtful.
In short, it does appear that this is a case where the Court has granted review in order to reverse. But how it gets to that ultimate point could compel it to think quite creatively about just what is at stake in the “singular moment” when a lawmaker casts a “yea” or “nay” vote.
