Even if one accepts that the First Amendment is relevant), there is an alternative to strict scrutiny in free speech cases, known as the Pickering balancing test ). The test is “based on the view that the state, as an employer, has a stronger interest in regulating an employee’s speech than in regulating the speech of the general public, in order to promote efficiency in the public services it offers.” The court in Carrigan I says this only applies to government employees, not to elected officials.
That’s reasonable, considering the basis for the Pickering test, but that doesn’t mean that the only alternative is strict scrutiny. In a case where there is not this level of vagueness, another balancing test would be more appropriate, a test that recognizes the obligations an elected official has to put the public interest ahead of personal interests.
Free Speech As a Form of Legislative Immunity
Employing a strict scrutiny test opens up a Pandora’s box. Effectively, the free speech argument becomes a legislative immunity argument. If you think I’m saying this just because legislative immunity is my obsession, see how the Carrigan Idecision refers to the same court’s Hardy decision applying legislative immunity (see my blog post on the Hardy decision):
- Recently, we recognized in [
- ] that “voting on legislation is a core legislative function.” Because voting is a core legislative function, it follows that voting serves an important role in political speech.
If core legislative functions, which are what is protected by legislative immunity, play an important role in political speech, and a legislator’s political speech is protected by the First Amendment just like any other individual’s political speech, then what, effectively, is the difference between free political speech and legislative immunity arguments? Accepting Carrigan’s argument, the difference is not a constitutional one as much as a strategic one. That is, local government officials, who do not have absolute legislative immunity (as do federal and, at least where in the state constitution, state officials), cannot demand strict scrutiny of statutes or ordinances that might be seen to interfere with their core legislative functions.
The district court didn’t fully accept this ploy, but the state Supreme Court did. And now the case is going to the U.S. Supreme Court, despite the fact (or because?) the particular provision is both weak and unusual, thus making the plaintiff’s case easier in one sense, but the free speech argument unnecessary. Will the U.S. Supreme Court insist on focusing on due process, and throwing out the free speech argument? Or, if it insists on accepting the free speech argument, will it come up with a second balancing approach that takes into account a local government official’s obligations and the very different nature of their free speech rights?
I’d like to end with the last words of Justice Pickering’s dissent:
- [A]pplying First Amendment strict scrutiny and overbreadth precepts to invalidate state conflicts-of-interest laws that govern local governmental officials who vote is a mistake that I fear opens the door to much litigation and little good.
Director of Research, City Ethics
* * *
It is true that this new case going before the Federal Supreme Court should not scrutinize on elected officials votes. Yet, in our case in White Springs, the Gang of Three’s votes seem to violate not only the Official’s Fiduciary Responsibility but also appear to be a matter of Public Corruption.
Public corruption, the FBI’s top criminal investigative priority, poses a fundamental threat to our national security and way of life. It can affect everything from how well our borders are secured and our neighborhoods protected to how verdicts are handed down in courts to how public infrastructure such as roads and schools are built. It also takes a significant toll on the public’s pocketbooks by siphoning off tax dollars—it is estimated that public corruption costs the U.S. government and the public billions of dollars each year. The FBI is uniquely situated to combat corruption, with the skills and capabilities to run complex undercover operations and surveillance.
The Bureau’s Public Corruption program focuses on:
- Investigating violations of federal law by public officials at the federal, state, and local levels of government;
- Overseeing the nationwide investigation of allegations of fraud related to federal government procurement, contracts, and federally funded programs;
- Combating the threat of public corruption along the nation’s borders and points of entry in order to decrease the country’s vulnerability to drug and weapons trafficking, alien smuggling, espionage, and terrorism.
- Addressing environmental crime, election fraud, and matters concerning the federal government procurement, contracts, and federally funded programs
No other law enforcement agency has attained the kind of success the FBI has achieved in combating corruption. This success is due largely to the cooperation and coordination from a number of federal, state, local, and tribal law enforcement agencies to combat public corruption. These partnerships include, but are not limited to the Department of Justice, Agency Offices of Inspector General; law enforcement agencies’ internal affairs divisions; federal, state and local law enforcement and regulatory investigative agencies; and state and county prosecutor’s offices.
Kleptocracy is a form of political corruption in which the ruling government seeks personal gain and status at the expense of the governed, literally meaning “the rule by thieves.” Through graft and embezzlement of state funds, corrupt leaders amass tremendous wealth at the expense of the broader populace.
.Public corruption in any form is the misuse of a public or government office for
private gain. Its existence is an indication that something has gone wrong in the
management of the government office, whether it be federal, state, or local. In
that regard, it is a basic tenet that government is not to be used for personal
enrichment and the extending of benefits to the corrupt.
The prevention of corruption is essential not only to make government work for
its intended purpose, e.g., ensure that public officials are using their office to
further the public interest and not to enrich themselves or others, but also to
preserve public confidence in the democratic process. As to the latter, the United
States Supreme Court has observed: “[A] democracy is effective only if the
people have faith in those who govern, and that faith is bound to be shattered
when high officials and their appointees engage in activities which arouse
suspicions of malfeasance and corruption.” (United States v. Miss. Valley
Generating Co., 364 U.S. 520, 562 ).