Nevada Commission on Ethics v. Carrigan ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NEVADA COMMISSION ON ETHICS v. CARRIGAN
CERTIORARI TO THE SUPREME COURT OF NEVADA
No. 10–568. Argued April 27, 2011—Decided June 13, 2011
Nevada’s Ethics in Government Law requires public officials to recuse
themselves from voting on, or advocating the passage or failure of, “a
matter with respect to which the independence of judgment of a rea
sonable person in his situation would be materially affected by,” inter
alia, “[h]is commitment in a private capacity to the interests of oth
ers,” Nev. Rev. Stat. §281A.420(2) (2007), which includes a “commit
ment to a [specified] person,” e.g., a member of the officer’s household
or the officer’s relative, §281A.420(8)(a)–(d), and “[a]ny other com
mitment or relationship that is substantially similar” to one enumer
ated in paragraphs (a)–(d), §281A.420(8)(e).
Petitioner (Commission) administers and enforces Nevada’s law.
The Commission investigated respondent Carrigan, an elected local
official who voted to approve a hotel/casino project proposed by a
company that used Carrigan’s long-time friend and campaign man
ager as a paid consultant. The Commission concluded that Carrigan
had a disqualifying conflict of interest under §281A.420(8)(e)’s catch
all provision, and censured him for failing to abstain from voting on
the project. Carrigan sought judicial review, arguing that the Ne
vada law violated the First Amendment. The State District Court
denied the petition, but the Nevada Supreme Court reversed, holding
that voting is protected speech and that §281A.420(8)(e)’s catchall
definition is unconstitutionally overbroad.
Held: The Nevada Ethics in Government Law is not unconstitutionally
overbroad. Pp. 3–11.
(a) That law prohibits a legislator who has a conflict both from vot
ing on a proposal and from advocating its passage or failure. If it was
constitutional to exclude Carrigan from voting, then his exclusion
from advocating during a legislative session was not unconstitu
tional, for it was a reasonable time, place, and manner limitation.
2 NEVADA COMM’N ON ETHICS v. CARRIGAN
Syllabus
See Clark v. Community for Creative Non-Violence, 468 U. S. 288,
293. Pp. 3–4.
(b) “[A] ‘universal and long-established’ tradition of prohibiting cer
tain conduct creates ‘a strong presumption’ that the prohibition is
constitutional.’ ” Republican Party of Minn. v. White, 536 U. S. 765,
785. Here, dispositive evidence is provided by “early congressional
enactments,” which offer “ ‘contemporaneous and weighty evidence of
the Constitution’s meaning,’ ” Printz v. United States, 521 U. S. 898,
905. Within 15 years of the founding, both the House and the Senate
adopted recusal rules. Federal conflict-of-interest rules applicable to
judges also date back to the founding. The notion that Nevada’s
recusal rules violate legislators’ First Amendment rights is also in
consistent with long-standing traditions in the States, most of which
have some type of recusal law. Pp. 4–8.
(c) Restrictions on legislators’ voting are not restrictions on legisla
tors’ protected speech. 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. He casts his vote “as trustee for his con
stituents, not as a prerogative of personal power.” Raines v. Byrd,
521 U. S. 811, 821. Moreover, voting is not a symbolic action, and the
fact that it is the product of a deeply held or highly unpopular per
sonal belief does not transform it into First Amendment speech.
Even if the mere vote itself could express depth of belief (which it
cannot), this Court has rejected the notion that the First Amendment
confers a right to use governmental mechanics to convey a message.
See, e.g., Timmons v. Twin Cities Area New Party, 520 U. S. 351. Doe
v. Reed, 561 U. S. ___, distinguished. Pp. 8–10.
(d) The additional arguments raised in Carrigan’s brief were not
decided below or raised in his brief in opposition and are thus consid
ered waived. P. 11.
126 Nev. 28, 236 P. 3d 616, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, SOTOMAYOR, and KA-
GAN, JJ., joined. KENNEDY, J., filed a concurring opinion. ALITO, J.,
filed an opinion concurring in part and concurring in the judgment.
Cite as: 564 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–568
_________________
NEVADA COMMISSION ON ETHICS, PETITIONER v.
MICHAEL A. CARRIGAN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
NEVADA
[June 13, 2011]
JUSTICE SCALIA delivered the opinion of the Court.
The Nevada Supreme Court invalidated a recusal provi
sion of the State’s Ethics in Government Law as unconsti
tutionally 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 con
sideration of, a matter with respect to which the inde
pendence 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).1 Section
——————
1 At the time of the relevant events in this case, the disclosure and
recusal 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., ch. 257, §9.5, p. 1057, but those changes are not relevant here.
