Lead Opinion
delivered the opinion of the Court.
The Nevada Supreme Court invalidated a recusal provision of the State’s Ethics in Government Law as unconstitutionally overbroad in violation of the First Amendment. We consider whether legislators have a personal, First Amendment right to vote on any given matter.
I
Nevada’s Ethics in Government Law provides that a public, officer shall not vote upon or advocate the passage or failure of, but may otherwise participate in the consideration of, a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by,” inter alia, “[h]is commitment in a private capacity to the interests of others.” Nev. Rev. Stat. § 281A.420(2) (2007).
The Ethics in Government Law is administered and enforced by the petitioner in this litigation, the Nevada Commission on Ethics. In 2005, the Commission initiated an investigation of Michael Carrigan, an elected member of the City Council of Sparks, Nevada, in response to complaints that Carrigan had violated §281A.420(2) by voting to approve an application for a hotel/casino project known as the “Lazy 8.” Carrigan, the complaints asserted, had a disabling conflict in the matter because his long-time friend and campaign manager, Carlos Vasquez, worked as a paid consultant for the Red Hawk Land Company, which had proposed the Lazy 8 project and would benefit from its approval.
Upon completion of its investigation, the Commission concluded that Carrigan had a disqualifying conflict of interest under §281A.420(8)(e)’s catchall provision because his relationship with Vasquez was “substantially similar” to the prohibited relationships listed in § 281A.420(8)(a)-(d). Its written decision censured Carrigan for failing to abstain from voting on the Lazy 8 matter, but did not impose a civil penalty because his violation was not willful, see §281A.480. (Before the hearing, Carrigan had consulted the Sparks city attorney, who advised him that disclosing his relationship with Vasquez before voting on the Lazy 8 project, which he did, would satisfy his obligations under the Ethics in Government Law.)
Carrigan filed a petition for judicial review in the First Judicial District Court of the State of Nevada, arguing that the provisions of the Ethics in Government Law that he was
We granted certiorari,
rH H-(
The First Amendment prohibits laws “abridging the freedom of speech,” which, ‘“as a general matter . . . means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’” Ashcroft v. American Civil Liberties Union,
We disagree, for the same reason. But before discussing that issue, we must address a preliminary detail: The challenged law not only prohibits the legislator who has a conflict from voting on the proposal in question, but also forbids him to “advocate the passage or failure” of the proposal — evidently meaning advocating its passage or failure during the legislative debate. Neither Carrigan nor any of his amici contend that the prohibition on advocating can be unconstitutional if the prohibition on voting is not. And with good reason. Legislative sessions would become massive town-hall meetings if those who had a right to speak were not limited to those who had a right to vote. If Carrigan was constitutionally excluded from voting, his exclusion from
rH H-Í HH
[A] universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional: Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation’s consciousness.” Republican Party of Minn. v. White,
“[E]arly congressional enactments ‘provid[e] contemporaneous and weighty evidence of the Constitution’s meaning,’ ” Printz v. United States,
The first Senate rules did not include a recusal requirement, but Thomas Jefferson adopted one when he was President of the Senate. His rule provided as follows:
“Where the private interests of a member are concerned in a bill or question, he is to withdraw. And where such an interest has appeared, his voice [is] disallowed, even after a division. In a case so contrary, not only to the laws of decency, but to the fundamental principles of the social compact, which denies to any man to be a judge in his own cause, it is for the honor of the house that this rule, of immemorial observance, should be strictly adhered to.” A Manual of Parliamentary Practice for the Use of the Senate of the United States 31 (1801).
Contemporaneous treatises on parliamentary procedure track parts of Jefferson’s formulation. See, e. g., A. Clark, Manual, Compiled and Prepared for the Use of the [New York] Assembly 99 (1816); L. Cushing, Manual of Parliamentary Practice, Rules of Proceeding and Debate in Deliberative Assemblies 30 (7th ed. 1854).
