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Mr. Chairman and Members of the Subcommittee:
My name is Brent Thompson and I am executive director of the Fair Government Foundation, a non-profit, non- partisan organization that undertakes research and public education in the area of political action, campaign finance and government ethics. Thank you for inviting me to testify.
The issue for the Committee is whether in light of the Supreme Courtþs decision in U.S. v. National Treasury Employees Union, 115 S. Ct. 1003 (1995) (þNTEUþ), and the Department of Justiceþs conclusion that Section 501 (b) of the Ethics in Government Act þsimply cannot stand,þ remedial legislation is necessary.
We agree that there is little to demonstrate þthat paying lower-level employees for speech entirely unrelated to their work jeopardizes the efficiency of the entire federal serviceþ or materially contributes to the þappearance of impropriety.þ NTEU at 1018. For that reason, we believe Congress should consider legislation that would revive the honoraria ban, limited, however, to cases involving a clear employment nexus.
I. The Original Honoraria Ban Was a Mistake. Section 501(b) was a careless policy-making exercise. We now know that Congress was insufficiently sensitive to legitimate First Amendment concerns or fundamental fairness to federal employees. The blanket ban was not supported by substantial compelling evidence of abuse. þ[T]he government cite[d] no evidence of misconduct related to honoraria in the vast rank and file of federal employees below Grade GS- 16.þ NTEU at 1016. The þhonoraria banþs dubious application . . . to all Executive Branch employees below Grade GS-16þ was simply unnecessary to achieve the goal of preventing actual or apparent improprieties. NTEU at 1018.
That lower level executive branch employees were included in the blanket ban is curious. The thrust of the ban was clearly aimed at members of Congress and at certain isolated abuses by congressional staff. See 990 F.2d at 1278 (lower court opinion). The complete ban, moreover, was the means by which Congress felt (politically) able to adopt a substantial pay raise for members, judges and senior-level executive employees.
The honoraria ban, as it related to members of Congress and their staff, was a real and reasonable improvement in public policy. With respect to lower level executive branch employees, however, it was not.
II. DOJþs Decision to Cease Enforcement of Section 501(b) Is Not Compelled by Law.
The DOJ decision declaring the ban unenforceable in toto is puzzling, as we do not believe it was compelled by law or other policy considerations. The Justice Department concluded that Section 501(b) was þeffectively evisceratedþ and thus did not survive the Supreme Courtþs ruling in NTEU. Dellinger Memo at 7. The Supreme Court reached the opposite result, however. NTEU invalidated only that part of the Act relating to lower-level executive branch employees, leaving in place the ban for federal judges, members of Congress and high-level executive employees.
The DOJ memorandum fails to distinguish between whether the remaining core of the provision is unenforceable as a matter of law or whether it should not be enforced as a matter of policy. As to the former, DOJ does not offer any analysis demonstrating why it is legally barred from enforcing the remaining 501(b).
As the basis for its decision to halt further enforcement, DOJ cites principles and rules of practice relating to severability and the practical and prudential limitations on courts in giving affect to a statute, significant portions of which having been deemed unconstitutional. The DOJ analysis seems strangely misplaced. DOJ asks whether þany remaining applications of 501(b) . . . survive the NTEU decision.þ Dellinger Memo at 4. That question, however, was answered affirmatively by the Supreme Court. The Court did not consider and did not find 501(b) unconstitutional in relation to members, judges and senior-level executive employees. Standing on is own, therefore, NTEU does not compel the DOJ conclusion.
It does not follow from DOJþs analysis, furthermore, that the Justice Department is compelled to cease further enforcement of the ban against the remaining employees. The proffered severability analysis, after all, was not raised by the Supreme Court, as the Court declined invalidating the full sweep of Section 501(b). DOJ has not answered why it should be bound in this matter by Supreme Court precedent and canons of statutory construction that the Supreme Court concluded were not applicable in the NTEU case.
DOJþs severability analysis as it relates to the þcourtsþ þdutyþþ and the þcourtsþ þobligationþ,þ is in any case unconvincing. Dellinger Memo at 4 and 5. The DOJ cites the þfinal test of severabilityþ as laid out in Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987), yet skips over þ[t]he standard test for determining severability of an unconstitutional provision [which] is well established:þ
Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operational.
Alaska Airlines at 684 (quoting Buckley v Valeo, 424 U.S. 1, 108) (1976) (per curium) (quoting Champlin Refining Co., Inc. v. Corporation Commþn of Oklahoma, 286 U.S. 210, 234 (1932).
While concededly the Courtþs construction þreduce[d] the group affected [by the ban] manyfold [sic],þ there can be no dispute that the þsurviving coreþ is fully operational. Dellinger Memo at 5 and 6. The Alaska Airlines þstandard testþ has been met.
DOJ is simply wrong, moreover, to argue that the statute, after NTEU, because of is diminished scope, þis not one traceable to congressional intent.þ Dellinger Memo at 6. It might have been true had the Court, as the dissent had urged, limited its holding to honoraria payments not involving an employment nexus. It did not. The resulting core of the Section 501(b), contrary to DOJ, is clearly and precisely traceable to Congress. Congress enacted a blanket ban on all government employees. Whatþs left is a blanket ban on all government employees except those below GS-16. As to each class of employees subject to the ban, Congress intended to include them in a blanket ban. That the honoraria ban as to some of its targets is contrary to the First Amendment in no way changes the character or intent of the ban as to the remaining targets. Congress ordered a pie, what remains after NTEU is not a cake, as DOJ seems to believe, but a portion of a pie.