2 NEVADA COMM’N ON ETHICS v. CARRIGAN
Opinion of the Court
281A.420(8)(a)–(d) of the law defines the term “commit
ment in a private capacity to the interests of others” to
mean a “commitment to a person” who is a member of the
officer’s household; is related by blood, adoption, or mar
riage to the officer; employs the officer or a member of his
household; or has a substantial and continuing business
relationship with the officer. Paragraph (e) of the same
subsection adds a catchall to that definition: “[a]ny other
commitment or relationship that is substantially similar”
to one of those listed in paragraphs (a)–(d).
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 Com
pany, 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 will
ful, 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 obliga
tions under the Ethics in Government Law.)
Cite as: 564 U. S. ____ (2011) 3
Opinion of the Court
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 found to have violated were unconstitutional under
the First Amendment. The District Court denied the
petition, but a divided Nevada Supreme Court reversed.
The majority held that voting was protected by the First
Amendment, and, applying strict scrutiny, found that
§281A.420(8)(e)’s catchall definition was unconstitution
ally overbroad. 126 Nev. 28, ___–___, 236 P. 3d 616, 621–
624 (2010).
We granted certiorari, 562 U. S. ___ (2011).
II
The First Amendment prohibits laws “abridging the
freedom of speech,” which, “ ‘as a general matter . . . means
that government has no power to restrict expression be
cause of its message, its ideas, its subject matter, or its
content.’ ” Ashcroft v. American Civil Liberties Union, 535
U. S. 564, 573 (2002) (quoting Bolger v. Youngs Drug
Products Corp., 463 U. S. 60, 65 (1983)). But the Amend
ment has no application when what is restricted is not
protected speech. See, e.g., Roth v. United States, 354
U. S. 476, 483 (1957) (obscenity not protected speech). The
Nevada Supreme Court thought a legislator’s vote to be
protected speech because voting “is a core legislative
function.” 126 Nev., at ___, 236 P. 3d, at 621 (internal
quotation marks omitted).
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 advo
4 NEVADA COMM’N ON ETHICS v. CARRIGAN
Opinion of the Court
cating 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 “advocat[ing]” at the legislative
session was a reasonable time, place and manner limita
tion. See Clark v. Community for Creative Non-Violence,
468 U. S. 288, 293 (1984).
III
“[A] universal and long-established tradition of prohibit
ing certain conduct creates a strong presumption that the
prohibition is constitutional: Principles of liberty funda
mental enough to have been embodied within constitu
tional guarantees are not readily erased from the Nation’s
consciousness.” Republican Party of Minn. v. White, 536
U. S. 765, 785 (2002) (internal quotation marks omitted).
Laws punishing libel and obscenity are not thought to
violate “the freedom of speech” to which the First Amend
ment refers because such laws existed in 1791 and have
been in place ever since. The same is true of legislative
recusal rules. The Nevada Supreme Court and Carrigan
have not cited a single decision invalidating a generally
applicable conflict-of-interest recusal rule—and such rules
have been commonplace for over 200 years.
“[E]arly congressional enactments ‘provid[e] contempo
raneous and weighty evidence of the Constitution’s mean
ing,’ ” Printz v. United States, 521 U. S. 898, 905 (1997)
(quoting Bowsher v. Synar, 478 U. S. 714, 723–724 (1986)).
That evidence is dispositive here. 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 Con
gress: The Federalist Period 1789–1801, p. 10 (1997)—was
Cite as: 564 U. S. ____ (2011) 5
Opinion of the Court
adopted within a week of that chamber’s first achieving a
quorum.2 The rule read: “No member shall vote on any
question, in the event of which he is immediately and
particularly interested.” 1 Annals of Cong. 99 (1789).
Members of the House would have been subject to this
recusal rule when they voted to submit the First Amend
ment for ratification; their failure to note any inconsis
tency between the two suggests that there was none.
The first Senate rules did not include a recusal require
ment, 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 con
cerned 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 fundamen
tal principles of the social compact, which denies to
any man to be a judge in his own case, it is for the
honor of the house that this rule, of immemorial ob
servance, 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 Parlia
mentary 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 coun
——————
2 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.
