UNITED STATES v. NATIONAL TREASURY EMPLOYEES UNION
The Ethics in Government Act of 1978, amended by the Ethics Reform Act of 1989, prohibits members of Congress, federal officers, and other government employees from accepting an honorarium for making an appearance, speech, or writing an article. The prohibition applies even when neither the subject of the speech or article nor the person or group paying for it has any connection with the employee's official duties. The National Treasury Employees Union filed suit challenging the honorarium ban as an unconstitutional abridgement of its freedom of speech. A District Court held the ban unconstitutional and enjoined the government from enforcing it against Executive Branch employees. The Court of Appeals affirmed.
Does the honoraria ban abridge freedom of speech as protected by the First Amendment?
Legal provision: Amendment 1: Speech, Press, and Assembly
Yes. In a 6 to 3 decision delivered by Justice John Paul Stevens, the Court declared that a flat ban violated free-speech rights. Concerns about impropriety do not apply if there is no link between a government employee's job and "the subject matter of the expression or the character of the payor."
Argument of Paul Bender
Chief Justice Rehnquist: We'll hear argument first this morning in Number 93-1170, United States v. National Treasury Employees Union.
Mr. Bender: Thank you, Mr. Chief Justice, and may it please the Court:
This case concerns the constitutionality of the honorarium provision contained in the Federal Ethics Reform Act of 1989, a provision that prohibits Federal employees in all three branches of Government from accepting compensation beyond ordinary and necessary travel expenses for making appearances, giving speeches, or writing articles.
Regulations of honoraria of this kind for these same activities have been part of Federal statutory law since the mid-1970's.
In 1974, Congress imposed a... not a total ban, but a monetary limit on the amount that Federal employees could be paid in honoraria.
It was $1,000 per appearance and a $15,000 annual limit that was later raised to $2,000 per appearance and a $25,000 annual limit.
In 1981, the annual limit was removed, but the $2,000 limit remained.
In the Ethics Reform Act of 1989, Congress decided to, instead of dealing with this by putting a monetary limit on the amount that a Federal employee could obtain through honoraria for these activities, to eliminate them altogether.
It did this on the advice of two Federal Commissions, one the Quadrennial Commission, which makes periodic reports and gives advice on Federal salaries, and the other an ethics commission, Ethics in Federal Government Commission, appointed by President Bush in the last 1980's.
Both of those commissions recommended that the policy be changed from a limit on the amount of honoraria to total prohibition of Federal employees in all three branches obtaining honoraria.
Congress did this, as well, in light of very strong public concern about the use of honoraria for those activities as a way of steering compensation to Federal employees who might have, when the person steering the compensation might have some reason to want some favors or special treatment from the Federal employees.
That had been most prominent with regard to Members of Congress and congressional staffs, but the commissions recommended, and Congress followed their advice, that it made sense to apply the ban across the board and not just to limit it to the legislative branch.
Initially, it did not apply to the Senate, or Senate staff members, and in response to that, the Senate decided not to take a pay raise that went to the House at that time, but a couple of years later, the Senate voted itself into the ban, it and its staff, so that the ban now applies to all Federal employees in all three branches of Government.
Unknown Speaker: Mr. Bender, in the definitions section, 505(3), which defines the term, honorarium, apparently it was amended to add some parenthetical material so that it now provides...
"the term, honorarium, means a payment of money or anything of value for an appearance, speech, or article, including a series of appearances, speeches, or articles, if the subject matter is directly related to the individual's official duties, et cetera. "
Mr. Bender: Right.
Unknown Speaker: I am unclear what the purpose of that amendment was.
It seems to provide, as it's written, that a person can't get an honorarium for a single speech or article, but can if the person gets several, and I just don't understand what we do with a provision like that.
Mr. Bender: When I first saw that, it seemed to me that a person had made a typographical error, and that the parenthesis should have been moved up several words, but the history of the statute shows that it was, in fact, intended to be exactly as it was written.
As originally written, that whole parenthesis was--
Unknown Speaker: You mean, you think that it was intended to, as structured with the other provisions of the statute, to prohibit an honorarium if it's a single speech or article, but to allow it if there are several?
Mr. Bender: --Yes, I think that's the clear intention, because at the time in Congress there was a proposal to apply the nexus requirement.
That is, which says that the honorarium is prohibited only if it's directly related to the official's... to the individual's official duties, or payment is made because of the individual's status with the Government.
There was a proposal in the Senate to apply that to the whole definition, and that failed, and instead this was put in.
Unknown Speaker: I don't think that makes sense.
Mr. Bender: It seems counterintuitive.
Unknown Speaker: Is that absurd?
Mr. Bender: I don't think it's absurd, although I admit that it is counterintuitive.
Unknown Speaker: You can get hung for a sheep... for a lamb, but not for a sheep.
Mr. Bender: Well, I think the difference is that first of all the reason they did that was that the statute, as originally written... if you just leave out the parenthesis, you will see how it was originally written.
It says, for an appearance, speech, or article, and there was confusion about whether the statute would apply to a series, because it was stated in the singular, and this was put in to make it clear that it did apply to a series, because that wasn't clear before.
The difference, I think, between a series and an individual speech can be seen if you think about the reason for the prohibition in the first place.
The problem with honoraria... honoraria, not any payment for anything you do.
Moonlighting is not generally prohibited in the Federal Government.
The problem with honoraria is that they can be paid for relatively little or no work.
You can make an appearance without doing any work.
You can just go there.
You can make a speech without doing very much work.
You can write an article and have somebody else write it for you and put your name on it, or circulate the same article again.
Those are the things that the statute meant to stop, payment for things that could be used to transfer payment to Government officials who really didn't earn the money.
They were favors.
Unknown Speaker: You can be a consultant without doing any work.
Somebody can pay you money as a consultant.
Mr. Bender: There's no question of that, Justice Scalia, and I think it would be possible for Congress to have broadened this and made it a much broader ban on lots of other outside compensation.
I think Congress--
Unknown Speaker: The question is whether it's rational if it just selects one way in which you can get paid for doing nothing and does not select any of the other ways in which you can get paid for doing nothing.
Mr. Bender: --Ordinarily, Congress does not have to deal with all problems.
It can limit its prohibitions to the things that have proved to be the biggest problem.
