NEVADA COMMISSION ON ETHICS v. CARRIGAN
Nevada law requires elected officials to disqualify themselves when they are asked to vote on matters that touch on ''commitments in a private capacity.'' In 2006, a member of the Sparks City, Nevada Council, Michael A. Carrigan, disclosed that his campaign manager was a consultant to a business seeking to develop a casino, before voting its way in a land-use matter. The Nevada Commission on Ethics later ruled that the vote was improper and censured Carrigan.
The Nevada Supreme Court reversed that decision, saying it violated the First Amendment and citing the Supreme Court's decision last year in Citizens United v. Federal Election Commission. ''Voting by an elected public officer on public issues is protected speech under the First Amendment, '' Justice Michael Douglas wrote for the majority.
- Brief for the Petitioner
- Reply Brief for the Petitioner
- Brief of Florida, Alabama, Arizona, Colorado, Hawaii, Idaho, Indiana, Louisiana, Maine, Michigan, Montana, Pennsylvania, Texas, And Utah as Amici Curiae In Support of the Petitioner
- Brief Amicus Curiae of the James Madison Center And the Center for Competitive Politics Supporting Respondent
Does the First Amendment subject state restrictions on voting by elected officials to strict scrutiny?
Legal provision: First Amendment
No. The Supreme Court reversed the lower court order in an opinion by Justice Antonin Scalia. "The Nevada Ethics in Government Law is not unconstitutionally overbroad," Scalia wrote for the unanimous court. Justice Anthony Kennedy filed a concurring opinion in which he noted: "the opinion does not, and on this record should not, consider a free speech contention that would have presented issues of considerable import, were it to have been a proper part of the case." Meanwhile, Justice Samuel Alito concurred in part and concurred in the judgment, writing: "I concur in the judgment, but I do not agree with the opinion of the Court insofar as it suggests that restrictions upon legislators' voting are not restrictions upon legislators' speech."
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
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SUPREME COURT OF THE UNITED STATES
NEVADA COMMISSION ON ETHICS, PETITIONER v.
MICHAEL A. CARRIGAN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
[June 13, 2011]
JUSTICE SCALIA delivered the opinion of the Court.
The Nevada Supreme Court invalidated a recusal provision of the State’s Ethics in Government Law as unconstitutionally overbroad in violation of the First Amendment. We consider whether legislators have a personal, First Amendment right to vote on any given matter.
Nevada’s Ethics in Government Law provides that “a public officer shall not vote upon or advocate the passage or failure of, but may otherwise participate in the consideration of, a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by,” inter alia, “[h]is commitment in a private capacity to the interests of others.” Nev. Rev. Stat. §281A.420(2) (2007).1 Section 281A.420(8)(a)–(d) of the law defines the term “commitment in a private capacity to the interests of others” to mean a “commitment to a person” who is a member of the officer’s household; is related by blood, adoption, or marriage to the officer; employs the officer or a member of his household; or has a substantial and continuing business relationship with the officer. Paragraph (e) of the same subsection adds a catchall to that definition: “[a]ny other commitment or relationship that is substantially similar” to one of those listed in paragraphs (a)–(d).
The Ethics in Government Law is administered and enforced by the petitioner in this litigation, the Nevada Commission on Ethics. In 2005, the Commission initiated an investigation of Michael Carrigan, an elected member of the City Council of Sparks, Nevada, in response to complaints that Carrigan had violated §281A.420(2) by voting to approve an application for a hotel/casino project known as the “Lazy 8.” Carrigan, the complaints asserted, had a disabling conflict in the matter because his longtime friend and campaign manager, Carlos Vasquez, worked as a paid consultant for the Red Hawk Land Company, which had proposed the Lazy 8 project and would benefit from its approval.
Upon completion of its investigation, the Commission concluded that Carrigan had a disqualifying conflict of interest under §281A.420(8)(e)’s catchall provision because his relationship with Vasquez was “substantially similar” to the prohibited relationships listed in §281A.420(8)(a)– (d). Its written decision censured Carrigan for failing to abstain from voting on the Lazy 8 matter, but did not impose a civil penalty because his violation was not willful, see §281A.480. (Before the hearing, Carrigan had consulted the Sparks city attorney, who advised him that disclosing his relationship with Vasquez before voting on the Lazy 8 project, which he did, would satisfy his obligations under the Ethics in Government Law.) Carrigan filed a petition for judicial review in the First Judicial District Court of the State of Nevada, arguing that the provisions of the Ethics in Government Law that he was found to have violated were unconstitutional under the First Amendment. The District Court denied the petition, but a divided Nevada Supreme Court reversed. The majority held that voting was protected by the First Amendment, and, applying strict scrutiny, found that §281A.420(8)(e)’s catchall definition was unconstitutionally overbroad. 126 Nev. 28, ___–___, 236 P. 3d 616, 621– 624 (2010).
We granted certiorari, 562 U. S. ___ (2011).
The First Amendment prohibits laws “abridging the freedom of speech,” which, “ ‘as a general matter . . . means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ ” Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002) (quoting Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 65 (1983)). But the Amendment has no application when what is restricted is not protected speech. See, e.g., Roth v. United States, 354 U. S. 476, 483 (1957) (obscenity not protected speech). The Nevada Supreme Court thought a legislator’s vote to be protected speech because voting “is a core legislative function.” 126 Nev., at ___, 236 P. 3d, at 621 (internal quotation marks omitted).
We disagree, for the same reason. But before discussing that issue, we must address a preliminary detail: The challenged law not only prohibits the legislator who has a conflict from voting on the proposal in question, but also forbids him to “advocate the passage or failure” of the proposal—evidently meaning advocating its passage or failure during the legislative debate. Neither Carrigan nor any of his amici contend that the prohibition on advocating can be unconstitutional if the prohibition on voting is not. And with good reason. Legislative sessions would become massive town-hall meetings if those who had a right to speak were not limited to those who had a right to vote. If Carrigan was constitutionally excluded from voting, his exclusion from “advocat[ing]” at the legislative session was a reasonable time, place and manner limitation. See Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984).
“[A] universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional: Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation’s consciousness.” Republican Party of Minn. v. White, 536 U. S. 765, 785 (2002) (internal quotation marks omitted). Laws punishing libel and obscenity are not thought to violate “the freedom of speech” to which the First Amendment refers because such laws existed in 1791 and have been in place ever since. The same is true of legislative recusal rules. The Nevada Supreme Court and Carrigan have not cited a single decision invalidating a generally applicable conflict-of-interest recusal rule—and such rules have been commonplace for over 200 years.
“[E]arly congressional enactments ‘provid[e] contemporaneous and weighty evidence of the Constitution’s meaning,’ ” Printz v. United States, 521 U. S. 898, 905 (1997) (quoting Bowsher v. Synar, 478 U. S. 714, 723–724 (1986)). That evidence is dispositive here. Within 15 years of the founding, both the House of Representatives and the Senate adopted recusal rules. The House rule—to which no one is recorded as having objected, on constitutional or other grounds, see D. Currie, The Constitution in Congress: The Federalist Period 1789–1801, p. 10 (1997)—was adopted within a week of that chamber’s first achieving a quorum.2 The rule read: “No member shall vote on any question, in the event of which he is immediately and particularly interested.” 1 Annals of Cong. 99 (1789). Members of the House would have been subject to this recusal rule when they voted to submit the First Amendment for ratification; their failure to note any inconsistency between the two suggests that there was none.
The first Senate rules did not include a recusal requirement, but Thomas Jefferson adopted one when he was President of the Senate. His rule provided as follows:
“Where the private interests of a member are concerned in a bill or question, he is to withdraw. And where such an interest has appeared, his voice [is] disallowed, even after a division. In a case so contrary not only to the laws of decency, but to the fundamental principles of the social compact, which denies to any man to be a judge in his own case, it is for the honor of the house that this rule, of immemorial observance, should be strictly adhered to.” A Manual of Parliamentary Practice for the Use of the Senate of the United States 31 (1801). Contemporaneous treatises on parliamentary procedure track parts of Jefferson’s formulation. See, e.g., A. Clark, Manual, Compiled and Prepared for the Use of the [New York] Assembly 99 (1816); L. Cushing, Manual of Parliamentary Practice, Rules of Proceeding and Debate in Deliberative Assemblies 30 (7th ed. 1854).
Federal conflict-of-interest rules applicable to judges also date back to the founding. In 1792, Congress passed a law requiring district court judges to recuse themselves if they had a personal interest in a suit or had been counsel to a party appearing before them. Act of May 8, 1792, ch. 36, §11, 1 Stat. 278–279. In 1821, Congress expanded these bases for recusal to include situations in which “the judge . . . is so related to, or connected with, either party, as to render it improper for him, in his opinion, to sit on the trial of such suit.” Act of Mar. 3, 1821, ch. 51, 3 Stat. 643. The statute was again expanded in 1911, to make any “personal bias or prejudice” a basis for recusal. Act of Mar. 3, 1911, §21, 36 Stat. 1090. The current version, which retains much of the 1911 version’s language, is codified at 28 U. S. C. §144. See generally Liteky v. United States, 510 U. S. 540, 544 (1994); Frank, Disqualification of Judges, 56 Yale L. J. 605, 626–630 (1947) (hereinafter Frank). There are of course differences between a legislator’s vote and a judge’s, and thus between legislative and judicial recusal rules; nevertheless, there do not appear to have been any serious challenges to judicial recusal statutes as having unconstitutionally restricted judges’ First Amendment rights.3
The Nevada Supreme Court’s belief that recusal rules violate legislators’ First Amendment rights is also inconsistent with long-standing traditions in the States. A number of States, by common-law rule, have long required recusal of public officials with a conflict. See, e.g., In re Nashua, 12 N. H. 425, 430 (1841) (“If one of the commissioners be interested, he shall not serve”); Commissioners’ Court v. Tarver, 25 Ala. 480, 481 (1854) (“If any member . . . has a peculiar, personal interest, such member would be disqualified”); Stubbs v. Florida State Finance Co., 118 Fla. 450, 451, 159 So. 527, 528 (1935) (“[A] public official cannot legally participate in his official capacity in the decision of a question in which he is personally and adversely interested”).4 Today, virtually every State has enacted some type of recusal law, many of which, not unlike Nevada’s, require public officials to abstain from voting on all matters presenting a conflict of interest. See National Conference of State Legislatures, Voting Recusal Provisions (2009), online at http:// www.ncsl.org/?TabID=15357 (as visited June 9, 2011, and available in Clerk of Court’s case file).
