Nevada Commission on Ethics v. Michael A. Carrigan

Oral argument transcript · No. 10-568 · October Term 2010 · argued April 27, 2011 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• John P. Elwood, Washington, D.C., for the petitioner
• E. Joshua Rosenkranz, New York, New York, for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: Our last argument of the term is in Case 10-568, Nevada Commission on Ethics v. Carrigan. Mr. Elwood. ORAL ARGUMENT OF JOHN P. ELWOOD ON BEHALF OF THE PETITIONER

John P. Elwood: Mr. Chief Justice, and may it please the Court: Neutral laws requiring official recusal for conflict of interest do not abridge free speech because a legislator's vote, however expressive, is not protected speech. It is, rather, a legally binding exercise of State power that he wields as an incident of public office. The Nevada Supreme Court concluded that Respondent did have a free speech right to vote, and that overrode the Nevada recusal statute. For four reasons, that holding was error. First, since the earliest days of the Republic recusal rules have been understood to serve important interests unrelated to any views a legislator may want to express, by requiring disqualification when circumstances indicate that private interests may have Alderson Reporting Company affected his independence of judgment.

Justice Kennedy: The -- the -- the case is -- is presented to us with briefs that seem to pass in the night. Your emphasis was on whether or not there was a right to vote that's protected under the First Amendment, and -- which is what the Nevada court held and you're quite correct to address it. But the Respondent says: Well, this interest has a chilling effect on -- on protected speech. I think we have to reach both parts of that argument. Do you -- DO you agree with me?

John P. Elwood: I think that the Court could simply address what the Nevada Supreme Court did and tell it whether it got it right or got it wrong, whether there's a speech interest, and what -- whether that is subject to strict scrutiny or not. But I think that, even though that argument I don't think was raised or passed on below, that the Court would have discretion to address that. I think it would give additional guidance to the Nevada Supreme Court.

Justice Kennedy: Well, if we -- if we say that intermediate scrutiny is the test, even under that test, certainly under that test, the regulation cannot chill speech any more than necessary to fulfill the Alderson Reporting Company governmental interests, even under the intermediate standard.

John P. Elwood: I -­

Justice Kennedy: And -- and it just seems to me it's difficult for it to just address the standard of proof without deciding the case. Maybe you're right. Maybe we can just answer the -- the question that was certified and -- and send it back, if -- if you prevail. I'm not sure.

John P. Elwood: I think -- I think you're right, Justice Kennedy, that it would provide more guidance to the Nevada Supreme Court. It would be a pretty narrow reversal and remand, assuming that the Court merely reached the speech question. But on the associational question, I think it's important to emphasize from the outset that I think this would have a negligible effect on association, because it simply would not apply all that frequently. In order for the recusal statute to apply, two circumstances have to be simultaneously met. First, there has to be a qualifying relationship which is close and ongoing, and simultaneously it must have the -- it must -- the third party must have a private, usually pecuniary, interest before that same legislator.

Justice Ginsburg: As I understand the Alderson Reporting Company objection, it's not to the recusal rules in general, but it's to the vagueness of this particular one. As I understand it, there's no concern about the specific categories that were mentioned, like family member or employer.

John P. Elwood: That is correct, Justice -­

Justice Ginsburg: So we're dealing not with can you have recusal rules. Everybody believes, yes, you can. It's the degree of specificity.

John P. Elwood: Well, that was the basis of the holding of the Nevada Supreme Court, was that those implicated speech rights and that all of them would be subject to strict scrutiny. So from the outset, we may all be agreed that the court below applied fundamentally too high a level of scrutiny.

Justice Kennedy: But the -- the objection to the statute on the grounds that it's vague doesn't go away simply because intermediate scrutiny applies, does it, assuming intermediate scrutiny?

John P. Elwood: No, but I think that the -- our response to the vagueness argument is that Respondent concedes that the four categories for members of your households, relatives, employers, and business relationships are clear. He says that on page 2 of his brief. So the question is whether the "substantially Alderson Reporting Company similar" language gums up the works, essentially. Now, "substantially similar" is a statutory phrase that has had to have been used by every State legislature in the country and by Congress.

Justice Ginsburg: But not in this context. And you don't disagree that -- I forgot which brief told us that there's no State has a similar catch-all.

John P. Elwood: Well, first, I would disagree with the characterization of it as a catch-all, because it only sweeps in relationships that are substantially similar. But Seattle, for example, has a, what is a true catch-all, which sweeps in -- it applies "whenever it could appear to a reasonable person having knowledge of the relevant circumstances that the covered individual's judgment is impaired because of either a personal or business relationship not covered under subsection A or B above," which lists the covered relationships, "or a transaction or activity engaged in by the covered individual." So while Nevada may be the only statute that applies "substantially similar" to these four categories, it is not alone in that structure. And I think more importantly, it is not anywhere close to alone in its breadth. The New Jersey statute is I think, if anything, broader: "A direct or indirect Alderson Reporting Company financial or personal involvement." There are numerous State statutes which apply to business associates.

Justice Alito: Well, I found this statute very difficult to understand, but maybe you can explain what's -- what I found a bit puzzling. The statute talks about a commitment in a private capacity to the interests of others. Now, I take it that that commitment doesn't have to be something contractual. When you're talking about relatives, that would assume -- that that would include emotional commitments to the relatives who are listed; is that correct?

John P. Elwood: I think it would include the things -- the same things that are covered by ordinary -- every other recusal statute, which is very close personal relationships and relationships that give rise to a financial interest on the -- for the public official. And we're not talking about, you know -­

Justice Alito: Not -- not a financial interest of the public official, a financial interest of the -- the relative or the person who is substantially similar to a relative. Or is that wrong?

John P. Elwood: Well, I think that in the case of the relative, yes, it's the financial interest of the relative, and that's why the very close personal Alderson Reporting Company relationship. But all of the other relationships for members of the household, who are presumably part of the same economic unit, and for employers, in whom the officer has obviously a very close financial interest and they're tied together, and for business relationships, all of those are to get at the financial interests of the officer, not of the third party.

Justice Alito: Maybe if I give you an example it will be clearer. Let's take somebody who is within the third degree of consanguinity. So that would include second cousins?

John P. Elwood: Yes.