Unknown Speaker: Mr. Bender, on the subject of doing something, I know there was a time when lawyers were paid by the word, but a great man said,
"It takes time to write it short. "
and this notion that many words, spreading it out into a series, is somehow a guarantee that there is more work that will be done, is problematic.
Mr. Bender: --It's obviously not an absolute guarantee.
This is a broad, prophylactic statute.
The lines are not absolutely precise.
If this were a statute dealing with a prohibition on speech, rather than merely a prohibition on payment for speech, if this were a statute dealing with people who were not Federal employees, that kind of grossness of the statute I think would pretty clearly make it unconstitutional.
Unknown Speaker: Might not the parenthetical material that we've been discussing, Mr. Bender, have been intended to allow someone to teach a course?
Mr. Bender: That's one of the functions that... that's one of the functions that it serves, and I think that's a good example of the kind of thing which is not likely to produce a payment made to curry favor with a Federal employee and is much more likely to be made because of some real value that the person has given.
It's hard to teach a whole course and not do any work.
It's a lot easier to give a single speech.
These are not perfect lines.
It is obvious that a speech can reflect a lot of work, and a series of speeches, the Office of Government Ethics has interpreted series to mean three... certainly you could do three speeches without doing a tremendous amount of work, but what Congress was trying to do here, and I think it's important to bear that in mind, is not to be overbroad.
It wanted to preserve as much as possible without... without casting doubt on the integrity of the Federal Service, it wanted to preserve as much as possible the opportunity to earn some money on the side.
Unknown Speaker: Well, Mr. Bender, this... it would make a lot more sense if the opening of the parenthesis were inserted just before "if", and after
"series of appearances, speeches, or articles. "
Then it would be clear that honorarium means payment of money or anything of value for an appearance, speech, or article, or a series of appearances, speeches, and articles, if the subject matter is directly related.
Mr. Bender: I agree with you, Justice O'Connor.
If I were doing it, that's what I would have done, and many people in Congress wanted to do that, but the question--
Unknown Speaker: Well, maybe it was just a drafting error.
They just put the parenthesis in the wrong place.
Mr. Bender: --The legislative history I think makes it clear that it wasn't just a drafting error because, as I say, there was a proposal to add that nexus limitation to the whole thing, and that proposal failed, and this proposal passed.
The issue is not what you or I think would make more sense.
The issue is whether what Congress has done is unconstitutional.
Unknown Speaker: But it does present you with a different problem here, and that is, part of your argument for sustaining the breadth of the ban is the difficulty in line-drawing if you were to have a narrower ban, and yet here is an example in which you've got to do some line-drawing, in which Congress in effect is saying, yes, we can draw lines if we want to, because there is a germaneness requirement in the series.
Mr. Bender: In the series, yes, and I think the reason for that, or the explanation for that, might well be that there are many less cases where people do a series.
For example, some people teach courses, but there aren't very many of those, and therefore it's possible for the ethics officials who have to administer this to have to deal with that small number of cases.
Unknown Speaker: Well, I can--
--Mr. Bender, can you explain on the question of exceptions why one appearance or one writing is okay if you are faculty or a student of a military school?
What was the basis for allowing that exception?
Mr. Bender: I believe it was, Congress wanted to make the exception for the military, and I think it had to do with... I can explain this much more easily for the faculty than the students.
The faculty of military academies wanted to be considered on the same plane, and I think they should be considered of the same plane, as faculty of other institutions, and to say that they could not make speeches for compensation the way other faculty members do treats them as not really like regular faculty members.
I think that was the reason for doing it.
Unknown Speaker: And the students?
Mr. Bender: I have no explanation for the students.
Congress decided to make the exception.
But I think here there are things that will occur to all of us, and when you read the regulations, you can see other things that occur to you.
Fiction, for example, is... the regulations say is not covered by this.
Poems are not covered by this.
There are things that seem to be irrational, but if you think of it from the point of view of administrability, I think the rationale becomes a little clearer.
The problem with a single speech and applying a nexus requirement is, you have to know what's in the speech.
The ethics official... for example, everyone would agree that if the speech is directly connected to the work of the person, then Congress may ban it.
Unknown Speaker: Well, but if it's a series, the statute requires that evaluation--
Mr. Bender: Right, but with a series it's--
Unknown Speaker: --so it just doesn't make sense.
Mr. Bender: --I think with a series it's easier to know what the subject matter is.
For example, in Chief Justice Rehnquist's example of someone teaching a course, a course will have a name, the course will have a description, the university will require the course to be tailored to the name and the description, so you can tell... I think more easily with a series you can tell whether or not the subject matter is a problem.
And also I think the intention was to permit teaching, because Congress probably thought that teaching by some Federal officials was something that was very strongly in the public interest.
Unknown Speaker: It isn't limited to teaching.
It doesn't even say teaching.
Mr. Bender: Right, and again, it's blunter than it might be.
The question for the Court is whether that bluntness... there's no question that, I think... I think it's common ground both with the court of appeals and with respondents that there is a core of activity to which this statute plainly constitutionally applies.
Unknown Speaker: Mr. Bender--
Mr. Bender: If a member of the Solicitor General's office were to--
Unknown Speaker: --would you explain something to me?
I really have to say I'm kind of puzzled about the reason why the content of the speech or writing makes any difference at all.
If you want to curry favor with someone by paying them something that they haven't really earned, what difference does it make whether they write a lyric poem, a mystery story, or talk about what they do every day at the office?
Mr. Bender: --Currying favor is one of the problems, but there are others.
For example, suppose a member of the Solicitor General's Office was asked to go to a law firm and give a talk about tips on arguing before the Supreme Court, sharing your experience.
The problem with that kind of thing is, the people who can pay for that information, gleaned or amassed as part of one's Federal employment, can get information from a Federal officer that people who can't pay for it can't get.
You could have a doctor who works at NIH giving lectures about the work he does to drug companies or insurance companies about the work he does, and that information just goes to those people.
So I think to have a Federal employee be paid for talking about the work the Federal employee does raises a different concern, which is that people who are able to pay for it shouldn't be able to get information from Federal employees that people who can't pay for it can't get.
Unknown Speaker: Would you agree that insofar as your concern with corruption, the subject matter doesn't make any difference?
Mr. Bender: I agree with that, right.
Unknown Speaker: Under that theory a Federal employee shouldn't be able to publish a book.
