On April 27, the U.S. Supreme Court heard arguments in Nevada Commission on Ethics v. Carrigan and for the first time, considered whether an elected official’s vote is protected speech under the First Amendment.
The case involved a city councilman from Sparks, Nevada who voted on a casino project that could serve the private business interests of his campaign manager. The Nevada Commission on Ethics officially censured Michael Carrigan under a state law that bars public officials from voting on an issue when a reasonable person would suspect a conflict based on financial interests, or based on the interests of a spouse, family member, or “any other commitment or relationship that is substantially similar.”
On appeal, the Nevada Supreme Court issued a First Amendment ruling siding with Carrigan. Applying strict scrutiny, the court struck down the law’s catch-all (i.e., “other commitment”) provision, finding it overbroad and concluding that it could not be enforced constitutionally. For that part of its ruling, the court relied in part on the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission which determined that “laws that burden political speech are subject to strict scrutiny.” The state ethics commission then appealed to the U.S. Supreme Court.
On June 13, the U.S. Supreme Court issued a 9-0 opinion reversing the Nevada court’s decision. “Voting by a legislator,” Justice Scalia wrote, “is different from voting by a citizen.” A voter’s casting of a ballot is a personal right, but that of the legislator in considering or passing a bill is no more than the lawmaker’s “apportioned share of the legislature’s power” to pass or reject a proposed measure.
