On Monday, in Nevada Comm’n on Ethics v. Carrigan, the Supreme Court upheld the broad authority of states to prohibit elected and appointed government officials from voting in matters in which they may have a conflict of interest.
In reaching the conclusion that a state may prohibit government officials with apparent conflicts of interest from voting without infringing upon their First Amendment speech rights, the Court reaffirmed a core principle of representative government: that when casting votes, elected and appointed officials are not speaking for themselves, but are exercising power “that belongs to the people.”
The Court reversed the Nevada Supreme Court’s contrary conclusion, and upheld the Nevada Commission on Ethics’ censure of a Sparks, Nevada, city council member for voting on a casino development proposal because his personal friend and campaign manager was the developer’s “consultant.” The Nevada Ethics in Government Law requires recusal when a legislator has a commitment in a private capacity to the interests of others.” The council member’s relationship with the consultant did not
fall within any of the expressly defined categories such as family members, business associates, or household members, but the Ethics Commission concluded it was within the statute’s “catch-all” provision because it was “substantially similar” to those relationships. The council member disclosed the relationship, but voted to approve the project.
At issue in the case was whether the council member’s vote was protected political speech and if so, whether the First Amendment allowed him to cast a vote despite the apparent conflict of interest. In an opinion authored by Justice Scalia and joined by every other member of the Court except Justice Alito, the Court concluded that a legislator’s vote is
not speech. Rather, when voting in a legislative capacity, an elected official is acting as trustee for his constituents and is not “saying” anything but is exercising political power, a “core legislative function.” Since recusal rules have survived without a free speech challenge “for over 200 years,” the Court concluded the Nevada ethics statute did not restrict Carrigan’s rights. Although Justice Alito concluded that voting is speech, he agreed with the Court that recusal laws do not violate the First Amendment because they are reasonable “time, place, and manner” regulations.
The Court’s ruling was very narrow and left open the possibility that ethics laws might unconstitutionally restrict an official’s right of free association by punishing political relationships. It also did not address whether restrictions on actions other than voting such as legislative advocacy might raise constitutional concerns. But despite the absence of a sweeping ruling, government officials should read the Court’s message clearly: political power derives from the people and
when a “legislator casts his vote, [he is acting] ‘as trustee for his constituents, not as a prerogative of personal power.'”
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