The only people who can get the information from a book are those who can afford--
Mr. Bender: There's a balance I think that Congress is drawing in saying that a book is likely to be so valuable that we want to permit people to do it, and a book is easier to police, because it's a public thing that is published and can be seen and can be looked at by an ethics official to see whether there's anything in the book that compromises the Federal official, whereas speeches are evanescent, they're gone.
Does a Federal ethics official have to go to the speech?
An appearance is even harder to judge, and even with regard... for example, if somebody makes a speech at a garden club to talk about how to grow roses, and the person who does that is a lawyer in the Department of Justice, that seems perfectly innocent, but maybe the head of the speaker's bureau of the garden club has a case before that lawyer.
How in the world would the Federal ethics official ever know that?
I think it's--
Unknown Speaker: --Mr. Bender, in the event that your main argument doesn't prevail, may I ask what you think of the Silberman solution by way of a remedy, which would in effect be changing the place of the open paren?
Mr. Bender: --I think that, or something very similar to it, is the correct solution.
If the Court feels that Congress did not have the right to write a broad, prophylactic statute here and that the extension to honoraria that have no nexus is unconstitutional, then the right remedy is to say that the statute cannot be applied to those honoraria rather than--
Unknown Speaker: Does the answer to that question, whether or not Congress has the constitutional authority to do this, turn in part, or in large part, on an assessment, either by us or by the Congress, as to how often these speeches do, in fact, implicate the interest that the Government is wishing to vindicate and to protect?
Mr. Bender: --To some extent, I think it does.
Unknown Speaker: What... and what kind of empirical data do we have to make that assessment, or did Congress have to make it?
Mr. Bender: --I think Congress has no formal empirical data but its understanding of the way Federal Government works and what Federal employees do, and that's what you have to use as well.
I think because it's so hard to know the facts there, deference to Congress is appropriate.
Unknown Speaker: If we thought, or the Congress thought, that the improper kind of speaking takes place only 5 percent of the time, would that have been enough to sustain this statute?
Mr. Bender: I think that would be very doubtful, but I'm almost positive that those would not be the facts here.
There are people who have hobbies, and there are people who make some money on their hobbies by giving speeches or writing articles, but I think it is almost worthy of judicial notice that it's much, much more likely that people will speak about their work, the things that they do for most of their time, and that the dangers of permitting honoraria generally are much more Federal employees who would be paid to speak about their work, be paid to speak about the things that they work on, than things that are just hobbies for them.
Unknown Speaker: When we're making this assessment and this evaluation, since speech is involved, is there some heightened form of scrutiny?
Mr. Bender: There is certainly some heightened form of scrutiny, but I think two things, and as I said before, I think if this statute were a prohibition on conduct of non-Government employees, or even perhaps a prohibition on conduct of Government employees, the answer might be different.
But here, I think two factors which go to permitting Congress to do this are 1) that this does not prohibit any speech at all, it prohibits compensation for speech, and these are all people who have another job, and so it is unlikely in many cases that the compensation will in any sense be necessary to permit them to give the speech, and if it is necessary to permit them to give the speech, that raises other problems.
With Federal employees dependent upon this kind of outside income, I think Congress could be worried about that.
Unknown Speaker: I take it, Mr. Bender, you would admit, would you not, that the net effect of the statute is to decrease the quantity of speech?
Mr. Bender: I'm sure that that's true, because there are some people who will not do it, and that is... there's no question about that.
I think the closest analogy in this Court's history are the Hatch Act cases, where I think you could similarly say, as we all have said about this, that there are some things that the Hatch Act prohibits that really don't cause any danger at all, but Congress, rather than drawing the lines at which kind of political campaigning cause the problem and what offices there was political pressure by superiors on inferior people, instead of drawing those lines, Congress decided that it wanted to ban the whole thing.
Unknown Speaker: The Hatch Act I understand is an analogy.
What about the Son of Sam cases?
You're focusing on speeches, but these plaintiffs are not talking about speeches, these plaintiffs are a Nuclear Regulatory Commission attorney who wants to write an article about Russian history, or a Labor attorney who wants to write an article about Judaism.
So... and these are low-level people, often, who really aren't, I take it, invited always... they're not politicians.
They're nonpolitical people in the Civil Service who want to write articles about the Quaker religion, or Judaism, or the Russian history.
If a triple ax murderer, I take it, cannot be constitutionally prohibited from selling his story for money, why can a low-level civil servant be constitutionally prohibited from giving a talk about Judaism, or Quaker religion, or Russian history, writing an article about it which has nothing whatsoever to do with their job, before an audience that has nothing to do with their job, on their own time?
Mr. Bender: Two--
Unknown Speaker: I mean, why does the Constitution seem to apply to one and not the other?
Mr. Bender: --Well, two things about that, Justice Breyer.
1) I don't think the Court said in the Son of Sam case that a triple ax murderer could not be prohibited.
Unknown Speaker: It was too broad--
Mr. Bender: --the statute was overbroad.
Unknown Speaker: --It's too broad.
Mr. Bender: I think--
Unknown Speaker: So why is that too broad, when this one, which says you can't write an article about the Quaker religion, and so forth, is not too broad?
Mr. Bender: --The Court has always given Congress a lot more discretion in dealing with regulating the activities of Federal employees, and the Hatch Act case again shows that.
You could obviously not prohibit the kind of activity the Hatch Act prohibits for Federal employees if you were prohibiting it for people generally.
Unknown Speaker: But why is... my question, basically, is why is the public interest in taking a GS-14 or 15 civil servant and saying, you can't, on your own time, write an article about Russian history, why is the public interest there greater than the public interest in saying to serious criminals you cannot make money out of your story?
Mr. Bender: I don't think it is greater, and a statute that was tailored to the serious criminals would be constitutional.
But let's come back to the example of... let's come back to the example of the person writing an article.
First of all--
Unknown Speaker: If that's so, then should not this be tailored in the same way?
Mr. Bender: --The statute does not prohibit writing the article.
The statute prohibits being paid for it.
That may seem totally innocent, and in most cases, and in probably an overwhelming number of cases, it will be totally innocent.
But suppose the article is being paid for by someone who has business before the agency?
Then, I think, it would raise problems.
Congress I think was worried, and I think it is proper for them to be worried, about who was going to supervise that.
How will you know that the speaker chairman of the garden club who hires a secretary in the Justice Department to give a talk about how to grow roses does not have business before the Justice Department and wants the secretary help him to get an appointment with some officials?