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. See Brief for Respondent 25 (citing Clark v. United States, 886 F. 2d 404 (CADC 1989); Miller v. Hull, 878 F. 2d 523 (CA1 1989); and Camacho v. Brandon, 317 F. 3d 153 (CA2 2003)). 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, see Clark v. United States, 915 F. 2d 699, 700, 706 (CADC 1990) (en banc), and the other two involve retaliation amounting to viewpoint discrimination. See Miller, supra, at 533; Camacho, supra, at 160. In the past we have applied heightened scrutiny to laws that are viewpoint discriminatory even as to speech not protected by the First Amendment, see R. A. V. v. St. Paul, 505 U. S. 377, 383–386 (1992). Carrigan does not assert that the recusal laws here are viewpoint discriminatory, nor could he: The statute is content-neutral and applies equally to all legislators regardless of party or position.
But how can it be that restrictions upon legislators’ voting are not restrictions upon legislators’ protected speech? The answer is that a legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it. As we said in Raines v. Byrd, 521 U. S. 811, 821 (1997), when denying Article III standing to legislators who claimed that their voting power had been diluted by a statute providing for a line-item veto, the legislator casts his vote “as trustee for his constituents, not as a prerogative of personal power.” In this respect, voting by a legislator is different from voting by a citizen. While “a voter’s franchise is a personal right,” “[t]he procedures for voting in legislative assemblies . . . pertain to legislators not as individuals but as political representatives executing the legislative process.” Coleman v. Miller, 307 U. S. 433, 469–470 (1939) (opinion of Frankfurter, J.).
Carrigan and JUSTICE ALITO say that legislators often “ ‘us[e] their votes to express deeply held and highly unpopular views, often at great personal or political peril.’ ” Post, at 1 (opinion concurring in part and concurring in judgment) (quoting Brief for Respondent 23). How do they express those deeply held views, one wonders? Do ballots contain a check-one-of-the-boxes attachment that will be displayed to the public, reading something like “( ) I have a deeply held view about this; ( ) this is probably desirable; ( ) this is the least of the available evils; ( ) my personal view is the other way, but my constituents want this; ( ) my personal view is the other way, but my big contributors want this; ( ) I don’t have the slightest idea what this legislation does, but on my way in to vote the party Whip said vote ‘aye’ ”? There are, to be sure, instances where action conveys a symbolic meaning—such as the burning of a flag to convey disagreement with a country’s policies, see Texas v. Johnson, 491 U. S. 397, 406 (1989). But the act of voting symbolizes nothing. It discloses, to be sure, that the legislator wishes (for whatever reason) that the proposition on the floor be adopted, just as a physical assault discloses that the attacker dislikes the victim. But neither the one nor the other is an act of communication. Cf. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 66 (2006) (expressive value was “not created by the conduct itself but by the speech that accompanies it”).
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. Nor does the fact that action may have social consequences—such as the unpopularity that cost John Quincy Adams his Senate seat resulting from his vote in favor of the Embargo Act of 1807, see post, at 1. However unpopular Adams’ vote may have made him, and however deeply Adams felt that his vote was the right thing to do, the act of voting was still nonsymbolic conduct engaged in for an independent governmental purpose.
Even if it were true that the vote itself could “express deeply held and highly unpopular views,” the argument would still miss the mark. This Court has rejected the notion that the First Amendment confers a right to use governmental mechanics to convey a message. For example, in Timmons v. Twin Cities Area New Party, 520 U. S. 351 (1997), we upheld a State’s prohibition on multipleparty or “fusion” candidates for elected office against a First Amendment challenge. We admitted that a State’s ban on a person’s appearing on the ballot as the candidate of more than one party might prevent a party from “using the ballot to communicate to the public it supports a particular candidate who is already another party’s candidate,” id., at 362; but we nonetheless were “unpersuaded . . . by the party’s contention that it has a right to use the ballot itself to send a particularized message.” Id., at 362– 363; see also Burdick v. Takushi, 504 U. S. 428, 438 (1992). In like manner, a legislator has no right to use official powers for expressive purposes.
Carrigan and JUSTICE ALITO also cite Doe v. Reed, 561 U. S. ___ (2010), as establishing “the expressive character of voting.” Post, at 2; see also Brief for Respondent 26. But Reed did no such thing. That case held only that a citizen’s signing of a petition—“ ‘core political speech,’ ” Meyer v. Grant, 486 U. S. 414, 421–422 (1988)—was not deprived of its protected status simply because, under state law, a petition that garnered a sufficient number of signatures would suspend the state law to which it pertained, pending a referendum. See Reed, 561 U. S., at ___ (slip op., at 6); id., at ___ (slip op., at 3) (opinion of SCALIA, J.). It is one thing to say that an inherently expressive act remains so despite its having governmental effect, but it is altogether another thing to say that a governmental act becomes expressive simply because the governmental actor wishes it to be so. We have never said the latter is true.5 V
Carrigan raises two additional arguments in his brief: that Nevada’s catchall provision unconstitutionally burdens the right of association of officials and supporters, and that the provision is unconstitutionally vague. Whatever the merits of these arguments, we have no occasion to consider them. Neither was decided below: The Nevada Supreme Court made no mention of the former argument and said that it need not address the latter given its resolution of the overbreadth challenge, 126 Nev. ___, n. 4, 236 P. 3d, at 619, n. 4. Nor was either argument raised in Carrigan’s brief in opposition to the petition for writ of certiorari. Arguments thus omitted are normally considered waived, see this Court’s Rule 15.2; Baldwin v. Reese, 541 U. S. 27, 34 (2004), and we find no reason to sidestep that Rule here.
* * *
The judgment of the Nevada Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
1 At the time of the relevant events in this case, the disclosure and recusal provisions of the Ethics in Government Law were codified at Nev. Rev. Stat. §281.501 (2003). They were recodified without relevant change in 2007 at §281A.420, and all citations are to that version. The Nevada Legislature further amended the statute in 2009, see Nev. Stats., ch. 257, §9.5, p. 1057, but those changes are not relevant here.
2 The House first achieved a quorum on April 1, 1789, 1 Annals of Cong. 96, and it adopted rules governing its procedures on April 7, 1789, see id., at 98–99.
3 We have held that restrictions on judges’ speech during elections are a different matter. See Republican Party of Minn. v. White, 536 U. S. 765, 788 (2002) (holding that it violated the First Amendment to prohibit announcement of views on disputed legal and political issues by candidates for judicial election).
4 A number of States enacted early judicial recusal laws as well. See, e.g., 1797 Vt. Laws, §23, p. 178 (“[N]o justice of the peace shall take cognizance of any cause, where he shall be within either the first, second, third, or fourth degree of affinity, or consanguinity, to either of the parties, or shall be directly or indirectly interested, in the cause or matter to be determined”); 1818 Mass. Laws, §5, p. 632 (“[W]henever any Judge of Probate shall be interested in the estate of any person deceased, within the county of such Judge, such estate shall be settled in the Probate Court of the most ancient next adjoining county . . .”); Macon v. Huff, 60 Ga. 221, 223–226 (1878). See generally Frank 609– 626.
5JUSTICE ALITO reasons as follows: (1) If an ordinary citizen were to vote in a straw poll on an issue pending before a legislative body, that vote would be speech; (2) if a member of the legislative body were to do the same, it would be no less expressive; therefore (3) the legislator’s actual vote must also be expressive. This conclusion does not follow. A legislator voting on a bill is not fairly analogized to one simply discussing that bill or expressing an opinion for or against it. The former is performing a governmental act as a representative of his constituents, see supra, at 8; only the latter is exercising personal First Amendment rights.
KENNEDY, J., concurring
SUPREME COURT OF THE UNITED STATES
NEVADA COMMISSION ON ETHICS, PETITIONER v.
MICHAEL A. CARRIGAN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
[June 13, 2011]
JUSTICE KENNEDY, concurring.
For the reasons the Court explains, the act of casting an official vote is not itself protected by the Speech Clause of the First Amendment; and I join the Court’s opinion.
It does seem appropriate to note that the opinion does not, and on this record should not, consider a free speech contention that would have presented issues of considerable import, were it to have been a proper part of the case. Neither in the submissions of the parties to this Court defining the issues presented, nor in the opinion of the Nevada Supreme Court, were the Nevada statutory provisions here at issue challenged or considered from the standpoint of burdens they 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.
The statute may well impose substantial burdens on what undoubtedly is speech. The democratic process presumes a constant interchange of voices. Quite apart from the act of voting, speech takes place both in the election process and during the routine course of communications between and among legislators, candidates, citizens, groups active in the political process, the press, and the public at large. This speech and expression often finds powerful form in groups and associations with whom a legislator or candidate has long and close ties, ties made all the stronger by shared outlook and civic purpose. The process is so intricate a part of communication in a democracy that it is difficult to describe in summary form, lest its fundamental character be understated. It may suffice, however, to note just a few examples.
Assume a citizen has strong and carefully considered positions on family life; the environment; economic principles; criminal justice; religious values; or the rights of persons. Assume, too, that based on those beliefs, he or she has personal ties with others who share those views. The occasion may arise when, to promote and protect these beliefs, close friends and associates, perhaps in concert with organized groups with whom the citizen also has close ties, urge the citizen to run for office. These persons and entities may offer strong support in an election campaign, support which itself can be expression in its classic form. The question then arises what application the Nevada statute has if a legislator who was elected with that support were to vote upon legislation central to the shared cause, or, for that matter, any other cause supported by those friends and affiliates.
