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Today, the U.S. Supreme Court hears arguments in a case that could put a constitutional cloud of doubt over hundreds if not thousands of state and local ethics laws across the nation.
For the first time, the justices will consider whether a legislative vote is protected by the First Amendment guarantee of free expression. NPR legal affairs correspondent Nina Totenberg has more.
NINA TOTENBERG: Specifically, the issue today is whether states may forbid officeholders from voting on matters that appear to involve a personal conflict. And it comes at a time when ethics questions have been raised about the recusal policies of some of the Supreme Court justices themselves.
The case comes from Sparks, Nevada, sister city to Reno. In 2006, during an election campaign, the city council was voting on a high profile and controversial proposed new casino project called the Lazy 8.
At the time, the developer was paying a $10,000 a month retainer to one Carlos Vasquez, who was the campaign manager and close personal friend of one of the city councilmen, Michael Carrigan.
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. So Carrigan asked the city attorney whether his relationship with Vasquez required him to abstain from voting.
Mr. MICHAEL CARRIGAN (City council member, Sparks, Nevada): My city attorney came back with a recommendation that I disclose my relationship and that 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.
TOTENBERG: Carrigan disclosed his relationship and then voted to approve the Lazy 8 project.
Mr. CARRIGAN: I used my best judgment, and they punished me for it.
TOTENBERG: Opponents of the Lazy 8 filed a complaint with the state ethics commission, which ruled that Carrigan had violated the ethics law.
Ms. CAREN JENKINS (Executive Director, Nevada Commission on Ethics): We found that there was a violation but not a willful violation. And so no sanction was imposed.
TOTENBERG: Ethics commission executive director Caren Jenkins says the board found that Carrigan had an ongoing business relationship with his campaign manager who provided business services at cost to the campaign and that the two had a long time close personal friendship.
Ms. JENKINS: Mr. Vasquez was a friend, an adviser, a confidant. And I think that Mr. Carrigan even said he's like a brother to me.
TOTENBERG: 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 an elected public officer on public issues is protected speech under the First Amendment.
Today, in the U.S. Supreme Court, Carrigan's lawyer Joshua Rosenkranz will tell the justices that the Nevada Ethics Commission's action struck at the heart of the democratic process by imposing a burden on political loyalties - here the relationship between Councilman Carrigan and his friend and campaign manager Vasquez.
Mr. JOSHUA ROSENKRANZ (Lawyer): 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. And if the 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.
TOTENBERG: Not so, says Nevada's lawyer, John Elwood, who points to the $10,000 a month retainer paid to campaign manager Vasquez by the Lazy 8 developer.
Mr. JOHN ELWOOD (Attorney): The only thing that's causing the recusal here is the fact that Vasquez had a financial interest in the Lazy 8. If he had supported Carrigan but didn't have the financial interest in it, it would have caused no problem at all.
TOTENBERG: Elwood says he believes this is the first time any recusal law has been held to a high legal standard of justification. Were the Supreme Court to subject every state and local law to that kind of scrutiny, he maintains...
Mr. ELWOOD: Anytime anyone was every sanctioned under it they could go to court and say my constitutional rights were violated.
TOTENBERG: Just when to recuse is a recurring dilemma for officeholders in all branches of government and at all levels. Just two years ago, the Supreme Court ruled 5-4 that a West Virginia judge should have withdrawn from a case brought against a large coal mining company because the company's CEO had spent three million dollars 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 rules as other federal judges. The justices say they do in fact abide by those rules, but they do so voluntarily. There's no legal requirement that they do so.
Nina Totenberg, NPR News, Washington.
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