You could have written a statute which said, it turns on that, which would mean that Government ethics officials in each agency would have to enforce that.
One of the problems that Congress knew about was the unevenness of enforcement of these ethical regulations in different agencies if you permit them to be enforced by the people in the agencies, and Congress thought it was worth... and they must have known that they were trenching on some ground where they would be stopping people from speaking and where there would be no reason for doing it in that particular case.
Unknown Speaker: But administrative efficiency--
Mr. Bender: I think--
Unknown Speaker: --demanded it.
Mr. Bender: --Yes.
I think that it's... that's a way of saying it in a way that kind of denigrates it as an interest.
Unknown Speaker: --the way our opinions have.
Mr. Bender: Yes.
It's... I think it's administrative efficiency is a label.
There's a reality behind that label.
Unknown Speaker: Well, may I ask you the empirical question on that?
What do we know, what is there for us to consult in determining just how much of a burden the reality is?
I have no doubt in the world that it's going to be harder to administer if we draw the line on some germaneness criterion, but how inefficient is it going to be?
What is the administrative burden going to be?
I don't quite know how to weight it.
Mr. Bender: It's very difficult, and I think it's because it's very difficult that unless it appears very clearly that Congress weighed it incorrectly, the Court should defer to Congress' judgment that that's the way to do it.
Congress considered putting a nexus provision in.
It thought about it and decided not to do that.
I think that their knowledge of the Federal system, their knowledge of the pressures on employees, and their knowledge of the dangers and their sense of the public perception of the dangers--
Unknown Speaker: But how is that consistent with your concession earlier that there is some element of heightened scrutiny to be applied here?
That isn't heightened scrutiny.
I mean, that is basically deference, if there is any conceivable rational basis, I suppose.
Mr. Bender: --Well, I think there's... there is some heightened scrutiny.
It is hard to say exactly what that is.
I think it--
Unknown Speaker: What is the mechanism for the series?
Is there some screening?
Do you have to check that in advance, and how much more of a burden would it be if that, whatever that mechanism was, was simply extended?
Mr. Bender: --Well, there would be many, many more cases that would have to be screened.
That's one thing, because there are many less series of speeches than there are individual speeches and appearances, and articles, and as I said, with a series, it is usually possible to tell the subject matter of the series with some confidence from some written materials.
That's much harder to do with a single speech or a single appearance, so I think the administrative problems would be greater.
Just one more word about... in response to your question, Justice Souter, I think one way that a heightened scrutiny shows up is in the question Justice Kennedy asked about what percentage would have to be overbroad to strike it down.
I think that if the statute didn't involve speech, and there was any conceivable, rational objective that Congress was pursuing, one would uphold it here.
I think if the Court were convinced that 95 percent of the statute's application was on speech that caused absolutely no danger of a public perception of lack of integrity, then you would strike it down, whereas if it weren't speech, then I think you wouldn't strike it down.
Unknown Speaker: But shouldn't we be able to get some sense from prior experience in the agencies of the amount of screening that would be necessary?
Mr. Bender: Yes.
The problem, though, with that, is it... the prior experience is very uneven.
Some agencies are quite strong and concerned about applying these ethics regulations.
Unknown Speaker: Well, the--
Mr. Bender: Other agencies are not.
Unknown Speaker: --Excuse me.
The results may have been uneven, but I presume the number of occasions on which they had to screen was not a matter of judgment, and if we even knew the amount of screening that had to be done, we would at least have a way of making some kind of guess about the administrative burden.
Mr. Bender: Right.
I don't know that there are any figures collected.
At least, I was not able to get any central figures collected about how many of these requests were made, or how much investigation was done at the particular agency level, because the immediate enforcement of this statute is at the agency level.
The Office of Government Ethics does not do a comprehensive screening.
Unknown Speaker: What I understand you to say, though, is if you're wrong about the constitutionality of this, you would prefer extension of this... it's got to be a screening device extension of what's done for the series to all of the speeches to total destruction of the statute.
Mr. Bender: It's not that the Government would prefer it, it's that I think Congress deserves that recognition.
It's clear to me that if--
Unknown Speaker: The overbreadth doctrine doesn't apply to Congress?
I mean, I thought--
Mr. Bender: --Of course it does.
Unknown Speaker: --in First Amendment cases, if you're too broad, the whole thing's bad.
There's no such thing as overbreadth, then.
Mr. Bender: There is.
Unknown Speaker: What we should do in all cases is just cut it back to what would be constitutional.
Mr. Bender: If it was 95-percent overbroad, or if you couldn't easily separate the constitutional from the unconstitutional applications, then I think you might strike the statute down, but here it's quite easy.
Unknown Speaker: You can usually easily separate it.
I don't think that's usually a problem.
Mr. Bender: Sometimes it's--
Unknown Speaker: Well, I don't see how this differs from any normal overbreadth case.
Mr. Bender: --Well, in the--
Unknown Speaker: Maybe the overbreadth doctrine is no good.
Maybe we should reconsider that.
Mr. Bender: --The Court has said that--
Unknown Speaker: But it seems to me inconsistent with that to say just, you know, narrow it as much as is needed to make it constitutional.
Mr. Bender: --The Court has said repeatedly since Broadrick that it will use the overbreadth doctrine only as a last resort, that it is very strong medicine to be reserved for very unusual cases.
This Court, for example, in holding that the statute--
Unknown Speaker: Where it is substantially overbroad.
That's the issue we were directing ourselves to.
Don't you think if this is overbroad, it is substantially overbroad, if it covers not just speeches related to the work, but all speeches?
I think that's substantial overbreadth.
Mr. Bender: --Well, substantial in comparison to the part of the statute that is constitutional?
No, I don't think it is substantial.
I would guess that there is a much smaller number of these speeches made on topics that have nothing to do with a person's work than there would be speeches made for compensation on topics that have something to do with a person's work, so I don't think it's substantial in that sense.
I'd like to reserve the rest of my time, if I may.
Unknown Speaker: Very well, Mr. Bender.
Argument of Gregory O'Duden
Mr. O'Duden: Mr. Chief Justice, and may it please the Court:
In its brief, the Government has offered three main justifications for the statute.
It has said that it is needed to guard against the appearance of impropriety, it has argued that this is a needed prophylactic measure, and it has also said that there are administrative reasons that justify the existence of the statute.
Much of the discussion this morning has focused on the last justification.