As the Court notes, Nev. Rev. Stat. §281A.420(2) (2007) provides: “[A] public officer shall not vote upon or advocate the passage or failure of, but may otherwise participate in the consideration of, a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by . . . [h]is commitment in a private capacity to the interests of others.” There is, in my view, a serious concern that the statute imposes burdens on the communications and expressions just discussed. The immediate response might be that the statute does not apply because its application is confined to the legislator’s “commitment in a private capacity to the interests of others.” That proposition may be a debatable one. At least without the benefit of further submissions or argument or explanation, it seems that one fair interpretation, if not the necessary one, is that the statute could apply to a legislator whose personal life is tied to the longstanding, close friendships he or she has forged in the common cause now at stake.
The application of the statute’s language to the case just supposed, and to any number of variations on the supposition, is not apparent. And if the statute imposes unjustified burdens on speech or association protected by the First Amendment, or if it operates to chill or suppress the exercise of those freedoms by reason of vague terms or overbroad coverage, it is invalid. See United States v. Williams, 553 U. S. 285, 292–293, 304 (2008). A statute of this sort is an invitation to selective enforcement; and even if enforcement is undertaken in good faith, the dangers of suppression of particular speech or associational ties may well be too significant to be accepted. See Gentile v. State Bar of Nev., 501 U. S. 1030, 1051 (1991).
The interests here at issue are at the heart of the First Amendment. “[T]he First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989) (internal quotation marks omitted). And the Court has made it clear that “the right of citizens to band together in promoting among the electorate candidates who espouse their political views” is among the First Amendment’s most pressing concerns. Clingman v. Beaver, 544 U. S. 581, 586 (2005) (internal quotation marks omitted).
The constitutionality of a law prohibiting a legislative or executive official from voting on matters advanced by or associated with a political supporter is therefore a most serious matter from the standpoint of the logical and inevitable burden on speech and association that preceded the vote. The restriction may impose a significant burden on activities protected by the First Amendment. As a general matter, citizens voice their support and lend their aid because they wish to confer the powers of public office on those whose positions correspond with their own. That dynamic, moreover, links the principles of participation and representation at the heart of our democratic government. Just as candidates announce positions in exchange for citizens’ votes, Brown v. Hartlage, 456 U. S. 45, 55–56 (1982), so too citizens offer endorsements, advertise their views, and assist political campaigns based upon bonds of common purpose. These are the mechanisms that sustain representative democracy. See ibid.
The Court has held that due process may require recusal in the context of certain judicial determinations, see Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009); but as the foregoing indicates, it is not at all clear that a statute of this breadth can be enacted to extend principles of judicial impartiality to a quite different context. The differences between the role of political bodies in formulating and enforcing public policy, on the one hand, and the role of courts in adjudicating individual disputes according to law, on the other, see ante, at 6, may call for a different understanding of the responsibilities attendant upon holders of those respective offices and of the legitimate restrictions that may be imposed upon them.
For these reasons, the possibility that Carrigan was censured because he was thought to be beholden to a person who helped him win an election raises constitutional concerns of the first magnitude.
As the Court observes, however, the question whether Nevada’s recusal statute was applied in a manner that burdens the First Amendment freedoms discussed above is not presented in this case. Ante, at 10.
Opinion of ALITO, J.
SUPREME COURT OF THE UNITED STATES
NEVADA COMMISSION ON ETHICS, PETITIONER v.
MICHAEL A. CARRIGAN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
[June 13, 2011]
JUSTICE ALITO, concurring in part and concurring in the judgment.
I concur in the judgment, but I do not agree with the opinion of the Court insofar as it suggests that restrictions upon legislators’ voting are not restrictions upon legislators’ speech. Ante, at 8. As respondent notes, “[o]ur history is rich with tales of legislators using their votes to express deeply held and highly unpopular views, often at great personal or political peril.” Brief for Respondent 23. To illustrate this point, respondent notes, among other famous incidents, John Quincy Adams’ vote in favor of the Embargo Act of 1807, a vote that is said to have cost him his Senate seat, and Sam Houston’s vote against the Kansas-Nebraska Act, a vote that was deeply unpopular in the South. Id., at 23–24 (citing J. Kennedy, Profiles in Courage 48, 109 (commemorative ed. 1991)).
In response to respondent’s argument, the Court suggests that the “expressive value” of such votes is “ ‘not created by the conduct itself but by the speech that accompanies it.’ ” Ante, at 9. This suggestion, however, is surely wrong. If John Quincy Adams and Sam Houston had done no more than cast the votes in question, their votes would still have spoken loudly and clearly to everyone who was interested in the bills in question. Voting has an expressive component in and of itself. 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. Ibid.*
A legislative vote is not speech, the Court tells us, because the vote may express, not the legislator’s sincere personal view, but simply the view that is favored by the legislator’s constituents. See ibid. But the same is sometimes true of legislators’ speeches.
Not only is the Court incorrect in its analysis of the expressive character of voting, but the Court’s position is inconsistent with our reasoning just last Term in Doe v. Reed, 561 U. S. ___ (2010). There, respondents argued that “signing a petition is a legally operative legislative act and therefore ‘does not involve any significant expressive element.’ ” Id., at ___ (slip op., at 6) (quoting Brief for Respondent Reed 31). But the Court rejected this argument, stating: “It is true that signing a referendum petition may ultimately have the legal consequence of requiring the secretary of state to place the referendum on the ballot. But we do not see how adding such legal effect to an expressive activity somehow deprives that activity of its expressive component, taking it outside the scope of the First Amendment.” 561 U. S., at ___ (slip op., at 6).
But cf. id., at ___ (SCALIA, J., concurring in judgment) (slip op., at 1) (“I doubt whether signing a petition that has the effect of suspending a law fits within ‘the freedom of speech’ at all”).
Our reasoning in Reed is applicable here. Just as the act of signing a petition is not deprived of its expressive character when the signature is given legal consequences, the act of voting is not drained of its expressive content when the vote has a legal effect. If an ordinary citizen casts a vote in a straw poll on an important proposal pending before a legislative body, that act indisputably constitutes a form of speech. If a member of the legislative body chooses to vote in the same straw poll, the legislator’s act is no less expressive than that of an ordinary citizen. And if the legislator then votes on the measure in the legislative chamber, the expressive character of that vote is not eliminated simply because it may affect the outcome of the legislative process.
In Part III of its opinion, the Court demonstrates that legislative recusal rules were not regarded during the founding era as impermissible restrictions on freedom of speech. On that basis, I agree that the judgment below must be reversed. * See 17 Annals of Congress 50 (1807); see also 15 id., at 201 (1806).
ORAL ARGUMENT OF JOHN P. ELWOOD ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: Our last argument of the term is in Case 10-568, Nevada Commission on Ethics v. Carrigan.
Mr. Elwood: Mr. Chief Justice, and may it please the Court:
Neutral laws requiring official recusal for conflict of interest do not abridge free speech because a legislator's vote, however expressive, is not protected speech.
It is, rather, a legally binding exercise of State power that he wields as an incident of public office.
The Nevada Supreme Court concluded that Respondent did have a free speech right to vote, and that overrode the Nevada recusal statute.
For four reasons, that holding was error.
First, since the earliest days of the Republic recusal rules have been understood to serve important interests unrelated to any views a legislator may want to express, by requiring disqualification when circumstances indicate that private interests may have affected his independence of judgment.
Justice Anthony Kennedy: The -- the -- the case is -- is presented to us with briefs that seem to pass in the night.
Your emphasis was on whether or not there was a right to vote that's protected under the First Amendment, and -- which is what the Nevada court held and you're quite correct to address it.
But the Respondent says: Well, this interest has a chilling effect on -- on protected speech.
I think we have to reach both parts of that argument.
Do you -- DO you agree with me?
Mr. Elwood: I think that the Court could simply address what the Nevada Supreme Court did and tell it whether it got it right or got it wrong, whether there's a speech interest, and what -- whether that is subject to strict scrutiny or not.
But I think that, even though that argument I don't think was raised or passed on below, that the Court would have discretion to address that.
I think it would give additional guidance to the Nevada Supreme Court.
Justice Anthony Kennedy: Well, if we -- if we say that intermediate scrutiny is the test, even under that test, certainly under that test, the regulation cannot chill speech any more than necessary to fulfill the governmental interests, even under the intermediate standard.
Mr. Elwood: I--
Justice Anthony Kennedy: And -- and it just seems to me it's difficult for it to just address the standard of proof without deciding the case.
Maybe you're right.
Maybe we can just answer the -- the question that was certified and -- and send it back, if -- if you prevail.
I'm not sure.
Mr. Elwood: --I think -- I think you're right, Justice Kennedy, that it would provide more guidance to the Nevada Supreme Court.
It would be a pretty narrow reversal and remand, assuming that the Court merely reached the speech question.
But on the associational question, I think it's important to emphasize from the outset that I think this would have a negligible effect on association, because it simply would not apply all that frequently.
In order for the recusal statute to apply, two circumstances have to be simultaneously met.
First, there has to be a qualifying relationship which is close and ongoing, and simultaneously it must have the -- it must -- the third party must have a private, usually pecuniary, interest before that same legislator.
Justice Ruth Bader Ginsburg: As I understand the objection, it's not to the recusal rules in general, but it's to the vagueness of this particular one.
As I understand it, there's no concern about the specific categories that were mentioned, like family member or employer.
Mr. Elwood: That is correct, Justice--
Justice Ruth Bader Ginsburg: So we're dealing not with can you have recusal rules.
Everybody believes, yes, you can.
It's the degree of specificity.
Mr. Elwood: --Well, that was the basis of the holding of the Nevada Supreme Court, was that those implicated speech rights and that all of them would be subject to strict scrutiny.
So from the outset, we may all be agreed that the court below applied fundamentally too high a level of scrutiny.
Justice Anthony Kennedy: But the -- the objection to the statute on the grounds that it's vague doesn't go away simply because intermediate scrutiny applies, does it, assuming intermediate scrutiny?
