Voting While Subject to a Conflict of Interest is not "Free Speech"

A unanimous United States Supreme Court today confirmed what anyone not sitting on the Nevada Supreme Court would be presumed already to know: legislators do not have a free speech right to vote on a matter they would otherwise be prohibited from recording under a state’s code of ethics. While this ruling would not appear, on the surface, to be controversial, a careful read of the opinion reveals that the legislator in question, as well as the Nevada Supreme Court, missed an opportunity to challenge the extended scope of the code in a way that would have had direct relevance to the regulated pay-to-play community.

In this case, Nevada Commission on Ethics v. Carrigan, Sparks, Nevada City Councilmember Michael Carrigan voted to approve a hotel/casino deal that would have directly benefitted his long-time friend and campaign manager. Even in Nevada, that was considered a disqualifying conflict of interest under state law. Nonetheless, Carrigan took a shot at Frontier Justice and tried to argue that any law impairing his right to vote amounted to a denial of his constitutionally guaranteed right to free speech. The Nevada Supreme Court went along and dismissed the charges against Carrigan.

Because the Nevada court had ruled in such a broad fashion – virtually guaranteeing legislators the constitutional right to vote on a matter notwithstanding any state-imposed restrictions – it was relatively easy for outside observers to characterize the case as a “decision, [that] if upheld, threatened ethics laws nationwide”. The issue, thus framed, became relatively easy even for the chronically fractured Supreme Court.

Where opportunity for clarity was lost, unfortunately, was with respect to the permissible scope of ethics and pay-to-play laws in seeking to regulate behavior based on the conduct of others. One of the hallmarks of modern pay-to-play legislation is the need to prevent “circumvention” by casting ever-widening nets of relationships for which the regulated community is responsible for. This blog has bemoaned the compliance challenges posed by unreasonably broad compliance circles (such as http://www.paytoplaylawblog.com/2010/08/articles/alaska/alaska-gets-in-on-the...">here and here) and the issue has been taken up by the United States Second Court of Appeals.

In the present case, Nevada’s law prohibited legislators from voting on matters which might be impaired by the legislator’s “commitment” to members of his/her family, blood relatives, those related by adoption or marriage, employees, members of the household, and those with “substantial and continuing” business relationships with the officer. As if that weren’t vague enough, Carrigan actually got zapped on an even broader, and more vague, clause 281A.420(8)(e) capturing commitments or relationships “substantially similar” to those defined above. Such vague legislating would appear to be ripe for constitutional challenge. Unfortunately, as the U.S. Supreme Court gleefully pointed out in the last section of its opinion, Carrigan neglected to raise the issue in his petition for certiorari and the Court saw “no reason to sidestep” the rule that omitted arguments are considered waived.

It would thus appear that an opportunity to provide guidance, and pre-empt my whining about overbroad pay-to-play statutes, has been lost.

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