If I understand the Government correctly, it is agreeing that there is no appearance of impropriety when a career employee writes or speaks about something that has no connection to his job, and where the payor has no interest pending before the Government.
But what the Justice Department seems to argue this morning is that even if that's the case, it's just too hard to enforce a nexus requirement, and with all respect to the Justice Department, I believe that that argument is just a bit thin.
As we know, as Justice O'Connor has pointed out, the Achilles heel in each of the... with respect to each of the justifications here is the fact that an employee can receive compensation if he or she writes a series of articles, and, of course, what that means with respect to the statute is, you can't be paid if you write one or two articles, but if you repackage it as three or more, then you can be paid, provided there is no nexus to employment.
It seems to us that the fact that there is a nexus test written right in the statute is very good evidence that a nexus test is eminently manageable.
The question was raised earlier, what concrete experience do we have as to how much of a burden it is to administer a nexus requirement?
Well, we would point the Court to a report that the Government believes, at least in its brief, supports its position, and I'm speaking here about the GAO report, which, of course, covered a 3-year period and examined outside activities that were engaged in by Federal employees.
And if I read the report correctly, and added up the numbers correctly, there were about 2,500 employees who had received approval to engage in outside activities, the report identifies two instances where there were arguable improprieties with respect to the speaking activities.
So in essence, what the report has said is that out of 2,500 occasions, there were two concrete instances of an arguable abuse, and of course--
Unknown Speaker: Did this report, Mr. O'Duden, consider simply appearances as well as speeches or articles?
Mr. O'Duden: --The report is very wide-ranging.
It apparently considered all kinds of outside activities.
The focus was on consulting and speech activities.
Unknown Speaker: Mr. O'Duden, what troubles me about your proposal that it just be limited to things that have what you call a nexus is that it's a different problem from what... I mean, that's a good idea.
It might be a nice statute, but there are two really quite separate problems.
One is the problem of an employee trading on the expertise he's acquired in the Government.
That is one problem.
A quite separate problem is the problem of the employee getting paid by someone outside the Government for talking about, you know, really for the benefit that he could do to somebody outside the Government but disguising it under, you know, a speech or whatever.
It's usually disguised under a speech, is what the Government says, and therefore Congress chose to address that.
That's a totally separate problem from the problem of trading on your Government expertness, so why should we substitute the one statute for the other?
It's a different statute.
Mr. O'Duden: Well, it would seem, though, that that same rationale would apply to the situation where someone gave a series of speeches, or a series of articles.
It's not clear to me why that same notion that when a Federal employee speaks about something that has nothing to do with his job, would not also raise that same concern in that situation.
Unknown Speaker: Well, how about the Solicitor General's answer that, with a series of articles or perhaps with a book, you have some more guarantee of authenticity?
It's easier to trace if you have a series of articles, or a course.
It's easier to spot what the course was about.
Mr. O'Duden: As I understand the Government's argument, it is suggesting that the added volume of material somehow makes it easier to determine a nexus, and I think as Justice Ginsburg noted earlier, that, I think, lacks a rational basis, because someone could easily write a very long, very voluminous, single article with ample material in it.
Someone could write, on the other hand, three very short articles.
It seems to me that it would be far easier to determine whether there was a nexus in the former instance as opposed to the latter, so that we do not believe that is a viable argument for the Government to make.
Unknown Speaker: Well, is it your position that the statute would be more defensible if the series exception were not in the statute and there were just a blanket prohibition, whether or not it was a series?
Mr. O'Duden: No.
Of course, when we first brought the lawsuit, the series exception was not in the statute.
Our main contention has been that--
Unknown Speaker: Which statute is the more defensible?
Mr. O'Duden: --I beg your pardon, Your Honor?
Unknown Speaker: Which statute is the more defensible from the Government's standpoint?
Mr. O'Duden: I think that they were... they are equally indefensible, but I think that the fact that there is this exception now for a series, that that raises a question about the credibility for limiting payment in the first instance.
Unknown Speaker: Would you say a statute with that qualification, the series nexus test just extended across the board, that such a statute would be constitutional?
Mr. O'Duden: We have never questioned that if there was a nexus requirement in the statute that applied across the board, that that would be a constitutional statute.
Unknown Speaker: So then you would have no objection to the solution that Judge Silberman proposed in the D.C. Circuit.
Mr. O'Duden: Quite frankly, Your Honor, as a practical matter, no, we would have no objection to that whatsoever.
Unknown Speaker: Why is that statute constitutional?
I mean, there are a lot of times that people could write... you know, the knowledge that they bear after 30 years of work in the Government relates to one field.
They want to write an article about that one field.
Why shouldn't they be able to write that article?
What's the risk?
Mr. O'Duden: Well, I think the way the nexus test works, the one that is written in the statute, is that you are not allowed to be paid if there is a direct nexus, so there may well be that there are circumstances where, if somebody is writing generally about something that he has worked on, where it might be appropriate for that person to engage in that kind of activity.
But I think the obvious concern is that if you're writing about something that you learned about as a result of your Government position, then that does, at least arguably, create the appearance that you are trading on your job, and therefore we believe that a nexus test is an appropriate test for Congress to have written into the statute.
Unknown Speaker: Trading on the job in the sense that what you have learned on the job, you're profiting from?
Mr. O'Duden: That's right, using your public office for private gain is the notion.
Unknown Speaker: But if you do it on your own time, why shouldn't you be allowed to do that, under your theory?
Mr. O'Duden: For the very reason that I just gave.
The fact that you're doing it on your own time doesn't obviate the fact that you are trading on your Government position, that you are using something that you learned as a result of your Government job and exploiting--
Unknown Speaker: Why is it different than if you wait until you retire and then write your memoirs?
To do that... General Grant did that.
I mean, what's wrong with that?
I must confess--
Mr. O'Duden: --Obviously, the statute only governs a situation where you a current employee.
I think that once you've retired, I think different considerations come into play.
Unknown Speaker: --Well, suppose you had a statute--
--It's the same consideration--
--which forbade that?
--making use of what you learned as an employee, in either event, and in neither case does it interfere with your current employment, as I understand it, the hypothetical.
Mr. O'Duden: That's right, but I think as long--
Unknown Speaker: It's just an appearance problem.
Mr. O'Duden: --It's an appearance problem.