6 NEVADA COMM’N ON ETHICS v. CARRIGAN
Opinion of the Court
sel 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 bias or prejudice” a basis for recusal. Act of
Mar. 3, 1911, §21, 36 Stat. 1090. The current version,
which retains much of the 1911 version’s language, is
codified at 28 U. S. C. §144. See generally Liteky v. United
States, 510 U. S. 540, 544 (1994); Frank, Disqualification
of Judges, 56 Yale L. J. 605, 626–630 (1947) (hereinafter
Frank). There are of course differences between a legisla
tor’s vote and a judge’s, and thus between legislative and
judicial recusal rules; nevertheless, there do not appear to
have been any serious challenges to judicial recusal stat
utes as having unconstitutionally restricted judges’ First
Amendment rights.3
The Nevada Supreme Court’s belief that recusal rules
violate legislators’ First Amendment rights is also incon
sistent with long-standing 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 com
missioners be interested, he shall not serve”); Commis
sioners’ Court v. Tarver, 25 Ala. 480, 481 (1854) (“If any
member . . . has a peculiar, personal interest, such mem
ber would be disqualified”); Stubbs v. Florida State Fi
nance Co., 118 Fla. 450, 451, 159 So. 527, 528 (1935) (“[A]
public official cannot legally participate in his official
——————
3 We have held that restrictions on judges’ speech during elections are
a different matter. See Republican Party of Minn. v. White, 536 U. S.
765, 788 (2002) (holding that it violated the First Amendment to
prohibit announcement of views on disputed legal and political issues
by candidates for judicial election).
Cite as: 564 U. S. ____ (2011) 7
Opinion of the Court
capacity in the decision of a question in which he is per
sonally and adversely interested”).4 Today, virtually every
State has enacted some type of recusal law, many of
which, not unlike Nevada’s, require public officials to
abstain from voting on all matters presenting a conflict
of interest. See National Conference of State Legisla
tures, Voting Recusal Provisions (2009), online at http://
www.ncsl.org/?TabID=15357 (as visited June 9, 2011, and
available in Clerk of Court’s case file).
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 Clark v. United States, 886
F. 2d 404 (CADC 1989); Miller v. Hull, 878 F. 2d 523 (CA1
1989); and Camacho v. Brandon, 317 F. 3d 153 (CA2
2003)). Even if they were relevant, those cases would be
too little and too late to contradict the long-recognized
need for legislative recusal. But they are not relevant.
The first was vacated as moot, see Clark v. United States,
915 F. 2d 699, 700, 706 (CADC 1990) (en banc), and the
other two involve retaliation amounting to viewpoint
discrimination. See Miller, supra, at 533; Camacho, su
pra, at 160. In the past we have applied heightened scru
tiny to laws that are viewpoint discriminatory even as to
speech not protected by the First Amendment, see R. A. V.
v. St. Paul, 505 U. S. 377, 383–386 (1992). Carrigan does
——————
4A 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 (“[W]henever
any Judge of Probate shall be interested in the estate of any person
deceased, within the county of such Judge, such estate shall be settled
in the Probate Court of the most ancient next adjoining county . . .”);
Macon v. Huff, 60 Ga. 221, 223–226 (1878). See generally Frank 609–
626.
8 NEVADA COMM’N ON ETHICS v. CARRIGAN
Opinion of the Court
not assert that the recusal laws here are viewpoint dis
criminatory, nor could he: The statute is content-neutral
and applies equally to all legislators regardless of party or
position.
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 com
mitment 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. As we said in Raines v. Byrd, 521
U. S. 811, 821 (1997), when denying Article III standing to
legislators who claimed that their voting power had been
diluted by a statute providing for a line-item veto, the
legislator casts his vote “as trustee for his constituents,
not as a prerogative of personal power.” In this respect,
voting by a legislator is different from voting by a citizen.
While “a voter’s franchise is a personal right,” “[t]he pro
cedures for voting in legislative assemblies . . . pertain to
legislators not as individuals but as political representa
tives executing the legislative process.” Coleman v. Miller,
307 U. S. 433, 469–470 (1939) (opinion of Frankfurter, J.).
Carrigan and JUSTICE ALITO say that legislators often
“ ‘us[e] their votes to express deeply held and highly un
popular 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; ( )
Cite as: 564 U. S. ____ (2011) 9
Opinion of the Court
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. But
neither the one nor the other is an act of communication.
Cf. Rumsfeld v. Forum for Academic and Institutional
Rights, Inc., 547 U. S. 47, 66 (2006) (expressive value was
“not created by the conduct itself but by the speech that
accompanies it”).
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 Em
bargo Act of 1807, see post, at 1. 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.
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 exam
ple, in Timmons v. Twin Cities Area New Party, 520 U. S.
351 (1997), we upheld a State’s prohibition on multiple
party or “fusion” candidates for elected office against a
10 NEVADA COMM’N ON ETHICS v. CARRIGAN
Opinion of the Court
First Amendment challenge. We admitted that a State’s
ban on a person’s appearing on the ballot as the candidate
of more than one party might prevent a party from “using
the ballot to communicate to the public it supports a par
ticular candidate who is already another party’s candi
date,” id., at 362; but we nonetheless were “unpersuaded
. . . by the party’s contention that it has a right to use the
ballot itself to send a particularized message.” Id., at 362–
363; see also Burdick v. Takushi, 504 U. S. 428, 438
(1992). In like manner, a legislator has no right to use
official powers for expressive purposes.
