The Supreme Court's Local Government Recusal Decision Is Limited to Voting and Legislative Debate

The Supreme Court reached a decision today in the Carrigan case, and it is nearly unanimous. However, it deals with only one part of the arguments made by Carrigan (see my blog post on the oral argument): whether a local legislative vote is protected speech under the First Amendment. The answer is a nearly unanimous No.

Here's the story in a nutshell. Carrigan is a member of the Sparks City, NV council. His close friend, campaign manager for three campaigns, and principal vendor of the campaigns became a consultant to a developer with a matter before the council. Carrigan asked the city attorney if he could participate in the matter, and the city attorney gave him the green light (as city attorneys so often do). Carrigan participated, someone filed an ethics complaint, and the state ethics commission, which has jurisdiction over local officials, found that Carrigan had violated a "catch-all" conflict provision in the state ethics code (Nevada Revised Statutes §281A.420.8(a)).

Justice Scalia wrote the opinion for the Court. His principal argument for the fact that recusal from voting is not protected speech is that House members were subject to a recusal provision when they voted to submit the First Amendment for ratification. "[T]heir failure to note any inconsistency between the two suggests that there was none." States too have required legislators to recuse themselves for many years, and this has never been successfully opposed on First Amendment grounds.

In addition, Carrigan does not assert that the recusal law is viewpoint discriminatory. The Court finds it content-neutral and applicable equally to legislators regardless of party or position.

More philosophically, the Court determines that "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." Justice Scalia also notes that a legislator casts a vote “as trustee for his constituents, not as a prerogative of personal power.”

Justice Scalia disagrees with Justice Alito, who concurs in part, about the fact that a legislator's vote may express deeply held and unpopular views, and may be done at great personal or political peril. He argues that the act of voting symbolizes nothing. Rather, a vote is "nonsymbolic conduct engaged in for an independent governmental purpose."

Finally, Justice Scalia notes that the Court has "rejected the idea that the First Amendment confers a right to use governmental mechanics to convey a message." In other words, there may be a deeply expressed idea involved, but a legislator has no personal right to use a vote in the city council to express that idea.

Participation Beyond Voting
What about the rest of withdrawing from participation, that is, not speaking out on or even discussing a matter where a legislator has a conflict? Justice Scalia dismisses this problem, but only with respect to legislative debate, at the beginning of his opinion:

Neither Carrigan nor any of his amici contend that the prohibition on advocating can be unconstitutional if the prohibition on voting is not. And with good reason. Legislative sessions would become massive town-hall meetings if those who had a right to speak were not limited to those who had a right to vote. If Carrigan was constitutionally excluded from voting, his exclusion from “advocat[ing]” at the legislative session was a reasonable time, place and manner limitation."

This is not an argument I would have thought of, but it does partially do the trick. But what it doesn't do is make for legislative activity the equivalent argument to the one made with respect to legislative voting. That is, this opinion does not expressly say that the advocacy of a legislator is, like a vote, not protected speech, because in advocating, a legislator is acting on behalf of his constituents, not as an expression of his personal thoughts, even if it does express his personal thoughts, as well.

In other words, the opinion only makes council debate unprotected speech. It says nothing about whether the rest of a council member's participation in a matter is protected or unprotected speech, for example, speaking about a matter outside of council, writing about a matter, buttonholing responsible officials and employees, buidling a coalition in the community, that is, all the other ways a council member acts to get things done. It is still not clear whether a council member would be constitutionally allowed to, with respect to his sister's development, go around town advocating for it, making vote trades with other council members or fundraising promises to zoning board members concerning it, getting community groups on board to support it, or the like without even disclosing that his sister was involved.

The reasoning behind the constitutional Speech or Debate Clause is that a legislator is representing her constituents in all her legislative activity. If the Speech or Debate Clause does not distinguish between voting, writing a letter, having a conversation, or making a speech, then why should the First Amendment? It's not that these activities aren't different, it's that they are not different for legislators, whose role and obligations are exactly the same so long as the legislator is involved in legislative as opposed to personal activity.

Government ethics is all about the divide between the personal and the public. Legislative activity involves the public, not the personal. Free Speech involves the personal, not the public. To the extent the public would be undermined by the personal, government ethics requires that the conflict be handled responsibly, which includes handling the conflict with respect to all legislative activity, because all legislative activity is compromised by a conflict. Therefore, any ordinary First Amendment distinctions do not apply. Another way of putting this is that the obligations of a legislator are stronger than her rights.

With the exception of this omission, I am happy with the Court's decision. As I've said, the application of First Amendment free speech has been getting out of control lately. It's no wonder that an attempt has been made now to apply it to an area where it has not been applied in over two hundred years. Thank goodness this attempt failed miserably.

Robert Wechsler
Director of Research-Retired, City Ethics

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