In Nevada Comm’n on Ethics v. Carrigan, Justice Scalia for a unanimous Court held that “The Nevada Ethics in Government Law is not unconstitutionally overbroad.” Justice Kennedy concurred. Justice Alito concurred in part and concurred in judgment.
Justice Scalia’s Majority Opinion
Scalia’s opinion is relatively straightforward. First, he finds the regulation a “reasonable time, place, and manner limitation.”
If Carrigan was constitutionally excluded from voting, his exclusion from “advocat[ing]” at the legislative session was a reasonable time, place and manner limitation. See Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984) . . . Carrigan does not assert that the recusal laws here are viewpoint discriminatory, nor could he: The statute is content-neutral and applies equally to all legislators regardless of party or position.
Second, he notes that since the founding of the United States, the Senate has had in place recusal laws for those with an interest in the legislation.
Within 15 years of the founding, both the House of Representatives and the Senate adopted recusal rules. The House rule—to which no one is recorded as having objected, on constitutional or other grounds, see D. Currie, The Constitution in Congress: The Federalist Period 1789–1801, p. 10 (1997)—was adopted within a week of that chamber’s first achieving a quorum . . . Members of the House would have been subject to this recusal rule when they voted to submit the First Amendment for ratification; their failure to note any inconsistency between the two suggests that there was none.
Third, legislative voting is not protected speech. Specifically, a legislator casting a vote is not merely expressing his personal preferences, but is in fact casting his vote ““as trustee for his con-stituents, not as a prerogative of personal power.”
The answer is that a legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it. . . . While “a voter’s franchise is a personal right,” “[t]he procedures for voting in legislative assemblies . . . pertain to legislators not as individuals but as political representatives executing the legislative process.” Coleman v. Miller, 307 U. S. 433, 469–470 (1939) (opinion of Frankfurter, J.).
Thus, there is no constitutional violation.
Justice Kennedy’s Concurring Opinion
Justice Kennedy wrote separately to comment on any first Amendment issues separate from the act of casting a vote.
Neither in the submissions of the parties to this Court defining the issues presented, nor in the opinion of the Nevada Supreme Court, were the Nevada statutory provisions here at issue challenged or considered from the standpoint of burdens they impose on the First Amendment speech rights of legislators and constituents apart from an asserted right to engage in the act of casting a vote.
Kennedy seems to be willing to protect other forms of speech associated with the legislative process, apart from voting.
The statute may well impose substantial burdens on what undoubtedly is speech. The democratic process presumes a constant interchange of voices. Quite apart from the act of voting, speech takes place both in the election process and during the routine course of communications between and among legislators, candidates, citizens, groups active in the political process, the press, and the public at large. This speech and expression often finds powerful form in groups and associations with whom a legislator or candidate has long and close ties, ties made all the stronger by shared outlook and civic purpose. The process is so intricate a part of communication in a democracy that it is difficult to describe in summary form, lest its fundamental character be understated.
Kennedy imagines a scenario where someone runs for office based on the urging of his friends, with whom he shares a certain “strong and carefully considered position” on some position.
The question then arises what application the Nevada statute has if a legislator who was elected with that support were to vote upon legislation central to the shared cause, or, for that matter, any other cause supported by those friends and affiliates. . . . There is, in my view, a serious concern that the statute imposes burdens on the communications and expressions just discussed. . . . At least without the benefit of further submissions or argument or explanation, it seems that one fair interpretation, if not the necessary one, is that the statute could apply to a legislator whose personal life is tied to the longstanding, close friendships he or she has forged in the common cause now at stake.
Focusing on the chilling effect of this vague statute, Kennedy notes it could be unconstitutional.
And if the statute imposes unjustified burdens on speech or association protected by the First Amendment, or if it operates to chill or suppress the exercise of those freedoms by reason of vague terms oroverbroad coverage, it is invalid. A statute of this sort is an invitation to selective enforcement; and even if enforcement is undertaken in good faith, the dangers of suppression of particular speech or associational ties may well be too significant to be accepted.
The Majority opinion stresses that this issue was not decided below, not raised by Carrigan in his brief in opposition to cert, and is thus waived.
Carrigan raises two additional arguments in his brief: that Nevada’s catchall provision unconstitutionally burdens the right of association of officials and supporters, and that the provision is unconstitutionally vague. Whatever the merits of these arguments, we have no occasion to consider them. Neither was decided below: The Nevada Supreme Court made no mention of the former argument and said that it need not address the latter given its resolution of the overbreadth challenge, 126 Nev. ___, n. 4, 236 P. 3d, at 619, n. 4. Nor was either argument raised in Carrigan’s brief in opposition to the petition for writ of certiorari. Arguments thus omitted are normally considered waived, see this Court’s Rule 15.2; Baldwin v. Reese, 541 U. S. 27, 34 (2004), and we find no reason to sidestep that Rule here.
In a passage that speaks directly to Kennedy’s animosity towards campaign finance regulations, he praises the important issue of campaign speech.
