Here are some stories about today's Supreme Court argument in Nevada Commission on Ethics v. Carrigan [Disclosure: I am one of Mr. Carrrigan's lawyers].
National Law Journal
The transcript is here. Justice Scalia, who was the most skeptical of a First Amendment right to a legislative vote, had an interesting exchange with my co-counsel, Josh Rosenkranz:
MR. 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 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?
MR. 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.
The interesting thing is that the Nevada conflict of interest statute at issue in this case does not apply to the state legislators who passed it. ("The provisions of this section do not, under any circumstances, apply to State Legislators or allow the Commission to exercise jurisdiction or authority over State Legislators").
Posted by Rick Hasen at April 27, 2011 10:37 PM