February 28, 1996
DO-96-012
MEMORANDUM
TO: Designated Agency Ethics Officials, General Counsels
and Inspectors General
FROM: Stephen D. Potts
Director
SUBJECT: Honoraria
On February 26, 1996, the Office of Legal Counsel (OLC) at the
Department of Justice issued an opinion concerning the decision of
the United States Supreme Court in National Treasury Employees
Union v. United States, 115 S. Ct. 1003 (1995) (NTEU). In NTEU,
the Court found that the honoraria ban at 5 U.S.C. app. § 501(b)
violated the First Amendment rights of persons on whose behalf the
case was brought. During the course of the litigation, the parties
stipulated that the case was being brought on behalf of persons
"below grade GS-16." In its opinion, OLC concluded that the
Supreme Court's ruling "effectively eviscerated" the honoraria
prohibition and that no remaining applications of the statute
exist. In accordance with OLC's interpretation, the Department of
Justice has determined that the honoraria prohibition cannot be
enforced against any Government employee, including employees of
the legislative and judicial branches and high-level executive
branch officials.
Consequently, you may advise employees that they may now
receive honoraria held in escrow accounts established in accordance
with the guidelines described in our DAEOgram of June 24, 1991. We
also recommend that you remind employees that they remain subject
to other statutory and regulatory provisions that restrict their
ability to accept honoraria under certain circumstances. These
restrictions include the prohibition at 5 C.F.R. § 2635.807 on
receiving compensation for teaching, speaking and writing that
relates to an employee's official duties; the limitations on
outside earned income described in 5 U.S.C. app. § 501, as
implemented in 5 C.F.R. § 2636.301 et seq., for certain noncareer
officers and employees; and the bar, in Executive Order 12674, on
any outside earned income for certain Presidential appointees. A
summary of these restrictions can be found in our DAEOgram of
March 3, 1995 (DO-95-011).
_____________________________________________________________________________
_
U. S. Department of Justice
Office of Legal Counsel
Office of the Washington, D.C. 20530
Assistant Attorney General
February 26, 1996
MEMORANDUM TO THE ATTORNEY GENERAL
From: Walter Dellinger
Assistant Attorney General
Re: Legality of Government Honoraria Ban Following U.S. v. National
Treasury Employees Union
Last year, the Supreme Court held that § 501(b) of the Ethics in
Government Act of 1978 -- which imposes a government-wide ban on the receipt
of honoraria by any government employee -- violates the First Amendment.
United
States v. National Treasury Employees Union, 115 S. Ct. 1003, 1018 (1995)
("NTEU"). This memorandum examines, at the request of the Civil Division,
the
question what, if any, portion of § 501(b) survives the NTEU decision. As
explained more fully below, we conclude that the answer to this question must
be "none." Following the Supreme Court's invalidation of § 501(b) with
respect
to the vast majority of the statute's targeted audience, what remains is a
very
different statute from the one Congress enacted. We cannot know, nor should
we
speculate, whether Congress would have enacted an honoraria ban as limited in
scope as that portion of § 501(b) which the Supreme Court declined to strike
down. The special constitutional solicitude accorded First Amendment rights,
moreover, cautions against any intrusion upon those rights without the prior
reflective judgment of the legislature.
I.
In 1989, Congress enacted the Ethics Reform Act (the "Act"), Pub. L. No.
101-194, 103 Stat. 1716, 5 U.S.C. app. §§ 101 et seq., in an effort to
reinforce standards of integrity within the federal government. Concluding
that "substantial outside earned income creates at least the appearance of
impropriety and thereby undermines public confidence in the integrity of
government officials," Report of Bipartisan Task Force on Ethics on H.R.