Mr. Elwood: No, but I think that the -- our response to the vagueness argument is that Respondent concedes that the four categories for members of your households, relatives, employers, and business relationships are clear.
He says that on page 2 of his brief.
So the question is whether the "substantially similar" language gums up the works, essentially.
Now, "substantially similar" is a statutory phrase that has had to have been used by every State legislature in the country and by Congress.
Justice Ruth Bader Ginsburg: But not in this context.
And you don't disagree that -- I forgot which brief told us that there's no State has a similar catch-all.
Mr. Elwood: Well, first, I would disagree with the characterization of it as a catch-all, because it only sweeps in relationships that are substantially similar.
But Seattle, for example, has a, what is a true catch-all, which sweeps in -- it applies
"whenever it could appear to a reasonable person having knowledge of the relevant circumstances that the covered individual's judgment is impaired because of either a personal or business relationship not covered under subsection A or B above. "
which lists the covered relationships,
"or a transaction or activity engaged in by the covered individual. "
So while Nevada may be the only statute that applies "substantially similar" to these four categories, it is not alone in that structure.
And I think more importantly, it is not anywhere close to alone in its breadth.
The New Jersey statute is I think, if anything, broader:
"A direct or indirect financial or personal involvement. "
There are numerous State statutes which apply to business associates.
Justice Samuel Alito: Well, I found this statute very difficult to understand, but maybe you can explain what's -- what I found a bit puzzling.
The statute talks about a commitment in a private capacity to the interests of others.
Now, I take it that that commitment doesn't have to be something contractual.
When you're talking about relatives, that would assume -- that that would include emotional commitments to the relatives who are listed; is that correct?
Mr. Elwood: I think it would include the things -- the same things that are covered by ordinary -- every other recusal statute, which is very close personal relationships and relationships that give rise to a financial interest on the -- for the public official.
And we're not talking about, you know--
Justice Samuel Alito: Not -- not a financial interest of the public official, a financial interest of the -- the relative or the person who is substantially similar to a relative.
Or is that wrong?
Mr. Elwood: --Well, I think that in the case of the relative, yes, it's the financial interest of the relative, and that's why the very close personal relationship.
But all of the other relationships for members of the household, who are presumably part of the same economic unit, and for employers, in whom the officer has obviously a very close financial interest and they're tied together, and for business relationships, all of those are to get at the financial interests of the officer, not of the third party.
Justice Samuel Alito: Maybe if I give you an example it will be clearer.
Let's take somebody who is within the third degree of consanguinity.
So that would include second cousins?
Mr. Elwood: Yes.
Justice Samuel Alito: Okay.
Now, let's say a public officer is considering something that would affect everybody's property taxes in town or a measure that would affect the benefits or the wages of everybody who works for the town.
And this official has a second cousin whose property taxes would be affected or works for the town, and the second cousin's wages or benefits would be affected.
Now, would that person have to recuse?
Mr. Elwood: I think that the -- it would depend on a couple of things.
First of all, it is a covered relationship, the second cousin would be a covered relationship.
And -- and I think the interest there I think would be the subject of some debate whether it is a private interest because it is a broadly shared interest.
But I suppose because his property taxes might increase, it would be a private interest.
There is still the question of whether a reasonable person under those circumstances would view his -- his judgment, his independence of judgment, as being materially affected.
Justice Samuel Alito: Well, if I were a public officer I would find it very difficult to figure out whether a reasonable person would think that an effect on my second cousin's property taxes would require -- would materially affect my judgment.
But it's even worse than that because of the "substantially similar".
So the public officer not only has to think about second cousins; the person has to think about everybody who is like a second cousin to him or her.
I have no idea how you -- how you go about that.
Mr. Elwood: Well, the way that that has been defined, and this appears -- this is not just a Nevada Commission on Ethics interpretation.
This is what the legislature understood it to mean, if you look at the legislative history, when they added the statute in 1999.
What they were looking for by adding the "substantially similar" relationships were relationships that were substantially similar to household and substantially similar to family.
And what is at issue there is not the fact that you have a genetic similarity makes you more likely to see things their way, but that families are presumed to be among your closest relationships.
Justice Anthony Kennedy: Suppose that you spent your life in the civil rights movement or the right to bear arms movement or one or the other sides of the abortion debate, and these are your acquaintances, this is your -- it's been one of your principal activities, not for pay, but just because of your civic commitment.
And then you are elected to the legislature and under this Nevada statute that controls, must you recuse whenever an officer of that association has -- is paid?
Mr. Elwood: No, Your Honor.
Because, to begin with, a personal relationship, it only covers the very closest personal relationships.
So your most intimate and closest relationships on earth would be covered.
Justice Anthony Kennedy: They have coffee together every morning and they're in the same book club.
Mr. Elwood: And even that, Justice Kennedy, applies with extraordinary rareness.
The last case that I'm aware of where personal interests alone justified recusal was in 1999 before the statute was amended.
Justice Antonin Scalia: Mr. Elwood, for me at least we've -- we've jumped way ahead.
I'm not so much concerned about the vagueness as I am about 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.
This is the first case I'm aware of that we've ever had which makes such an allegation or -- I'm not even aware of any other case in 220 years in Federal courts.
And it's certainly not because legislative rules have not been vague.
The first Congress adopted a rule that, quote,
"No member shall vote on any question in the event of which he is immediately and particularly interested. "
I don't consider that very precise.
And the rules adopted by Thomas Jefferson for the Senate,
"Where the private interests of a member are concerned in a bill or question, he is to withdraw. "
"The private interests", what does that mean?
"And where such an interest has appeared, his voice is disallowed, even after a division. "
Now, that's been around in our Congress forever, but our Constitution provides that -- that the rules of the legislature are to be determined by Congress and not by this Court, and I am sure we would not, we would not review those rules.
Now, is there a contradiction between leaving those rules to Congress and the First Amendment?
Do you really think that -- that the two are set in opposition to each other?
Mr. Elwood: Certainly, Justice Scalia, I would not think so.
And this is the first case that I'm aware of, it's the first time anyone has said it to my knowledge.
I don't even know of law review articles that said it before basically the decision that is under review for neutral laws of general applicability.
But to return to Justice Kennedy's question, what this law--
Justice Stephen G. Breyer: You agree with Justice Scalia?
Mr. Elwood: --I agree emphatically with Justice Scalia, except that I could never put it as well as he did.
Justice Antonin Scalia: You're ending up skirmishing on what seems to me a less significant aspect of this case.
This case is enormously important on that major question.
I'm not inclined to resolve it on the question, well, you know, this is too vague.
mean, it's even vaguer than what the first Congress adopted.
It seems to me that just opens, opens the door to future litigation challenging ethical rules, which -- which does not make me happy.
Mr. Elwood: It is true.
And in addition to that, to expand it even more, apply it even more broadly, with the exception of essentially the D.C. Circuit's opinion in Clarke v. United States, this is the first opinion I'm aware of where anyone has even held that there is a First Amendment interest in any sort of expressive official act.
Chief Justice John G. Roberts: You modified your answer to Justice Scalia by saying you're not aware of any case that applied the First Amendment to rules of general -- neutral rules of general applicability, I think.
But if the First Amendment doesn't apply, that doesn't matter, does it?
You can't limit your -- the type of rules that you say are not -- are okay and are not if the First Amendment doesn't apply at all?
Mr. Elwood: I'm not sure I understand your question, Justice, but I think--
Chief Justice John G. Roberts: Well, if the First Amendment doesn't apply to this type of activity, then you would have no First Amendment objection to biased rules of specific applicability.
Mr. Elwood: --Oh, absolutely we would, because I think R.A.V. v. City of St. Paul speech that is subject to prescription can't be regulated in a viewpoint-based manner.
Chief Justice John G. Roberts: I thought your position was that this wasn't speech protected by the First Amendment.
Mr. Elwood: But even speech that is not protected by the First Amendment, such as fighting words in R.A.V., can't be regulated in a viewpoint-based manner.
Chief Justice John G. Roberts: So someone can challenge one of these rules on the grounds that it's not neutral, that it applies in a disproportionate way to particular members of the legislature?
Mr. Elwood: I think they could challenge it in a way -- alleging that it was viewpoint-based if it were only applied to Democrats or Republicans.
But I don't think that if it were an otherwise normally applicable rule that it would be subject to challenge on that basis.
That is the relevance of neutrality.
Justice Elena Kagan: I'm not sure why you should concede even that, Mr. Elwood.
If this is just conduct, if this is not proscribable speech of the kind that R.A.V. was talking about, why should we care about the viewpoint based doctrine that's arisen in First Amendment law?
Mr. Elwood: Well, in the event, Justice Kagan, that is how I interpret R.A.V., that it would not be an available option to have a viewpoint-based recusal statute that affected things differently depending on viewpoint.
Chief Justice John G. Roberts: Do you think that the rules in the House of Representatives allocating time on the floor or committee membership are neutral?
They're biased in favor of whichever party happens to be in the majority.
Mr. Elwood: They are -- I think that they're -- I think that they're neutrally applicable.
don't know that they would -- I am not aware of them applying different amounts of time to majority and minority members.
I may be incorrect about that.
Justice Antonin Scalia: Well, and if they did we would review it.
Mr. Elwood: I think that any time you're talking about -- I mean, depending on what the house is, there's an extra measure of deference when you're applying, obviously, to the houses of Congress.
Justice Antonin Scalia: Isn't that nice.
But the cases come up here anyway, right?
Mr. Elwood: They certainly do come.
Justice Antonin Scalia: Look, fighting words are words.
They are speech.
There's no doubt that they're speech.
And it's a considerable question whether the vote of a legislature is speech for purposes of the first -- is speech at all, not whether it's a fighting speech or something else, whether it's speech.
It's a vote.
Mr. Elwood: But in any event, all the Court even needs to get to is whether laws of neutral applicability would be covered, because that's all this statute is.
Justice Samuel Alito: This statute doesn't apply just to voting.
It says that the public officer shall not vote upon or advocate the passage or failure of the message.
