S.Ct.: Uses Originalism to Interpret 1st Amendment

Focusing on congressional enactments from the late 1700s, the Supreme Court upheld the constitutionality of a recusal provision in Nevada’s Ethics in Government Law. The Court concluded that legislative votes are not a form of speech protected by the First Amendment. Nevada Commission on Ethics v. Carrigan, No. 10-568, 2011 WL 2297793 (June 13, 2011). Justice Scalia authored the opinion of the Court, joined by all other justices except Justice Alito, who concurred in part and in the judgment. Justice Kennedy joined the Court’s opinion but also filed a concurrence.

Nevada’s Ethics in Government Law prohibits public officers from voting or advocating in relation to any matter in which his or her “commitment in a private capacity to the interests of others” would affect “the independence of judgment of a reasonable person in his situation.” Nev. Rev. Stat. §281A.420(2) (2007). The definition of such commitments includes a catchall provision (§281A.420(8)(e)). In 2005, the Nevada Commission on Ethics investigated Michael Carrigan, an elected member of the City Council of Sparks, for voting to approve a hotel/casino project that hired a “long-time friend and campaign manager” as a paid consultant.  The Commission found an impermissible conflict of interest under the catchall provision and censured Carrigan.

He filed suit in a Nevada District Court, arguing that the provisions of the law he was found to have violated are unconstitutional under the First Amendment. The District Court denied his petition, but the Nevada Supreme Court reversed, finding “a legislator’s vote to be protected speech because voting ‘is a core legislative function’” and the catchall provision overbroad (126 Nev. ___, at ___, 236 P. 3d 616, at 621-624). The Supreme Court reversed, holding that a legislator’s vote is not protected speech, also because it is a core legislative function.

The Court quoted Printz v. United States, 521 U. S. 898, 905 (1997), for the proposition that “early congressional enactments ‘provid[e] contemporaneous and weighty evidence of the Constitution’s meaning.’”  Scalia concluded that “evidence” from the late 1700s and early 1800s was “dispositive” for determining whether legislative voting is protected speech under the First Amendment. The House’s first recusal rule was adopted in 1789, before it voted on the First Amendment, and no members are recorded to have noted any inconsistency between the two. The House rule prohibited a legislator from voting on a question “of which he is immediately and particularly interested.” The Senate adopted its first recusal rule in 1801, shortly after the First Amendment was ratified. The Senate rule stated that “[w]here the private interests of a member are concerned, … he is to withdraw … [and] his voice [is] disallowed.”

The Court reasoned by analogy to conflict-of-interest rules for judges.  In 1792, Congress passed a law requiring district court judges to recuse themselves if they had a personal interest in a suit.  The conflict-of-interest rules were later expanded.  The Court observed: “there do not appear to have been any serious challenges to judicial recusal statutes as having unconstitutionally restricted judges’ First Amendment rights.”

Moreover, the Court found support in “long-standing traditions in the States,” in both common and statutory law. The Court commented that no federal court cases, including the ones that Carrigan cited, were relevant in supporting legislative voting as protected speech, and that even if there were recent relevant cases, they would “be too little and too late to contradict the long-recognized need for legislative recusal.”

The Court articulated the theory that legislative voting is not protected speech because the associated legislative power belongs not to the legislator, but to the people. The Court disagreed with the notion that voting, apart from accompanying speech, has any expressive value. Even assuming, arguendo, that it does, the Court relied on its “reject[ion of] the notion that the First Amendment confers a right to use governmental mechanics to convey a message” in Timmons v. Twin Cities Area New Party, 520 U. S. 351 (1997) and Burdick v. Takushi, 504 U. S. 428, 438 (1992). The Court also distinguished Doe v. Reed, 130 S.Ct. 2811 (2010) which held that signing a petition was free speech despite its governmental effect by remarking that doing so is “inherently expressive,” whereas legislative voting is not.

Justice Alito’s concurrence reasoned that “voting has an expressive component in and of itself.” Relying on Doe, Alito suggested that “the act of voting is not drained of its expressive content when the vote has a legal effect.” Nevertheless, he concurred in the judgment, finding that the provision in question is a permissible restriction of protected free speech.

Justice Kennedy’s concurrence noted the possibility that a citizen’s “personal life is tied to the longstanding, close friendships he or she has forged in [a] common cause now at stake,” in which case the Nevada statute might be overbroad, extending to speech and association relating to political campaigns (Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989); Clingman v. Beaver, 544 U. S. 581, 586 (2005)). However, he joined in the opinion of the Court because these questions were considered neither by the Court nor by the parties to the case.

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