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Nevada Commission on Ethics v. Carrigan

Many states, like Nevada, have adopted ethics laws that require members of legislative bodies to recuse themselves from voting on matters in which they have a conflict of interest. The respondent in this case, a city council member, was censured under Nevada’s ethics law for voting on a development proposal even though the developer’s chief lobbyist was the council member’s longtime campaign manager and friend. The council member challenged his censure in court, arguing that his vote was a form of speech protected by the First Amendment. The Nevada Supreme Court agreed that legislative voting qualifies as protected speech, following the lead of several federal courts of appeals, and ruled that the censure was unconstitutional.

In our amicus brief supporting Nevada’s ethics law, we argued that rules limiting a legislator’s ability to vote do not restrict speech, but rather the power to perform an official act. Laws like Nevada’s, which prohibit legislators from voting when they have a significant financial or personal stake in the outcome, promote the integrity of the political process without preventing legislators from expressing their views to the public. Our brief makes clear, however, that actual speech by elected officials (as opposed to conduct like voting) deserves the highest level of First Amendment protection.

On June 13, 2011, the Supreme Court unanimously ruled that legislative voting is not a protected form of speech and that conflict-of-interest recusal laws like Nevada’s do not violate the First Amendment.