Monday, April 11, 2011

Is a vote speech or conduct?

Mark Lauterbach

The Nevada Commission on Ethics v. Carrigan (10-568 US) is a US Supreme Court Case that will define whether or not an elected official’s vote is an act of speech. Many cases have made their way up to the Supreme Court because of a need to further define or mold the First Amendment to correspond with changing societal norms; rarely does such a basic and essential question arise that can impact the function of government on such a large scale. With its first hearing on April 27th of this year, the Court will have to decide if a vote is an act of pure speech or if it is conduct.

The case revolves around Councilman Carrigan (Sparks, Nev.), who approved a casino development plan. The issue is that Carrigan’s former campaign manager and close friend Carlos Vasquez was a consultant for the business that proposed the plan to the council. Carrigan disclosed this conflict of interest to the ethics commission, but still voted to approve the plan. The ethics committee then censured the vote after-the-fact, which Carrigan appealed. The case went to the Carson City District Court which upheld the ethics committee’s decision and Carrigan appealed that as well. The case then moved up to the Nevada Supreme Court and they reversed the decision. The Nevada Supreme Court deemed a vote to be political expression and an act of speech, which means that the ethics laws are aimed at speech. Because these laws are directed at the limitation of an act of speech, the laws themselves have to be reviewed under the strict scrutiny test. The Nevada Supreme Court went even further in saying that if these laws are reviewed under strict scrutiny than the laws as they are now are not narrowly tailored and its terms are too broad. The ruling read: “The vote of an elected official is protected speech under the First Amendment and that the recusal provision of the Nevada Ethics in Government Law is subject to strict scrutiny… the recusal statute was overbroad and facially unconstitutional,” (Commission on Ethics v. Carrigan, 2010; 10-19578 Nev.). Caren Jenkins, the executive director of Nevada’s ethics commission, explained her case: “It’s confusing because every state has a different standard… a national ruling would standardize the states’ ethics laws,” (Nevada Ethics Case Headed to Supreme Court by Andrew Doughman: January 10th, 2011 Nevada News Bureau).

The ethics commission argues that if a vote is protected then judges and other elected officials would not have to disqualify themselves from situations of conflicted interests. Now at the US Supreme Court level, the implication of their decision will be whether or not ethics committees actually have the power to prohibit a vote if a conflict of interest is present. The Supreme Court is going to review and decide once and for all if a vote is speech or conduct, which would determine the level of scrutiny that the ethic laws need to be reviewed under. An easy speculation would be that the US Supreme Court will overrule the Nevada Supreme Court ruling to the benefit of the ethics committee. Carrigan’s vote is not pure speech because as a politician he is bound to his legislative obligations. I think that the Supreme Court will rule that the vote is really conduct, not pure expression, and thus not subject to strict scrutiny.

Sources:

2 new cases ask what First Amendment Protects by Tony Mauro, 1/11/2011:

http://www.firstamendmentcenter.org/analysis.aspx?id=23775

Nevada Ethics Case Headed to Supreme Court by Andrew Doughman, 1/10/11:

http://www.nevadanewsbureau.com/2011/01/10/nevada-ethics-case-headed-to-supreme-court/

Nevada Supreme Court ruling:

http://www.supremecourt.gov/qp/10-00568qp.pdf

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