It’s a vote, not speech

The Supreme Court this week heard a case from Nevada in which one side has made a startling assertion: that a legislator’s vote is a form of speech protected by the 1st Amendment. If the court takes that idea seriously, ethics watchdogs across the country could find it harder to police and punish conflicts of interest.

Michael A. Carrigan, a city councilman in Sparks, Nev., was censured by the state ethics commission for voting on a hotel/casino project that hired his close friend and longtime campaign manager as a public relations consultant. The state ethics law requires local and state legislators to recuse themselves from matters involving relatives, employers, business partners or anyone with whom the legislator has a relationship “substantially similar” to such ties. Carrigan challenged his censure, and he prevailed in the Nevada Supreme Court.

Carrigan’s lawyers suggest, among other things, that the ethics law is overbroad and violates his right of free association. That’s debatable, but the argument that poses a danger to good governance is the overarching idea that Carrigan’s vote was a form of speech. The court has recognized some actions — such as spending money on behalf of a political candidate — as a form of speech. But a vote by an elected official to approve a building project isn’t an attempt to express an idea; it’s an effort designed to bring about a concrete result. If the U.S. Supreme Court agrees with Nevada’s Supreme Court, judges will not only have to recognize legislative votes as a form of speech; they will have to subject any ethics code that regulates such “speech” to “strict scrutiny,” the exacting standard of judicial review used in many 1st Amendment cases.

Voting to benefit a company with which a close friend has a financial relationship is a classic example of a conflict of interest. In regulating such behavior, legislatures and ethics commissions promulgate standards that are often couched in general terms (as Nevada’s is) but that are nevertheless easily understood. No reasonable person, for example, would doubt that Carrigan should have recused himself from the vote about the casino project even though the law didn’t refer specifically to campaign managers. But if courts have to subject ethics codes to strict scrutiny, some ethically questionable behavior would go unpunished. Or, as a dissenting justice on the Nevada Supreme Court put it, there would be “much litigation and little good.” The way to prevent the hobbling of ethics enforcement is to recognize that, important as it is, a vote in a state legislature or city council is not speech but conduct — or misconduct.