As long as you're on the Government payroll, I think that it would be--
Unknown Speaker: It's an appearance... is it an appearance... I've been a judge for something like 12 years now, and I've learned a lot of law there, and now and then I talk about the law.
Mr. O'Duden: --That's right.
Unknown Speaker: And some of the things I know about the law, I've learned in these 12 years--
Mr. O'Duden: But you don't talk--
Unknown Speaker: --and that's a wicked appearance.
Mr. O'Duden: --about your cases, do you?
You don't talk about your cases--
Unknown Speaker: No--
Mr. O'Duden: --or the cases that are pending before you.
Unknown Speaker: --I don't talk about cases that are pending.
Mr. O'Duden: I've seen Your Honor speak--
Unknown Speaker: I talk about past cases, sometimes.
Mr. O'Duden: --Very carefully, though.
Unknown Speaker: Well, I hope so.
I hope so.
No, but you're not concerned with revealing confidential information.
Mr. O'Duden: I beg your pardon, Your Honor.
Unknown Speaker: --everything is in the public domain that this person is talking about.
You're not talking about revealing Government secrets, or judicial secrets.
You might be a heart surgeon out at Bethesda, you've had a lot of cases and learned about it, you want to give lectures to heart surgeons.
Mr. O'Duden: That's right, and I think--
Unknown Speaker: I don't understand what's wrong with that.
Mr. O'Duden: --I'm not saying there's anything wrong with that.
In fact, we see from the current regime, from the prior regime of Government regulations, when a Government employee, I suppose including a justice of the Supreme Court, speaks generally about the issues before him, that has been deemed properly not to create the appearance of impropriety.
Unknown Speaker: I'd like to know what your position would be if Congress passed a statute, a hypothetical, that for a period of 10 years after you leave the Government you may not write about what you learned at the agency.
Mr. O'Duden: I think that that would be a tougher case for us to challenge.
A 10-year period would seem to be a long period of time.
A lot, of course, would also depend on the category of the employee that the law addressed.
There is a well-recognized interest in avoiding this syndrome of the revolving door, where people take advantage of what they learned as a result of serving in the Government, particularly at a high level of the Government, so I think that there's an arguable interest in preventing that to a certain degree.
Whether 10 years is too onerous or not, I think it would depend on how the interest was actually articulated and what kind of problem was actually demonstrated.
Unknown Speaker: I'm still... my basic question is what the standard is.
I mean, I might say, look, these are not political people.
These are civil servants.
They don't go have thousands of freebies thrown at them.
They want to write articles about their job or not about their job on their own time.
All right, what standard do we apply?
If I... I might think, look, this is good that they write about their work, not bad, it educates people, but Congress might decide differently.
I referred to the Son of Sam statute because I wonder if that isn't the appropriate test, that what you are going to say, Congress can or cannot pay.
Congress can't... the State can't tell... it's overly broad.
Do you remember that?
I mean, if you're not... do you see what I'm thinking?
Is there an analogy?
Mr. O'Duden: Well, there certainly is an analogy to the Simon & Schuster case, the Son of Sam statute, and the principal analogy that it provides to us in this case is that the Court has recognized that a law that imposes a financial disincentive like the honoraria statute, like the Son of Sam statute, that that demonstrates that, contrary to what the Government has argued, that the law is a direct and substantial burden on speech.
That is the main reason that we cite to the Simon & Schuster case.
If Your Honor is asking me what is the standard of scrutiny that should apply, we believe that the court of appeals got it exactly right when it said that the test here is whether or not the law limits speech in a way that goes beyond what is reasonably necessary to secure the Government's interest and, of course, that formulation is essentially that which is found in Brown v. Glines, and the court of appeals... the court of appeals recognized that the starting point with respect to the proper standard is, of course, this Court's decision in Pickering, where the basic general question is whether the Government's interest in efficiency outweighs the employee's interest in speaking freely on matters of public concern.
Unknown Speaker: That's a heightened scrutiny test that you're talking about.
Normally, of course, we just say... ask whether it has a reasonable basis, and we don't presume to weigh on our own whether it's more than is reasonably necessary, right?
But it seems--
Mr. O'Duden: I don't believe that the Brown v. Glines formulation is a heightened scrutiny test.
I think what it suggest is--
Unknown Speaker: --When we review a normal statute, do we inquire whether the statute is reasonably necessary--
Mr. O'Duden: --Oh, no.
Unknown Speaker: --to achieve its objective?
Mr. O'Duden: No.
Unknown Speaker: No.
Then it's heightened scrutiny.
Mr. O'Duden: Yes, outside the public employee context, yes, it would be heightened scrutiny, but we're not arguing for heightened scrutiny here, what we're seeking here is for the Court to examine whether or not there is some sort of a reasonable fit here between the interests that the Government articulates and the means that Congress has chosen to address that interest.
Unknown Speaker: Well, I consider that heightened scrutiny, you know, more than what the Equal Protection Clause would normally require, which is just a rational basis for the law.
Mr. O'Duden: That's right, Your Honor, but of course we're talking here about a First Amendment issue.
It's not an equal protection case.
Unknown Speaker: We're also talking about an employment issue, where the Government is acting as employer, not just as governor.
Mr. O'Duden: I don't think that we're taking issue in any way with this Court's notion that its cases have traditionally accorded deference to the Government employer, but when you read cases like Pickering and Connick and Rankin, they all make very clear that where the--
Unknown Speaker: Are they cases that dealt with a Government-wide statute, as opposed to the Government moving against an individual on the basis of some particular content to the speech that that individual made?
Mr. O'Duden: --I believe those cases purport to establish a general standard that applies to assessing when a limitation on public employee speech is justified, and what they say is that where the speech activity in question substantially involves a matter of public concern, then the Government has to make some sort of meaningful showing that its interest is threatened in the absence of that limitation.
Unknown Speaker: Don't you think there might be a difference when you're moving against an individual employee, as opposed to a general law like the Hatch Act?
Do you think we employed heightened scrutiny, really, to the Hatch Act?
Mr. O'Duden: No, and I emphasize again that we are not arguing in favor of what we would term to be a heightened standard of scrutiny.
I'm glad you brought the Hatch--
Unknown Speaker: Do you see no difference between the approach the Court took in Mitchell the first time it examined the Hatch Act and Letter Carriers the second time?
Mr. O'Duden: --I believe that there is a difference between the approach the Court used in Mitchell, which is similar to a rational basis test, and what it has come to apply.
