At a time when some groups are calling for stricter ethics rules for the U.S. Supreme Court, the justices on Wednesday seemed disinclined to interfere with state ethics laws.
At issue was a question never examined by the court before: whether a legislative vote is free speech protected by the Constitution, and more specifically, whether states may forbid officeholders to vote on matters that appear to involve a personal conflict.
In 2007, the Nevada Ethics Commission ruled that Michael Carrigan, a city councilman in Sparks, Nev., had violated the state ethics code by voting for a casino development at a time when his close friend and campaign manager was being paid $10,000 a month by the developer. After consulting the city attorney, Carrigan disclosed his relationship but voted to approve the casino project. The Ethics Commission ruled that Carrigan should have recused himself from voting.
Nevada Ethics Commission Executive Director Caren Jenkins said the ruling was based on a determination that "a reasonable person in Mr. Carrigan's position would be materially affected by the conflict such that they would have a hard time exercising independent judgment."
But Carrigan disagreed, saying he had no conflict and had done nothing wrong. He appealed to the Nevada Supreme Court, which ruled in his favor, declaring that voting by an elected public officer is protected speech under the First Amendment.
State's Recusal Policy
In the U.S. Supreme Court Wednesday, Nevada's lawyer John Elwood told the justices that the state's recusal rules have worked without any problem for 30 years.
Justices Anthony Kennedy and Samuel Alito, however, asked a series of questions suggesting that the law might be so vague that an officeholder would not know when to recuse.
"Let's say a public officer is considering something that would affect everybody's property taxes in town," including his "second cousin," said Alito. "Now, would that person have to recuse?"
Elwood answered that a broadly held interest that applies to a cousin and everyone else in town likely would not qualify as a conflict of interest for an officeholder.
Justice Antonin Scalia appeared more receptive to Nevada's arguments. He questioned the entire basis of Carrigan's claim.
"I'm not even aware of any other case in 220 years" that used the First Amendment to challenge an ethics rule adopted by a legislature, Scalia said. "And it's certainly not because legislative rules have not been vague."
The nation's first ethics rules, dating back to the first Congress, have been imprecise, he continued, "but our Constitution provides that the rules of the legislature are to be determined by Congress and not by this court, and I am sure we would not review those rules."
Lawyer Elwood agreed.
But if the First Amendment does not apply to legislative ethics codes, asked Chief Justice John Roberts, could there be any objection to biased rules?
Elwood replied that even if a legislator's vote is not protected speech, a biased rule would be unconstitutional because it discriminates against a particular viewpoint.
Justice Stephen Breyer said that the "basic question" of the case is whether voting is speech. "If voting is not speech, then no matter how outrageous the law or rule," the court does not review it, he said. But "if it is speech, then you get into some of the questions that were raised, [such as] is this too vague or is it not?"
Justice Scalia agreed. He gave the example of "counting the votes wrong in the legislature," which he called the greatest "violation of the principles of democracy." "If the speaker of the House counts the votes wrong and he says the ayes have it when it's obvious that the ayes don't have it," he said, the matter is still "not reviewable" by the court.
Taking issue with that argument was lawyer Joshua Rosenkranz, representing Councilman Carrigan. Rosenkranz argued that the Constitution places at least some limits on ethics rules, and Nevada's rule crossed the limit.
"If the police of political purity are going to tell an elected official that he cannot cast the vote that he ran on and was elected to cast, they have to do it clearly" and "for an important reason," he said.
But Justice Scalia repeated his point that many valid ethics laws are written in vague terms. "Is the vote of a judge in a case like the vote of a legislator — is that speech?" he asked. After all, he observed, "judges are subject to ethical rules which prohibit their participating if there would be, quote, 'an appearance of impropriety.' If there's anything vaguer than that I can't imagine what it might be."
First Amendment Action
"Can I get out of all that stuff?" he asked.
No, Rosenkranz responded. "Judges are just plain different from legislators. Judges are supposed to bring no political loyalties at all [to the bench]," he said, whereas legislators are expected to bring political loyalties to office.
Justice Elena Kagan asked what the rule would be for executive branch officials. "When the secretary of defense gives a speech, and the president doesn't like it, and the president fires the secretary of defense, does the secretary of defense have a First Amendment action?" she asked.
"Absolutely not," answered Rosenkranz. But Nevada's rule is not about merely disciplining a government employee. Instead, it "takes political associations and treats them as corrupting."
Seeking to make his point with an example, Rosenkranz said that if a lobbyist for the NRA or NARAL Pro-Choice America works in a campaign to get like-minded legislators elected, under Nevada law, that very act could invalidate the vote of the legislator.
If that's what the law really means, replied Justice Scalia, you'd think the legislature would want to change the law because that "would be something every legislator would worry about." So rather than have the court deal with it, he opined, "why don't we let them change it?"
A decision in the case is expected by summer.