The interests here at issue are at the heart of the First Amendment. “[T]he First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989) (internal quotation marks omitted). And the Court has made it clear that “the right of citizens to band together in promoting among the electorate candidates who espouse their political views” is among the First Amendment’s most pressing concerns. Clingman v. Beaver, 544 U. S. 581, 586 (2005) (internal quotation marks omitted).
Kennedy also provides a little civics lesson about the importance of representation in our Republic.
As a general matter, citizens voice their support and lend their aid because they wish to confer the powers of public office on those whose positions correspond with their own. That dynamic, moreover, links the principles of participation and representation at the heart of our democratic government. Just as candidates announce positions in exchange for citizens’ votes, Brown v. Hartlage, 456 U. S. 45, 55–56 (1982), so too citizens offer endorsements, advertise their views, and assist political campaigns based upon bonds of common purpose. These are the mechanisms that sustain representative democracy.
Kennedy also distinguishes the recusal rules upheld in Caperton, which applied to the judiciary, to the very different role of the legislature.
The differences between the role of political bodies in formulating and enforcing public policy, on the one hand, and the role of courts in adjudicating individual disputes according to law, on the other, see ante, at 6, may call for a different understanding of the responsibilities attendant upon holders of those respective offices and of the legitimate restrictions that may be imposed upon them. For these reasons, the possibility that Carrigan was censured because he was thought to be beholden to a person who helped him win an election raises constitutional concerns of the first magnitude.
Justice Alito’s Opinion Concurring in Part, Concurring in Judgment
Justice Alito differs from the majority “insofar as it suggests that restrictions upon legislators’ voting are not restrictions upon legislators’ speech.”
Alito focuses on profiles in courage, in which legislators vote on controversial points, often at their own peril.
As respondent notes, “[o]ur history is rich with tales of legislators using their votes to express deeply held and highly unpopular views, often at great personal or political peril.” Brief for Respondent 23.To illustrate this point, respondent notes, among other famous incidents, John Quincy Adams’ vote in favor of the Embargo Act of 1807, a vote that is said to have cost him his Senate seat, and Sam Houston’s vote against the Kansas-Nebraska Act, a vote that was deeply unpopular in the South. Id., at 23–24 (citing J. Kennedy, Profiles in Courage 48, 109 (commemorative ed. 1991)).
Alito finds that “Voting has an expressive component in and of itself.” The Majority’s “strange understanding of the concept of speech is shown by its suggestion that the symbolic act of burning the American flag is speech but John Quincy Adams calling out “yea” on the Embargo Act was not.”
In the majority opinion, Justice Scalia disputes this argument in typical snarky fashion, finding that a single vote is not, and cannot be expressive conduct and symbolizes nothing.
Carrigan and JUSTICE ALITO say that legislators often“‘us[e] their votes to express deeply held and highly unpopular views, often at great personal or political peril.’” Post, at 1 (opinion concurring in part and concurring in judgment) (quoting Brief for Respondent 23). How do they express those deeply held views, one wonders? Do ballots contain a check-one-of-the-boxes attachment that will be displayed to the public, reading something like “( ) I have a deeply held view about this; ( ) this is probably desirable;( ) this is the least of the available evils; ( ) my personal view is the other way, but my constituents want this; ( ) my personal view is the other way, but my big contributors want this; ( ) I don’t have the slightest idea what this legislation does, but on my way in to vote the party Whip said vote ‘aye’”? There are, to be sure, instances where action conveys a symbolic meaning—such as the burning of a flag to convey disagreement with a country’s policies, see Texas v. Johnson, 491 U. S. 397, 406 (1989). But the act of voting symbolizes nothing. It discloses, to be sure, that the legislator wishes (for whatever reason) that the proposition on the floor be adopted, just as a physical assault discloses that the attacker dislikes the victim.
Specifically, Scalia writes that “However unpopular Adams’ vote may have made him, and however deeply Adams felt that his vote was the right thing to do, the act of voting was still nonsymbolic conduct engaged in for an independent governmental purpose.”
This mirrors his concurring opinion in Doe v. Reed: “(“I doubt whether signing a petition that has the effect of suspending a law fits within ‘the freedom of speech’ at all”).”
Alito calls out that the Court’s position is “inconsistent with our reasoning just last Term in Doe v. Reed.”
Just as the act of signing a petition is not deprived of its expressive character when the signature is given legal consequences, the act of voting is not drained of its expressive content when the vote has a legal effect.
Scalia disputes his interpretation of Doe v. Reed, and reads that precedent narrower than does Alito.
That case held only that acitizen’s signing of a petition—“‘core political speech,’” Meyer v. Grant, 486 U. S. 414, 421–422 (1988)—was not deprived of its protected status simply because, under state law, a petition that garnered a sufficient number of signatures would suspend the state law to which it pertained, pending a referendum. See Reed, 561 U. S., at ___ (slip op., at 6); id., at ___ (slip op., at 3) (opinion of SCALIA, J.). It is one thing to say that an inherently expressive act remains so despite its having governmental effect, but it is altogether another thing to say that a governmental act becomes expressive simply because the governmental actor wishes it to be so. We have never said the latter is true.
Alito only finds this law not unconstitutional because “legislative recusal rules were not regarded during the founding era as impermissible restrictions on freedom of speech.”