(CN) – Legislators do not have a First Amendment right to vote on any given matter, the U.S. Supreme Court ruled Monday, backing a recusal provision in Nevada’s government ethics law that the state Supreme Court had called unconstitutionally overbroad.
In 2005, the Nevada Commission on Ethics began investigating a Sparks city councilman, Michael Carrigan, for allegedly violating a restriction against voting on measures in which an elected official has certain private interests. Carrigan had been accused of voting to approve an application for the Lazy 8 casino project, for which his campaign manger worked a paid consultant.
The commission censured Carrigan but did not impose a civil penalty, concluding that the councilman’s relationship with his friend constituted a conflict of interest but was not a willful infraction.
A federal judge declined Carrigan’s petition to review the ethics law for constitutional violations, but the divided Nevada Supreme Court reversed and held that the First Amendment protects elected officials’ right to vote.
Legislative recusal rules “have been commonplace for over 200 years,” Justice Antonin Scalia wrote for the mostly unanimous court.
“In an attempt to combat this overwhelming evidence of constitutional acceptability, Carrigan relies on a handful of lower-court cases from the 1980’s and afterwards,” Scalia wrote. “Even if they were relevant, those cases would be too little and too late to contradict the long-recognized need for legislative recusal. But they are not relevant. The first was vacated as moot, and the other two involve retaliation amounting to viewpoint discrimination.”
Ultimately a legislator’s vote represents his share of the legislature, the court found.
“The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it,” Scalia wrote.
There is also no symbolism to a citizen or legislator’s vote, he added.
“Moreover, the fact that a nonsymbolic act is the product of deeply held personal belief – even if the actor would like it to convey his deeply held personal belief – does not transform action into First Amendment speech,” the 11-page decision states (emphasis in original).
Justice Anthony Kennedy, who joined in the Scalia’s decision, authored a concurring opinion that reflects on the burdens such rules could “impose on the First Amendment speech rights of legislators and constituents apart from an asserted right to engage in the act of casting a vote.”
If a person runs for office to promote his beliefs about family life or other views, and friends or groups with the same ties support that candidate, how would Nevada’s statute affect him, Kennedy pondered.
“There is, in my view, a serious concern that the statute imposes burdens on the communications and expressions just discussed,” according to the four-page opinion.
Justice Samuel Alito also authored a separate opinion, concurring with Scalia in part and concurring in the judgment.
Though Scalia agreed that Carrigan does not have a case, he said restrictions upon legislators’ voting do constitute restrictions upon legislators’ speech.
“Voting has an expressive component in and of itself,” Alito wrote. “The Court’s strange understanding of the concept of speech is shown by its suggestion that the symbolic act of burning the American flag is speech but John Quincy Adams calling out ‘yea’ on the Embargo Act was not.”
Ultimately Alito agreed that the Nevada Supreme Court’s judgment for Carrgian should be reversed because “legislative recusal rules were not regarded during the founding era as impermissible restrictions on freedom of speech.” (Emphasis in original.)