Justice Alito: Okay. Now, let's say a public officer is considering something that would affect everybody's property taxes in town or a measure that would affect the benefits or the wages of everybody who works for the town. And this official has a second cousin whose property taxes would be affected or works for the town, and the second cousin's wages or benefits would be affected. Now, would that person have to recuse?

John P. Elwood: I think that the -- it would depend on a couple of things. First of all, it is a covered relationship, the second cousin would be a covered relationship. And -- and I think the interest Alderson Reporting Company there I think would be the subject of some debate whether it is a private interest because it is a broadly shared interest. But I suppose because his property taxes might increase, it would be a private interest. There is still the question of whether a reasonable person under those circumstances would view his -- his judgment, his independence of judgment, as being materially affected.

Justice Alito: Well, if I were a public officer I would find it very difficult to figure out whether a reasonable person would think that an effect on my second cousin's property taxes would require -­ would materially affect my judgment. But it's even worse than that because of the "substantially similar." So the public officer not only has to think about second cousins; the person has to think about everybody who is like a second cousin to him or her. I have no idea how you -- how you go about that.

John P. Elwood: Well, the way that that has been defined, and this appears -- this is not just a Nevada Commission on Ethics interpretation. This is what the legislature understood it to mean, if you look at the legislative history, when they added the statute in 1999. What they were looking for by adding the "substantially similar" relationships were relationships Alderson Reporting Company that were substantially similar to household and substantially similar to family. And what is at issue there is not the fact that you have a genetic similarity makes you more likely to see things their way, but that families are presumed to be among your closest relationships.

Justice Kennedy: Suppose that you spent your life in the civil rights movement or the right to bear arms movement or one or the other sides of the abortion debate, and these are your acquaintances, this is your -- it's been one of your principal activities, not for pay, but just because of your civic commitment. And then you are elected to the legislature and under this Nevada statute that controls, must you recuse whenever an officer of that association has -- is paid?

John P. Elwood: No, Your Honor. Because, to begin with, a personal relationship, it only covers the very closest personal relationships. So your most intimate and closest relationships on earth would be covered.

Justice Kennedy: They have coffee together every morning and they're in the same book club.

John P. Elwood: And even that, Justice Kennedy, applies with extraordinary rareness. The last case that I'm aware of where personal interests alone justified Alderson Reporting Company recusal was in 1999 before the statute was amended.

Justice Scalia: Mr. Elwood, for me at least we've -- we've jumped way ahead. I'm not so much concerned about the vagueness as I am about the proposition that ethical rules adopted by legislatures for voting are subject to review by this Court or by any court under the First Amendment. This is the first case I'm aware of that we've ever had which makes such an allegation or -- I'm not even aware of any other case in 220 years in Federal courts. And it's certainly not because legislative rules have not been vague. The first Congress adopted a rule that, quote, "No member shall vote on any question in the event of which he is immediately and particularly interested." I don't consider that very precise. And the rules adopted by Thomas Jefferson for the Senate, "Where the private interests of a member are concerned in a bill or question, he is to withdraw." "The private interests," what does that mean? "And where such an interest has appeared, his voice is disallowed, even after a division." Now, that's been around in our Congress forever, but our Constitution provides that -- that the rules of the legislature are to be determined by Congress and not by this Court, and I am sure we would Alderson Reporting Company not, we would not review those rules. Now, is there a contradiction between leaving those rules to Congress and the First Amendment? Do you really think that -­ that the two are set in opposition to each other?

John P. Elwood: Certainly, Justice Scalia, I would not think so. And this is the first case that I'm aware of, it's the first time anyone has said it to my knowledge. I don't even know of law review articles that said it before basically the decision that is under review for neutral laws of general applicability. But to return to Justice Kennedy's question, what this law -­

Justice Breyer: You agree with Justice Scalia?

John P. Elwood: I agree emphatically with Justice Scalia, except that I could never put it as well as he did.

Justice Scalia: You're ending up skirmishing on what seems to me a less significant aspect of this case. This case is enormously important on that major question. I'm not inclined to resolve it on the question, well, you know, this is too vague. I mean, it's even vaguer than what the first Congress adopted. It seems to me that just opens, opens the door to future litigation challenging ethical rules, which -­ Alderson Reporting Company which does not make me happy.

John P. Elwood: It is true. And in addition to that, to expand it even more, apply it even more broadly, with the exception of essentially the D.C. Circuit's opinion in Clarke v. United States, this is the first opinion I'm aware of where anyone has even held that there is a First Amendment interest in any sort of expressive official act.

Chief Justice Roberts: You modified your answer to Justice Scalia by saying you're not aware of any case that applied the First Amendment to rules of general -- neutral rules of general applicability, I think. But if the First Amendment doesn't apply, that doesn't matter, does it? You can't limit your -- the type of rules that you say are not -- are okay and are not if the First Amendment doesn't apply at all?

John P. Elwood: I'm not sure I understand your question, Justice, but I think -­

Chief Justice Roberts: Well, if the First Amendment doesn't apply to this type of activity, then you would have no First Amendment objection to biased rules of specific applicability.

John P. Elwood: Oh, absolutely we would, because I think R.A.V. v. City of St. Paul speech that is subject to prescription can't be regulated in a Alderson Reporting Company viewpoint-based manner.

Chief Justice Roberts: I thought your position was that this wasn't speech protected by the First Amendment.

John P. Elwood: But even speech that is not protected by the First Amendment, such as fighting words in R.A.V., can't be regulated in a viewpoint-based manner.

Chief Justice Roberts: So someone can challenge one of these rules on the grounds that it's not neutral, that it applies in a disproportionate way to particular members of the legislature?

John P. Elwood: I think they could challenge it in a way -- alleging that it was viewpoint-based if it were only applied to Democrats or Republicans. But I don't think that if it were an otherwise normally applicable rule that it would be subject to challenge on that basis. That is the relevance of neutrality.

Justice Kagan: I'm not sure why you should concede even that, Mr. Elwood. If this is just conduct, if this is not proscribable speech of the kind that R.A.V. was talking about, why should we care about the viewpoint based doctrine that's arisen in First Amendment law?

John P. Elwood: Well, in the event, Justice Alderson Reporting Company Kagan, that is how I interpret R.A.V., that it would not be an available option to have a viewpoint-based recusal statute that affected things differently depending on viewpoint.

