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Good morning. I am Robert M. Tobias, President of the National Treasury Employees Union, the largest independent federal employee union. I appreciate this opportunity to address this Subcommittee on H.R. 1639, a proposed amendment to the honoraria restrictions in the Ethics in Government Act of 1978, as amended by the Ethics Reform Act of 1989.
In 1989, the Congress undertook to address the widespread public perception that the acceptance of honoraria by members of Congress constituted an ethical abuse. The measure ultimately enacted by Congress, however, went far beyond any perceived problem and barred acceptance of fairly earned compensation for speech or writings that could not conceivably raise any eyebrows. The Congress amended the Ethics in Government Act to prohibit all officers and employees of the government from accepting any compensation for any articles, speeches, or appearances-- even where there was no nexus whatsoever between the speech in question and the employees' governmental duties.
I am proud that my union was in the forefront in challenging the constitutionality of this ban as it applied to executive branch employees paid at a rate below that of a GS-16. As we successfully argued to the courts, a ban on the acceptance of compensation for expressive activities severely burdens employees' First Amendment right to engage in those activities. Where, as here, the governmental interest was insufficient to justify such a burden, that restriction is unconstitutional.
The Supreme Court in February 1995 finally brought a definitive end to the legal battle. In U.S. v. NTEU, 115 S. Ct. 1003 (1995), the Court held Section 501(b) of the Ethics Reform Act unconstitutional as applied to plaintiffs--lower graded executive branch employees. A year later, on February 26, 1996, Assistant Attorney General Walter Dellinger issued a Memorandum Opinion concluding that no portion of the honoraria ban in 5 U.S.C. app. 501(b) survives the Supreme Court's ruling. As a consequence, the Justice Department will not enforce that provision against any Member, officer or employee of the government.
In the discussion below, I will first outline the teachings of the Supreme Court that must guide this Subcommittee's consideration of a new restriction on acceptance of honoraria. I will then analyze the provisions of H.R. 1639 in light of those teachings.
1. The Supreme Court's analysis of the First Amendment issues raised by restrictions on acceptance of "honoraria".
Federal employees do not relinquish their First Amendment rights when they join the federal government. The Supreme Court underscored that employees retain the rights they would otherwise enjoy as citizens to comment on matters of public concern. 115 S. Ct. at 1012, citing Pickering v. Bd. of Education, 391 U.S. 563, 568 (1968). Any restraints that Congress would impose on that free expression must be justified as serving a legitimate government interest that outweighs the employees' interests. The honoraria ban contained in 501(b) could not be justified.
a. The nature of the burden on the First Amendment
The Supreme Court resoundingly agreed with us that a "prohibition on compensation unquestionably imposes a significant burden on expressive activity." 115 S. Ct. at 1014. The Government, in defending the ban on honoraria, had repeatedly attempted to minimize that burden by declaring that employees were free to write--they just could not get paid for it. A stake has now been driven through the heart of that argument. The Court has recognized that compensation provides a significant incentive, and that a denial of that incentive "will inevitably diminish [employees'] expressive output." Id. at 1014-15. That loss of incentive thus raises the most serious First Amendment concerns.
Moreover, the impact of the ban went beyond burdening the First Amendment rights of employees themselves. The Court recognized that the denial of compensation imposed a significant burden on the public's right to read and hear what the employees would have written and said. Id. at 1015. Many federal employees are tremendously talented and have much of value to share with the public. A restriction on their ability to communicate those views is a matter of great constitutional consequence to the American public, as well as to the employees themselves.
Finally, the Court stressed the extraordinary sweep of the honoraria ban. It termed the ban a "wholesale deterrent to a broad category of expression by a massive number of potential speakers." Id. at 1013. Because the ban is a prophylactic measure, it deters "an enormous quantity of speech before it is uttered. . . ." Id. at 1013 n.11. The widespread impact and the chill imposed on potential speech heightened the First Amendment concerns. Id. at 1014.
b. The Government's burden of justification
Given the sweep of 501(b), the Court imposed on the Government a "heavy" burden of justification. 115 S. Ct. at 1013. It required the Government to show "that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's 'necessary impact on the actual operation' of the Government." Id. at 1014 (quoting Pickering, 391 U.S. at 571.