Mr. Elwood: But that is essentially--
Justice Samuel Alito: Advocating the passage or failure of the message is surely speech in the ordinary understanding of the concept.
Mr. Elwood: --But that is to essentially complete the disqualification just as under Thomas Jefferson's recusal rule.
When you were disqualified under Jefferson's rule, you were out of it.
You couldn't essentially function as a legislator, and that's all that attempts to do.
It hasn't been applied to Mr. Carrigan.
Justice Anthony Kennedy: It doesn't apply to outside advocacy?
It just applies to advocacy within the limits--
Mr. Elwood: Absolutely.
It does not apply to advocacy as a citizen outside the legislature.
Justice Anthony Kennedy: --But even if you have a law which is not directed to speech and is directed at conduct which is not speech, that law is still -- correct me if I'm wrong -- even under intermediate scrutiny, subject to invalidation if it has a chilling effect on -- on speech as an incidental matter, if that chilling effect is more than is necessary to accomplish the purpose of the statute.
Isn't that correct?
Mr. Elwood: I -- if it is reviewed -- I mean, it depends on the test you use.
We don't think that O'Brien, which is a test that some of the amici have proposed, is an appropriate standard, because even O'Brien is talking about laws that have a much greater effect on expression because, after all, burning a draft card, one of the main reasons you would want to do that is an expressive reason.
Whereas these really are laws that have nothing to do with what views people think you are going to be expressing.
And we think that a closer analogy are cases like Burdick, where there are laws of neutral applicability that States use to regulate their processes of self-government.
And those, unless they have a severe burden on association, have been subject to review for reasonableness under Burdick and Timmons, and that entire line of cases.
We think that furnishes a much more appropriate analogy for this case.
Justice Stephen G. Breyer: The statute says "or advocate the passage of".
So I guess that's speech.
Mr. Elwood: But, Justice Breyer--
Justice Stephen G. Breyer: And the -- I mean, the basic question is, again, do you agree with Justice Scalia's question, the import of it; or don't you?
Mr. Elwood: --But Justice--
Justice Stephen G. Breyer: If it doesn't apply, if voting is not speech, then no matter how outrageous the law or rule, it doesn't fall within the First Amendment; and if it is speech, then you get into some of the questions that were raised, is this too vague or is it not?
So which is it?
Mr. Elwood: --Justice Breyer, I don't think we have to get as far as the position that Justice Kagan was suggesting, that I think Justice Scalia is suggesting, because we're willing to abide by R.A.V. and require neutrality in the regulations of this.
I think the--
Justice Stephen G. Breyer: We might have to write an opinion, irrespective--
Justice Antonin Scalia: You may be willing to, but I'm not.
Justice Stephen G. Breyer: --either it is speech or not, and so that's why we're asking the question, to get your opinion--
Mr. Elwood: --Right.
Justice Stephen G. Breyer: --which is an informed opinion, about how we should write that paragraph.
Do we say that voting is within the First Amendment scope or do we say it is not?
Mr. Elwood: I think you would say that it is not, that it is not -- voting--
Justice Stephen G. Breyer: In that case, the most outrageous law you can think of--
Mr. Elwood: --Right.
Justice Stephen G. Breyer: --in respect of voting is not covered by the First Amendment?
Mr. Elwood: I -- Justice Breyer, we again are willing to bite off -- we are willing to abide by R.A.V.--
Justice Stephen G. Breyer: No, I'm not asking for willing to do--
Mr. Elwood: --It can be a neutral restriction on voting, which is not itself--
Justice Antonin Scalia: Mr. Elwood, why is that extraordinary?
Why aren't you willing to accept that?
I mean, if -- if the Speaker of the House counts the votes wrong and he says the ayes have it when it's obvious that the ayes don't have it, do we review that?
Mr. Elwood: --I think that that represents--
Justice Antonin Scalia: Is there any greater violation of the principles of democracy than counting the votes wrong in the legislature?
Yet that matter is not reviewable here, is it?
Mr. Elwood: --I -- I don't believe that it would be.
Justice Antonin Scalia: So why is it extraordinary that this one should not be reviewable?
Mr. Elwood: Justice, I just think that there are certain things that you don't -- there's a -- there's a sort of principle when you're dealing with other branches of government that you don't look behind it when they certify things.
This Court has held that in various contexts.
And I don't think -- you know, it may well be that that would support an even -- a stronger rule than we are advocating; but, you know, all we are here to defend is a neutral law on the part of the State of Nevada.
Justice Samuel Alito: In 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.
Mr. Elwood: But I think that if there's any law that has a better claim to -- to be added to that category, it's one that would be consistent with a law or a rule that was adopted by the first Congress 7 days after they first achieved a quorum.
I mean, those were the people who were the people who proposed and framed the First Amendment, and they never indicated that they thought any sort of personal First Amendment right was implicated by recusal rules, either by them or Thomas Jefferson's rule, which was not even a rule adopted by the whole House.
Justice Sonia Sotomayor: Counsel, just to clarify this issue, because I don't know that I've heard you state it explicitly, the second part of this recusal statute that bars the advocacy of a measure in which there's an interest prohibited by the statute, it is your position that's advocacy in the legislative body?
Mr. Elwood: Absolutely.
Justice Sonia Sotomayor: So it's only limited to getting up on the floor and talking about that?
Mr. Elwood: That is absolutely correct.
We view it as basically completing the disqualification and saying you are just not, you cannot act as a legislature in deciding whether this bill will be passed.
Justice Sonia Sotomayor: That person can still go outside and give all the press releases they want?
Mr. Elwood: Absolutely, they can.
Justice Sonia Sotomayor: What do we do with cases like Miller v. Town of Hull and Colson v. Grohman that have recognized retaliation claims because of speeches given during the casting of a vote?
Would those cases still be viable if we decide that there is no First Amendment right in voting?
Mr. Elwood: I -- I think they would be viable under the -- the way we are framing it, which is that basically if it's a law of general applicability that you could still bring a claim of retaliation, which -- those kind of claims are problematic for other reasons because there's a lot of what would be called retaliation that is itself protected by the First Amendment.
But if you're talking about a official who is a civil service employee, assuming you need to even get there because they have their own civil service rights to be there, they would still have the claim that it was based on viewpoint-based discrimination, and under the rule we are proposing -- or the rule that we are willing to abide by, certainly -- R.A.V. v. City of St. Paul would protect those people for a retaliation claim.
Justice Antonin Scalia: Mr. Carrigan -- if -- if we did not review any of these ethical rules applicable to a legislature, at least where the rule is adopted by the legislative body itself, as -- as opposed to being imposed upon it by -- by some other body, there is the protection that all of the legislators are subject to it.
So if it's vague for Mr. Carrigan in this case, it's vague for everybody else as well.
Mr. Elwood: That is true, Justice Scalia.
Justice Antonin Scalia: And so it's sort of a self-regulating mechanism.
Mr. Elwood: That's true.
Justice Antonin Scalia: --You have to be willing to abide by whatever -- whatever vagueness and whatever ethical rules you -- you have opposed -- imposed on somebody else.
Mr. Elwood: That is true, and this law applied -- for the better part of 30 years, it applied to every legislator in the State of Nevada.
In July of 2009 the State Supreme Court struck it down as applied to members of the legislature.
But this was the rule they lived under and they didn't think it was ambiguous, they didn't think that it chilled their associational rights.
They seemed to think it was just -- that it was just fine.
Chief Justice John G. Roberts: I suppose you would have a First Amendment claim under your theory if the generally applicable rule was applied in a discriminatory manner; it turned out, you go back and look and over the last 2 years the only people who have been sanctioned for violating the ethics rules have been members of the minority party.
Mr. Elwood: I think that that is another one of those--
Chief Justice John G. Roberts: That would be a viable First Amendment--
Mr. Elwood: --Those sort of discriminatory enforcement claims are whole 'nother ball of wax.
And I mean, they're certainly, you know, very hard to prove; and they bring up all those sort of Armstrong issues about, you know, presumptive regularity and that people are acting in good faith.
I don't know that that would be a First Amendment claim, but perhaps a equal protection claim.
But it's certainly not presented here.
There's never been any allegation that these laws have been enforced discriminatorily.
In fact, arising from the same vote, the Nevada Commission on Ethics sanctioned an opponent of the Lazy 8 Casino because he had an undisclosed interest in -- business interest in the Nugget, which was a political opponent of this.
If I could reserve the remainder of my time for rebuttal.
Chief Justice John G. Roberts: --Thank you, Mr. Elwood.
ORAL ARGUMENT OF JOSHUA E. ROSENKRANZ ON BEHALF OF THE RESPONDENT
Joshua E Rosenkranz: Thank you, Mr. Chief Justice, and may it please the Court:
The core problem with this statute which the Court has been grappling with is this: an elect -- 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.
If the police of political purity are going to tell an elected official that he cannot cast the vote that he ran on and was elected to cast, they have to do it clearly, they have to do it prospectively, and they have to do it for an important reason.
Chief Justice John G. Roberts: So if the legislature adopts a rule that says from now on we're going to require a four-fifths majority for a bill to pass, that lowers the effectiveness of the speech of someone in the minority, and you can challenge that on First Amendment grounds?
Joshua E Rosenkranz: I think not, Your Honor, because that is a way of organizing the institution that applies equally to all members of the institution.
Justice Antonin Scalia: So does this.
Joshua E Rosenkranz: Well, this will -- this will single out individuals at any particular moment in time who are specifically isolated and told that that particular individual cannot vote.
Justice Sonia Sotomayor: How is that different from the minority people in the Chief Justice's?
It only affects them when they're in the minority?
Joshua E Rosenkranz: Well, yes, Your Honor.
And I think--
Justice Sonia Sotomayor: So it only affects somebody if they fall within the strictures of the statute?
Joshua E Rosenkranz: --And my -- my point is simply that this takes one particular legislator and says, you cannot vote.
And those rules are completely fine in certain circumstances, but not when the effect is to tell someone that the rationale, the reason that you are being isolated is because you associated with someone politically who helped you win an election.
