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The Carrigan Free Speech Case Goes to the Supreme Court - The Parties' Briefs
Monday, January 10th, 2011
Robert Wechsler
This second blog post on the briefs filed concerning whether the
Carrigan case should be accepted by the U.S. Supreme Court glances at
arguments in the briefs filed by the two parties and then makes a different argument for why the First Amendment has no place in this sort of government ethics matter. Making this argument gets to the root of how the Constitution, and government ethics, protect the public. If only the courts would let the Constitution and government ethics work together, as they should, instead of placing them at loggerheads.
The Speech or Debate Clause Applies in This Case, Not the First Amendment
The central statement of the brief filed by the city of Sparks, NV on behalf of councilman Carrigan against the acceptance of the Carrigan case by the U.S. Supreme Court is the following sentence on page 13:
Those who argue that legislative immunity overrides government ethics provisions at least argue that it is the public's rights that are at stake, not the legislator's. They are wrong in ignoring the fact that the public's rights are equally at stake in government ethics, which has the same goal and purpose as legislative immunity. But at least they don't act as if the legislator's personal rights were at issue.
On this basis alone, Carrigan's case should fail. The philosophical core of his argument is wrong.
The drafters of the Constitution dealt with limits on a legislator's right to represent his constituents in the Speech or Debate Clause, which provides legislative immunity. If they had wanted the First Amendment to apply in this situation, they wouldn't have bothered with the Speech or Debate Clause.
Clearly, the right of the public to have their legislator vote on controversial issues is protected by the Constitution. That is the purpose of legislative immunity, to prevent an official from being forced to vote in order to protect himself rather than voting in the public interest. But just as clearly, the public has a right to have their legislator vote in the public interest rather than in his own personal interest. That is the purpose of conflict of interest and withdrawal provisions. Both legislative immunity and conflict of interest provisions seek to protect the public from a legislator's personal interests. (See my blog post on what I call a "virtuous circle.")
The First Amendment has nothing to do with this situation, as I argue in more detail below. It is a red herring. It is an end run. It is a clever tactic. And the U.S. Supreme Court should recognize this argument for what it is.
But it might not even get to that point, because the "catch-all" statutory language of the provision in question raises a due process problem. Due process is the only constitutional issue that should be raised in this case, as I argued in an earlier blog post.
The catch-all language is highly unusual. No ruling in this case should apply to other ethics codes, except possibly New Jersey's, according to the Carrigan brief. Nevada's code should be amended, and that is all that should happen.
A Closer Look at the First Amendment
I am not going to go through the arguments made in the Nevada ethics commission's reply brief. The EC makes a complex, multi-part argument that free speech is not applicable to this matter. I agree with their arguments, for the most part, and recommend reading through them. But in this post, I am going to take a different, more philosophical approach.
It's important to look at the text of the First Amendment:
Legislators Give Up Some of Their Rights
Saying that a local legislator has a free speech right to vote is no different than saying that a local legislator has a free assembly right to meet secretly, despite open meetings laws. The fact is that when you are elected to office, you give up some of your rights. You can no longer meet whenever and wherever you want with whomever you want. Limitations can be placed on your meetings with bidding contractors, with lobbyists, and with your colleagues.
You can no longer take gifts from anyone you want, you can no longer place any sign you want on your car, or use any stationery, or talk to members of the public the way you might have done before. There are limitations and there are prohibitions and there are procedures you have to follow, disclosures you have to make. If you don't want to give up those rights, you can simply choose not to run for office, and all the rights are yours.
Legislators Are Given Special Rights and Responsibilities
There are special rights given to legislators, such as legislative immunity. But those aren't their rights, they're the rights of their constituents.
In return, you get power. And you get responsibilities. And one of those responsibilities is to deal responsibly with your conflicts of interest. And the most common way to deal responsibly with a conflict is to withdraw from the matter, to say nothing and do nothing. If you act responsibly, you have said and done nothing, not because your freedom of speech has been abridged, but because you have acted responsibly, because you have fulfilled your fiduciary obligation to the public. This is not about rights, it's about the other side of the coin: responsibilities. If you don't want to accept those responsibilities, you should not run for office.
If Carrigan is successful here, it should not be on the basis of his First Amendment argument, but rather on the basis of due process. It should be a narrow decision about a particular situation and particular statutory language. The Supreme Court should say that the First Amendment is not relevant to legislators voting.
Case Consolidation
The Carrigan brief does raise one interesting issue, the fact that another Carrigan case (which I analyzed in another blog post) has not yet completed its way through the courts and that the two cases should be consolidated. In that case, Carrigan argued that the same provision failed on due process as well as free speech grounds. The court relied primarily on free speech grounds. But that case involved an advisory opinion, which raises issues about advisory opinions and how providing ethics advice differs in important ways from enforcement, because ethics laws provide minimum standards (see a blog post on this). The due process argument in this other case is weaker. It would be interesting to see if courts would be willing to recognize the difference between ethics advice and enforcement, but I doubt that they would. It's just as well that the U.S. Supreme Court did not wait for what I refer to as Carrigan II to be ready for consolidation.
