Ethics laws are like grading on a curve. There is no strict standard. No firm footing. Just a vague feeling of what’s right and wrong. It is matter of one person’s judgment over another’s.
So the U.S. Supreme Court was correct Monday when it remanded a Nevada Supreme Court ruling that declared the state ethics law unconstitutional on First Amendment grounds. A lawmaker’s vote is not an expression of free speech, it is the proxy delegated to the lawmaker by his constituents.
The case involved Sparks City Council member Michael Carrigan, who in 2005 voted to approve a casino project being advanced by his campaign manager. Carrigan was advised by the Sparks city attorney’s office that he would satisfy state ethics law if he disclosed his relation prior to the vote, but the Nevada Commission on Ethics censured Carrigan for failing to abstain.
The ethics commission was wrong to censure Carrigan, not because it limited his free speech rights, but because that is the role of the voters who put Carrigan in office, not some appointed body in the executive branch of state government. It is a separation of powers issue.
One of the core underpinnings of the U.S. and Nevada constitutions is the dilution of power — no one branch can dictate to another. There should be checks and balances, but not total usurpation of power. An executive branch body should not be able to deny a legislative branch elected official the ability to represent his constituents.
In his ruling for the unanimous court, Justice Antonin Scalia pointed out speech can be restricted by time, place and manner. He also noted that conflict of interest standards are common and quoted from Thomas Jefferson’s rule adopted when he was President of the Senate:
“Where the private interests of a member are concerned 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 fundamental 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 observance, should be strictly adhered to.”
Yes, but those are rules the Senate imposed on itself, not imposed by a separate branch of government, and they were imposed prior to the writing of the Constitution.
Elected officials are constrained in many ways that may not be imposed on the unelected citizen. Laws require transparency and disclosure so the voters can observe and judge for themselves if their elected officials are complying with their expectations.
But like so many in today’s society, our lawmakers wish no harm to ever befall anyone ever. They try to pull a giant prophylactic over every possible deed.
One of the objectives of the state ethics law is that in order to “enhance the people’s faith in the integrity and impartiality of public officers and employees, adequate guidelines are required to show the appropriate separation between the roles of persons who are both public servants and private citizens.”
Voters don’t need faith, they need hard facts and observable behavior. That is what open meeting and public records laws are for. Carrigan disclosed his relationship for all to see and pass judgment at the voting booth. Ethics laws can be manipulated by the unscrupulous. Give enough to campaign donations to key lawmakers and you can change the outcome of a vote.
The Carrigan case was appealed on the wrong grounds. The state Supreme Court has already sufficiently ruled on the constitutionality of the ethics law in an earlier case, Commission on Ethics v. Hardy.
In that case the ethics panel was investigating whether state Sen. Warren Hardy had adequately disclosed potential conflicts of interest prior to voting on a piece of legislation.
The court’s per curiam opinion stated:
“Based on our review of the Nevada Constitution and relevant legal authority, we conclude that to the extent that a legislator’s conduct, resulting in a disciplinary proceeding, involves a core legislative function such as voting and, by extension, disclosure of potential conflicts of interest prior to voting, any discipline of the legislator is a function constitutionally committed to each house of the Legislature by Article 4, Section 6 of the Nevada Constitution, and that this power cannot be delegated to another branch of government. We further hold that the Commission is an agency of the executive branch, and thus, any delegation to the Commission of each house of the Legislature’s power to discipline its members for disorderly conduct involving core legislative function activities runs afoul of the separation of powers doctrine and is therefore unconstitutional. Finally, we hold that the Legislature cannot waive constitutionally based structural protections such as the separation of powers doctrine.”
Exactly. If someone takes a bribe, that’s a crime. Indict him. If someone crosses the blurred ethics line, we don’t need a committee with tape measures.
As James Kilpatrick used to say, this court of peeves, crotchets and irks is gaveled to adjournment.
While our State Supreme Court leaves lots to be desired, Wisconsin’s did a good thing today! http://tinyurl.com/3h7rk3h
They voted FOR jobs, not last in first out for one example.
Of course, AP would never editorialize by calling the law “a polarizing union law that strips most public employees of their collective bargaining rights …” Would they?
Well that liberal bias is unavoidable, some of us just jump right over it. Kinda like Jerry.Sturdivant posts on Sherms Blog, they become mere annoyances in my day to day life. I only apply attention when it is time to vote.
Yes. No one seems to have asked how far the executive branch, in the form of an “Ethics Commission,” can go to impact “divisions” of the Legislature under the broad power now endorsed by the (unanimous?) court.
What would prevent the Ethics Commission from simplifying things by now simply issuing a list of mandatory legislative “abstentions” prior to each session: “On any vote concerning budgets, the following legislators shall not vote because either they or their spouse draws a government paycheck; on any vote concerning funding of the state retirement system, the following legislators shall not vote because either they or their spouse draws a government retirement check …”
So far, I imagine many voters are shouting “Yay!”
But they wouldn’t stop there, would they? “On any vote impacting labor unions, the following members or employees of labor unions, including public-school teachers, who sit in the Legislature shall not be allowed to vote …
“On any vote raising taxes on PRIVATE employers, the following legislators shall not vote because said vote would impact THEIR businesses or employers” … leaving such matters to be decided by the government employees in the Legislature ONLY.
I doubt we’d have to search long to find important matters that come before our state legislators from time to time, on which an energetic Ethics Commission might rule three dozen members ineligible to vote based on palpable conflicts of interest, leaving such matter to be decided by six retired ranchers from Austin, Spring Creek, and Eureka.
Feel “well represented,” now?
The “Progressive”solution? Why, the Legislature should be made up of an unsullied class of “pure” academic minds who have never been “conflicted” by exposure to the real commercial world in any way. In fact, their entire sustenance should be provided them in the equivalent of sacred caves, so they wouldn’t even feel a “conflict” in voting for measures which would triple the price of groceries and gasoline and haircuts, since they would never be allowed out in the real world to BUY groceries and gasoline and haircuts, all of which would be provided FOR them!
Or have I just described the U.S. Congress and White House?
– V.S.
That describes our Congress and White House.
Vin has as interesting take on this topic, as usual.
http://www.lvrj.com/blogs/vin/Finall_weve_found_someone_to_take_custody_of_the_custodians.html#blogcomments?submitted=y
[...] who are both public servants and private citizens.” That’s another mental prophylactic, someone observed. Voters don’t need faith, they need hard facts and observable behavior. That is what open [...]