Across the country, federal, state and local governments have enacted – and strengthened – conflict of interest restrictions on how their elected officials vote as a way to prevent those officials from voting in their own self-interest To those who argue that such a restriction on voting violates his or her First Amendment Right to free speech, the Supreme Court has unanimously said no. In the case of Nevada Commission on Ethics v. Carrigan, 563 U.S. ___(2011), the Court has decided that the First Amendment Rights of a city council member from Sparks, Nevada were not violated when he was censured by the state Commission on Ethics for a vote on a project connected to his campaign manager. This decision continues the trend going on the local, state and federal level to hold government more accountable and serves as a warning for those who serve in government as well as those seeking to do business with it.

Michael Carrigan, a member of the Sparks City Council, was found by the Nevada Commission on Ethics to have violated the Nevada’s Ethics in Government Law — which broadly defines conflicts of interest — when he voted to approve an application for a hotel/casino project in Sparks that his friend and long-time campaign manager worked for as a paid consultant. The Nevada Supreme Court decided that his First Amendment rights had been violated.

When it comes to the First Amendment, a vote by an elected official is not the same as a vote by a private citizen. In reversing the decision by the Nevada Supreme Court, the Court took care to distinguish the fact that the elected official was acting in his official capacity, in this case by voting. This is not protected speech when it comes to the First Amendment, wrote Justice Scalia, speaking for the majority: “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. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it” (slip opinion at Page 8). Justice Scalia also strongly rejected the argument that a vote represents some form of symbolic speech that merits protection under the First Amendment, questioning how a legislator would indicate, or whether he would even wish to indicate, the symbolic meaning behind his vote.

What’s next? The Court’s decision upholding Nevada’s Ethics in Government Law as constitutional supports the many conflicts of interests restrictions on elected officials that are in place across the country. However, an opening may remain to challenge part of Nevada’s law: that which bans activity affected by an elected officials “commitment in a private capacity to the interests of others” Nev. Rev. Stat. Section 281A.420. Justice Kennedy, in his concurring opinion, noted that this might be too broad a category and could encompass an elected official’s relationship with supporters, many of who might reasonably expect the official to vote a certain way on a matter. Kennedy writes that “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” (slip opinion at Page 4). This question was not brought up before the Court however and therefore not considered in its decision. But governments should consider Justice Kennedy’s opinion as a warning when writing and enforcing their conflicts of interest restrictions. Defining a conflict of interest as broadly as Nevada may have future constitutional concerns.