High court considers First Amendment role in official votes

In the final oral argument of the term, the U.S. Supreme Court considered today whether recusal rules interfere with First Amendment rights legislators may have in their legislative votes. Some of the justices' questions in Nevada Commission on Ethics v. Carrigan, particularly those posed by Justice Antonin Scalia, suggested an eagerness to address the free speech issue head-on. Other justices appeared less inclined to do so.

Justices Anthony Kennedy, Ruth Bader Ginsburg and Samuel Alito explored the specifics of the state law that the petitioner, the Nevada Commission on Ethics, used in reprimanding Michael Carrigan, a Sparks city councilmember, after Carrigan cast a legislative vote on a matter involving his campaign manager.

After the commission's attorney, John P. Ellwood, spent a few minutes addressing the law's language and breadth, Scalia sought to draw the discussion back to the overriding free speech issue. "We've jumped way ahead," Scalia interjected, stating that he was more concerned with "the proposition that ethical rules adopted by legislatures for voting are subject to review by this Court or by any court under the First Amendment."

Scalia asserted that this is the first case in the history of the Court that raised the question of whether the First Amendment covered ethical rules for legislators. He noted that ethical rules have been in place since the first Congress, suggesting that it is not the purpose of the Court to judge these rules. Elwood agreed with Scalia on this point, arguing that the First Amendment did not prevent the type of ethics rule at issue. Chief Justice John Roberts and Justice Elena Kagan also questioned whether the First Amendment provided any limits on the types of ethics rules that a legislature could adopt.

Justice Samuel Alito, noting the Court's reluctance to carve out exceptions to speech protected by the First Amendment, asked Elwood why the Court should do so here: "[I]n several recent cases the Court has taken pains to make the point that it is not going to recognize any new categories of unprotected speech. But the argument that you seem to be endorsing now in response to some questions is that there is this new category of unprotected speech, which is advocacy of the passage of legislation when a recusal statute comes into play."

Emphasizing the long history of recusal statutes, Elwood responded that the framers of the First Amendment "never indicated that they thought any sort of personal First Amendment right was implicated by recusal rules."

Joshua E. Rosenkranz, arguing on behalf of Carrigan, emphasized that he was not asserting that all ethics laws were unconstitutional, but that the Nevada law was too vague and went too far. He told the court that the ethics law implicated not only the legislators' speech rights, but also associational rights. Rosenkranz asserted that the law impermissibly allowed the commission to sanction Carrigan because of his political contacts.

"The core problem with this statute . . . [is that] an unelected commission has arrogated to itself essentially the right to invalidate an election result and to do it in a way that treats core political association as corrupting," Rosenkranz argued.

The justices posed multiple hypothetical situations to Elwood and Rosenkranz. Justice Alito asked whether a public official would have to be recused if a property tax vote would affect the taxes of the official's cousin. Justice Scalia suggested — to laughter — that he would be "more attracted" to Rosenkranz's argument if it let him "get out of" judicial ethics rules that prohibit participating in cases that would involve "an appearance of impropriety."

A decision in the case is expected by the end of June.

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in support of the Nevada Commission on Ethics in March, arguing that allowing such First Amendment claims for government action would jeopardize a variety of accountability and openness rules.