3660,
reprinted at 135 Cong. Rec. 9253, 9256 (1989) ("Bipartisan Task Force
Report"),
Congress amended § 501(b) of the Ethics in Government Act of 1978 to create
the
following "Honoraria Prohibition": "An individual may not receive any
honorarium while that individual is a Member, officer, or employee." 5
U.S.C.
app. § 501(b). The Act broadly defines "officer or employee" to include
nearly
all employees of the federal government. An "honorarium" is defined as "a
payment of money or any thing of value for an appearance, speech or article."
(endnote 1) § 505(3). Federal employees are thus prohibited from receiving
compensation for a wide variety of expressive activities, whether or not
these
are related to their official duties.
Various individuals challenged the constitutionality of the honoraria
ban
in federal district court and their cases were consolidated into a single
class
action. The class was defined as "all Executive Branch employees `below
grade
GS-16, who -- but for 5 U.S.C. app. 501(b) -- would receive honoraria.'"
NTEU,
115 S. Ct. at 1010. The district court granted the employees' motion for
summary judgment, holding the statute "unconstitutional insofar as it applies
to Executive Branch employees of the United States government"; it enjoined
enforcement of the statute against any executive branch employee. NTEU, 788
F.
Supp. 4, 13 (D.D.C. 1992). On appeal, the Court of Appeals affirmed,
concluding that the government's concededly strong interest in protecting the
integrity and efficiency of public service did not justify a substantial
burden
on speech which did not advance that interest. Determining that § 501(b)'s
application to executive branch employees was severable, the Court of Appeals
effectively rewrote the statute by striking the words "officer or employee"
from § 501(b), "except in so far as those terms encompass members of
Congress,
officers and employees of Congress, judicial officers and judicial
employees."
NTEU, 990 F.2d 1271, 1279 (D.C. Cir. 1993).
By a vote of 6 to 3, the Supreme Court, in an opinion written by Justice
Stevens, affirmed in part and reversed in part. The Court began its analysis
with the affirmation that, even though respondent employees work for the
federal government, "they have not `relinquished the First Amendment rights
they would otherwise enjoy as citizens to comment on matters of public
interest.'" 115 S. Ct. at 1012 (citing Pickering v. Board of Educ. of
Township
High School Dist., 391 U.S. 563, 568 (1968)). Because respondents'
expressive
activities fell "within the protected category of citizen comment on matters
of
public concern," id. at 1013, the Court applied Pickering's familiar
balancing
test:
When a court is required to determine the validity of such a restraint
[on
speech], it must "arrive at a balance between the interests of the
[employee], as a citizen, in commenting upon matters of public concern
and
the interest of the State, as an employer, in promoting the efficiency
of
the public services it performs through its employees."
Id. at 1012 (citing Pickering, 391 U.S. at 568).
Looking more closely at the far-reaching scope of the honoraria ban, the
Court was clearly concerned with its widespread impact: It alternately
characterized § 501(b) as a "wholesale deterrent to a broad category of
expression by a massive number of potential speakers," 115 S. Ct. at 1013, "a
sweeping statutory impediment to speech," which "chills potential speech
before
it happens," id at 1013, 1014, a "large-scale disincentive to Government
employees' expression," id. at 1015, and a "crudely crafted burden on
respondents' freedom to engage in expressive activities." Id. at 1018. The
heavy burden that the government bore in justifying the ban was not, the
Court
concluded, satisfied by the government's concerns about the potential for
honoraria abuses and the need "to protect the efficiency of the public
service." These concerns were neither sustained by the record, which was
devoid of evidence of honoraria misconduct by the vast rank and file of
federal
employees, nor supported by the text of the statute. 115 S. Ct. at
1016-1017.
The Court thus held that § 501(b) violated the First Amendment.
