9/9 FRI 9:30 | Combating Corruption By Being Ethical 2


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Nancy Stroud

The training session will focus on the new fourth section of the AICP Ethics Code. Included will be a dialogue about the ongoing ethical code efforts in Broward and Palm Beach counties to help combat the political corruption that has sent multiple city
and county commissioners, and at least one certified planner, to prison. A must hear for all planners.

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9/9 FRI 9:30 | Combating Corruption By Being Ethical 2

  1. 1. Combating Corruption By Being Ethical APA Florida 2011 Conference Friday, September 9, 2011 Nancy Stroud, AICP JD Lewis Stroud & Deutsch, PL Boca Raton, FL
  2. 2. Lessons from Recent Case Law <ul><li>Nevada Commission on Ethics v. Carrigan , United States Supreme Court June 13, 2011 </li></ul><ul><li>Citizens United v. Federal Elections Commission, </li></ul><ul><li>United States Supreme Court January 21, 2010 </li></ul>
  3. 3. Citizens United <ul><li>Case Summary: </li></ul><ul><li>2002 Bipartisan Campaign Reform Act, (aka McCain–Feingold Act) prohibits all corporations and unions from broadcasting “electioneering communications” within 60 days of a general election or thirty days of a primary. </li></ul><ul><li>Citizens United, a conservative nonprofit corporation, sought to air a film and run television ads for the film during the 2008 Presidential campaign. The film “Hilary: The Movie” was critical of Hilary Clinton . </li></ul>
  4. 4. Citizens United <ul><li>In January 2008, the United States District Court for the District of Columbia ruled that the commercials violated the Act on the basis that they were political attempts to discredit Clinton, not fact-based and nonpartisan as Citizens claimed. </li></ul><ul><li>United States Supreme Court heard the case, with first oral argument in March, 2009, and then asked for further argument in September, 2009. </li></ul><ul><li>5-4 opinion, authored by J. Kennedy. </li></ul>
  5. 5. Citizens United <ul><li>Holding: </li></ul><ul><li>Political spending is a form of protected speech under the First Amendment, and the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections. While corporations or unions may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads. Corporations are “persons” for purposes of political speech. </li></ul>
  6. 6. Citizens United <ul><li>&quot;If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.&quot; J. Kennedy (for the majority) </li></ul><ul><li>Necessity for disclosure of corporate funding upheld </li></ul><ul><ul><li>anyone other than the candidate must disclose who is “responsible for the content of this advertising” </li></ul></ul><ul><ul><li>and must display on screen “in a clearly readable manner” for at least four seconds the name and address or website of whoever funded the communication. </li></ul></ul>
  7. 7. Citizens United <ul><li>“ At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” J. Stevens, dissenting (read in part from the bench) </li></ul>
  8. 8. Citizens United <ul><li>“ Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”  </li></ul><ul><li>J. Stevens (dissenting) </li></ul>
  9. 9. Nevada Commission on Ethics <ul><li>Case Summary : </li></ul><ul><li>Nevada Ethics in Government Law prohibits public officers (elected and employees) from voting or advocating on matters in which their independent judgment could be reasonably questioned because of a “commitment in a private capacity to the interests of others.” </li></ul><ul><ul><li>5 types of “others” include 1) members of household, 2) blood relation, 3) employer of officer or household member, 4) business relationship, and 5) substantially similar relationship – “catchall” </li></ul></ul>
  10. 10. Nevada Commission on Ethics <ul><li>City Councilman Carrigan discussed and voted on a hotel/casino project represented by Carrigan’s personal friend and campaign manager - 2005 </li></ul><ul><ul><li>Consulted with City Attorney </li></ul></ul><ul><ul><li>Disclosed the relationship </li></ul></ul><ul><ul><li>Did not seek an advisory opinion from the state Commission on Ethics </li></ul></ul>
  11. 11. Nevada Commission on Ethics <ul><li>Commission on Ethics investigated the vote in response to a complaint, found violation based on the catchall provision, censured Carrigan </li></ul><ul><li>Trial court upheld Commission on Ethics </li></ul><ul><ul><li>Balanced the state’s interest in “promot[ing] efficiency and integrity in the discharge of official duties” against Carrigan’s First Amendment rights. </li></ul></ul><ul><ul><li>State’s interest in an ethical system “outweighs any interest that a public official may have in voting upon a matter in which he has a disqualifying conflict of interest.” </li></ul></ul>
  12. 12. Nevada Commission on Ethics <ul><li>Nevada Supreme Court reversed -2010 </li></ul><ul><ul><li>Carrigan’s vote is protected speech under the First Amendment – “Voting serves an important role in political speech.” </li></ul></ul><ul><ul><li>As highly protected political speech, regulation must be reviewed under the “strict scrutiny” standard which requires state to show a compelling state interest and regulation narrowly tailored to protect the state interest. </li></ul></ul><ul><ul><li>Catchall provision was overbroad, not narrowly tailored </li></ul></ul>
  13. 13. Nevada Commission on Ethics <ul><li>Commission sought U.S. Supreme Court review, and in January 2011 the Court accepted review </li></ul><ul><li>Court issued unanimous decision (J. Scalia authored) </li></ul>
  14. 14. Nevada Commission on Ethics <ul><li>Holding : The Nevada Ethics in Government Law prohibiting a legislator who has a conflict of interest from voting on a proposal and from advocating its passage or failure, is not an unconstitutionally overbroad regulation of speech </li></ul>
  15. 15. Nevada Commission on Ethics <ul><li>History and tradition of recusal laws going back to the country’s early years, so presume they are constitutional </li></ul><ul><li>Distinguished between a lawmaker’s vote and his speech. Voting is not “political speech.” Lawmaker simply votes on behalf of his constituents; he does not have a personal right to vote but a legislators’ act of voting and debating “belongs to the people.”  The legislator is entrusted with that authority as an agent of the sovereign voters. </li></ul>
  16. 16. Nevada Commission on Ethics <ul><li>J. Kennedy (concurring opinion)- does recusal law intrude upon the political relationship between legislators/candidates and voters? Candidates’ announced positions leads voters to favor and vote for that candidate, and leads legislators to respond by voting as the supporters had wanted. Question not presented in the case, but is of concern </li></ul><ul><li>J. Alito (concurring)- vote is expressive activity, but recusal is not impermissable restriction </li></ul>
  17. 17. Lessons <ul><li>Corporations have political speech rights to fund political advertising. Disclosure requirements on corporate speech are permitted </li></ul><ul><li>Public officials do not have political speech rights to vote and can be required to recuse themselves from voting in a conflict of interest. Disclosure is not sufficient </li></ul><ul><li>?? other </li></ul>