Federal conflict-of-interest rules applicable to judges also date back to the founding. In 1792, Congress passed a law requiring district court judges to recuse themselves if they had a personal interest in a suit or had been counsel to a party appearing before them. Act of May 8, 1792, ch. 36, §11, 1 Stat. 278-279. In 1821, Congress expanded these bases for recusal to include situations in which “the judge ... is so related to, or connected with, either party, as to render it improper for him, in his opinion, to sit on the trial of such suit.” Act of Mar. 3, 1821, ch. 51, 3 Stat. 643. The statute was again expanded in 1911, to make any “personal
The Nevada Supreme Court’s belief that recusal rules violate legislators’ First Amendment rights is also inconsistent with longstanding traditions in the States. A number of States, by common-law rule, have long required recusal of public officials with a conflict. See, e. g., In re Nashua, 12 N. H. 425, 430 (1841) (“If one of the commissioners be interested, he shall not serve”); Commissioners’ Court v. Tarver,
In an attempt to combat this overwhelming evidence of constitutional acceptability, Carrigan relies on a handful of lower-court cases from the 1980's and afterwards. See Brief for Respondent 25 (citing Clarke v. United States,
IV
But how can it be that restrictions upon legislators’ voting are not restrictions upon legislators’ protected speech? The answer is that a legislator's vote is the commitment of his apportioned share of the legislature’s power to the passage
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 133 (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,
Moreover, the fact that a nonsymbolic act is the product of deeply held personal belief — even if the actor would like it to convey his deeply held personal belief — does not transform action into First Amendment speech. Nor does the fact that action may have social consequences — such as the unpopularity that cost John Quincy Adams his Senate seat resulting from his vote in favor of the Embargo Act of 1807, see post, at 133. 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 nonsym-bolic conduct engaged in for an independent governmental purpose.
Even if it were true that the vote itself could “express deeply held and highly unpopular views,” the argument would still miss the mark. This Court has rejected the notion that the First Amendment confers a right to use governmental mechanics to convey a message. For example, in Timmons v. Twin Cities Area New Party,
Y
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 over-breadth challenge,
* * *
The judgment of the Nevada Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Notes
At tho timo of the relevant events in thic caeo, the disclosure and rcou sal. provisions of the Ethics in Government Law were codified at Nev, Rev. Stat. §281.501 (2003). They were recodified without relevant change in 2007 at § 281A.420, and all citations are to that version. The Nevada Legislature further amended the statute in 2009, see Nev. Stats., eh. 257, § 9.5, p. 1057, but those changes are not relevant here.
The House first achieved a quorum on April 1,1789,1 Annals of Cong. 96, and it adopted rules governing its procedures on April 7, 1789, see id., at 98-99.
We have held that restrictions on judges’ speech during elections are a different matter. See Republican Party of Minn. v. White,
A number of States enacted early judicial recusal laws as well. See, e. g., 1797 Vt. Laws, §23, p. 178 (“[N]o justice of the peace shall take cognizance of any cause, where he shall be within either the first, second, third, or fourth degree of affinity, or consanguinity, to either of the parties, or shall be directly or indirectly interested, in the cause or matter to be determined”); 1818 Mass. Laws, § 5, p. 632 (“[Wjhenever any Judge of Probate shall be interested in the estate of any person deceased, within the
Justice Auto reasons as follows: (1) If an ordinary citizen were to vote in a otraw poll on an ígguc pending before a lcgiolativc body, that vote would be speech; (2) if a member of the legislative body were to do the same, it would be no less expressive; therefore (3) the legislator’s actual vote must also be expressive. This conclusion does not follow. A legislator voting on a bill is not fairly analogized to one simply discussing that bill or expressing an opinion for or against it. The former is performing a governmental act as a representative of his constituents, see supra, at 126; only the latter is exercising personal First Amendment rights.
Concurrence Opinion
concurring.
For the reasons the Court explains, the act of casting an official vote is not itself protected by the Speech Clause of the First Amendment; and I join the Court’s opinion.
It does seem appropriate to note that the opinion does not, and on this record should not, consider a free speech contention that would have presented issues of considerable import, were it to have been a proper part of the case. 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.