Although it affirmed the D.C. Circuit's holding with respect to the
invalidity of the honoraria ban, the Court rejected the lower court's
"overinclusive" remedy. Instead, it granted full relief to respondents,
enjoining enforcement of the ban as to "all Executive Branch employees below
Grade GS-16," id. at 1019, but refusing to decide the applicability of the
ban
to senior executive branch officials. (endnote 2) The Court noted that
"the
Government conceivably might advance a different justification for an
honoraria
ban limited to more senior officials, thus presenting a different
constitutional question than the one we decide today." Id. Its "obligation
to avoid judicial legislation" also prevented the Court from crafting a nexus
requirement for the honoraria ban. How the ban should be limited -- whether
to
cases involving an undesirable nexus between the speaker's official duties
and
the subject matter of the speaker's expression or to those involving some
nexus
to the identity of the payor -- was not, the Court said, a matter for
judicial
determination. Rather, the task of drafting a narrower statute was properly
left to Congress. Id.
In a separate concurrence, Justice O'Connor made clear her understanding
that the majority's holding did not require invalidation of the entire
statute.
She argued that the statute was still "capable of functioning independently"
with respect to its "principal targets" -- high-level executive branch
employees and employees of the legislative and judicial branches. Id. at
1024
(O'Connor, J., concurring). Justice O'Connor would also have read a nexus
requirement into the honoraria ban. Dissenting Chief Justice Rehnquist,
joined
by Justices Scalia and Thomas, insisted that the honoraria ban was consistent
with the First Amendment under the Pickering test. Id. at 1030. Chief
Justice
Rehnquist noted that even if he agreed with the majority's conclusion that
the
ban violated the First Amendment, he would not accept the majority's failure
to include a nexus requirement in its remedy. Because the majority had
limited
its analysis "to only those applications of the honoraria ban where there is
no
nexus between the honoraria and Government employment," in the Chief
Justice's
view, the Court properly should have limited its remedy to such applications
as
well. (endnote 3) Id. at 1030-31. Thus, like Justice O'Connor, the dissent
would have "affirmed the injunction against the enforcement of § 501(b) as
applied to Executive Branch employees below grade GS-16 who seek honoraria
that
are unrelated to their Government employment." Id. at 1031.
II.
Our analysis of NTEU begins with its holding: as written, the honoraria
ban of § 501(b) violates the First Amendment. While § 501(b) does not
directly
abridge speech or discriminate among speakers on the basis of the content or
viewpoint of their messages, its prohibition on compensation "unquestionably
imposes a significant burden on expressive activity." 115 S. Ct. at 1014.
Whatever "speculative benefits" the honoraria ban may provide the government
are insufficient to justify this "blanket burden on the speech of nearly 1.7
million federal employees." 115 S. Ct. at 1017.
Finding § 501(b) to be an invalid abridgment of government employees'
First Amendment rights, the Supreme Court explicitly prohibited its
enforcement
against the class of employees represented by the NTEU plaintiffs, i.e. all
executive branch employees below grade GS-16. That group, the Court
recognized, consists of "an immense class of workers." Id. at 1016. By
enjoining application of the honoraria ban with respect to this class, the
Court drastically curtailed the scope that even arguably could be given to
section 501(b).
The question is whether any remaining applications of § 501(b) -- for
example, to employees of the legislative and judicial branches and to
high-level executive officials -- survive the NTEU decision. Under
well-established canons of statutory construction, a portion of a statute
that
has been held invalid may be severed, leaving the rest to operate, if there
is
no evidence that the legislature considered the valid and invalid portions to
be "conditions, considerations, or compensations for each other." Norman J.
Singer, 2 Sutherland Statutory Construction § 44.06 (5th ed. 1992). Only if
severance of the invalid provision would result in the creation of a law that
the legislature would not have enacted, should the entire statute be
invalidated. Id. at § 44.04. "The final test [of severability] . . . is the
traditional one: the unconstitutional provision must be severed unless the
statute created in its absence is legislation that Congress would not have
enacted." Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685 (1987).
However, the courts' "`duty ... to maintain [a challenged] act in so far
as it is valid,'" id. at 684 (citation omitted), is not unlimited. Three
considerations lead us to the conclusion that after NTEU, an attempt to apply
section 501(b) to anyone after NTEU would run afoul of the courts'
"obligation
to avoid judicial legislation." NTEU, 115 S.Ct. at 1019.
