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.