Carrigan and JUSTICE ALITO also cite Doe v. Reed, 561
U. S. ___ (2010), as establishing “the expressive character
of voting.” Post, at 2; see also Brief for Respondent 26.
But Reed did no such thing. That case held only that a
citizen’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 per
tained, 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.5
——————
5 JUSTICE ALITO reasons as follows: (1) If an ordinary citizen were to
vote in a straw poll on an issue pending before a legislative 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 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,
Cite as: 564 U. S. ____ (2011)
11
Opinion of the Court
V
Carrigan raises two additional arguments in his brief:
that Nevada’s catchall provision unconstitutionally bur
dens the right of association of officials and supporters,
and that the provision is unconstitutionally vague. What
ever 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 reso
lution 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 consid
ered 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.
* * *
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.
——————
see supra, at 8; only the latter is exercising personal First Amendment
rights.
Cite as: 564 U. S. ____ (2011) 1
KENNEDY, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–568
_________________
NEVADA COMMISSION ON ETHICS, PETITIONER v.
MICHAEL A. CARRIGAN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
NEVADA
[June 13, 2011]
JUSTICE KENNEDY, 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 consider
able 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 provi
sions here at issue challenged or considered from the
standpoint of burdens they impose on the First Amend
ment 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 commu
nications 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
2 NEVADA COMM’N ON ETHICS v. CARRIGAN
KENNEDY, J., concurring
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 democ
racy that it is difficult to describe in summary form, lest
its fundamental character be understated. It may suffice,
however, to note just a few examples.
Assume a citizen has strong and carefully considered
positions on family life; the environment; economic princi
ples; 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 elec
tion 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
Cite as: 564 U. S. ____ (2011) 3
KENNEDY, J., concurring
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 interpre
tation, 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.
The application of the statute’s language to the case just
supposed, and to any number of variations on the supposi
tion, is not apparent. And if the statute imposes unjusti
fied 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, 553 U. S. 285, 292–293, 304 (2008). A statute of
this sort is an invitation to selective enforcement; and
even if enforcement is undertaken in good faith, the dan
gers of suppression of particular speech or associational
ties may well be too significant to be accepted. See Gentile
v. State Bar of Nev., 501 U. S. 1030, 1051 (1991).
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 cam
paign 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).
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
4 NEVADA COMM’N ON ETHICS v. CARRIGAN
KENNEDY, J., concurring
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 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 govern
ment. 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. See ibid.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., 556 U. S. ___
(2009); but as the foregoing indicates, it is not at all clear
that a statute of this breadth can be enacted to extend
principles of judicial impartiality to a quite different con
text. 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 legiti
mate 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 constitu
tional 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 10.
Cite as: 564 U. S. ____ (2011) 1
Opinion of ALITO, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–568
_________________
NEVADA COMMISSION ON ETHICS, PETITIONER v.
MICHAEL A. CARRIGAN
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
NEVADA
[June 13, 2011]
JUSTICE ALITO, 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 legislators’ voting are not restrictions upon legisla
tors’ speech. Ante, at 8. As respondent notes, “[o]ur his
tory 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)).
In response to respondent’s argument, the Court sug
gests that the “expressive value” of such votes is “ ‘not
created by the conduct itself but by the speech that ac
companies it.’ ” Ante, at 9. 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 every
one who was interested in the bills in question. Voting
has an expressive component in and of itself. The Court’s
2 NEVADA COMM’N ON ETHICS v. CARRIGAN
Opinion of ALITO, J.
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, be
cause 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 some
times 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, 561 U. S. ___ (2010). There, respondents argued
that “signing a petition is a legally operative legislative
act and therefore ‘does not involve any significant expres
sive element.’ ” Id., at ___ (slip op., at 6) (quoting Brief for
Respondent Reed 31). But the Court rejected this argu
ment, stating:
“It is true that signing a referendum petition may ul
timately have the legal consequence of requiring the
secretary of state to place the referendum on the bal
lot. 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 ___ (slip
op., at 6).
But cf. id., at ___ (SCALIA, J., concurring in judgment)
(slip op., at 1) (“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,
——————
* See 17 Annals of Congress 50 (1807); see also 15 id., at 201 (1806).
Cite as: 564 U. S. ____ (2011) 3
Opinion of ALITO, J.
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.