I think that as the Court pointed out in Connick, the Mitchell case, the rationale was grounded on the notion that public employees could be required to surrender their constitutional rights when they came to work for the Government.
This Court has long rejected that notion.
It made that clear, for example, in Shelton v. Tucker, where the Court looked at a statute that limited the First Amendment rights of public employees.
Unknown Speaker: What does that mean, that you can't stop public employees from engaging in political campaigns?
Mr. O'Duden: No, Your Honor.
What we're saying--
Unknown Speaker: Then what does what you say mean?
It means nothing.
You say, you can't require them to give up their constitutional rights.
That is a constitutional right, to engage in political campaigns, certainly, a very important one, isn't it?
Mr. O'Duden: --It is.
Unknown Speaker: Can you require Federal employees to give it up as a condition of their employment?
Mr. O'Duden: Okay.
Unknown Speaker: Therefore, what you said is simply wrong.
Mr. O'Duden: No--
Unknown Speaker: You can, indeed, require people to give up constitutional rights as a condition of Federal employment.
Is that true or false?
Mr. O'Duden: --Only where there has been a showing that there are Government interests that are actually at stake.
Let's take a look at the Hatch Act.
Unknown Speaker: Different point.
You can, but not... but there has to be a good reason for it.
Mr. O'Duden: We're happy to live with that formulation, Your Honor, that there has to be a good reason for it, and we think that the Hatch Act cases illustrate a circumstance where there was a good reason for a prophylactic measure in that case, because as the Court pointed out in Letter Carriers, there was a well-documented history going all the way back to the days of Thomas Jefferson that when Government employees engaged in political activities, that problems ensued, and it goes on--
Unknown Speaker: Yes, but there you see the nexus between the evil prohibited and the statutory remedy was existent.
It was extant.
It was there.
Mr. O'Duden: --Exactly.
Unknown Speaker: Here, we're asking whether or not there should be heightened scrutiny in order to compel the Government to justify what its interest is as to each speech, and it seems to me that that does require heightened scrutiny.
I'm quite surprised you say that no heightened scrutiny is required--
Mr. O'Duden: Well, when I--
Unknown Speaker: --and you... and in Connick, I... because you're going to be discussing this case as well, Connick was a case, and that line of cases, in which the speech was directly linked by the public to the employment, which is not the case here.
Mr. O'Duden: --That's right, Your Honor.
Unknown Speaker: We have cases of people writing about nothing whatever to do with the Government, and you say there's no heightened scrutiny?
Mr. O'Duden: Well, we would welcome the Court to apply a higher standard of scrutiny than it has applied in cases like Connick.
We're not suggesting that.
The only thing that I'm trying to accomplish here is to assure the Court that we're not asking for the Court to apply a strict scrutiny test in every Government employee case.
But this Court has indicated, and I think maybe this is the point of Your Honor's question, where the Government employee is speaking on something where there's essentially really no connection to his job, where he's writing an article about dance, or about music, then, as this Court pointed out in Pickering, he is to be treated as a member of the general public, and in that situation, obviously the Court is required to take a very close look at the justifications that the Government has offered in support of the statute.
Unknown Speaker: This is a class action, is it not?
Mr. O'Duden: Yes, it is, Justice O'Connor.
Unknown Speaker: And the class includes people in various categories, including those who are trying to trade on their job and who want to talk about something that directly relates to their job and so forth.
I mean, the class includes everybody, as I understand it.
Mr. O'Duden: The class does include everybody, but the way the class was defined, it was defined in a way to make clear that what people want to be able to do is to engage in speech activities in the same way that they did before the honoraria statute was imposed.
Unknown Speaker: Do you have a certification that describes the class?
Mr. O'Duden: Yes, we do, Your Honor, and by reference it refers to laws that were in place before the honoraria statute was passed and, of course, as the court of appeals opinion points out, before the statute was in place, there was a nexus... there was a nexus test pursuant to Government-wide regulation that could not be violated if an employee wanted to write or to speak for pay.
And that is to say, an employee couldn't receive payment if the invitation were extended because of his Government status, or if the payor had an interest that might be affected by the employee's performance of his job.
Unknown Speaker: How was it determined whether or not the invitation was extended because of the Government status?
Mr. O'Duden: That was done on a case-by-case basis.
Unknown Speaker: Who did it?
Mr. O'Duden: Well, in many situations, and this is typical, we think, of everybody at the IRS, for example, and this point is made in our brief and it's also illustrated in the Joint Appendix, people who work at many Federal agencies, before they can engage in any outside activity, they have to get approval, prior approval from their agency, so what someone would do is to say, I'm intending to write an article about music or dance, and the ethics agency, the officer would review that and make sure that there was no ethics problem, and then that activity would be approved.
Unknown Speaker: Did he determine the motivation of the people that was involved... were inviting the employee?
Mr. O'Duden: I don't know if the analysis went that deep, but what he would do is to look at whether the entity who proposed to make the payment had any matters that were then pending before the agency that could be directly affected by that employee's performance--
Unknown Speaker: Was it this process that was criticized in the commission reports?
Mr. O'Duden: --It was this process that was criticized to some degree in the GAO report that I mentioned earlier, and that is the report that, as I mentioned, found two instances of impropriety out of 2,500 employees who had been approved to engage in outside activities.
I think it's also important to point out that the GAO report, after it made its study, its conclusion was not that there be a broad ban with respect to all outside activities.
The recommendation that it made was that enforcement be tightened up.
It made certain recommendations to the Office of Government Ethics, and as the GAO report makes clear, the Office of Government Ethics adopted all of those recommendations.
Unknown Speaker: How about the other commission report, what did it recommend?
Mr. O'Duden: The other commission report, I think you're referring here to the Wilkey Commission report and to the Quadrennial Commission report.
Of course, the overriding focus there was on--
Unknown Speaker: I asked what they recommended with respect to this particular thing we're talking about.
Mr. O'Duden: --The Wilkey Commission report recommended a ban on honoraria with respect to all three branches of Government, but I think that any analysis of the Wilkey Commission report has to begin with the definition that it had of honoraria.
If you look at that report, you'll see that honoraria was defined to refer to compensation that was received for the giving of speeches and, of course, the Wilkey Commission report drew on the quadrennial Commission report which emphasized that the focus was on situations where people were giving talks for money before special interest groups.