Justice Ruth Bader Ginsburg: Mr. Rosenkranz, you are not -- is it right that you are not challenging any part of this statute except the one that -- that says "substantially similar"?
The rest you have no constitutional objection to; is that right?
Joshua E Rosenkranz: That is correct, Justice Ginsburg.
And more precisely, we are challenging the use of that "substantially similar" provision to expand the statute to -- to relationships that bear no relation to the actual text of the statute.
Justice Antonin Scalia: Mr. Rosenkranz, is -- is the vote of a judge in a case like the vote of a legislator?
Is -- is that speech?
Because judges are subject to ethical rules which -- which prohibit their participating if there would be, quote, "an appearance of impropriety".
If there's anything vaguer than that I can't imagine what it might be.
Can I get out of all that stuff?
Joshua E Rosenkranz: Here's -- here's what you can get out of, Your Honor.
You can get out of -- for example, if you are, in addition to being a judge, a law professor at a State university and that university fires you because of an opinion that you issued, that opinion is speech.
That vote has speech aspects to it.
Justice Antonin Scalia: Are you answering my question?
I want to know whether I can get out of this appearance of impropriety stuff.
Joshua E Rosenkranz: The answer is no.
Justice Antonin Scalia: Why?
Joshua E Rosenkranz: For two reasons.
One is that judges are just plain different from legislators.
Judges are supposed to bring no political loyalties at all to them when they are sitting on the bench.
Legislators are actually not only allowed to, but expected, to bring political loyalties when they--
Justice Antonin Scalia: What does that have to do with whether the First Amendment applies, with all of its prohibitions against vagueness?
Joshua E Rosenkranz: --The answer again, Your Honor, is when it comes to judges, we tolerate quite a bit more by way of chill of a judge's vote precisely because judges are supposed to act judicial and purge their vote of all extraneous effects.
Justice Antonin Scalia: That's too bad, because I would have been much more attracted to your position.
Joshua E Rosenkranz: I -- I understand, Your Honor.
Justice Elena Kagan: And -- and Mr. Rosenkranz, what about officials in the Executive Branch?
When the Secretary of Defense gives a speech and the President doesn't like it and the President fires the Secretary of Defense, does the Secretary of Defense have a First Amendment action?
Joshua E Rosenkranz: The Secretary of Defense has a First Amendment argument.
It would be a very weak one under -- under this Court's opinion in Garcetti.
But his First Amendment rights are implicated if it's a speech that he's giving not in the line of his duty.
Justice Elena Kagan: So all the official acts in the legislature, in the Executive Branch, you're somehow saying courts are different, so I guess we don't have to worry about that, but official acts across the government are now subject to First Amendment analysis?
Joshua E Rosenkranz: Absolutely not, Your Honor, and that was this Court's holding in Garcetti.
And the reason this Court held that in Garcetti was that there the government is acting as employer.
The government is entitled to discipline its own employees like any other employer can.
But we all agree government as employer, that Pickering standard, doesn't really work in the context of regulation of political activity.
Justice Samuel Alito: What about the rules of civility in the houses of Congress?
There are things that a member of the Senate, for example, cannot say about another Senator, or make a personal attack.
That would be protected by the First Amendment if the Senator stepped outside the door.
Are those -- is there First Amendment protection for that?
Do they have -- do those rules have to pass First Amendment scrutiny?
Joshua E Rosenkranz: Within the chamber, Your Honor, no, if it's just the chamber that's sanctioning someone.
And the reason is those are Roberts Rules of Order that apply to everyone and that -- that order the -- the debate.
Justice Elena Kagan: Well, I don't understand that.
I mean, this rule applies to everyone, too.
It might apply to one person on one vote and to another person on another vote, but everybody at every vote has to look at these ethical rules and decide whether they have to recuse themselves as a result.
Joshua E Rosenkranz: --And -- and so this is a rule, though -- we have to go back to what its effect is outside of the legislature.
This is a rule that takes political associations and treats them as corrupting, core political associations, volunteering of the sort--
Justice Elena Kagan: Well, do you think that if there were a statute -- let's take out the vagueness aspect of this.
If there were a statute that said you can't vote on anything where you have yourself some monetary gain attached to it or if a very close family member or if a close business associate or campaign manager of your campaign, do you think that would be unconstitutional?
Joshua E Rosenkranz: --It would not be vague, Your Honor.
But it would be unconstitutional, unless the State demonstrates why a campaign manager is corrupting.
Justice Elena Kagan: Because the -- the State -- what the State thinks is that a campaign manager is just like a business partner.
Joshua E Rosenkranz: And -- and the answer to that is no.
A volunteer campaign manager is not just like a business partner.
There is no pecuniary gain to the -- to the candidate or the legislator as there is in a relationship with a business partner.
There's personal political loyalty.
That's what the Ethics Commission said was wrong--
Justice Ruth Bader Ginsburg: --no -- there's no -- I thought this -- the -- the only reason that we have this case is that the three-time campaign manager was -- did have a financial stake in this vote because the project was approved.
Joshua E Rosenkranz: --No, Your Honor, that's not why we're here.
That's not why the commission said we are here in the first instance.
The commission is now saying we're here because of that, but what the commission said was it's the closeness of this relationship, without regard to the financial gain, which the commission accepted was zero for this particular lobbyist.
Regardless of the financial gain, it was the political loyalty.
This guy helped you win.
Because he helped you win, you will be beholden to him and do him more favors.
Well, lots of political activists help a candidate win.
But on that--
Justice Anthony Kennedy: But it -- it seems to me that if you're going to make this argument -- and this is the point we discussed with Mr. Elwood -- there are two ways to do it.
Number one, say this infringes the right to vote, which is a First Amendment right; or you can say that this impinges unduly on necessary rights of association that preceded your election to the legislative post.
It seems to me that the latter is the only way that you can make your case and to avoid the force of the argument that the Petitioner makes.
Joshua E Rosenkranz: --Your Honor, it is certainly correct that the latter is far narrower.
This is an outlier statute.
No other legislature has ever adopted a statute that says campaign manager or political loyalty is corrupting.
And so this Court could very easily say, look, this is just different from all of the other recusal statutes.
Justice Ruth Bader Ginsburg: It doesn't seem to be different from the ones that Mr. Elwood read to us.
think he read probably one from New Jersey and--
Joshua E Rosenkranz: Your Honor, he -- he cited one case from New Jersey.
The statute does not refer to political loyalty.
And in that case it was a close friendship, and in the course of describing the close friendship the court, after listing multiple factors, said one of them was that they were both part of the same political club.
They also vacationed together.
That's a completely different application.
No State and no commission -- so far as we know from the briefs, there's no case cited where any commission has said this relationship between a volunteer and a candidate is itself so corrupting that we have to disqualify the candidate from casting the vote, the vote that he ran on, that the voters elected him to cast.
And if this -- if this is accepted, it places an impossible drag on the associational rights.
The candidate will have to think twice before ever hiring or enlisting a volunteer who is a political activist.
He will want to recruit the best, the most talented, the most savvy, but he will always have to ask himself: What will this person do 3 years from now that might disqualify me from -- from embarking on my duty that I was elected to engage in?
Justice Antonin Scalia: That's rather exaggerated.
I mean, you have to worry he's going to buy a casino or -- or something like that?
Joshua E Rosenkranz: No, Your Honor.
Let me give you a concrete example from real life that happens all the time.
If the NRA or NARAL decide that they believe strongly in a piece of legislation and they hire a lobbyist, so there's benefit to the lobbyist from this relationship, and that lobbyist says
"I, too, am on mission; I continually lose in the legislature because it hangs in the balance, I'm going to work for candidates who will tip the balance for me, the commission's opinion says that that lobbyist, because he's worked on that campaign and wins, will by that very act invalidate the vote of the legislator. "
That's just untenable, and there's no way to interpret the -- the opinion that the commission actually wrote to make that anything other than the natural consequence of its -- of its opinion.
And worse yet, from the -- from the--
Justice Antonin Scalia: --If that's what it means, you would think the legislature would change it, wouldn't you?
Joshua E Rosenkranz: --Well--
Justice Antonin Scalia: I mean, it doesn't just hurt Mr. Carrigan.
That -- you know, that -- that would be something every legislator would -- would worry about and say, oh, boy, we've got to change this.
Joshua E Rosenkranz: --Yes, Your Honor--
Justice Antonin Scalia: So why don't we let them change it?
Joshua E Rosenkranz: --Yes, Your Honor.
Yet the legislature comes in with an amicus brief to this Court and says that its interpretation of this statute is all it needs to have is a relationship that is analogous or parallel to those -- this is on page 32 of their amicus brief -- analogous or parallel, and they are defending the application of this statute to political loyalty.
But let's look at the other side of the equation; that is the -- the Vasquezes of the world, the NRA advocate.
On that side of the equation, anyone who deeply holds a view that's political -- let's say it's Mr. Vasquez, he is pro-development.
They will refrain from joining campaigns out of fear that when they join the campaign, they will get the candidate disqualified.
Justice Stephen G. Breyer: So why -- I mean, what the commission says is Mr. Vasquez has been a close personal friend, confidante, and political advisor throughout the years.
So that doesn't sound like any volunteer.
It sounds like somebody sitting on a case where his best friend is likely to gain millions of dollars.
Joshua E Rosenkranz: That--
Justice Stephen G. Breyer: That's what it seems when I read that opinion, that they're thinking all these things combined is what causes this to fall within the category of a reasonable person might have doubts about the independence of judgment.
Joshua E Rosenkranz: --Your Honor, they gave a gestalt at the end.
Justice Stephen G. Breyer: Yes.
Joshua E Rosenkranz: They lead with
"instrumental in the success of all three of Councilman Carrigan's campaigns. "
and they go through a long narrative about the political relationship.
These were not--
Justice Stephen G. Breyer: That's part of it.
But my -- my basic question is, as you know, with judges, and I guess you have a very vague statute which was quoted to you, and what we have are subsidiary rules with ethics commissioners.