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
Assume a citizen has strong and carefully considered positions on family life, the environment, economic principles, criminal justice, religious values, or the rights of persons. Assume, too, that based on those beliefs, he or she has personal ties with others who share those views. The occasion may arise when, to promote and protect these beliefs, close friends and associates, perhaps in concert with organized groups with whom the citizen also has close ties, urge the citizen to run for office. These persons and entities may offer strong support in an election campaign, support which itself can be expression in its classic form. 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.
As the Court notes, Nev. Rev. Stat. §281A.420(2) (2007) provides:
“[A] public officer shall not vote upon or advocate the passage or failure of, but may otherwise participate in the consideration of, a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by . . . [h]is commitment in a private capacity to the interests of others.”'
There is, in my view, a serious concern that the statute imposes burdens on the communications and expressions just discussed. The immediate response might be that the statute does not apply because its application is confined to the legislator’s “commitment in a private capacity to the interests of others.” That proposition may be a debatable one. At least without the benefit of further submissions or argument or explanation, it seems that one fair interpretation, if
The application of the statute’s language to the case just supposed, and to any number of variations on the supposition, is not apparent. 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 or overbroad coverage, it is invalid. See United States v. Williams,
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.,
The constitutionality of a law prohibiting a legislative or executive official from voting on matters advanced by or associated with a political supporter is therefore a most serious matter from the standpoint of the logical and inevitable burden on speech and association that preceded the vote. The restriction may impose a significant burden on activities protected by the First Amendment. As a general matter, citizens voice their support and lend their aid because they
The Court has held that due process may require recusal in the context of certain judicial determinations, see Caperton v. A. T. Massey Coal Co.,
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.
As the Court observes, however, the question whether Nevada’s recusal statute was applied in a manner that burdens the First Amendment freedoms discussed above is not presented in this case. Ante, at 128-129.
Concurrence Opinion
concurring in part and concurring in the judgment.
I concur in the judgment, but I do not agree with the opinion of the Court insofar as it suggests that restrictions upon
In response to respondent’s argument, the Court suggests that the “expressive value” of such votes is “ ‘not created by the conduct itself but by the speech that accompanies it.’ ” Ante, at 127. This suggestion, however, is surely wrong. If John Quincy Adams and Sam Houston had done no more than cast the votes in question, their votes would still have spoken loudly and clearly to everyone who was interested in the bills in question. Voting has an expressive component in and of itself. The Court’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. Ibid
A legislative vote is not speech, the Court tells us, because the vote may express, not the legislator’s sincere personal view, but simply the view that is favored by the legislator’s constituents. See ibid. But the same is sometimes true of legislators’ speeches.
Not only is the Court incorrect in its analysis of the expressive character of voting, but the Court’s position is inconsistent with our reasoning just last Term in Doe v. Reed,
“It is true that signing a referendum petition may ultimately have the legal consequence of requiring the secretary of state to place the referendum on the ballot. But we do not see how adding such legal effect to an expressive activity somehow deprives that activity of its expressive component, taking it outside the scope of the First Amendment.”561 U. S., at 195 .
But cf. id., at 219 (Scalia, J., concurring in judgment) (“I doubt whether signing a petition that has the effect of suspending a law fits within 'the freedom of speech’ at all”).
Our reasoning in Reed is applicable here. 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. If an ordinary citizen casts a vote in a straw poll on an important proposal pending before a legislative body, that act indisputably constitutes a form of speech. If a member of the legislative body chooses to vote in the same straw poll, the legislator’s act is no less expressive than that of an ordinary citizen. And if the legislator then votes on the measure in the legislative chamber, the expressive character of that vote is not eliminated simply because it may affect the outcome of the legislative process.
In Part III of its opinion, the Court demonstrates that legislative recusal rules were not regarded during the founding era as impermissible restrictions on freedom of speech. On that basis, I agree that the judgment below must be reversed.
See 17 Annals of Congress 50 (1807); see also 15 id., at 201 (1806).