Posted by: Patricia Salkin | July 25, 2011

U.S. Supreme Court Finds Nevada State Ethics Law Does Not Unconstitutionally Restrict Speech of Elected Officials

Lack of clarity in state and local ethics laws resulted in the U.S. Supreme Court reviewing an ethics case arising from Nevada and the actions of a city council member who voted on a proposed development project where his campaign manager had represented the applicant in an advisory and lobbying capacity.  The council member received an opinion from the Sparks City Attorney that all that was required under the Nevada Ethics Law was a public disclosure of the relationship, which the council member did prior to voting on the project. Following the vote, the State Ethics Commission opened an investigation as to whether the council member violated the law by voting on the matter and concluded that he had violated a somewhat vague, catch-all provision which prevents officials from voting on matters where they have a “commitment in a private capacity to the interests of others.” Exactly what constitutes this type of prohibited “commitment” was the crux of the council member’s argument before the Supreme Court, where he argued among other things, that the applicable section of the statute is unconstitutionally vague in violation of his First Amendment rights to vote as an elected official. 

Justice Scalia delivered the opinion of the court, which held that a legislator’s vote is not protected speech for two reasons. The first is that recusal rules have existed since within 15 years of the founding of both the House of Representatives and the Senate. Quoting the earliest forms of the recusal laws, Justice Scalia noted that the history and continuing existence of these laws prove that they do not violate the first amendment. The second basis for determining that a legislator’s vote is not protected speech is that a vote is not speech at all, to which the voter has no right. “[A] Legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it.” In response to the Respondent and Justice Alito’s argument that legislators use their votes to “express deeply held and highly unpopular views,” Justice Scalia said that the act of voting symbolizes nothing, and that it is not an act of communication, but a disclosure of the legislator’s wishes, and that a legislator has no right to use official powers for expressive purposes, because even if a vote could express views, the court has previously rejected the idea that the First Amendment allows a right to “use government mechanics to convey a message.” 

Nevada Comm’n on Ethics v. Carrigan, 564 U.S. ___, 2011 WL 2297793 (U.S. June 13, 2011)

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