I have in my office--
they're not commissioners; they're committees of judges.
And I have in my office seven volumes which I look at when there's a question, as others do, and those seven volumes contain dozens of opinions of a committee trying to apply vague statutes and vague rules -- not constitutionally vague, but generally.
So what's wrong with Nevada doing exactly the same thing here?
Joshua E Rosenkranz: --Because the difference, Your Honor, is judges are a--
Justice Stephen G. Breyer: Oh, so you're saying that the difference is that we're judges?
Joshua E Rosenkranz: --Yes.
Justice Stephen G. Breyer: You mean Congress and legislators and Executive Branch people couldn't have exactly the same system?
Joshua E Rosenkranz: So--
Justice Stephen G. Breyer: And they have general rules?
It's called the common law system.
Joshua E Rosenkranz: --The answer is no, not when it affects associational rights.
So let me just distinguish--
Justice Sonia Sotomayor: Did you argue associational rights below?
Joshua E Rosenkranz: --Oh absolutely, Your Honor.
And the commission--
Justice Sonia Sotomayor: Why do you think the court didn't address it?
Because it relied on the First Amendment analysis?
Joshua E Rosenkranz: --I don't know why the court didn't address it.
It was front and center.
It was a section -- it was called overbreadth, but for eight pages, from page 9 to page 18, there is extensive discussion that what they meant by overbreadth is this reaches too broad, this reaches relationships that should not be reached.
It was not in the cert opposition, but it was front and center before the Nevada Supreme Court.
Justice Ruth Bader Ginsburg: --Is there any catch-all that you would say would pass your constitutional test?
You told us that the four specific categories, member of the household, employer, that those are all right because they're specific.
But you don't like the "substantially similar".
Is there any catch-all that a legislature could adopt that would pass what you -- what's constitutional?
Joshua E Rosenkranz: I -- it's hard to imagine one.
Let me just point out, no -- it is very, very rare for a legislature to do anything other than what's in A through D.
And the problem with this catch-all, which by the way is the term that was used by both the courts below -- the problem with this catch-all is perhaps the words are okay, maybe.
I mean, I can imagine someone interpreting those words so narrowly that they're okay.
But what this catch-all does is to add language to the original four criteria, so it's not just family members and business associates.
It's now friends, close friends.
Justice Stephen G. Breyer: You didn't answer my question, which is since the Judiciary uses what's called the common law method, why is it impermissible for the Executive Branch or the Legislative Branch also to use a common law, case-by-case method of elucidating through example what a general -- what a general provision means?
Joshua E Rosenkranz: The answer, Your Honor, is the Judiciary does not engage in political activity outside--
Justice Stephen G. Breyer: Well, I -- so you're saying that one who engages has to use a -- a definitive rule-based method rather than a common law method?
So my question there would be, assuming your difference between the branches is right, still why?
Joshua E Rosenkranz: --And the answer is that the candidate and the volunteer have to know ex ante whether to engage in this relationship or not.
Justice Elena Kagan: But why do they have to know ex ante?
There was an advisory process that was set up by the Nevada commission here.
Joshua E Rosenkranz: And the--
Justice Elena Kagan: Mr. Carrigan chose not to use it.
But he could have gone to the commission, said: What do you think about this relationship?
Does it fit or does it not fit?
Joshua E Rosenkranz: --Your Honor, the advisory process, the problem with it is that it comes too late.
The relationship was already in place.
If you're -- if the -- if the commission is going to invalidate the result of an election, where everyone is talking about this issue and everyone knows about this relationship, they've got to tell them before they're engaged in the relationship.
Mr. Carrigan would have dropped Mr. Vasquez.
Justice Anthony Kennedy: Well, I mean, but that -- but that's unworkable to say, you know, that every potential -- I think I might run for office next year and so I'm going to get advice from some committee as to who I can associate with?
That just is unworkable.
Joshua E Rosenkranz: My point exactly, Your Honor.
You cannot -- you -- you don't know in advance, because you can't know what's going to come out 3 years later.
You can't know what conflicts will arise, and so you don't know in advance.
You can't present the question to the -- to the commission.
Chief Justice John G. Roberts: Counsel, I've kind of lost the thread of your argument.
Is this a vagueness claim or a First Amendment claim?
I gather your claim is going to be the same even if the statute clearly said family members, you know, business partners, and political consultants.
Joshua E Rosenkranz: Correct, Your Honor; and it is both.
There are basically two halves to it.
One is, even if statute were perfectly clear, this is a relationship that the State is not allowed to view as toxic, because it is not a toxic relationship in a democratic process; and secondly, this is also vague, so there was no notice up front as to the fact that the commission would later invalidate the result of the election on this basis.
Chief Justice John G. Roberts: Is your vagueness argument, is that a First Amendment argument of its own?
Joshua E Rosenkranz: It is a baseline vagueness argument on due process grounds, but it gets elevated because of the First Amendment interest.
Chief Justice John G. Roberts: So we can decide your vagueness -- if we agree with you on vagueness, we don't have to determine whether the First Amendment applies in this type of situation?
Joshua E Rosenkranz: Oh, that is correct, Your Honor, absolutely.
Justice Ruth Bader Ginsburg: In the -- in the Nevada court you argued overbreadth.
That was the -- at least how the court understood your challenge, and here overbreadth takes a back seat, and vagueness is the principle on which you rely dominantly.
So what accounts for the shift?
You were arguing overbreadth before the Nevada Supreme Court.
Joshua E Rosenkranz: The answer, Your Honor, is that the Nevada Supreme Court shifted.
So before the Nevada Supreme Court, everything was on the table.
There was vagueness, there was overbreadth, there was extended relationships -- extending to a relationship that's First Amendment-protected.
The two key pieces, first was vagueness and then second was this overbreadth argument as I've described it, which really was about the protected relationship.
The Nevada Supreme Court called it overbreadth, but if you look carefully at what it actually says, it is vagueness at every step of the way.
It is talking about -- this is on pages 14 to 15 on to 16 and 17.
It is talking about the Constitution demanding a high level of--
Justice Anthony Kennedy: What's the standard for vagueness that we apply?
We apply vagueness to First Amendment prohibitions or restrictions on speech.
We apply vagueness to criminal statutes.
This isn't a criminal statute.
It does have a civil penalty.
What is the case that I consult to see what standard of vagueness I apply?
Joshua E Rosenkranz: --Gentile, Your Honor.
Gentile is a case that is about sanctions.
It's about sanctions for First Amendment-protected activity.
And the standard really is -- I mean, it's articulated the same way in all these circumstances, but it really is, can a reasonably intelligent person know in advance that they are going to be sanctioned for this?
Chief Justice John G. Roberts: Here we're talking about penalty for participating.
What -- what if it's a disclosure rule saying, you know, you can participate, you can vote, you can advocate, you just have to disclose interest of this sort.
Joshua E Rosenkranz: I think--
Chief Justice John G. Roberts: Is that problematic under--
Joshua E Rosenkranz: --Not at all, Your Honor.
That's perfectly appropriate.
That is in fact what Mr. Carrigan did right at the outset of--
Chief Justice John G. Roberts: --Right.
Well, doesn't that burden his First Amendment rights?
Joshua E Rosenkranz: --A lot, yes; but a lot less so.
And this Court has -- is very comfortable with disclosure when you're talking about public officials as lighter medicine, less severe medicine than an outright ban or a punishment for that association.
That's the way it should work in the political process.
Everyone in this election was aware of Vasquez's role.
It was front page news when the hearing was going on.
And so for a commission--
Justice Sonia Sotomayor: If the relationship wasn't particularly special, no more special than any other political volunteer, why did that become front page news?
Joshua E Rosenkranz: --Oh--
Justice Sonia Sotomayor: And if your client didn't have a suspicion that he was on the edge of a law, why did he bother going to the city attorney to get an opinion?
Joshua E Rosenkranz: --Because as he testified, and the commission did not disagree, this guy is a Boy Scout, Your Honor.
He does everything to avoid any appearance of impropriety.
And he said: I did that because I just wanted to make sure; I am not a lawyer.
And the city attorney, of course, gave an opinion that gave him a clean bill of health, said: Yes, go forth and do this.
Now, if the lawyer doesn't know and the commissioners can't settle on which of these things the relationship is most similar to, and the district court can't choose one, how is it possible for someone in Mr. Carrigan's position to know ex ante--
Justice Sonia Sotomayor: How will we ever write -- how will the Congress ever write a law that would be so clear that clients would never have to go to lawyers--
--or that lawyers couldn't disagree about?
We would have to invalidate virtually every law as vague.
Joshua E Rosenkranz: --Less so in the First Amendment -- I mean, more so in the First Amendment context.
In all the other contexts, the standards are lightened--
Justice Sonia Sotomayor: But you're not -- you're not denying that most laws would be vague--
Joshua E Rosenkranz: --Yes, Your Honor.
Justice Sonia Sotomayor: --Under that definition?
Joshua E Rosenkranz: And there is a--
Justice Sonia Sotomayor: That lawyers disagree on the conclusion of what the law means?
Joshua E Rosenkranz: --And -- and there is a big difference between ambiguity of particular words and what the commission did here, which was to say we see these four categories, we are not applying any of these four categories.
We're saying -- we're extracting a principle.
It's a principle of closeness.
Now, close enough for government work when it comes to relationships that are First Amendment protected just isn't good enough when it -- when you're talking about that context.
So I did want to talk just for a moment about the degree of burden that we're talking about here, because the commission seems to be saying no big deal, this is just a disqualification provision.
It's not actually a burden at all.
Now, I think we all agree that if the State of Nevada declared that anyone who is a campaign manager can never lobby the legislature, that would be unconstitutional, and they'll fine them for it, where the strict scrutiny would also apply if the State passed a law fining a candidate for choosing a campaign manager who lobbies the legislature.
Justice Elena Kagan: I'm not sure I understand that, Mr. Rosenkranz.
There are many laws out there that say people who serve in certain government capacities, when they leave those jobs, can't lobby for a certain number of years.
