by James Marc Leas , Esq .
How Vermont Can Respond to Citizens United
In the line of cases starting with Buckley v . Valeo , 1 continuing with Randall v . Sorrell 2 , Citizens United 3 and more recent cases , the U . S . Supreme Court struck down restrictions on spending money in elections relying on the notion that such spending is speech and speech restrictions are subject to the highest level of judicial scrutiny . Sadly , Congress 4 and Vermont ’ s legislature 5 relaxed remaining limits , allowing even more money to flow their way .
All is not lost . One year after the highly unpopular decision in Citizens United , the nine Justices unanimously upheld Nevada ’ s ethics in government law in Nevada Commission on Ethics v . Carrigan . 6 This decision endorsed a way to squelch the flow of money invested in politics .
Carrigan was an elected member of the city council . He had voted to approve a project from which his friend and former election campaign manager would benefit as a consultant . 7 The issue was whether the independence of judgment of a reasonable person in Carrigan ’ s position would be materially affected by the fact that his friend and former election campaign manager would benefit from the vote . Nevada ’ s Commission on Ethics found that it was , and censored Carrigan . 8
In upholding the law , the Supreme Court handed town select boards , city councils , legislatures , and Congress an easily enacted tool they can use to prevent campaign finance corruption while entirely avoiding any entanglement with the First Amendment reasoning in Buckley v . Valeo .
The Court noted in Nevada Commission on Ethics that recusal from voting on questions in which legislators have a self-interest dates from the founding of the United States . The Court stated that within a week of the United States House first achieving a quorum in 1789 , it adopted a rule that “[ n ] o member shall vote on any question , in the event of which he is immediately and particularly interested .” 9
Similar wording in Vermont Senate 10 and House rules 11 prohibit a member from voting “ upon any question in which he or she is directly or immediately interested .” The Court further stated that “[ t ] oday , virtually every State has enacted some type of recusal law , many of which , not unlike Nevada ’ s , require public officials to abstain from voting on all matters presenting a conflict of interest .” 12 The Court cited this history because a “ universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional .” 13
Both the federal term “ particularly ” and the Vermont term “ directly ” can be understood as meaning “ specially ,” as used in the common phrase “ special interest ,” as distinguished from a “ general ” or “ public interest .”
While the original Vermont Senate and House recusal rule language appears to be sufficiently broad to apply to a range of conflict of interest situations , there seems to be an unwritten exception allowing a member to vote on matters where a business or another special interest has created a conflict of interest for the member by www . vtbar . org THE VERMONT BAR JOURNAL • SUMMER 2016 27