When a Legislator casts a vote, is he engaging in express conduct, or merely serving as a conduit to channel the will of his or her constituents. This is really the crux of the disagreement between Justice Scalia and Justice Alito in Nevada Comm’n on Ethics v. Carrigan (Instant Analysis here), Scalia thinks it’s the former. Alito thinks the latter is the case, sometimes.
I think animating Alito’s opinion is a fear that through recusal rules a legislator can stifle votes, and thereby representation, on controversial issues. Think of examples from John F. Kennedy’s Profiles in Courage.
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)).
Justice Scalia does not accept this concept.
Nor does the fact that action may have social consequences—suchas the unpopularity that cost John Quincy Adams hisSenate seat resulting from his vote in favor of the Em-bargo Act of 1807, see post, at 1. However unpopularAdams’ vote may have made him, and however deeplyAdams felt that his vote was the right thing to do, the act of voting was still nonsymbolic conduct engaged in for anindependent governmental purpose.
Curiously, Scalia is willing to see expressive value in the burning of a flag, but not in the casting of a legislative vote. He views this process as merely ministerial.
A legislator voting on a bill is not fairly analogized to one simply discuss-ing that bill or expressing an opinion for or against it. The former is performing a governmental act as a representative of his constituents, the latter is exercising personal First Amendment rights.
This mirrors a number of comments Scalia made during oral arguments in Doe v. Reed.
JUSTICE SCALIA: Mr. Bopp, do you have any case in which we have held that the First Amendment applies to activity that consists of the process of legislation, of legislating or of adopting legislation?MR. BOPP: Yes, Buckley II.JUSTICE SCALIA: What is that?MR. BOPP: Buckley II, you struck down the requirement that the person who is soliciting signatures self-identify.JUSTICE SCALIA: That is — soliciting signatures is not taking part in the process of legislating.MR. BOPP: Well –JUSTICE SCALIA: The person who requests a referendum is taking — when there’s a certain number of signatures required to achieve it is taking part in that.And in light of the fact that for the first century of our existence, even voting was public — you either did it raising your hand or by voice, or later, you had a ballot that was very visibly red or blue so that people knew which party you were voting for — the fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.You are asking us to enter into a whole new field where we have never gone before.
It is noteworthy that neither Scalia nor Alito said a word about Kennedy’s concurring opinion, other than to note that vagueness was not properly before the Court.