Las Vegas Sun

October 18, 2017

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Free speech v. disclosure

U.S. Supreme Court should consider public’s interest in Nevada case

A controversial proposal to build a casino came before the Sparks City Council in Northern Nevada in 2006. On the advice of the city’s attorney, Councilman Michael Carrigan disclosed that his good friend and campaign manager, Carlos Vasquez, was a consultant and spokesman for the casino project. Carrigan then participated in the discussion and voted to approve the casino.

Opponents of the casino complained to the Nevada Ethics Commission, saying he shouldn’t have voted because of his close relationship with Vasquez. The commission agreed, concluding that Carrigan had violated the state’s conflict-of-interest law. It found that under the law “a reasonable person in Councilman Carrigan’s position would not be able to remain objective” on matters brought by “his close personal friend, confidant and campaign manager, who was instrumental in getting Councilman Carrigan elected three times.”

The commission did not fine Carrigan, saying the violation was not willful, but Carrigan sued to get the decision overturned. He argued that the state law was unconstitutional and violated his First Amendment rights. The Nevada Supreme Court agreed, declaring an elected official’s vote “protected speech.”

The Ethics Commission appealed the decision to the U.S. Supreme Court, which will hold oral arguments on the case next week. This case will be closely watched across the nation. States have good-government laws regulating how public officials are supposed to handle conflicts of interest. Many states restrict elected officials with conflicts from voting. It’s an effort to keep government transparent and clean.

These types of laws have been challenged before, and courts across the country have come to different decisions on how to resolve the tension between the conflict-of-interest laws and elected officials’ First Amendment rights.

Several courts have said that the public’s interest in good government should be balanced against an elected official’s rights to determine whether a law is constitutional. Other courts have said that the laws should be reviewed by determining whether they are reasonable given the public’s interest, and that would tend to favor the public’s interest. The Nevada Supreme Court, in a 5-1 decision, followed another line of thinking that tends to favor elected officials’ rights.

In a vigorous dissent to that opinion, Justice Kristina Pickering said the majority’s approach is “unprecedented and unwise.” She said that an elected official’s vote “is first and foremost an act of governance.”

In our opinion, she’s correct.

Elected leaders certainly have a right to free speech, but they have an obligation to the people to work for the public’s good. For example, when elected officials are making decisions, they are supposed to hold votes in the open — they don’t have the secret ballot, as the average citizen does. That’s because the public’s interest in good government takes precedence over the elected officials’ rights. If elected leaders don’t like that, they have a choice — they don’t have to run for office.

However, if the Supreme Court simply says that voting is free speech, it will create a nightmare in government. Elected leaders could use their votes to pursue their own interests and claim that their vote as officeholders are a matter of free speech.

That doesn’t make sense because the public’s interest is too great. The justices should see that and overturn the Nevada court’s opinion.

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