Chief Justice Roberts: Do you think that the rules in the House of Representatives allocating time on the floor or committee membership are neutral? They're biased in favor of whichever party happens to be in the majority.

John P. Elwood: They are -- I think that they're -- I think that they're neutrally applicable. I don't know that they would -- I am not aware of them applying different amounts of time to majority and minority members. I may be incorrect about that.

Justice Scalia: Well, and if they did we would review it.

John P. Elwood: I think that any time you're talking about -- I mean, depending on what the house is, there's an extra measure of deference when you're applying, obviously, to the houses of Congress.

Justice Scalia: Isn't that nice. But the cases come up here anyway, right?

John P. Elwood: They certainly do come.

Justice Scalia: Look, fighting words are words. They are speech. There's no doubt that they're Alderson Reporting Company speech. And it's a considerable question whether the vote of a legislature is speech for purposes of the first -- is speech at all, not whether it's a fighting speech or something else, whether it's speech. It's a vote.

John P. Elwood: But in any event, all the Court even needs to get to is whether laws of neutral applicability would be covered, because that's all this statute is.

Justice Alito: This statute doesn't apply just to voting. It says that the public officer shall not vote upon or advocate the passage or failure of the message.

John P. Elwood: But that is essentially -­

Justice Alito: Advocating the passage or failure of the message is surely speech in the ordinary understanding of the concept.

John P. Elwood: But that is to essentially complete the disqualification just as under Thomas Jefferson's recusal rule. When you were disqualified under Jefferson's rule, you were out of it. You couldn't essentially function as a legislator, and that's all that attempts to do. It hasn't been applied to Mr. Carrigan.

Justice Kennedy: It doesn't apply to Alderson Reporting Company outside advocacy? It just applies to advocacy within the limits -­

John P. Elwood: Absolutely. It does not apply to advocacy as a citizen outside the legislature.

Justice Kennedy: But even if you have a law which is not directed to speech and is directed at conduct which is not speech, that law is still -­ correct me if I'm wrong -- even under intermediate scrutiny, subject to invalidation if it has a chilling effect on -- on speech as an incidental matter, if that chilling effect is more than is necessary to accomplish the purpose of the statute. Isn't that correct?

John P. Elwood: I -- if it is reviewed -- I mean, it depends on the test you use. We don't think that O'Brien, which is a test that some of the amici have proposed, is an appropriate standard, because even O'Brien is talking about laws that have a much greater effect on expression because, after all, burning a draft card, one of the main reasons you would want to do that is an expressive reason. Whereas these really are laws that have nothing to do with what views people think you are going to be expressing. And we think that a closer analogy are cases like Burdick, where there are laws of neutral applicability that States use to regulate their Alderson Reporting Company processes of self-government. And those, unless they have a severe burden on association, have been subject to review for reasonableness under Burdick and Timmons, and that entire line of cases. We think that furnishes a much more appropriate analogy for this case.

Justice Breyer: The statute says "or advocate the passage of." So I guess that's speech.

John P. Elwood: But, Justice Breyer -­

Justice Breyer: And the -- I mean, the basic question is, again, do you agree with Justice Scalia's question, the import of it; or don't you?

John P. Elwood: But Justice -­

Justice Breyer: If it doesn't apply, if voting is not speech, then no matter how outrageous the law or rule, it doesn't fall within the First Amendment; and if it is speech, then you get into some of the questions that were raised, is this too vague or is it not? So which is it?

John P. Elwood: Justice Breyer, I don't think we have to get as far as the position that Justice Kagan was suggesting, that I think Justice Scalia is suggesting, because we're willing to abide by R.A.V. and require neutrality in the regulations of this. I think the -­ Alderson Reporting Company

Justice Breyer: We might have to write an opinion, irrespective -­ (Laughter.)

Justice Breyer: -- which says -­

Justice Scalia: You may be willing to, but I'm not.

Justice Breyer: -- either it is speech or not, and so that's why we're asking the question, to get your opinion -­

John P. Elwood: Right.

Justice Breyer: -- which is an informed opinion, about how we should write that paragraph. Do we say that voting is within the First Amendment scope or do we say it is not?

John P. Elwood: I think you would say that it is not, that it is not -- voting -­

Justice Breyer: In that case, the most outrageous law you can think of -­

John P. Elwood: Right.

Justice Breyer: -- in respect of voting is not covered by the First Amendment?

John P. Elwood: I -- Justice Breyer, we again are willing to bite off -- we are willing to abide by R.A.V. -­

Justice Breyer: No, I'm not asking for Alderson Reporting Company willing to do -­

John P. Elwood: It can be a neutral restriction on voting, which is not itself -­

Justice Scalia: Mr. Elwood, why is that extraordinary? Why aren't you willing to accept that? I mean, if -- if the Speaker of the House counts the votes wrong and he says the ayes have it when it's obvious that the ayes don't have it, do we review that?

John P. Elwood: I think that that represents -­

Justice Scalia: Is there any greater violation of the principles of democracy than counting the votes wrong in the legislature? Yet that matter is not reviewable here, is it?

John P. Elwood: I -- I don't believe that it would be.

Justice Scalia: So why is it extraordinary that this one should not be reviewable?

John P. Elwood: Justice, I just think that there are certain things that you don't -- there's a -­ there's a sort of principle when you're dealing with other branches of government that you don't look behind it when they certify things. This Court has held that in various contexts. And I don't think -- you know, it may well be that that would support an even -- a stronger rule than we are advocating; but, you know, all Alderson Reporting Company we are here to defend is a neutral law on the part of the State of Nevada.

Justice Alito: In several recent cases the Court has taken pains to make the point that it is not going to recognize any new categories of unprotected speech. But the argument that you seem to be endorsing now in response to some questions is that there is this new category of unprotected speech, which is advocacy of the passage of legislation when a recusal statute comes into play.

John P. Elwood: But I think that if there's any law that has a better claim to -- to be added to that category, it's one that would be consistent with a law or a rule that was adopted by the first Congress 7 days after they first achieved a quorum. I mean, those were the people who were the people who proposed and framed the First Amendment, and they never indicated that they thought any sort of personal First Amendment right was implicated by recusal rules, either by them or Thomas Jefferson's rule, which was not even a rule adopted by the whole House.