How is that any different?
Joshua E Rosenkranz: It would be subject to scrutiny for sure.
It would be subject to First Amendment scrutiny.
And that would be justified on the ground not of the closeness of relationships that are formed, but on the ground that you don't want legislators here and now as they are sitting in the chamber thinking about generating business with their future clients and changing their votes because of that.
That's the justification.
But there's no such justification here.
The commission has never articulated why political loyalty is so toxic that it needs to be banished from politics.
And so, just on the -- on the directness of the burden yet, for a political activist who is engaged in these sorts of relationships, the burden of being told, you've got to choose right at the outset, are you going to represent -- are you going to help this candidate get elected or are you going to lobby?
That is worse than a fine, because a political activist wants to do both precisely because they care about the ultimate results.
And for the candidate himself who is deciding right upfront which of the universe of players am I going to take as volunteers, they need to know upfront whether this relationship will be viewed as toxic, and if it is, they will not engage in that relationship.
This is no less direct than the burden that this Court recognized as unconstitutional in the Davis case, the Millionaire's Amendment Case, or in Burdick, where the only burden was that the paid petitioner would have to register to vote, which is a nominal burden, but those whose consciences were affected by a registration were kept out of the process.
If there are no further questions, I respectfully request that the Court affirm the judgment.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Elwood, you have 5 minutes remaining.
REBUTTAL ARGUMENT OF JOHN P. ELWOOD ON BEHALF OF THE PETITIONER
Mr. Elwood: Now, my colleague argues that the Nevada recusal statute targets political association, and that is simply not the case.
Nothing in the statute about politics.
Mr. Carrigan was recused because he had a business relationship with Mr. Vasquez.
Wholly apart from the personal relationship and the fact that he was his three-time campaign manager, he was also the firm -- the campaign's main outside vendor, and 89 percent of the Carrigan campaign expenditures were paid through his advertising firm.
Justice Stephen G. Breyer: I think his argument is -- I don't see -- that the Ethics Commission at least in part relied upon the fact that he was the campaign manager, and he is saying, I think, as I understand it, or at least I have this question, that an ethics commission cannot disqualify a legislator on the ground, even in part, that an individual had a political association with him previously.
Mr. Elwood: --I think that--
Justice Stephen G. Breyer: It may be a new argument in this Court, I don't know.
Mr. Elwood: --I think the fact that this happened to be a political relationship was incidental.
If Mr. Carrigan -- Mr. Vasquez does two things, he's a campaign manager, he's a -- he assists in development.
If Mr. Carrigan had had exactly the same relationship, but had just been working with him on the development side, it would have been exactly the same situation.
If he had helped him with past -- I think the fact that--
Justice Stephen G. Breyer: Is that a new argument in this Court, as I've stated it to you?
Mr. Elwood: --I -- I don't believe so.
That they've made that argument--
Justice Stephen G. Breyer: You made that argument below?
Mr. Elwood: --That -- right.
What we have here -- I don't know if they use the term that it was incidental.
But I mean they -- if you look at the opinion at pages 105 to 106 of the Pet.
App, it's clear that they're looking at the business relationship.
It's relevant, certainly, to have helped him win three elections, because that's relevant to the closeness of their personal relationship, but--
Justice Sonia Sotomayor: I think Justice Breyer's question -- he can tell me if I'm wrong -- is whether that argument by them was actually raised below the way he is stating today?
Mr. Elwood: --I'm sorry?
I -- the argument by the--
Justice Sonia Sotomayor: Whether that associational right of the political--
Mr. Elwood: --Oh.
My understanding, the way I view the briefs is there two references to an associational right in the briefs, and the opening brief before the Supreme Court, I think it's page 918 -- and it was in the context of making a vagueness argument.
I looked through it, you can look through it and see what you think, but I did not see that as an argument that this is burdening our associational rights.
But I think--
Justice Samuel Alito: If they based their decision solely on the -- on the fact that Vasquez had been the campaign manager in the past and he was a great campaign manager, and perhaps Carrigan would like him to be his campaign manager in the future, would there be a problem then?
Mr. Elwood: --I think that -- I think probably not, because if the question is whether it -- it burdens associations so much that it's chilling, and I mean, basically I think that's a -- an empirical question.
And because you have to have a particular interest, a private interest in order to be recused, I think that it wouldn't arise so frequently that it would be a problem; but I think more fundamentally here, or at least for purposes of this case, because it comes here at least Respondent says this as an as-applied challenge.
What we have here is a relationship that was front page news, because this isn't just some plain vanilla campaign volunteer.
This is somebody with whom he has a very intimate business relationship that -- that involved this expenditure of $46,000.
And I think another thing that is worth noting is that in 10 years on the books this law has never been applied to campaign volunteers.
It's -- in order -- campaign volunteers specifically come up in the legislative history of the '99 Act, and they would say would not, without more, be covered, because what this covers is the same types of relationships that every other recusal statute covers -- very close relationships and relationships that give rise to a financial interest in the public official.
Justice Samuel Alito: Well, suppose somebody had made extensive independent expenditures in support of the -- the public officer's prior campaign, and the public officer may hope that they -- similar expenditures will be made in the future.
Would that be a basis?
Mr. Elwood: I don't think it would be a basis under the Nevada law.
Because that's a law--
Justice Samuel Alito: Why not?
Mr. Elwood: --Because it's not a -- it's not a personal relationship, it's not household, it's not relative, it's not employer, and it's not a business relationship.
Justice Ruth Bader Ginsburg: Is there a way to get advice as to -- I think you said he went to the county attorney, he could have gone to -- to the ethics commission, and they were told ethics commissions can give advice only after the -- is in office, they don't give -- they are not obliged to give advice to candidates.
So when Carrigan is running he apparently has no access to the ethics commission?
Mr. Elwood: I think that that's right.
The ethics commission only has authority to give opinions to sitting candidates.
If there are no further questions--
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Justice Antonin Scalia: This case is here on writ of certiorari to the Supreme Court of Nevada.
Nevada's Ethics in Government Law prohibits public officers from voting on or speaking for or against the adoption of any matter in which the independence of a reasonable person in their situation might be compromised by, among other things, "a commitment in a private capacity to the interests of others".
In 2005, the Nevada Commission on Ethics initiated an investigation of respondent Michael Carrigan, an elected member of the City Council of Sparks, Nevada.
Complaints had accused Carrigan of violating the ethics law by voting to approve a hotel/casino project by a company for which a long-time friend and campaign manager of his was a paid consultant.
The Commission concluded that Carrigan should've recused himself.
It censured Carrigan, but declined to impose any other sanctions because the violation was not willful.
Carrigan filed a petition for judicial review, arguing that the provisions of the ethics law that he was found to have violated, were unconstitutional under the First Amendment.
The Nevada District Court denied his petition but the Supreme Court of Nevada reversed.
That Court held that voting by a public officer is protected by the -- by -- is protected First Amendment speech and that the Ethics in Government Law was unconstitutionally overbroad.
In an opinion filed with the clerk today, we reversed the judgment of the Supreme Court of Nevada.
As this Court said in Republican Party of Minnesota versus White, "A universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional."
Our history of limiting legislators' ability to participate in matters in which they have a conflict does suggest that the First Amendment has no application to voting by legislatives.
In its very first session, for example, the House of Representatives adopted a rule stating that "no member shall vote on any question, in the event of which he is immediately and particularly interested."
Thomas Jefferson, when he was Vice President of the United States and thus President of the Senate, adopted a similar rule for that House in 1801.
Conflict of interest rules for federal judges also date back to the founding and the States have a similarly long tradition of such rules.
Carrigan argues that voting must be protected speech because there are many "tales of legislators using their votes to express deeply held and highly unpopular views".
When a legislator votes, however, he does so not as an individual but as a political representative engaged in the legislative process.
Acting in that capacity, his vote is not his own speech but a mechanical function of government.
The commitment of his appointed chair of the legislature's power to the passage or defeat of a particular proposal.
Moreover, voting is not symbolic action as his, for example, the burning of a flag.
And the fact that a vote is the product of a deeply held or highly unpopular personal belief does not transform it into First Amendment speech.
Even if the mere vote itself could somehow express depth of belief, which we think it cannot.
This Court has rejected the notion that there is a First Amendment right to use the mechanisms of Government to convey a message.
For example, in the case called "Timmons versus Twin Cities Area New Party", we upheld a state election law that prohibited fusion candidates, that is candidates who appear on the ballot as the choice of multiple parties.
We said that a party was entirely free to endorse the candidate of another party but had no right to use the state printed ballot in a state election to express that endorsement.
Our decision in Doe versus Reed moreover, another earlier case is not to the contrary.
In that case, we held that a citizen's signing of a petition was not deprived of its status as protected speech simply because, under the relevant state law, if the petition garnered enough signatures, it would stay the effect of the states statute to which it pertained pending a required referendum.
It is one thing to say that an inherently expressive act, a citizen's private act of joining a petition in his capacity as a citizen, remains an expressive act despite having legislative effect.
It is altogether another thing to say that performing a governmental function becomes an expressive act simply because the governmental actor wishes it to be so.
I should mention one other point.
You will recall that the Nevada law, not only for bad voting by the legislature with a con -- by the legislature with a conflict but also forbade his speaking in the session for or against the proposition.
If it is, as we have said, constitutional to prohibit his voting, prohibiting his speaking in the run-up to the vote, qualifies as what our cases call a reasonable time, place and manner restriction on speech.
It is reasonable to restrict legislative debate to those who have a right to vote.
Carrigan puts forth -- forward two other reasons why in his view Nevada's recusal statute is unconstitutional including the fact that it is unconstitutionally vague.
But since neither of those reasons was passed upon by the Nevada Supreme Court or mentioned in Carri -- Carrigan's brief in opposition to the petition for certiorari, we decline to reach them.
The judgment of the Supreme Court of Nevada is reversed and the case is remanded for further proceedings.
Justice Kennedy has filed a concurring opinion, and Justice Alito has filed an opinion concurring in part and in the judgment.