That burden is not satisfied by speculation that the speech might threaten the Government's interests. Id. at 1013 n.11. Instead, the Court required the Government to show actual evidence of "demonstrated ill effects" of employee acceptance of compensation for expressive activity. Id. at 1015. Here, there was no evidence of misconduct related to honoraria by the vast rank and file of federal employees.
The Court observed that the ban on honoraria was defended on the basis of actual or apparent abuses of honoraria by Members of Congress. Id. at 1016. It suggested that Congress might reasonably assume that payments of honoraria to judges or high-ranking officials in the Executive Branch might generate a similar appearance of improper influence. The Court, however, refused to permit Congress to extend that assumption to the immense class of federal employees below grade GS-16.
The Court, further, placed little weight in the argument that a government-wide ban was necessary for administrative convenience. As it stated, a blanket burden of this magnitude requires a "much stronger justification" than the "dubious" claim of administrative convenience. Id. at 1017.
In short, the Court found the speculative benefits of the honoraria ban fell far short of the justification necessary to sustain this "crudely crafted" burden on employees' freedom to engage in expressive activities. Id. at 1018. It therefore held the ban unconstitutional as applied to the parties before the Court--namely, the individually named plaintiffs, employees represented by the plaintiff unions, and a class of all Executive Branch employees paid at a rate below that of a GS-16.
In discussing the appropriate remedy, the majority declined to pass on the constitutionality of a ban limited to more senior government officials. As it stated, the Government "conceivably" might advance a different justification to support a more limited ban, which would then present different constitutional issues. Id. at 1019.
The Court further declined to redraft the statute to limit it to cases involving an undesirable nexus between the speaker's official duties and either the subject matter of the speech or the identity of the payor. This process, the Court warned, "would likely raise independent constitutional concerns." Id. at 1019. It therefore left to Congress the task of drafting a narrower statute--subject, of course, to court review.
2. Analysis of H.R. 1639 in light of the teachings of the Supreme Court in U.S. v. NTEU
The Court's decision instructs us, above all, that Congress is to tread very warily in attempting to restrict the expressive activity of career government employees. While the Court did not preclude the drafting of a narrower and more limited statute, it cautioned that such a statute must be based on considered congressional judgments, which should be founded, in turn, on evidence--not speculation-- that it would counter demonstrated ill effects arising from the prohibited activity. The perceived evil must therefore be carefully defined and documented and the legislation narrowly drafted to extend no further than the documented abuse.
With those principles in mind, let me turn to the provisions of H.R. 1639. That bill corrects many of the abuses of 501(b) but nevertheless still raises some concerns.
We are pleased that H.R. 1639 limits the blanket prohibition on acceptance of honoraria to Members of Congress and to senior, noncareer officers and employees of the government. It lifts the blanket prohibition for all other officers and employees and restricts their acceptance of compensation only for certain speeches, appearances, or articles that contravene a nexus test. While a distinct improvement over the original measure, there remain some concerns:
a. The bill itself is drafted in a negative fashion that may have a chilling effect--perhaps inadvertently--on federal employees. It is structured as a flat prohibition with certain listed exceptions for speech, of certain employees, that do not fail certain tests. It would be far clearer if the bill were framed as a narrow prohibition on the acceptance of any honoraria by Members of Congress and senior noncareer employees, coupled with a prohibition on acceptance of honoraria by other federal employees for appearances, speeches, or articles that, for example, involve the use of government time or resources. Employees could then be assured that all speech not specifically prohibited was permitted.
b. Sec. 501(b)(2)(A) We question whether any statutory restriction on the acceptance of compensation for work-related activity is necessary. These provisions are redundant, for there are already in place regulatory prohibitions on the acceptance of compensation by any executive branch employee for any activity that "conflicts with an employee's official duties." 5 C.F.R. 2635.802. The regulations further prohibit any activity that involves misuse of position, including the use of public office for private gain. Id. at 2635.701, et seq.
Federal statutes, moreover, prohibit receipt of compensation for government services or supplementation of salary from a private party. 18 U.S.C. 209 (1988 & Supp. IV 1992). There are similarly statutory prohibitions on solicitation or receipt of bribes. 18 U.S.C. 201(b) and (c).
Together, these regulatory and statutory provisions provide more than adequate safeguards against possible abuse of honoraria, conflict of interest, and misuse of government resources or nonpublic information. Significantly, there is no history of abuse by career government employees that had escaped correction by the already existing regulatory and statutory scheme. Nor is there any reason to believe that these provisions will cease to be effective.