Justice Sotomayor: Counsel, just to clarify this issue, because I don't know that I've heard you state it explicitly, the second part of this recusal statute that bars the advocacy of a measure in which Alderson Reporting Company there's an interest prohibited by the statute, it is your position that's advocacy in the legislative body?

John P. Elwood: Absolutely.

Justice Sotomayor: So it's only limited to getting up on the floor and talking about that?

John P. Elwood: That is absolutely correct. We view it as basically completing the disqualification and saying you are just not, you cannot act as a legislature in deciding whether this bill will be passed.

Justice Sotomayor: That person can still go outside and give all the press releases they want?

John P. Elwood: Absolutely, they can.

Justice Sotomayor: What do we do with cases like Miller v. Town of Hull and Colson v. Grohman that have recognized retaliation claims because of speeches given during the casting of a vote? Would those cases still be viable if we decide that there is no First Amendment right in voting?

John P. Elwood: I -- I think they would be viable under the -- the way we are framing it, which is that basically if it's a law of general applicability that you could still bring a claim of retaliation, which -- those kind of claims are problematic for other reasons because there's a lot of what would be called retaliation that is itself protected by the First Alderson Reporting Company Amendment. But if you're talking about a official who is a civil service employee, assuming you need to even get there because they have their own civil service rights to be there, they would still have the claim that it was based on viewpoint-based discrimination, and under the rule we are proposing -- or the rule that we are willing to abide by, certainly -- R.A.V. v. City of St. Paul would protect those people for a retaliation claim.

Justice Scalia: Mr. Carrigan -- if -- if we did not review any of these ethical rules applicable to a legislature, at least where the rule is adopted by the legislative body itself, as -- as opposed to being imposed upon it by -- by some other body, there is the protection that all of the legislators are subject to it. So if it's vague for Mr. Carrigan in this case, it's vague for everybody else as well.

John P. Elwood: That is true, Justice Scalia.

Justice Scalia: And so it's sort of a self-regulating mechanism. You -­

John P. Elwood: That's true.

Justice Scalia: You have to be willing to abide by whatever -- whatever vagueness and whatever ethical rules you -- you have opposed -- imposed on Alderson Reporting Company somebody else.

John P. Elwood: That is true, and this law applied -- for the better part of 30 years, it applied to every legislator in the State of Nevada. In July of 2009 the State Supreme Court struck it down as applied to members of the legislature. But this was the rule they lived under and they didn't think it was ambiguous, they didn't think that it chilled their associational rights. They seemed to think it was just -- that it was just fine.

Chief Justice Roberts: I suppose you would have a First Amendment claim under your theory if the generally applicable rule was applied in a discriminatory manner; it turned out, you go back and look and over the last 2 years the only people who have been sanctioned for violating the ethics rules have been members of the minority party.

John P. Elwood: I think that that is another one of those -­

Chief Justice Roberts: That would be a viable First Amendment -­

John P. Elwood: Those sort of discriminatory enforcement claims are whole 'nother ball of wax. And I mean, they're certainly, you know, very hard to prove; and they bring up all those sort of Armstrong issues Alderson Reporting Company about, you know, presumptive regularity and that people are acting in good faith. I don't know that that would be a First Amendment claim, but perhaps a equal protection claim. But it's certainly not presented here. There's never been any allegation that these laws have been enforced discriminatorily. In fact, arising from the same vote, the Nevada Commission on Ethics sanctioned an opponent of the Lazy 8 Casino because he had an undisclosed interest in -- business interest in the Nugget, which was a political opponent of this. If I could reserve the remainder of my time for rebuttal.

Chief Justice Roberts: Thank you, Mr. Elwood. Mr. Rosenkranz. ORAL ARGUMENT OF JOSHUA E. ROSENKRANZ ON BEHALF OF THE RESPONDENT

E. Joshua Rosenkranz: Thank you, Mr. Chief Justice, and may it please the Court: The core problem with this statute which the Court has been grappling with is this: an elect -- an unelected commission has arrogated to itself essentially the right to invalidate an election result and to do it in a way that treats core political association as Alderson Reporting Company corrupting. If the police of political purity are going to tell an elected official that he cannot cast the vote that he ran on and was elected to cast, they have to do it clearly, they have to do it prospectively, and they have to do it for an important reason.

Chief Justice Roberts: So if the legislature adopts a rule that says from now on we're going to require a four-fifths majority for a bill to pass, that lowers the effectiveness of the speech of someone in the minority, and you can challenge that on First Amendment grounds?

E. Joshua Rosenkranz: I think not, Your Honor, because that is a way of organizing the institution that applies equally to all members of the institution.

Justice Scalia: So does this.

E. Joshua Rosenkranz: Well, this will -- this will single out individuals at any particular moment in time who are specifically isolated and told that that particular individual cannot vote.

Justice Sotomayor: How is that different from the minority people in the Chief Justice's? It only affects them when they're in the minority?

E. Joshua Rosenkranz: Well, yes, Your Honor. And I think -­

Justice Sotomayor: So it only affects Alderson Reporting Company somebody if they fall within the strictures of the statute?

E. Joshua Rosenkranz: And my -- my point is simply that this takes one particular legislator and says, you cannot vote. And those rules are completely fine in certain circumstances, but not when the effect is to tell someone that the rationale, the reason that you are being isolated is because you associated with someone politically who helped you win an election.

Justice Ginsburg: Mr. Rosenkranz, you are not -- is it right that you are not challenging any part of this statute except the one that -- that says "substantially similar"? The rest you have no constitutional objection to; is that right?

E. Joshua Rosenkranz: That is correct, Justice Ginsburg. And more precisely, we are challenging the use of that "substantially similar" provision to expand the statute to -- to relationships that bear no relation to the actual text of the statute.

Justice Scalia: Mr. Rosenkranz, is -- is the vote of a judge in a case like the vote of a legislator? Is -- is that speech? Because judges are subject to ethical rules which -- which prohibit their participating if there would be, quote, "an appearance of impropriety." If there's anything vaguer than that I Alderson Reporting Company can't imagine what it might be. Can I get out of all that stuff? (Laughter.)

E. Joshua Rosenkranz: Here's -- here's what you can get out of, Your Honor. You can get out of -- for example, if you are, in addition to being a judge, a law professor at a State university and that university fires you because of an opinion that you issued, that opinion is speech. That vote has speech aspects to it.