1. As noted in NTEU itself, attempts to devise a constitutional
construction of a partially invalid statute are deeply problematic if they
require the courts "to tamper with the text of the statute, a practice we
strive to avoid." Id. This principle has special force when a proposed
"construction" would essentially redraft the statute by treating general
language as if it contained words limiting the statute's scope. See, e.g.,
Eubanks v. Wilkinson, 937 F.2d 1118, 1125 (6th Cir. 1991). Even in the
presence of a severability clause making explicit the congressional intention
that a partly invalid statute should be upheld to the greatest extent
possible,
the Supreme Court has held that it could not "dissect an unconstitutional
measure and reframe a valid one out of it by inserting limitations it does
not
contain." Hill v. Wallace, 259 U.S. 44, 70 (1922). Doing so would run the
risk of "creat[ing] a program quite different from the one the legislature
actually adopted," Sloan v. Lemon, 413 U.S. 825, 834 (1973), a danger that
the
NTEU Court explicitly cited in refusing to adopt the government's proposal to
insert a nexus requirement into section 501(b)'s honoraria ban. 115 S.Ct. at
1019.
We believe that any attempt to identify a surviving core to section
501(b)
runs afoul of this principle, because what would be left is an entirely
different statute from the one Congress intended to enact. While the absence
of a severability clause from the Act does not in itself create a presumption
against severability, Alaska Airlines, 480 U.S. at 686, nothing in the text
or
legislative history of the honoraria ban indicates that Congress was willing
to
limit the ban to high-level executive branch officials and legislative and
judicial branch employees. The primary focus of the legislative history, as
both the district court and the Court of Appeals recognized, was Congress'
concern with the receipt of honoraria by its own members. 788 F. Supp. at
13;
990 F.2d at 1278. There is no evidence, however, that this was Congress'
exclusive concern. While the discussion in the Bipartisan Task Force Report
concentrates on potential honoraria abuses by Congress, the report
nevertheless
recommends "that honoraria be abolished for all officers and employees of the
government." Task Force Report, 135 Cong. Rec. at 9257 (emphasis added).
Some
of the language in the Senate floor debate suggests that a general honoraria
ban was the "heart" of the proposed legislation. See 135 Cong. Rec. 15972
(1989) (comments of Sen. Mitchell). Moreover, notwithstanding any
preoccupation in the legislative history with an honoraria ban directed at
Congress, the fact remains that the ban which Congress eventually did enact
was
not limited to its own members, but extended to a broad class of government
employees in coordinate branches. (endnote 4) Any saving "construction" of
section 501(b) would unavoidably upset the decision Congress actually made to
enact a honoraria ban extending across all three branches, and would require
the courts to speculate as to which of the several possible narrower statutes
-- if any -- Congress would have enacted if it had foreseen the decision in
NTEU.
2. A decision upholding as still valid some applications of section
501(b) would not only create a provision the scope of which was the product
of
judicial, not legislative, creativity; it would also approve a regulatory
scheme of vastly different practical proportions than the one that Congress
envisioned when it enacted the statute. The honoraria ban that Congress
understood itself to be enacting covered a very large number of persons,
while
any saving construction would reduce the group affected manyfold. Whatever
the
significance of attempting to reach the larger class for first amendment
analysis, Congress might reasonably have considered a broader approach more
politically acceptable or even responsible. Cf. United States v. Carolene
Products, 304 U.S. 144 (1938). The drastic reduction in the practical reach
of
the statute required after NTEU in itself suggests that the resulting
honoraria
ban is not one that is traceable to congressional intent. As the Supreme
Court
has noted, the general presumption in favor of statutory validity "may
disappear
where the statute in question has already been declared unconstitutional in
the
vast majority of its intended applications, and it can fairly be said that it
was not intended to stand as valid . . . only in a fraction of the cases it
was
originally designed to cover." United States v. Raines, 362 U.S. 17, 23
(1960); Adams v. Askew, 511 F.2d 700, 704 (5th Cir. 1975). Precisely such a
situation is presented here. The NTEU decision invalidated § 501(b) with
respect to the vast majority of the applications Congress intended it to
have.
