Court unlikely to extend speech protection to lawmakers’ votes

Thursday, April 28, 2011

WASHINGTON — The Supreme Court, which has recently accorded First Amendment protection to virulent funeral protests and the depiction of cruelty to animals, seemed less interested yesterday in giving the same protection to a legislator’s act of voting.

That’s not because the justices don’t value the legislative enterprise, but because giving a high level of protection to legislative voting might make it impossible to restrict it through recusal statutes and other good-government laws. Most justices seemed to think that legislative bodies should be able to set their own ethics rules for voting without being second-guessed by judges in the name of the First Amendment.

The Court heard arguments in Nevada Commission on Ethics v. Carrigan on the final day of oral arguments this term. The case is a test of a Nevada law that bars legislators from voting on issues in which they have an undefined “commitment” to others that could affect their independence. The Nevada Supreme Court ruled that that provision of the ethics law was overbroad and violated the First Amendment rights of Michael Carrigan, a Sparks City Council member who was cited for voting on a casino project involving his volunteer campaign manager.

“This case is enormously important” on the question of whether the First Amendment applies to legislative votes, said Justice Antonin Scalia. John Elwood, the lawyer defending the Nevada statute, said that ultimately, a legislator’s vote is not protected by the First Amendment. He noted that recusal rules have governed legislators’ actions “since the earliest days of the Republic” without being challenged on First Amendment grounds.

At one point Justice Samuel Alito, who dissented from the Court’s rulings on animal videos and funeral protests, noted the seeming irony that legislative votes might not win the same First Amendment protection. “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,” he told Elwood. “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.”

Elwood’s quick reply was that “if there’s any law that has a better claim 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 seven days after they first achieved a quorum. I mean, those 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.”

But  Elwood also hedged his bets, in case some justices found that the legislative act deserved a modicum of First Amendment protection. He suggested that if a recusal statute were enforced in a biased way, a First Amendment case could be made.

Scalia, who has tangled with the recusal issue himself throughout his 25 years on the Court, enlivened the debate by asking whether judges could fight judicial recusal statutes on First Amendment grounds. “I want to know whether I can get out of this ‘appearance of propriety’ stuff,” Scalia said in a sarcastic tone.

Elwood’s adversary also did some hedging on behalf of Carrigan. Lawyer E. Joshua Rosenkranz did not argue for blanket First Amendment protection for all legislative acts. He said he was targeting only the broad “catch-all” provision of Nevada’s law, not run-of-the-mill recusal laws that bar voting in specified instances of direct financial or family conflict of interest.

The catch-all provision calling for recusal in “substantially similar” situations, Rosenkranz said, was so vague that it was applied in Carrigan’s case to restrict his rights to associate with members of his campaign staff. The basis of Carrigan’s relationship with his campaign manager, Rosenkranz said, was “political loyalty,” which is a democratic value that should be protected. If the Nevada provision is upheld, he said, politically active volunteers will “refrain from joining campaigns out of fear that when they join the campaign, they will get the candidate disqualified.”

But Scalia said that if the problem Rozenkranz was articulating was serious, legislators would be the ones to fix it, not judges. “Why don’t we let them change it?” Scalia said.

Rosenkranz was careful not to take his First Amendment argument too far. When Justice Elena Kagan asked whether “official acts across the board are now subject to First Amendment analysis,” Rozenkranz said, “Absolutely not, your honor.” Kagan posited a hypothetical situation in which a president fires his secretary of defense because of a speech the secretary gives. “Does the secretary of defense have an action?” It would be a “very weak one,” said Rosenkranz, because of the Court’s 2006 decision in Garcetti v. Ceballos, which sharply restricted free-speech rights for government employees.

In the end, it appeared unlikely that the Court would extend broad First Amendment protection to legislative votes in a way that would jeopardize most recusal laws. But it still might find that the specific provision of the Nevada law at issue intrudes too much, and too vaguely, into a legislator’s official acts.

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