Justice Scalia: Are you answering my question? I want to know whether I can get out of this appearance of impropriety stuff.

E. Joshua Rosenkranz: The answer is no.

Justice Scalia: Why?

E. Joshua Rosenkranz: For two reasons. One is that judges are just plain different from legislators. Judges are supposed to bring no political loyalties at all to them when they are sitting on the bench. Legislators are actually not only allowed to, but expected, to bring political loyalties when they -­

Justice Scalia: What does that have to do with whether the First Amendment applies, with all of its prohibitions against vagueness?

E. Joshua Rosenkranz: The answer again, Your Honor, is when it comes to judges, we tolerate quite a Alderson Reporting Company bit more by way of chill of a judge's vote precisely because judges are supposed to act judicial and purge their vote of all extraneous effects.

Justice Scalia: That's too bad, because I would have been much more attracted to your position. (Laughter.)

E. Joshua Rosenkranz: I -- I understand, Your Honor.

Justice Kagan: And -- and Mr. Rosenkranz, what about officials in the Executive Branch? When the Secretary of Defense gives a speech and the President doesn't like it and the President fires the Secretary of Defense, does the Secretary of Defense have a First Amendment action?

E. Joshua Rosenkranz: The Secretary of Defense has a First Amendment argument. It would be a very weak one under -- under this Court's opinion in Garcetti. But his First Amendment rights are implicated if it's a speech that he's giving not in the line of his duty.

Justice Kagan: So all the official acts in the legislature, in the Executive Branch, you're somehow saying courts are different, so I guess we don't have to worry about that, but official acts across the government are now subject to First Amendment analysis?

E. Joshua Rosenkranz: Absolutely not, Your Honor, Alderson Reporting Company and that was this Court's holding in Garcetti. And the reason this Court held that in Garcetti was that there the government is acting as employer. The government is entitled to discipline its own employees like any other employer can. But we all agree government as employer, that Pickering standard, doesn't really work in the context of regulation of political activity.

Justice Alito: What about the rules of civility in the houses of Congress? There are things that a member of the Senate, for example, cannot say about another Senator, or make a personal attack. That would be protected by the First Amendment if the Senator stepped outside the door. Are those -- is there First Amendment protection for that? Do they have -- do those rules have to pass First Amendment scrutiny?

E. Joshua Rosenkranz: Within the chamber, Your Honor, no, if it's just the chamber that's sanctioning someone. And the reason is those are Roberts Rules of Order that apply to everyone and that -- that order the -- the debate. But I -­

Justice Kagan: Well, I don't understand that. I mean, this rule applies to everyone, too. It might apply to one person on one vote and to another person on another vote, but everybody at every vote has to look at these ethical rules and decide whether they Alderson Reporting Company have to recuse themselves as a result.

E. Joshua Rosenkranz: And -- and so this is a rule, though -- we have to go back to what its effect is outside of the legislature. This is a rule that takes political associations and treats them as corrupting, core political associations, volunteering of the sort -­

Justice Kagan: Well, do you think that if there were a statute -- let's take out the vagueness aspect of this. If there were a statute that said you can't vote on anything where you have yourself some monetary gain attached to it or if a very close family member or if a close business associate or campaign manager of your campaign, do you think that would be unconstitutional?

E. Joshua Rosenkranz: It would not be vague, Your Honor. But it would be unconstitutional, unless the State demonstrates why a campaign manager is corrupting.

Justice Kagan: Because the -- the State -­ what the State thinks is that a campaign manager is just like a business partner.

E. Joshua Rosenkranz: And -- and the answer to that is no. A volunteer campaign manager is not just like a business partner. There is no pecuniary gain to the -- to the candidate or the legislator as there is in a relationship with a business partner. There's Alderson Reporting Company personal political loyalty. That's what the Ethics Commission said was wrong -­

Justice Ginsburg: -- no -- there's no -- I thought this -- the -- the only reason that we have this case is that the three-time campaign manager was -- did have a financial stake in this vote because the project was approved.

E. Joshua Rosenkranz: No, Your Honor, that's not why we're here. That's not why the commission said we are here in the first instance. The commission is now saying we're here because of that, but what the commission said was it's the closeness of this relationship, without regard to the financial gain, which the commission accepted was zero for this particular lobbyist. Regardless of the financial gain, it was the political loyalty. This guy helped you win. Because he helped you win, you will be beholden to him and do him more favors. Well, lots of political activists help a candidate win. But on that -­

Justice Kennedy: But it -- it seems to me that if you're going to make this argument -- and this is the point we discussed with Mr. Elwood -- there are two ways to do it. Number one, say this infringes the right to vote, which is a First Amendment right; or you Alderson Reporting Company can say that this impinges unduly on necessary rights of association that preceded your election to the legislative post. It seems to me that the latter is the only way that you can make your case and to avoid the force of the argument that the Petitioner makes.

E. Joshua Rosenkranz: Your Honor, it is certainly correct that the latter is far narrower. This is an outlier statute. No other legislature has ever adopted a statute that says campaign manager or political loyalty is corrupting. And so this Court could very easily say, look, this is just different from all of the other recusal statutes.

Justice Ginsburg: It doesn't seem to be different from the ones that Mr. Elwood read to us. I think he read probably one from New Jersey and -­

E. Joshua Rosenkranz: Your Honor, he -- he cited one case from New Jersey. The statute does not refer to political loyalty. And in that case it was a close friendship, and in the course of describing the close friendship the court, after listing multiple factors, said one of them was that they were both part of the same political club. They also vacationed together. That's a completely different application. No State and no commission -- so far as we Alderson Reporting Company know from the briefs, there's no case cited where any commission has said this relationship between a volunteer and a candidate is itself so corrupting that we have to disqualify the candidate from casting the vote, the vote that he ran on, that the voters elected him to cast. And if this -- if this is accepted, it places an impossible drag on the associational rights. The candidate will have to think twice before ever hiring or enlisting a volunteer who is a political activist. He will want to recruit the best, the most talented, the most savvy, but he will always have to ask himself: What will this person do 3 years from now that might disqualify me from -- from embarking on my duty that I was elected to engage in?

