The Carrigan Free Speech Case Goes to the Supreme Court - The Parties' Briefs
This second blog post on the briefs filed concerning whether the
Carrigan case should be accepted by the U.S. Supreme Court glances at
arguments in the briefs filed by the two parties and then makes a different argument for why the First Amendment has no place in this sort of government ethics matter. Making this argument gets to the root of how the Constitution, and government ethics, protect the public. If only the courts would let the Constitution and government ethics work together, as they should, instead of placing them at loggerheads.<br>
<br>
<b>The Speech or Debate Clause Applies in This Case, Not the First
Amendment</b><br>
The central statement of <a href="http://sblog.s3.amazonaws.com/wp-content/uploads/2010/12/01-07-Nevada-B…; target="”_blank”">the
brief
filed
by the city of Sparks</a>, NV on behalf of councilman Carrigan against
the acceptance of the
Carrigan case by the U.S. Supreme Court is the following sentence on
page 13:<ul>
[R]estrictions on an elected official’s ability to perform his duties
implicate the interests of two distinct parties: the individual
legislator’s First Amendment rights; and the voters’ right to be
meaningfully represented by their elected officials.</ul>
The assumption behind this sentence is that a local legislator's
interests, when he is acting as a legislator, are equal to and possibly
different from those of the people
who elected him. Government
ethics takes the position that these interests are not equal and that,
when they differ, the public interest not only is more important, but
must be protected by ethics provisions such as the one Carrigan is
trying to thwart.<br>
<br>
Those who argue that legislative
immunity overrides government ethics provisions at least argue
that it is the public's rights that are at stake, not the legislator's.
They are wrong in
ignoring the fact that the public's rights are equally at stake in
government ethics, which has the same goal and purpose as legislative
immunity. But at least they don't act as if the legislator's personal
rights were at issue. <br>
<br>
On this basis alone, Carrigan's case should fail. The philosophical
core of his argument is wrong.<br>
<br>
The drafters of the Constitution dealt
with limits on a legislator's right to represent his constituents in
the Speech or Debate Clause, which provides legislative immunity. If they had wanted the First Amendment to
apply in this situation, they wouldn't have bothered with the Speech or
Debate Clause.<br>
<br>
Clearly, the right of the public to have their legislator vote
on
controversial issues is protected by the Constitution. That is the
purpose of legislative immunity, to prevent an official from being
forced to vote in order to
protect himself rather than voting in the public interest. But just as
clearly, the public has a right to have their legislator vote in
the public interest rather than in his own personal interest. That is
the purpose of conflict of interest and withdrawal provisions. Both legislative immunity and conflict of interest provisions seek to protect the public from a legislator's personal interests. (See <a href="http://www.cityethics.org/node/583" target="”_blank”">my blog post</a> on what I call a "virtuous circle.")<br>
<br>
The First Amendment has nothing to do with this situation, as I argue in more detail below. It is a red
herring. It is an end run. It is a clever tactic. And the U.S. Supreme
Court should recognize
this argument for what it is.<br>
<br>
But it might not even get to that point,
because
the "catch-all" statutory language of the provision in question raises a due process problem. Due process is the only
constitutional issue that should be raised in this case, as I argued in
<a href="http://www.cityethics.org/content/free-speech-and-difference-between-el…; target="”_blank”">an
earlier blog post</a>.<br>
<br>
The catch-all language is highly unusual. No ruling in this case
should apply to other ethics codes, except possibly New Jersey's,
according to the Carrigan brief. Nevada's code should be amended, and
that is all that should happen.<br>
<br>
<b>A Closer Look at the First Amendment</b><br>
I am not going to go through the arguments made in <a href="http://sblog.s3.amazonaws.com/wp-content/uploads/2010/12/01-07-Nevada-P…; target="”_blank”">the
Nevada
ethics
commission's reply brief</a>. The EC makes a complex,
multi-part argument that free speech is not applicable to this matter. I agree with their arguments, for the most part, and recommend reading through them. But in this post, I am going to take a different, more philosophical approach.<br>
<br>
It's important to look at the text of the First Amendment:<ul>
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.</ul>
This is all about the public. There is nothing here that even hints
that it is applicable to acts that legislators do, and no one else
does. There is nothing here that even hints at protecting legislator's
rights. This is all about the public. And so are conflict of interest
provisions. To say that a legislator may protect himself by calling on
language intended to protect the public, in order to harm the public by
showing preference to the interests of his close associates, is to turn
both the Constitution and government ethics upside down.<br>
<br>
<b>Legislators Give Up Some of Their Rights</b><br>
Saying that a local legislator has a free speech right to vote is no different than
saying that a local legislator has a free assembly right to meet secretly, despite open
meetings laws. The fact is that when you are elected to office, you
give
up some of your rights. You can no longer meet whenever and wherever
you want with whomever you want. Limitations can be placed on your
meetings with bidding contractors, with lobbyists, and with your
colleagues.<br>
<br>
You can no longer take gifts from anyone you want, you can no longer
place any sign you want on your car, or use any stationery, or talk to
members of the public the way you might have done before. There are
limitations and there are prohibitions and there are procedures you
have to follow, disclosures you have to make. If you don't want to give
up those rights, you can simply choose not to run for office, and all
the rights are yours.<br>
<br>
<b>Legislators Are Given Special Rights and Responsibilities</b><br>
There are special rights given to legislators, such as legislative
immunity. But those aren't their rights, they're the rights of their
constituents.<br>
<br>
In return, you get power. And you get responsibilities. And one of
those responsibilities is to deal responsibly with your conflicts of
interest. And the most common way to deal responsibly with a conflict
is to withdraw from the matter, to say nothing and do nothing. If you
act responsibly, you have said and done nothing, not
because your freedom of speech has been abridged, but because you have
acted responsibly, because you have fulfilled your fiduciary obligation
to the public. This is not about rights, it's about the other side of
the coin: responsibilities. If you don't want to accept those
responsibilities, you should not run for office.<br>
<br>
If Carrigan is successful here, it should not be on
the basis of his First Amendment argument, but rather on the basis of
due process. It should be a narrow decision about a
particular situation and particular statutory language. The Supreme
Court should say that the First Amendment is not
relevant to legislators voting.<br>
<br>
<b>Case Consolidation</b><br>
The Carrigan brief does raise one interesting issue, the fact that
another Carrigan case (which I analyzed in <a href="http://www.cityethics.org/content/publics-right-public-interested-repre…; target="”_blank”">another
blog
post</a>) has not yet completed its way through the courts and
that the two cases should be consolidated. In that case, Carrigan
argued that the same provision failed on due process as well as free
speech grounds. The court relied primarily on free speech grounds. But
that case involved an advisory opinion, which raises issues
about
advisory opinions and how providing ethics advice differs in important ways from
enforcement, because ethics laws provide minimum standards (see<a href="http://www.cityethics.org/content/two-explanations-why-ethics-laws-prov…; target="”_blank”">
a blog post on this</a>). The due process argument in this other case is
weaker. It would be interesting to see if courts would be willing to
recognize the difference between ethics advice and enforcement, but I
doubt that they would. It's just as well that the U.S. Supreme Court
did not wait for what I refer to as Carrigan II to be ready for
consolidation.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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