One year after its decision in Citizens United, the US Supreme Court supplied a blueprint for canceling the dominance of the 1 percent over all levels of government that the Court had created with its decisions in Buckley v. Valeo and Citizens United.
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In Nevada Commission on Ethics v. Carrigan (2011) the Court upheld a portion of Nevada’s Ethics in Government Law that prohibits an elected official from voting or taking any other official action when faced with a real or apparent conflict of interest.
The case involved a city council member in Sparks, Nevada, Michael A. Carrigan, who had voted to approve a hotel/casino development project that would hire his election campaign manager as a consultant. After complaints were filed and an investigation held, Nevada’s Commission on Ethics issued a written opinion censuring him.
Voting Under the Influence Can Be Banned
The Nevada Supreme Court reversed the Commission’s decision based on the First Amendment reasoning in Citizens United. But the US Supreme Court overturned the Nevada Supreme Court. Explaining the 9-0 decision, Justice Antonin Scalia wrote that voting on a city council or in the legislature is an official act, not speech. The Court held that the First Amendment reasoning in Buckley and Citizens United “has no application when what is restricted is not protected speech.”
The Court thus held that “restrictions on legislators’ voting are not restrictions on legislators’ protected speech.” It further said that “the procedures for voting in legislative assemblies … pertain to legislators not as individuals but as political representatives executing the legislative process.”
Justice Scalia also noted that “the legislator casts his vote ‘as trustee for his constituents, not as a prerogative of personal power.’ In this respect, voting by a legislator is different from voting by a citizen.” Because “a legislator has no right to use official powers for expressive purposes” the court held that, unlike laws restricting election spending, legislative recusal rules do not violate the First Amendment, and the holdings in Buckley and Citizens United do not apply.
A model updated legislative rule or municipal government ordinance banning voting under the influence of money is provided here. Under the updated rule, the big electioneering money enacted in Buckley, Randall v. Sorrell (2006), and Citizens United may be rendered not just ineffective, but also counterproductive, for obtaining a return on that electioneering investment.
Supreme Court Opened Floodgates for “Pay to Play”
Supreme Court rulings since Buckley in 1976 put politicians under increasing pressure both to accept high-dollar electioneering money and to provide a return to their high-dollar electioneering investors. As then-Vermont Attorney General Bill Sorrell said, the money creates “IOUs, if you will, real or perceived to be there.”
Elected officials are pressured by the possibility that large electioneering money from electioneering investors won’t be there again for their re-election campaign if the IOU is ignored. Elected officials may be even more pressured by the possibility that this money may instead go to their primary or general election opponent if they ignore the IOU.
The election finance system works far better to channel money to politicians than under-the-table quid pro quo bribery because businesses and their owners and managers have a safe harbor to write big checks directly to politicians or to make independent expenditures for politicians.
Of course, the electioneering payments and expenditures cannot be expressly in exchange for particular votes or actions by politicians or the payments would violate bribery laws. But the IOU and the intense pressure persist, impairing independence of judgment when the member is called upon to vote on a bill of special pecuniary interest to the electioneering investor.
The safe harbor to write big checks to or for politicians provides a smooth way for the 1 percent to legally have disproportionate influence over government. The system allows special access for large electioneering spenders. It smooths the way for passage of legislation and executive branch decisions benefiting the large electioneering funders. It facilitates a return on their electioneering investment in policy and contracts.
These conflicts of interest are not just for each legislator as an individual. The conflicts are systemic. By vastly increasing both an incumbent’s need for election money and the IOUs such money produces, the novel Supreme Court First Amendment reasoning since Buckley in 1976 sharply tilted influence over local, state and federal governments toward the 1 percent.
Efforts to Restore Democracy
During a Trump presidency, neither appointment of a new Supreme Court justice who would vote to overturn Buckley and Citizens United, nor adoption of an effective constitutional amendment, are likely.