Justice Scalia: That's rather exaggerated. I mean, you have to worry he's going to buy a casino or -- or something like that? I mean -­

E. Joshua Rosenkranz: No, Your Honor. Let me give you a concrete example from real life that happens all the time. If the NRA or NARAL decide that they believe strongly in a piece of legislation and they hire a lobbyist, so there's benefit to the lobbyist from this relationship, and that lobbyist says "I, too, am on mission; I continually lose in the legislature because Alderson Reporting Company it hangs in the balance, I'm going to work for candidates who will tip the balance for me, the commission's opinion says that that lobbyist, because he's worked on that campaign and wins, will by that very act invalidate the vote of the legislator. That's just untenable, and there's no way to interpret the -- the opinion that the commission actually wrote to make that anything other than the natural consequence of its -- of its opinion. And worse yet, from the -- from the -­

Justice Scalia: If that's what it means, you would think the legislature would change it, wouldn't you?

E. Joshua Rosenkranz: Well -­

Justice Scalia: I mean, it doesn't just hurt Mr. Carrigan. That -- you know, that -- that would be something every legislator would -- would worry about and say, oh, boy, we've got to change this.

E. Joshua Rosenkranz: Yes, Your Honor -­

Justice Scalia: So why don't we let them change it?

E. Joshua Rosenkranz: Yes, Your Honor. Yet the legislature comes in with an amicus brief to this Court and says that its interpretation of this statute is all it needs to have is a relationship that is analogous or Alderson Reporting Company parallel to those -- this is on page 32 of their amicus brief -- analogous or parallel, and they are defending the application of this statute to political loyalty. But let's look at the other side of the equation; that is the -- the Vasquezes of the world, the NRA advocate. On that side of the equation, anyone who deeply holds a view that's political -- let's say it's Mr. Vasquez, he is pro-development. They will refrain from joining campaigns out of fear that when they join the campaign, they will get the candidate disqualified.

Justice Breyer: So why -- I mean, what the commission says is Mr. Vasquez has been a close personal friend, confidante, and political advisor throughout the years. So that doesn't sound like any volunteer. It sounds like somebody sitting on a case where his best friend is likely to gain millions of dollars.

E. Joshua Rosenkranz: That -­

Justice Breyer: That's what it seems when I read that opinion, that they're thinking all these things combined is what causes this to fall within the category of a reasonable person might have doubts about the independence of judgment.

E. Joshua Rosenkranz: Your Honor, they gave a gestalt at the end.

Justice Breyer: Yes. Alderson Reporting Company

E. Joshua Rosenkranz: They lead with "instrumental in the success of all three of Councilman Carrigan's campaigns," and they go through a long narrative about the political relationship. These were not -­

Justice Breyer: That's part of it. But my -- my basic question is, as you know, with judges, and I guess you have a very vague statute which was quoted to you, and what we have are subsidiary rules with ethics commissioners. I have in my office -­ they're not commissioners; they're committees of judges. And I have in my office seven volumes which I look at when there's a question, as others do, and those seven volumes contain dozens of opinions of a committee trying to apply vague statutes and vague rules -- not constitutionally vague, but generally. So what's wrong with Nevada doing exactly the same thing here?

E. Joshua Rosenkranz: Because the difference, Your Honor, is judges are a -­

Justice Breyer: Oh, so you're saying that the difference is that we're judges?

E. Joshua Rosenkranz: Yes.

Justice Breyer: You mean Congress and legislators and Executive Branch people couldn't have Alderson Reporting Company exactly the same system?

E. Joshua Rosenkranz: So -­

Justice Breyer: And they have general rules? It's called the common law system.

E. Joshua Rosenkranz: The answer is no, not when it affects associational rights. So let me just distinguish -­

Justice Sotomayor: Did you argue associational rights below?

E. Joshua Rosenkranz: Oh absolutely, Your Honor. And the commission -­

Justice Sotomayor: Why do you think the court didn't address it? Because it relied on the First Amendment analysis?

E. Joshua Rosenkranz: I don't know why the court didn't address it. It was front and center. It was a section -- it was called overbreadth, but for eight pages, from page 9 to page 18, there is extensive discussion that what they meant by overbreadth is this reaches too broad, this reaches relationships that should not be reached. It was not in the cert opposition, but it was front and center before the Nevada Supreme Court.

Justice Ginsburg: Is there any catch-all that you would say would pass your constitutional test? Alderson Reporting Company You told us that the four specific categories, member of the household, employer, that those are all right because they're specific. But you don't like the "substantially similar." Is there any catch-all that a legislature could adopt that would pass what you -­ what's constitutional?

E. Joshua Rosenkranz: I -- it's hard to imagine one. Let me just point out, no -- it is very, very rare for a legislature to do anything other than what's in A through D. And the problem with this catch-all, which by the way is the term that was used by both the courts below -- the problem with this catch-all is perhaps the words are okay, maybe. I mean, I can imagine someone interpreting those words so narrowly that they're okay. But what this catch-all does is to add language to the original four criteria, so it's not just family members and business associates. It's now friends, close friends.

Justice Breyer: You didn't answer my question, which is since the Judiciary uses what's called the common law method, why is it impermissible for the Executive Branch or the Legislative Branch also to use a common law, case-by-case method of elucidating through example what a general -- what a general Alderson Reporting Company provision means?

E. Joshua Rosenkranz: The answer, Your Honor, is the Judiciary does not engage in political activity outside -­

Justice Breyer: Well, I -- so you're saying that one who engages has to use a -- a definitive rule-based method rather than a common law method? So my question there would be, assuming your difference between the branches is right, still why?

E. Joshua Rosenkranz: And the answer is that the candidate and the volunteer have to know ex ante whether to engage in this relationship or not.

Justice Kagan: But why do they have to know ex ante? There was an advisory process that was set up by the Nevada commission here.

E. Joshua Rosenkranz: And the -­

Justice Kagan: Mr. Carrigan chose not to use it. But he could have gone to the commission, said: What do you think about this relationship? Does it fit or does it not fit?

E. Joshua Rosenkranz: Your Honor, the advisory process, the problem with it is that it comes too late. The relationship was already in place. If you're -- if the -- if the commission is going to invalidate the result of an election, where everyone is talking about Alderson Reporting Company this issue and everyone knows about this relationship, they've got to tell them before they're engaged in the relationship. Mr. Carrigan would have dropped Mr. Vasquez.