Robert Wechsler
Director of Research-Retired, City Ethics
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The Speech or Debate Clause Applies in This Case, Not the First Amendment
The central statement of the brief filed by the city of Sparks, NV on behalf of councilman Carrigan against the acceptance of the Carrigan case by the U.S. Supreme Court is the following sentence on page 13:
-
[R]estrictions on an elected official’s ability to perform his duties
implicate the interests of two distinct parties: the individual
legislator’s First Amendment rights; and the voters’ right to be
meaningfully represented by their elected officials.
Those who argue that legislative immunity overrides government ethics provisions at least argue that it is the public's rights that are at stake, not the legislator's. They are wrong in ignoring the fact that the public's rights are equally at stake in government ethics, which has the same goal and purpose as legislative immunity. But at least they don't act as if the legislator's personal rights were at issue.
On this basis alone, Carrigan's case should fail. The philosophical core of his argument is wrong.
The drafters of the Constitution dealt with limits on a legislator's right to represent his constituents in the Speech or Debate Clause, which provides legislative immunity. If they had wanted the First Amendment to apply in this situation, they wouldn't have bothered with the Speech or Debate Clause.
Clearly, the right of the public to have their legislator vote on controversial issues is protected by the Constitution. That is the purpose of legislative immunity, to prevent an official from being forced to vote in order to protect himself rather than voting in the public interest. But just as clearly, the public has a right to have their legislator vote in the public interest rather than in his own personal interest. That is the purpose of conflict of interest and withdrawal provisions. Both legislative immunity and conflict of interest provisions seek to protect the public from a legislator's personal interests. (See my blog post on what I call a "virtuous circle.")
The First Amendment has nothing to do with this situation, as I argue in more detail below. It is a red herring. It is an end run. It is a clever tactic. And the U.S. Supreme Court should recognize this argument for what it is.
But it might not even get to that point, because the "catch-all" statutory language of the provision in question raises a due process problem. Due process is the only constitutional issue that should be raised in this case, as I argued in an earlier blog post.
The catch-all language is highly unusual. No ruling in this case should apply to other ethics codes, except possibly New Jersey's, according to the Carrigan brief. Nevada's code should be amended, and that is all that should happen.
A Closer Look at the First Amendment
I am not going to go through the arguments made in the Nevada ethics commission's reply brief. The EC makes a complex, multi-part argument that free speech is not applicable to this matter. I agree with their arguments, for the most part, and recommend reading through them. But in this post, I am going to take a different, more philosophical approach.
It's important to look at the text of the First Amendment:
-
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
Legislators Give Up Some of Their Rights
Saying that a local legislator has a free speech right to vote is no different than saying that a local legislator has a free assembly right to meet secretly, despite open meetings laws. The fact is that when you are elected to office, you give up some of your rights. You can no longer meet whenever and wherever you want with whomever you want. Limitations can be placed on your meetings with bidding contractors, with lobbyists, and with your colleagues.
You can no longer take gifts from anyone you want, you can no longer place any sign you want on your car, or use any stationery, or talk to members of the public the way you might have done before. There are limitations and there are prohibitions and there are procedures you have to follow, disclosures you have to make. If you don't want to give up those rights, you can simply choose not to run for office, and all the rights are yours.
Legislators Are Given Special Rights and Responsibilities
There are special rights given to legislators, such as legislative immunity. But those aren't their rights, they're the rights of their constituents.
In return, you get power. And you get responsibilities. And one of those responsibilities is to deal responsibly with your conflicts of interest. And the most common way to deal responsibly with a conflict is to withdraw from the matter, to say nothing and do nothing. If you act responsibly, you have said and done nothing, not because your freedom of speech has been abridged, but because you have acted responsibly, because you have fulfilled your fiduciary obligation to the public. This is not about rights, it's about the other side of the coin: responsibilities. If you don't want to accept those responsibilities, you should not run for office.
If Carrigan is successful here, it should not be on the basis of his First Amendment argument, but rather on the basis of due process. It should be a narrow decision about a particular situation and particular statutory language. The Supreme Court should say that the First Amendment is not relevant to legislators voting.
Case Consolidation
The Carrigan brief does raise one interesting issue, the fact that another Carrigan case (which I analyzed in another blog post) has not yet completed its way through the courts and that the two cases should be consolidated. In that case, Carrigan argued that the same provision failed on due process as well as free speech grounds. The court relied primarily on free speech grounds. But that case involved an advisory opinion, which raises issues about advisory opinions and how providing ethics advice differs in important ways from enforcement, because ethics laws provide minimum standards (see a blog post on this). The due process argument in this other case is weaker. It would be interesting to see if courts would be willing to recognize the difference between ethics advice and enforcement, but I doubt that they would. It's just as well that the U.S. Supreme Court did not wait for what I refer to as Carrigan II to be ready for consolidation.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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