Law
3:00 pm
Mon June 13, 2011

Supreme Court Upholds Nevada Ethics Law

The U.S. Supreme Court has unanimously upheld a broad state ethics law, ruling that legislators have no personal, First Amendment right to vote on a measure. The decision reverses a Nevada state court ruling that would have undermined conflict-of-interest laws across the country.

At issue in the case was a 2006 Nevada Ethics Commission finding against a city councilman in Sparks, near Reno. The Ethics Commission ruled that Councilman Michael Carrigan violated the state ethics code by voting to approve a casino development at a time when his campaign manager and close friend was being paid $10,000 a month by the developer.

Carrigan protested the finding, noting that he disclosed his campaign manager's role prior to his vote.

He appealed to the Nevada Supreme Court, which ruled in his favor. The Nevada high court declared that voting by an elected public officer is protected by the First Amendment's guarantee of free speech and expression.

Voting Is Not Symbolic Speech

But on Monday, the U.S. Supreme Court reversed that decision. Writing for a unanimous court, Justice Antonin Scalia noted that as far back as the founding of the republic, both federal and state laws barred officials from voting on matters in which they had a personal interest. Just as the nation's founders treated obscenity and libel as speech that is not protected by the First Amendment, said Scalia, so too did they treat recusal laws for legislators and judges as permissible under the Constitution.

A legislator's vote is not speech, said Scalia. Rather, it is a "mechanical function of government." And he went further, declaring that if a vote is barred, the state can also bar advocacy leading up to the vote during a legislative session. Such a limited advocacy ban, he said, is a reasonable restriction on the time, place and manner of legislative speech where there is a conflict of interest. "There are, to be sure, instances where action conveys a symbolic meaning," noted Scalia, pointing to "the burning of a flag to convey disagreement with a country's policy." But, he added, "the act of voting symbolizes nothing." It merely "discloses" that the legislator wishes to adopt a proposed measure.

The court's decision left government reform groups breathing a sigh of relief. Scott Nelson, a lawyer for the government watchdog organization Public Citizen, notes that the challenge to the Nevada ethics law was supported by some of the same forces that have successfully challenged long-standing campaign finance laws.

"It's in some ways seemingly part of a coordinated strategy to use the First Amendment to dismantle protections against corruption in government," said Nelson. "But the court apparently sees a difference between campaign finance laws, [where] there is a majority that is very suspicious, and ethics laws, which seem backed by pretty much a unanimous court."

But James Bopp, the leading challenger of campaign finance laws, sees Monday's ruling as very limited. "This decision turned out to be a very narrow one," said Bopp. "What the court refused to consider were the real First Amendment issues in the case."

What About Freedom Of Association?

Indeed, the Supreme Court did not address two other issues raised by Councilman Carrigan — his claim that the Nevada law is unconstitutionally vague, and that it violates the his right of free association by punishing him for the political loyalty of his longtime friend and campaign manager.

Still, most experts say that Carrigan will have an uphill battle if he pursues other theories before the Nevada courts. Columbia Law School professor Richard Briffault notes that because the Supreme Court has ruled that a legislative vote is not protected by the First Amendment, the state courts will have to be far more deferential to the existing law.

That likely would mean, he said, that Monday's decision would also cover any claim of a First Amendment right to association.

Indeed, said Scott Nelson, "It looks like it would face very tough sledding with seven justices joining Justice Scalia in saying legislators really don't have a First Amendment right at issue here."

Two justices filed concurring opinions in the Nevada case. Justice Anthony Kennedy, though agreeing with the Scalia opinion, hedged his bets a bit, suggesting that in some hypothetical case in the future, a conflict of interest law could impinge on the First Amendment right of association. Kennedy also made reference to potential differences between recusal standards for members in the legislative and executive branches, and the recusal standards for judges.

Justice Samuel Alito had a more fundamental disagreement with the majority, saying that in his view, legislative voting is speech. Citing John F. Kennedy's book, Profiles in Courage, describing instances in American history where senators voted at great personal sacrifice, Alito wrote that "[v]oting has an expressive component in and of itself." Alito nevertheless agreed with the outcome of the case because recusal restrictions were permitted by the nation's founders.

Other Supreme Court Opinions

In other actions, the court divided 5-to-4 in a decision that cut off a lawsuit brought by investors against mutual fund adviser Janus Capital Group for allegedly false statements made in the mutual fund prospectuses. Writing for the five-justice court majority, Justice Clarence Thomas said that the securities law holds the "maker" of a false statement liable, but that a mutual fund adviser who may have been involved in preparing a prospectus does not actually "make" a false statement and thus cannot be sued for damages.

The dissenters accused the majority of creating an artificial rule that allows investment managers to "perpetrate a fraud through an unwitting intermediary." They said that in this case the investment advisers were in fact responsible for the day-to-day operations of the mutual fund; they drafted the prospectuses and were far more knowledgeable about any false statements than the actual fund trustees, but the court held advisers essentially immune from such investor lawsuits.

Also on Monday, the court divided 4-to-4 in an important gender-discrimination case involving the citizenship status of children born abroad. At issue before the court was a federal law that has different citizenship criteria for the children of unwed American fathers and mothers.

The test case was brought by Ruben Flores-Villar, 36, convicted of being in the United States illegally. Flores-Villar, the son of an American father and a Mexican mother, was raised by his father in the U.S.

The law would have allowed Flores-Villar to be a citizen if his mother had lived in the U.S. for a year before his birth, a much shorter time than an American citizen father.

The government argued that the differing time requirements were designed to minimize the likelihood of children being born stateless, while also ensuring that U.S. citizenship was not unnecessarily extended to "generations of expatriates" with no ties to the U.S. But Flores-Villar claimed he was denied the equal protection of the law because of the gender of his American parent.

The Supreme Court's tie vote leaves the gender equality question unresolved. Justice Elena Kagan, who was recused because she worked on the case when she was solicitor general, will not be recused when and if the question comes to the court again.

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