It would thus appear that DOJ has made a policy decision, sua sponte, not to enforce 501(b). Whether that decision comports with the will of Congress is matter for you and your colleagues.
III. Congress Should Consider Remedial Legislation that Revives the Honoraria Ban Only in Instances Involving a Clear Employment Nexus.
The Court in NTEU rightly declined to engage in þjudicial legislationþ and graft an employment nexus onto to its holding. To do so would have left þan entirely different statute from the one Congress intended to enact.þ Dellinger Memo at 5. Because of the significant First Amendment issues at stake, as well as the fundamental unfairness of a blanket ban, Congress should craft a narrowly tailored ban that focuses on circumstances involving an employment nexus.
Although the DOJ invalidation of Section 501(b) might appear to throw the door wide open for conduct that can give rise to improper appearances -- and even actual corruption -- there remains a web of statutory and regulatory provisions regulating, in part, such conduct. See 5 C.F.R. Sec. 2635.807 (limiting honoraria for teaching, speaking and writing that relates to official duties); Sec. 2636.301 et seq. (concerning limitations on outside income); Exec. Order 12674 (concerning outside income for presidential appointees). Senate and House rules, furthermore, continue in effect for members, officers and employees of the Congress. See Senate Rule 36 and House Rule 47. These provisions appear to diminish the immediate, practical consequences of the DOJ action, though not eliminating the need for legislation.
Part of the rationale underlying the blanket ban was evidently the desire to eliminate the costs of administration in making case-by-case determinations. Administrability is no doubt a legitimate matter than should receive considerable forethought before any legislation is adopted. Standards should be drafted with a level of simplicity and clarity so that rank and file federal employees, with a minimum of guidance, can understand their limitations. An þinfinitely filigreed statuteþ dealing with þevery subtle distinction between various groups of employeesþ is unnecessary and should be avoided. NTEU at 1029 (Rehnquist, C.J., dissenting).
Mr. Frankþs measure, H.R. 1639, appears to strike a reasonable balance between the rights of employees to exercise their First Amendment freedoms and the needs of the federal government as employer to ensure order in the workplace and to avoid appearances of impropriety. We note that the three step analysis proposed by H.R. 1639 is a streamlined version of the prior regulatory scheme under which honoraria was permissible so long as an employee could answer each of five questions in the negative. See NTEU at 1011, n. 7. We are convinced that the prior scheme as well as H.R. 1639 focus on the correct and necessary considerations.
IV. Honoraria Ban Should Temper Future þGood Governmentþ Initiatives.
We believe that the honoraria ban experience holds lessons for future consideration of þgood governmentþ legislation. In the rush to pass þtoughþ ethics standards, the Congress gave short shrift to legitimate First Amendment considerations, which ultimately proved fatal.
Preventing the appearance of corruption and impropriety has become the boilerplate justification for most of the þgood governmentþ provisions that have been proposed and that are currently on the books. As the high court has long recognized, Congress can þlegitimately conclude that the avoidance of the appearance [of impropriety] þis also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.þþ Buckley v. Valeo, 424 U.S. 1, 29 (1976) (quoting CSC v. Letter Carriers, 413 U.S. 548, 565 (1973)). Congress, however, þmust do more than simply þposit the existence of the disease sought to be cured.þ . . . It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.þ NTEU at 1014 (quoting Turner Broadcasting System v. FCC, 114 S. Ct. 2445, 2450 (1994)).
Before moving forward with additional laws that implicate First Amendment liberties, Congress may wish to first evaluate whether prior efforts to address þappearances of improprietyþ have alleviated þharms in a direct and material way.þ Id. One measure that might cast light on the success or failure of prior legislation is the approval rating of Congress. While public opinion polls are clearly imperfect empirical tools, there are few, if any, alternatives.
A cursory review of polling data from 1974 to the present paints a muddled picture. Over the 22-year measurement period, Congress has seen an approval rating as high as 56 percent and as low as 17 percent. See Attachment A. The most recent low of 18 percent was in October 1994 and the most recent high, 42 percent, occurred in January 1995. Whatþs striking is that there seems to be no correlation between passage of legislation aimed at addressing perceptions of impropriety and favorable public opinion of Congress.
Indeed, the 104th Congress is a case in point. This Congress has been one of the most prolific reform congresses in memory, having passed far-reaching congressional reforms, as well as a gift ban and a lobbying regulation measure. The approval rating of the 104th Congress, however, has dropped steadily and dramatically since the opening gavel.
We would simply urge Congress, therfore, not to accept at face value boilerplate claims that proposals are necessary to address þappearances of impropriety.þ Too often those advocating the proposal are working to make the claim self-fulfilling, and the proposals themselves are of questionable likely impact. When it comes to good government reform, moreover, most of what should have been done, has been done.
Conclusion
Modest steps to prevent corruption in the federal employment ranks are desirable. In light of the NTEU decision, Congress should thus move forward with legislation reviving the ban on honoraria payments that have a reasonable employment nexus.