Law & Courts

Legislators’ Voting Is Not Speech, Justices Say

By Mark Walsh — June 13, 2011 2 min read
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In a case with implications for elected school board members and other local officials, the U.S. Supreme Court on Monday ruled that the act of voting by a lawmaker is not protected speech under the First Amendment.

The court upheld a Nevada ethics law for local officials that requires them to abstain from voting on matters implicating their own financial interests or those of a household member, relative, employer, or anyone else with whom they have a substantial and continuing business relationship. But the law also has a “catch-all” provision that requires recusal for any relationship that is “substantially similar” to the listed ones. The ethics law applies to school boards in the state.

The law was challenged by Michael A. Carrigan, a member of the Sparks, Nev., city council who was censured by the state’s Commission on Ethics for voting to approve a casino that had been lobbied for by an influential political confidant of Carrigan’s.

The Nevada Supreme Court ruled that voting by an elected official was core political speech under the First Amendment, triggering strict legal scrutiny of restrictions. The court went on to rule that the state law provision was substantially overbroad in the amount of speech it regulated.

In its decision today in Nevada Commission on Ethics v. Carrigan (Case No. 10-568), the U.S. Supreme Court held that the state ethics law was not unconstitutionally overbroad.

Justice Antonin Scalia, in an opinion that was unanimous in most respects, said the nation has “a history of limiting legislators’ ability to participate in matters in which they have a conflict” and that history “suggests that the First Amendment has no application to voting by legislators.”

Scalia rejected the argument that voting must be protected speech because lawmakers use their votes to express deeply held and sometimes unpopular views.

“When a legislator votes, ... he does so not as an individual but as a political representative engaged in the legislative process,” Scalia said. And voting is not symbolic speech, like flag burning, but an action that discloses the wishes of a lawmaker, he said.

The court also upheld a provision of the Nevada ethics law barring lawmakers who are recused from voting from advocating the passage or failure of the measure in the legislative body. Scalia such restrictions were reasonable “time, place, and manner” limitations.

Justice Anthony M. Kennedy wrote a concurrence in which he expressed concern that the Nevada law could be applied unconstitutionally to communications among candidates, citizens, and groups during the electoral process, such as when a candidate has personal ties to friends with whom he shares views on a particular cause, and then is elected with the help of those friends and votes on legislation “central to the shared cause.”

Justice Samuel A. Alito Jr. concurred in the outcome of reversing the Nevada Supreme Court, but suggested that votes by legislators were not completely devoid of “expressive character.”

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A version of this news article first appeared in The School Law Blog.