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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 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. 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, the procedures for voting in legislative assemblies pertain to legislators not as individuals but as political representatives executing the legislative process.
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 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), which includes a “commitment 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 commitment or relationship that is substantially similar” to one enumerated 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 manager as a paid consultant. The Commission concluded that Carrigan had a disqualifying conflict of interest under § 281A.420(8)(e)'s catchall provision, and censured him for failing to abstain from voting on the project. Carrigan sought judicial review, arguing that the Nevada 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.
Is the Nevada Ethics in Government Law unconstitutionally overbroad?
The United States Supreme Court determined that the recusal provision of the Ethics in Government Law was not unconstitutionally overbroad under the First Amendment because legislators lacked a personal First Amendment right to vote on any given matter. A legislator's vote was not protected speech, because, inter alia, (1) the belief that recusal rules violated legislators' First Amendment rights was inconsistent with early congressional enactments and long-standing state traditions, (2) a legislator's vote was the commitment of his apportioned share of the legislature's power to the passage or defeat of a particular proposal and the legislative power thus committed was not personal to the legislator but belonged to the people, (3) the fact that a non-symbolic act was the product of a deeply held personal belief did not transform action into First Amendment speech, and (4) a legislator had no right to use official powers for expressive purposes.