Tuesday, June 14, 2011

Why power isn’t speech: Nevada Commission on Ethics v. Carrigan and the unraveling of campaign finance doctrine

Guest Blogger

Deborah Hellman

In an uncharacteristically short opinion, a unanimous Supreme Court decided Monday that Nevada’s Ethics in Government Law does not violate the First Amendment, and rightly so. The law requires that legislators abstain from voting on legislation when they have a conflict of interest. But the shortness of the opinion, and the unanimity of the judgment, suggest that the Court views the case as insignificant. This is a mistake. The decision, and more importantly its rationale, directly conflicts in two important respects with the Court’s recent holdings in campaign finance cases, including Citizens United.

First, Justice Scalia, writing for the Court in Nevada Commission on Ethics v. Carrigan, holds that a legislator’s vote does not constitute “speech” under the First Amendment because it is better understood as an exercise of “power”: “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.” While this seems right, one could – and should – make the same argument about a political candidate spending her own money to get elected. The fact that wealthy candidates spend their own money on their campaigns is also an exercise of power. While the government power granted to legislators is not the same as the power enabled by wealth, both are forms of power and not forms of speech.

Second, Justice Scalia rejects the argument that even if voting is the exercise of power and therefore action rather than speech, it is symbolic action expressing a legislator’s view, much like flag burning is symbolic action expressing the anti-government view of the flag-burner. He rejects this argument on the grounds that voting isn’t expressive enough. A legislator might have a strong view about the particular matter when he casts a vote, or he might simply be voting to please contributors or the party, Scalia notes. Again, Justice Scalia is correct. But why then think that contributing to campaigns is protected First Amendment activity? Surely giving money to campaigns is less expressive than voting for a proposed bill. And the reasons the Court offers for thinking that voting isn’t expressive enough -- that it has several possible meanings – are all true of campaign giving as well. You might give to a candidate because you strongly support him or because a friend invited you to a fundraiser or because, while you disagree with his views, your business interests will benefit. Yet current First Amendment doctrine treats restrictions on giving to political campaigns as protected First Amendment activity and therefore allows only modest restrictions.

There is a deeper point to stress here. The Court in Carrigan rightly finds that the First Amendment should not be understood to bar legislatures from adopting rules that safeguard government from important conflicts of interest. A legislator voting on a bill that would directly benefit him financially, or benefit his family or close friends, presents such a conflict. But our current method of funding campaigns, in which candidates are often beholden to large contributors or those with access to large contributors, presents a similar conflict for legislators. The rationale offered by the Court today for upholding laws that prevent corruption and conflict of interest can be easily extended to unravel the Court’s campaign finance doctrine. And it should.

Deborah Hellman is Professor of Law at the University of Maryland School of Law. You can reach her by e-mail at