The Wilkey Commission report actually points out that it did not intend, by the way, to bar compensation where people were engaged in the writing of scholarly articles, and so our point is that when you look at the definition of the Wilkey Commission report of honoraria, when you look at what it said about the writing of articles, there's simply no foundation there on which the Government can build a reasonable case that this law does not go farther than reasonably necessary.
Unknown Speaker: Did any of these reports deal with the travel expense side of it at all?
Mr. O'Duden: I believe that the Wilkey Commission report did recommend an exclusion for travel expenses, Your Honor.
I believe it did.
Unknown Speaker: But the legislation doesn't have any--
Mr. O'Duden: Well, the--
Unknown Speaker: --ceiling, or exclusion.
Mr. O'Duden: --Well, the legislation says that you can be reimbursed for travel expenses for yourself and for one relative and, of course, as a practical matter, I think that that underscores once again that this is a very odd law, at least with respect to career employees, because I think in the real world, career employees are not the beneficiaries of that kind of exclusion.
Unknown Speaker: Well, Congress obviously just didn't agree with these reports.
I mean, do they have to agree with every report that they ask to be done?
Maybe the reports were wrong.
I suppose that for purely factual material contained in the report, they're worth something, but as to their recommendations, they recommended one thing, Congress, our elected representatives, decided that their judgment was wrong.
Mr. O'Duden: Well, of course, there's no indication at all in the history or the legislative record that Congress made any such considered judgment, and the main import of our--
Unknown Speaker: The statute says that.
Mr. O'Duden: --Of course it does, but I... we believe that it is very odd for the Government to be relying on the Wilkey Commission report and the Quadrennial Commission report where in fact those reports do not provide a foundation on which the Government may rely.
It doesn't provide a rationale here for what the Government says or for what Congress did, for that matter.
Unknown Speaker: --You're just negating their reliance on the reports.
Mr. O'Duden: Yes, Your Honor.
Unknown Speaker: Mr. O'Duden--
Mr. O'Duden: Yes--
Unknown Speaker: --do you think that the Government could, consistent with the First Amendment, simply ban all moonlighting?
Mr. O'Duden: --I think that that would present a different question.
I think it would be a much harder case for us to bring.
It's arguable that there may be a due process argument there to be made, depending on what the reasons were for the moonlighting ban, but of course--
Unknown Speaker: Well, you mentioned earlier that there were 25,000 instances in which permission was granted--
Mr. O'Duden: --2,500--
Unknown Speaker: --2,500--
Mr. O'Duden: --in the GAO report, sir.
Unknown Speaker: --Well, that would seem to be a larger problem than the two in which honorariums were involved.
Mr. O'Duden: I'm not sure that I understand your question.
Unknown Speaker: You mentioned that there were two, only two instances in which there were problems with honoraria.
Mr. O'Duden: There were problems with respect to speeches, Your Honor, that's right.
Unknown Speaker: That's right, so there seem to be more instances, and I know from my own limited experience in the executive branch that there were more instances of moonlight... cab-driving, outside practice of law, those sorts of things... as opposed to speeches.
Mr. O'Duden: That's right.
Unknown Speaker: So it would seem to me that the Government would have a stronger case for banning moonlighting than it does for speeches at the civil servant level.
Mr. O'Duden: Arguably.
I don't want to suggest that the GAO report concluded that there was a moonlighting problem in the Federal work force, but of course, what we have here is not a statute that is a ban on moonlighting, it is a law that singles out only speech activities and I think, as this Court's precedent makes quite clear, when a law singles out speech activities, that, by definition, makes it suspect.
Unless there are further questions--
Unknown Speaker: Would it have the... would you have a First Amendment problem with a total ban on moonlighting?
Mr. O'Duden: --I think that would be a difficult argument to make, because the Court's decisions indicate that laws of general applicability do not lend themselves, at least not very readily, to a First Amendment challenge.
Unknown Speaker: And you... but it would have no less of an effect on speech, on honorariums, than the current law?
Mr. O'Duden: The problem, again, is that a law like that would not be singling out speech.
I think that the Court has--
Unknown Speaker: But would there be a different effect on speeches by Federal employees from this law.
This law simply says--
Mr. O'Duden: --If there were a flat-out moonlighting ban?
Unknown Speaker: --This law simply says--
Mr. O'Duden: No.
Unknown Speaker: --you can't get paid for speeches and articles, right?
Mr. O'Duden: That's right.
Unknown Speaker: A total ban on moonlighting simply says, with respect to this class of plaintiffs, that you can't get paid for speeches and articles.
Mr. O'Duden: Or anything else.
Unknown Speaker: So is there a different impact?
Mr. O'Duden: No, there is no different impact.
Unknown Speaker: So the Government can solve its First Amendment problem simply by banning all moonlighting.
Mr. O'Duden: Perhaps.
I think that there is some suggestion, maybe, from this Court's earlier precedent, the Murdock case, that you might be able to make a First Amendment challenge, but again, this Court has treated in a special way statutes that single out speech activities.
We've seen it do so in cases like Minneapolis Star and, of course, the Arkansas Writers Project, so it is no defense for the Government to say that it could pass a moonlighting statute, because that is not what it has done here.
Thank you very much for your time.
Unknown Speaker: Very well, Mr. O'Duden.
Mr. Bender, you have 1 minute remaining.
Rebuttal of Paul Bender
Mr. Bender: With regard to the commission reports, on page 8 of our reply brief, we quote a paragraph from both of the commission reports, which says that honoraria should be defined so as to close present and potential loopholes.
They mentioned more loopholes there than Congress decided to close, but I think the spirit of those reports was the prophylactic spirit that the statute has.
With regard to the standard--
Unknown Speaker: Were those reports addressed just to executive branch--
Mr. Bender: --No.
Those were addressed to all three branches.
Unknown Speaker: --Well, aren't there quite different problems with respect to the legislative branch, and perhaps the judicial branch, than there is with respect to the executive branch--
Mr. Bender: I think if you--
Unknown Speaker: --simply in the level of the officials involved, for--
Mr. Bender: --Well, but there are people who work in the legislative branch who are at the lowest levels and people who work in the judicial branch, there are secretaries and file clerks who work there, and there are people who work in the executive branch at the highest levels where I think the problems are the same, so I don't think there's a major difference there.
Chief Justice Rehnquist: Thank you, Mr. Bender.
The case is submitted.