The U.S. Supreme Court hears arguments Wednesday in a case that could put a constitutional cloud of doubt over hundreds — if not thousands — of state and local ethics laws across the country.
For the first time, the justices will consider whether a legislative vote is protected by the First Amendment guarantee of free speech — specifically, whether states may forbid officeholders from voting on matters that appear to involve a personal conflict.
'I Used My Best Judgment'
The case comes from Sparks, Nev., sister city to Reno. In 2006, during its election season, the city council was voting on a high profile and controversial proposed new casino project called the "Lazy 8." Council member Michael Carrigan's longtime friend and three-time campaign manager, Carlos Vasquez, was on retainer to the Lazy 8 developer for $10,000 a month.
The Nevada ethics code requires public officials to recuse themselves from voting on any matter involving a close relative, an employer, a business associate or anyone who has a relationship that is "substantially similar." With that in mind, Carrigan asked the city attorney whether his relationship with Vasquez required him to abstain from voting on the casino project.
According to Carrigan, the city attorney told him he should disclose his relationship. "[He said] I could vote if I felt that my friend was not getting any other benefit out of it that a normal citizen wouldn't get," he says.
Following that advice, Carrigan did disclose and then voted to approve the Lazy 8 project. Opponents of the project filed a complaint against him with the state ethics commission.
"I used my best judgment, and they punished me for it," says Carrigan.
The Nevada Commission on Ethics ruled that Carrigan had violated the state's ethics law. But Caren Jenkins, the commission's executive director, notes there was no punishment. "Because the violation was not willful, no sanction was imposed," she says.
Jenkins says Carrigan's violation was based on the fact that he had an ongoing business relationship with his campaign manager, who provided business services at a cost to the campaign, and that the two had a longtime close, personal friendship.
"Mr. Vasquez was a friend, an adviser [and] a confidant," to Carrigan, explains Jenkins, noting that Carrigan testified Vasquez was "like a brother" to him.
Outraged by the ethics commission decision, Carrigan, a retired U.S. Navy aviator, challenged it in court.
The Nevada Supreme Court ruled in his favor, declaring that "voting by public officers on public issues is protected speech under the First Amendment."
The Two Arguments
In the U.S. Supreme Court on Wednesday, Carrigan's lawyer E. Joshua Rosenkranz will tell the justices that the commission's action struck at the heart of the democratic process.
Rosenkranz argues that "the manner in which Nevada has decided to regulate politics puts an untenable burden on the sorts of relationships and political loyalties that make democracy work."
Indeed, he contends that relationships like the one between councilman Carrigan and his campaign manager are the "very fabric of our democracy."
"It's a relationship that arose because Vasquez believed in Carrigan, believed in what he values and wanted to help him get elected to office," Ronsenkranz says. "And if a state declares that the political activities of a campaign volunteer will get the elected official disqualified from an important vote, volunteers will stop volunteering, and candidates will be reluctant to associate with volunteers, campaigns will be weaker, and so will our democracy."
Not so, says Nevada's lawyer, John Elwood, who points to the $10,000-a-month paid to Vasquez by the Lazy 8 developer.
"The only thing that's causing the recusal is the fact that Vasquez had a financial interest in the Lazy 8," Elwood says. "If he had supported Carrigan throughout" but didn't have a financial interest, "it would have caused no problem at all."
Elwood maintains that the Nevada law "does nothing to prevent Carrigan from associating with people who are in favor of the Lazy 8, taking contributions from them, working with them." It prevents Carrigan from voting only if someone with whom he has a close personal or business relationship has a financial stake.
This is the first time, says Elwood, that any recusal law has been held to such a high legal standard of justification. Were the Supreme Court to subject every state and local law to that kind of scrutiny, he says, conflict-of-interest laws would quickly become a thing of the past because anyone sanctioned under them could claim his constitutional rights were violated.
Determining when to recuse is a recurring dilemma for officeholders in all branches of government, at all levels. Just two years ago, the Supreme Court ruled 5-4 that a West Virginia judge should have withdrawn from a case against a large coal mining company because the company's CEO had spent $3 million to get the judge elected.
U.S. Supreme Court justices in recent years have also found themselves the target of ethics critiques, and some members of Congress have called for a federal law that would require the justices to abide by the same recusal rules as other federal judges. The justices say they already abide by those rules voluntarily, though there is no legal requirement they do so.