Supreme Court Hears Free Speech Challenge To Recusal Rules

In it’s final case of the 2010 term, the Supreme Court today heard arguments that Nevada ethics rules violate First Amendment free-speech rights when they prevent a legislator from voting on an issue that would affect himself or his associates.

The case stems from the censure of a city councilman in Sparks, Nevada who voted in favor of a zoning change that would benefit his former campaign chairman. The councilman, Michael Carrigan, argues that his vote is protected political speech, and that the ethics rule is too vague to be constitutionally enforced. The Nevada Commission on Ethics argues that ethics and recusal rules have a long history in this country, dating back to the first Congress, and that the rules apply equally to everyone, so there is no First Amendment problem.

The Justices in the Court today seemed to be hesitant to even pass judgment on the rules. Justices Antonin Scalia, who usually votes with the conservative wing of the Court, and Stephen Breyer, who usually votes with the liberals, both Indicated they thought the case, and any internal-oversight issues, ought to be kept internal and not subject to judicial review. Justice Breyer noted that there is a judicial code of ethics, and no one seemed to have a problem with claims being decided on a case-by-case basis. Justice Scalia was more concerned with separation of powers issues, asking whether the Court could be asked to make rulings on the allocation of time or vote counting in Congress. Scalia, who was harshly criticized for not recusing himself in a case involving Vice President Dick Cheney after going on a hunting trip with Cheney, jokingly asked if he could use this case to get out of the judicial ethics rules.

Only Justice Samuel Alito expressed concern with the rule’s vagueness, noting that if he were running for a political office, he “would find it difficult” to know what was covered. Carrigan’s lawyer repeatedly argued that a candidate would have to consider, even when choosing campaign volunteers, what issues might come before him if elected: if a volunteer were later involved with an organization that came before the legislator, the lawyer argued, these rules would require recusal.

While the Justices acknowledged a tension, they appeared to have faith in the long history of internal ethics oversight commissions. Since the commissions are enforcing rules passed by the legislators themselves, Justice Scalia pointed out, the rules can always be fixed if applied improperly.

The case, Nevada Ethics Commission v. Carrigan, will be decided in the next few months.