Justice Kennedy: Well, I mean, but that -­ but that's unworkable to say, you know, that every potential -- I think I might run for office next year and so I'm going to get advice from some committee as to who I can associate with? That just is unworkable.

E. Joshua Rosenkranz: My point exactly, Your Honor. You cannot -- you -- you don't know in advance, because you can't know what's going to come out 3 years later. You can't know what conflicts will arise, and so you don't know in advance. You can't present the question to the -- to the commission.

Chief Justice Roberts: Counsel, I've kind of lost the thread of your argument. Is this a vagueness claim or a First Amendment claim? I gather your claim is going to be the same even if the statute clearly said family members, you know, business partners, and political consultants.

E. Joshua Rosenkranz: Correct, Your Honor; and it is both. There are basically two halves to it. One is, even if statute were perfectly clear, this is a relationship that the State is not allowed to view as Alderson Reporting Company toxic, because it is not a toxic relationship in a democratic process; and secondly, this is also vague, so there was no notice up front as to the fact that the commission would later invalidate the result of the election on this basis.

Chief Justice Roberts: Is your vagueness argument, is that a First Amendment argument of its own?

E. Joshua Rosenkranz: It is a baseline vagueness argument on due process grounds, but it gets elevated because of the First Amendment interest.

Chief Justice Roberts: So we can decide your vagueness -- if we agree with you on vagueness, we don't have to determine whether the First Amendment applies in this type of situation?

E. Joshua Rosenkranz: Oh, that is correct, Your Honor, absolutely.

Justice Ginsburg: In the -- in the Nevada court you argued overbreadth. That was the -- at least how the court understood your challenge, and here overbreadth takes a back seat, and vagueness is the principle on which you rely dominantly. So what accounts for the shift? You were arguing overbreadth before the Nevada Supreme Court.

E. Joshua Rosenkranz: The answer, Your Honor, is that the Nevada Supreme Court shifted. So before the Alderson Reporting Company Nevada Supreme Court, everything was on the table. There was vagueness, there was overbreadth, there was extended relationships -- extending to a relationship that's First Amendment-protected. The two key pieces, first was vagueness and then second was this overbreadth argument as I've described it, which really was about the protected relationship. The Nevada Supreme Court called it overbreadth, but if you look carefully at what it actually says, it is vagueness at every step of the way. It is talking about -- this is on pages 14 to 15 on to 16 and 17. It is talking about the Constitution demanding a high level of -­

Justice Kennedy: What's the standard for vagueness that we apply? We apply vagueness to First Amendment prohibitions or restrictions on speech. We apply vagueness to criminal statutes. This isn't a criminal statute. It does have a civil penalty. What is the case that I consult to see what standard of vagueness I apply?

E. Joshua Rosenkranz: Gentile, Your Honor. Gentile is a case that is about sanctions. It's about sanctions for First Amendment-protected activity. And the standard really is -- I mean, it's articulated the same way in all these circumstances, but it really is, Alderson Reporting Company can a reasonably intelligent person know in advance that they are going to be sanctioned for this?

Chief Justice Roberts: Here we're talking about penalty for participating. What -- what if it's a disclosure rule saying, you know, you can participate, you can vote, you can advocate, you just have to disclose interest of this sort.

E. Joshua Rosenkranz: I think -­

Chief Justice Roberts: Is that problematic under -­

E. Joshua Rosenkranz: Not at all, Your Honor. That's perfectly appropriate. That is in fact what Mr. Carrigan did right at the outset of -­

Chief Justice Roberts: Right. Well, doesn't that burden his First Amendment rights?

E. Joshua Rosenkranz: A lot, yes; but a lot less so. And this Court has -- is very comfortable with disclosure when you're talking about public officials as lighter medicine, less severe medicine than an outright ban or a punishment for that association. That's the way it should work in the political process. Everyone in this election was aware of Vasquez's role. It was front page news when the hearing was going on. And so for a commission -­

Justice Sotomayor: If the relationship Alderson Reporting Company wasn't particularly special, no more special than any other political volunteer, why did that become front page news?

E. Joshua Rosenkranz: Oh -­

Justice Sotomayor: And if your client didn't have a suspicion that he was on the edge of a law, why did he bother going to the city attorney to get an opinion?

E. Joshua Rosenkranz: Because as he testified, and the commission did not disagree, this guy is a Boy Scout, Your Honor. He does everything to avoid any appearance of impropriety. And he said: I did that because I just wanted to make sure; I am not a lawyer. And the city attorney, of course, gave an opinion that gave him a clean bill of health, said: Yes, go forth and do this. Now, if the lawyer doesn't know and the commissioners can't settle on which of these things the relationship is most similar to, and the district court can't choose one, how is it possible for someone in Mr. Carrigan's position to know ex ante -­

Justice Sotomayor: How will we ever write -- how will the Congress ever write a law that would be so clear that clients would never have to go to lawyers -­ Alderson Reporting Company (Laughter.)

Justice Sotomayor: -- or that lawyers couldn't disagree about? We would have to invalidate virtually every law as vague.

E. Joshua Rosenkranz: Less so in the First Amendment -- I mean, more so in the First Amendment context. In all the other contexts, the standards are lightened -­

Justice Sotomayor: But you're not -- you're not denying that most laws would be vague -­

E. Joshua Rosenkranz: Yes, Your Honor.

Justice Sotomayor: Under that definition?

E. Joshua Rosenkranz: And there is a -­

Justice Sotomayor: That lawyers disagree on the conclusion of what the law means?

E. Joshua Rosenkranz: And -- and there is a big difference between ambiguity of particular words and what the commission did here, which was to say we see these four categories, we are not applying any of these four categories. We're saying -- we're extracting a principle. It's a principle of closeness. Now, close enough for government work when it comes to relationships that are First Amendment protected just isn't good enough when it -- when you're talking about that context. Alderson Reporting Company So I did want to talk just for a moment about the degree of burden that we're talking about here, because the commission seems to be saying no big deal, this is just a disqualification provision. It's not actually a burden at all. Now, I think we all agree that if the State of Nevada declared that anyone who is a campaign manager can never lobby the legislature, that would be unconstitutional, and they'll fine them for it, where the strict scrutiny would also apply if the State passed a law fining a candidate for choosing a campaign manager who lobbies the legislature.