What we are left with is an entirely different statute from the one that
Congress enacted.
3. The need to exercise caution and restraint in evaluating
Congressional
intent is particularly acute where, as here, First Amendment rights are
implicated. We hold no freedom more inviolable than our First Amendment
right
to freedom of speech. Because free and unfettered debate lies at the
foundation of our republic, First Amendment rights "hold a preferred position
in the hierarchy of the constitutional guarantees of the incidents of
freedom."
Poulos v. New Hampshire, 345 U.S. 395, 405 (1953).
Given the special constitutional solicitude granted First Amendment
rights, a federal statute will ordinarily not be construed to infringe upon
those rights absent a clear and affirmative expression of Congressional
intent.
See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 504 (1979). While we
may
be able to speculate from the legislative history that Congress might have
enacted an honoraria ban more limited than § 501(b), we cannot say with
certainty that Congress would have done so, nor can we know what limitations
Congress might have imposed or what rationale Congress might have offered.
In NTEU, the Court refused to draw a line between "categories of speech
covered
by [the] overly broad statute, where Congress has sent inconsistent signals
as
to where the new line or lines should be drawn." 115 S.Ct. at 1019. A
judicial decision choosing where to draw the line between categories of
speakers covered by the honoraria ban would be a similar and equally
unacceptable "invasion of the legislative domain." Id. at 1019 n. 26. In
the
absence of any clear legislative intent to restrict application of the
honoraria ban to high-level executive officials, and employees of the
legislative and judicial branches, § 501(b) simply cannot stand.
III.
After NTEU, there can be no doubt that the honoraria ban imposes a
significant burden on the First Amendment rights of federal government
employees. Government protestations of possible honoraria abuses and
administrative inefficiencies notwithstanding, the Supreme Court effectively
eviscerated § 501(b) by prohibiting its application to executive branch
employees below GS-16. Whether Congress would have enacted an honoraria ban
limited to those government employees not included within the NTEU class is
an
open question. Certainly these remaining employees have First Amendment
rights
no less compelling than those of the NTEU class members, rights which cannot
and should not be summarily abridged on the basis of speculation as to
Congressional intent. We thus conclude that § 501(b) does not survive the
Supreme Court's ruling in NTEU.
1. A 1991 amendment to the definition of "honorarium" provides one example
of
some of the unusual distinctions made by the statute. Under the amended
definition, which refers to "a series of appearances speeches, or articles,"
pay is prohibited for a series of articles only if a nexus exists between the
author's employment and either the subject matter of the expression or the
identity of the payor. However, for an individual article or speech, pay is
prohibited regardless of any such nexus.
2. In a footnote, Chief Justice Rehnquist made clear that he "certainly
could
not condemn the Court for its refusal to rewrite the statute," but was simply
challenging "the Court's failure to tailor its remedy to match its selective
analysis." 115 S. Ct. at 1031 n.8.
3. The Court recognized that the class of respondents included one GS-16
employee to whom "[t]he rationale we have set forth for our holding does not
necessarily apply." Noting, however, that the government did not request
reversal of the lower court's judgment granting him relief, the Court left
that
part of the lower court's judgment intact. 115 S. Ct. at 1019 n.23.
4. We note that, were we to agree that the legislative history's focus on
the
receipt of honoraria by members of Congress was dispositive of the question
of
Congressional intent, such a position could, at most, support application of
the statute to members of Congress, not to other legislative, judicial or
executive branch employees. Justice O'Connor, who urged this application in
her concurrence, cited no legislative history to support such an expansion.
Rather, the legislative history she relied upon referred, again, only to
members of Congress.