Tuesday, June 14, 2011

The Campaign Finance Issue Lurking in Nevada Comm'n on Ethics v. Carrigan

By Mike Dorf

The unanimity of result in the Supreme Court's decision in Nevada Comm'n on Ethics v. Carrigan disguises a very interesting disagreement lurking beneath the surface. The case upholds, against a First Amendment challenge, a Nevada law that forbids legislators from casting legislative votes on matters that would materially affect the legislator or someone with whom the legislator has a close personal or business relationship.  Justice Scalia wrote the majority opinion, which appeared to rely on two independent grounds for rejecting the challenge:

1) Laws requiring recusal of legislators (and in analogous circumstances, judges) have been in continuous force at the state and federal level since the Founding, without anyone ever seriously contending that they violated the First Amendment, so their pedigree validates them;


2) When a legislator votes for or against a bill, he or she is not engaged in speech at all, but merely engaged in government conduct, so there is no free speech here to infringe.

In separate concurrences, Justices Kennedy and Alito each expressed discomfort with proposition 2).  Kennedy, who joined the opinion in full, said that a different case would be presented if the Nevada law were used to require the recusal of a legislator based on the material impact of the bill in question on the legislator's campaign contributors, but he went along on the ground that as he read the Scalia majority, it did not address that issue.  Alito flatly disagreed with Scalia's contention that legislative voting is not speech.  He nonetheless went along with the result and so much of the opinion as made point 1), on the ground that the longstanding acceptance of legislative recusal requirements shows that they are permissible restrictions on speech.

In a follow-up post I'll have a bit more to say about the merits of the issue that divided Justices Scalia and Alito, but for now I'll note that Alito's position provides for a more generous interpretation of speech.  That, in turn, raises the question of why all of the liberals went along with Scalia's stingier interpretation of speech.  One answer may be that they are hoping that Nevada Comm'n becomes a useful precedent for upholding a particular form of campaign finance restriction: The requirement of a legislator's recusal when the interests of major political backers are at stake.

The key is whether Justice Kennedy is right that the majority opinion really reserves judgment on the question whether such restrictions would be valid. At the conclusion of Kennedy's concurrence, he points to page 10 of the majority opinion, which, he says, reserves judgment on this issue.  In fact, the relevant language appears at page 11 of the slip opinion.  My guess is that there were last-minute changes in the majority opinion that affected the pagination and the opinions went out without the corrections.

The page numbers are not important, but the actual issue reserved is.  The majority says it is not addressing the claims that the Nevada law "unconstitutionally burdens the right of association of  officials and supporters, and that [it] is unconstitutionally vague."  Yet, as I read Justice Kennedy's opinion, he is also concerned about the possibility that, as applied to political supporters of a legislator subject to recusal, the law, even if it were crystal clear, would burden their speech, even as individuals rather than in association with one another.  That is the broader campaign finance issue I take him to be raising, and I don't think the majority says that is specifically reserved for a later date.  Of course, the majority doesn't specifically address it either.

The closest the majority opinion comes to saying anything about the implications of the ruling for campaign finance more broadly is in footnote 3, on page 6, where it says that "restrictions on judges' speech during elections are a different matter."  That may leave the Court enough wiggle room to distinguish Nevada Comm'n in the future, should a state require recusal where the interests of campaign supporters are materially affected. But on its face, the majority opinion would seem to be a very valuable precedent for crafting campaign finance restrictions. If, as the majority says, a legislative vote is not speech at all, then a requirement for recusal is not a restriction on speech, full stop.

Am I saying that the Supreme Court, as currently staffed, would really uphold a law of the sort that Justice Kennedy and I are imagining? I'm enough of a legal realist  to say no. The tricky question is how the Chief Justice and Justices Scalia and Thomas would back off of what Nevada Comm'n pretty plainly says.  Perhaps they will say that a broad recusal law of the sort I'm imagining imposes a burden on the free speech rights of the people who engaged in campaign speech on behalf of the candidate-turned-legislator who is required to be recused by the law.  But it's at best an awkward argument to say that the state infringes the free speech rights of gazillionaire Warbucks when it requires legislator Jones to recuse himself from matters directly involving the interests of Warbucks on account of the fact that Warbucks spent spent millions on ads to ensure the election of Jones. Kennedy comes close to saying this in his Nevada Comm'n concurrence, but he does so in a way that sufficiently obscures the point as to make it not quite so outrageous a proposition as it is on its face.

Supporters of more aggressive campaign finance regulation could use Nevada Comm'n as a blueprint for a new form of recusal-based regulation. The laws would probably be struck down by the Supreme Court eventually, but at least in the short run, Nevada Comm'n would provide plausible grounds for sympathetic lower court judges to uphold them.

[Note: The foregoing is a somewhat updated version of the post.  My original post noted that Justice Kennedy's concurrence cited a page of the majority opinion that doesn't say what Justice Kennedy said it says.  A commenter usefully noted that Justice Kennedy was off by one page.  I have preserved the comment and my response to credit the commenter.]


WPB said...

I assume Justice Kennedy means to be referring to page 11 of the majority opinion:

"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."

Michael C. Dorf said...

Will B: That's fair but note that the supporters' "right of association" would only be part of what they would claim in a First Amendment challenge. Individuals responsible for, e.g., independent expenditures would claim a right to speak--and they'd do so even absent vagueness.

WPB said...

Totally agreed. I haven't actually read enough of the briefs to know if the supporter-speech argument was also lurking somewhere in the record or briefing. And in any case, future litigants might well raise that third-party argument in the broader form suggested by Justice Kennedy's concurrence.

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