Justice Kagan: I'm not sure I understand that, Mr. Rosenkranz. There are many laws out there that say people who serve in certain government capacities, when they leave those jobs, can't lobby for a certain number of years. How is that any different?

E. Joshua Rosenkranz: It would be subject to scrutiny for sure. It would be subject to First Amendment scrutiny. And that would be justified on the ground not of the closeness of relationships that are formed, but on the ground that you don't want legislators here and now as they are sitting in the chamber thinking about generating business with their future clients and changing their votes because of that. Alderson Reporting Company That's the justification. But there's no such justification here. The commission has never articulated why political loyalty is so toxic that it needs to be banished from politics. And so, just on the -- on the directness of the burden yet, for a political activist who is engaged in these sorts of relationships, the burden of being told, you've got to choose right at the outset, are you going to represent -- are you going to help this candidate get elected or are you going to lobby? That is worse than a fine, because a political activist wants to do both precisely because they care about the ultimate results. And for the candidate himself who is deciding right upfront which of the universe of players am I going to take as volunteers, they need to know upfront whether this relationship will be viewed as toxic, and if it is, they will not engage in that relationship. This is no less direct than the burden that this Court recognized as unconstitutional in the Davis case, the Millionaire's Amendment Case, or in Burdick, where the only burden was that the paid petitioner would have to register to vote, which is a nominal burden, but those whose consciences were affected by a registration were kept out of the process. Alderson Reporting Company If there are no further questions, I respectfully request that the Court affirm the judgment. Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Elwood, you have 5 minutes remaining. REBUTTAL ARGUMENT OF JOHN P. ELWOOD ON BEHALF OF THE PETITIONER

John P. Elwood: Now, my colleague argues that the Nevada recusal statute targets political association, and that is simply not the case. Nothing in the statute about politics. Mr. Carrigan was recused because he had a business relationship with Mr. Vasquez. Wholly apart from the personal relationship and the fact that he was his three-time campaign manager, he was also the firm -- the campaign's main outside vendor, and 89 percent of the Carrigan campaign expenditures were paid through his advertising firm. That is -­

Justice Breyer: I think his argument is -- I don't see -- that the Ethics Commission at least in part relied upon the fact that he was the campaign manager, and he is saying, I think, as I understand it, or at least I have this question, that an ethics commission cannot disqualify a legislator on the ground, even in part, that an individual had a political association with him previously. Alderson Reporting Company

John P. Elwood: I think that -­

Justice Breyer: It may be a new argument in this Court, I don't know.

John P. Elwood: I think the fact that this happened to be a political relationship was incidental. If Mr. Carrigan -- Mr. Vasquez does two things, he's a campaign manager, he's a -- he assists in development. If Mr. Carrigan had had exactly the same relationship, but had just been working with him on the development side, it would have been exactly the same situation. If he had helped him with past -- I think the fact that -­

Justice Breyer: Is that a new argument in this Court, as I've stated it to you?

John P. Elwood: I -- I don't believe so. That they've made that argument -­

Justice Breyer: You made that argument below?

John P. Elwood: That -- right. What we have here -- I don't know if they use the term that it was incidental. But I mean they -- if you look at the opinion at pages 105 to 106 of the Pet. App, it's clear that they're looking at the business relationship. It's relevant, certainly, to have helped him win three elections, because that's relevant to the closeness of their personal relationship, but -­ Alderson Reporting Company

Justice Sotomayor: I think Justice Breyer's question -- he can tell me if I'm wrong -- is whether that argument by them was actually raised below the way he is stating today?

John P. Elwood: I'm sorry? I -- the argument by the -­

Justice Sotomayor: Whether that associational right of the political -­

John P. Elwood: Oh. My understanding, the way I view the briefs is there two references to an associational right in the briefs, and the opening brief before the Supreme Court, I think it's page 918 -- and it was in the context of making a vagueness argument. I looked through it, you can look through it and see what you think, but I did not see that as an argument that this is burdening our associational rights. But I think -­

Justice Alito: If they based their decision solely on the -- on the fact that Vasquez had been the campaign manager in the past and he was a great campaign manager, and perhaps Carrigan would like him to be his campaign manager in the future, would there be a problem then?

John P. Elwood: I think that -- I think probably not, because if the question is whether it -­ Alderson Reporting Company it burdens associations so much that it's chilling, and I mean, basically I think that's a -- an empirical question. And because you have to have a particular interest, a private interest in order to be recused, I think that it wouldn't arise so frequently that it would be a problem; but I think more fundamentally here, or at least for purposes of this case, because it comes here at least Respondent says this as an as-applied challenge. What we have here is a relationship that was front page news, because this isn't just some plain vanilla campaign volunteer. This is somebody with whom he has a very intimate business relationship that -­ that involved this expenditure of $46,000. And I think another thing that is worth noting is that in 10 years on the books this law has never been applied to campaign volunteers. It's -- in order -- campaign volunteers specifically come up in the legislative history of the '99 Act, and they would say would not, without more, be covered, because what this covers is the same types of relationships that every other recusal statute covers -- very close relationships and relationships that give rise to a financial interest in the public official.

Justice Alito: Well, suppose somebody had Alderson Reporting Company made extensive independent expenditures in support of the -- the public officer's prior campaign, and the public officer may hope that they -- similar expenditures will be made in the future. Would that be a basis?

John P. Elwood: I don't think it would be a basis under the Nevada law. Because that's a law -­

Justice Alito: Why not?

John P. Elwood: Because it's not a -- it's not a personal relationship, it's not household, it's not relative, it's not employer, and it's not a business relationship.

Justice Ginsburg: Is there a way to get advice as to -- I think you said he went to the county attorney, he could have gone to -- to the ethics commission, and they were told ethics commissions can give advice only after the -- is in office, they don't give -- they are not obliged to give advice to candidates. So when Carrigan is running he apparently has no access to the ethics commission?

John P. Elwood: I think that that's right. The ethics commission only has authority to give opinions to sitting candidates. If there are no further questions -­

Chief Justice Roberts: Thank you, counsel. Alderson Reporting Company The case is submitted. (Whereupon, at 11:06 a.m., the case in the above-entitled matter was submitted.)