Fortunately, Nevada Commission on Ethics provides a solution: any state government, or even a local government, on its own, is free to prohibit elected officials from voting or taking official action on any matter which provides a conflict of interest, including payback to a major electioneering supporter. The method is pre-approved by the court and far easier to accomplish than an amendment. And stopping the “play” part of “pay to play” works just as well as stopping the “pay” part.
Model Rule Update
Here is a 54-word model rule update based on the Nevada law upheld by the US Supreme Court that may be adopted by a state’s senate, house or municipal government:
No member may vote upon any matter with respect to which the independence of judgment of a reasonable person in his or her situation would be materially affected by electioneering contributions or independent expenditures directly or indirectly from any one or more persons or entities that have a special pecuniary interest in the matter.
Additional provisions of the model rule update and further explanation of the provisions are found here.
Government for the Common Benefit of the People
By prohibiting a legislator from voting on a matter that provides particular financial advantage back to high-dollar electioneering funders, the updated rule implements Article 7 of the Vermont Constitution that provides “That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community.” Other states may have similar constitutional provisions.
The Common Benefits Clause in Article 7, which was also included in Vermont’s 1777 Revolutionary Constitution, remains a vital part of today’s Vermont Constitution. The Vermont Supreme Court based its decision in Baker v. State of Vermont, (Vt. 1999), the marriage equality case that led to civil unions and ultimately equal marriage rights, on the Common Benefits Clause, stating: “at its core the Common Benefits Clause expressed a vision of government that afforded every Vermonter its benefit and protection and no Vermonter particular advantage.”
A Revolutionary Idea
The elegant solution to the problem provided in the Nevada Ethics in Government law and the model rule is not new. Prohibiting a legislator from voting when a conflict of interest existed was initiated 240 years ago by the revolutionaries who overthrew King George III. While fighting off both British and New York authorities, Vermonters found time to include such a recusal requirement in their 1777 Vermont Constitution. That provision remains in force, unchanged, in article 55 of Vermont’s present constitution.
Vermont also has recusal rules in place in both the Vermont House and Senate:
Current Vermont Senate Rule 71: No senator shall be permitted to vote upon any question in which he or she is directly or immediately interested.
Current Vermont House Rule 75: Members shall not be permitted to vote upon any question in which they are immediately or directly interested.
Unfortunately, these rules have not been interpreted to cover the direct and immediate interest members have to be re-elected, nor to obtain big-dollar funding for their re-election campaigns. Adding the model rule above would close this loophole.
The US House of Representatives has a recusal requirement that dates from its very first session in 1789, almost identically worded to the Vermont House and Senate rules. And, when he was president of the US Senate, Thomas Jefferson wrote the Senate recusal rule:
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.
An executive order issued by then-Vermont Gov. Peter Shumlin on July 21, 2011, explicitly includes a wide range of anti-corruption provisions, including a recusal rule. The Executive Order prohibits an executive branch appointee from taking “any action in any particular matter in which he or she has either a conflict of interest or the appearance of a conflict of interest.” It prohibits an appointee from “undermining his or her independence or impartiality,” or “taking official action on the basis of unfair considerations” or “giving preferential treatment to any private interest on the basis of unfair considerations.” Unfortunately, the Executive Order only covers the governor’s appointed officials and not any elected officials.
Reciting some of the above history, the US Supreme Court bolstered its decision in Nevada Commission on Ethics, stating, “A universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional.”
Massive Public Pressure Is Needed
Updating the traditional prohibition on voting to prevent a conflict of interest (or the appearance of a conflict of interest) from electioneering funding has emerged as the most attractive method to overcome Buckley and Citizens United. The immediate question is whether a state legislature or town council remains sufficiently free of the influence of big electioneering dollars to do so.
Having a legal, easy to implement and effective solution is unlikely to be enough for success when big electioneering dollars beckon. Public pressure is needed to overcome the magnetic attraction elected officials feel toward big-dollar electioneering funders. The US Supreme Court supplied the blueprint. Now it is up to an aware public to push for enactment of that readily available blueprint to overcome Buckley and Citizens United.