If, and to the extent that, these provisions are not redundant, then they are constitutionally suspect because they single out expressive activity for disparate treatment. As such, they perpetuate some of the concerns raised by the blanket ban. As the Supreme Court stated, the imposition of "a greater burden on speech than on other off-duty activities assumed to pose the same threat to the efficiency of the federal service is, at best, anomalous." U.S. v. NTEU, 115 S. Ct. at 1017.
c. Sec. 501(b)(2)(A)(i) The prohibition on acceptance of compensation for an appearance, speech, or article that relates "primarily to the responsibilities, policies, or programs of the agency or office in which the individual is employed" is dangerously vague and overbroad. It could, for example, be interpreted to prohibit an editor with the Voice of America from accepting compensation for any article relating to American foreign policy, or an employee with the Department of Labor assigned to the Wage and Hour Division from accepting compensation for a speech on occupational safety and health.There is no justification for a ban of this breadth.
NTEU urges the redrafting of this language to limit it to appearances, speeches, or articles that relate primarily to the employee's own responsibilities. Such language would be more narrowly tailored to the perceived evil, which we assume to be an employee's supplementation of salary by accepting compensation from a nongovernment source for his or her government work. Other language in the proposed bill adequately addresses other, related evils that could possibly arise when a speech is based on agency operations, such as the use of nonpublic information.
d. Sec. 501(b)(2)(A)(ii) NTEU is concerned that a bar on honoraria when the "reason" for which the honorarium is paid is related to the employee's official duties or status might prove to be a trap for the innocent. An employee might have no knowledge of a payor's "hidden agenda" and no reasonable basis for inferring that the payor is improperly motivated. Such an employee should not be subjected to penalties if an unlawful motivation is later uncovered.
NTEU suggests that the language be modified to impose penalties on the acceptance of honoraria only when the employee has a reasonable basis for concluding that the honorarium is paid because of his or her official duties or status.
e. Sec. 501(b)(2)(D) Although the language of this provision is confusingly worded, NTEU reads this section as prohibiting any federal employee from accepting any fee over $2000 for speech that is unrelated to government employment. If that is indeed the import of this section, NTEU has substantial constitutional concerns.
NTEU questions what governmental interest underlies a ceiling on the amount of compensation an employee can receive from expressive activities that have no nexus to federal employment. While most career federal employees will never earn close to $2000 for an article, speech, or appearance, some certainly have that potential. They cannot constitutionally be deprived of money that they have legitimately earned from their expressive activities without a powerful countervailing interest, which is not present here.
During the litigation over the constitutionality of the ban, NTEU was approached by a number of federal employees who pursue a wide range of relatively lucrative expressive activities. One of these was a government lawyer named Lewis B. Puller, Jr., who won the Pulitzer Prize for his autobiography, Fortunate Son. He was asked to give speeches in his off-duty time about his book and his experiences during the Vietnam War; we understand that his earnings from some of these speeches exceeded this $2000 limit (at a time when the monetary cap was not in effect). What right does the government have to say that this war hero and respected author cannot accept any fee that an audience is willing to pay, where there is no conflict of interest?
There can be no doubt, in the wake of U.S. v. NTEU, that a cap on the receipt of compensation for expressive activities burdens the First Amendment. The government has singled out expressive activity for a monetary restriction that it does not impose on other money-making activities. There is no federal restriction on the amount of compensation that an employee may receive for such moonlighting activity as a part-time job at McDonald's or an engagement singing at the Metropolitan Opera. Such activity raises the same "threat" to the efficiency of federal service as the receipt of compensation for articles, speeches and appearances--namely, none.
NTEU therefore urges this Subcommittee to eliminate the $2000 cap on receipt of honoraria, at least with respect to career federal employees. We would not object to language limiting honoraria to "the usual and customary fee," as an additional safeguard against receipt of "sham" honoraria that is not legitimately earned by the employee. We do not, however, feel that such a provision is necessary, given the other statutory and regulatory safeguards against misuse of office and supplementation of salary.
f. Sec. 503(b) Because the prior notification requirements do not apply to career officers or employees, NTEU will not comment on this provision. We respectfully request the opportunity to supplement these comments to set forth constitutionally based concerns should this Subcommittee decide to extend the notification requirements to career officers and employees.
I thank the Subcommittee for this opportunity to submit these comments on proposed amendments to the Ethics in Government Act.