Constitutionality of the Disclosure Provisions of the Ethics in Government Act as Applied to Officials' Spouses., 80-39

CourtOpinions of the Office of Legal Counsel of the Department of Justice
Citation4 Op. O.L.C. 340
Decision Date09 January 1980
Docket Number80-39
PartiesConstitutionality of the Disclosure Provisions of the Ethics in Government Act as Applied to Officials' Spouses.

4 Op. O.L.C. 340

Constitutionality of the Disclosure Provisions of the Ethics in Government Act as Applied to Officials' Spouses.

No. 80-39

United States Department of Justice

January 9, 1980

Leon Ulman Deputy Assistant Attorney General Office of Legal Counsel

Constitutionality of the Disclosure Provisions of the Ethics in Government Act as Applied to Officials' Spouses

Whatever test is applied to test their constitutionally, the provisions of the Ethics in Government Act that require certain high-level officials to disclose information concerning their spouses' financial interests do not invade any constitutionally protected privacy right.

The financial disclosure provisions at issue are narrowly drawn to promote Congress" interest in using disclosure to enforce substantive prohibitions vis-a-vis high-level officials.


You have asked for our advice about the refusal by a former official of the Federal Trade Commission (FTC) to disclose information concerning his wife's financial interests, information he is required to disclose by Title II of the Ethics in Government Act, Pub. L. No. 95-521, 92 Stat. 1836 (1978), as amended, 5 U.S.C. App. I. The official filed the statement required by the Act but omitted this information. He said that he was willing to disclose it confidentially, but he argued that the provisions of the Ethics in Government Act, which effectively compel public disclosure of the information, violated his and his wife's constitutional rights. For the reasons set forth below, we believe that the challenged provisions are constitutional.[1] We suggest that you inform the official of this conclusion and of any conclusion reached by the Office of Government Ethics, to which you also referred the matter, and allow him to decide, in light of this information, whether he wishes to complete his report. In this connection, you may give him a copy of this memorandum.

Title II of the Ethics in Government Act requires high-level Executive Branch officials, see § 201(0, to file reports disclosing a number of details about their income, assets, and liabilities, about gifts and reimbursements they have received, about certain sales or exchanges of [ 341] real property and securities, and about some other financial affairs and arrangements. See § 202(a)-(d). With some exceptions and modifications they must disclose comparable information about their spouses and dependent children. See § 202(e). These reports are to be made public. See § 205. The official involved here contends that the government cannot constitutionally require him to disclose to the public financial information about his wife that is not already a matter of public record. He makes a number of arguments in a legal memorandum he filed with your agency in support of his position.

His most substantial argument is that the Act violates his wife's constitutional right to privacy. The Supreme Court has said that the right of privacy comprises an "individual interest in avoiding disclosure of persona] matters." Whalen v. Roe, 429 U.S. 589, 599 (1977). The Court has never invalidated a statute solely because it infringed this kind of "privacy" interest. Compare Id. at 599 n.25 with Id. at 607-09 (Stewart, J., concurring). But on at least two occasions the Court seriously considered claims that government action unconstitutionally invaded this interest; in both cases it rejected the claims only after concluding that the "personal matters" involved would be disclosed not to the public at large but only to a small group of selected officials who were unlikely to publicize it. See, Id. at 605-06; Nixon v. Administrator of General Services, 433 U.S. 425, 458-59, 462, 464-65 (1977). Neither of these cases involved financial information, [2] but as two Justices have said, "[f]inancial transactions can reveal much about a person's activities, associations, and beliefs. At some point, governmental intrusion upon these areas would implicate legitimate expectations of privacy." California Bankers Association v. Shultz, 416 U.S. 21, 78-79 (1974) (Powell and Blackmun, JJ., concurring). See also Buckley v. Valeo, 424 U.S. 1, 66 (1976). But see O'Brien v. DiGrazia, 544 F.2d 543, 545-46 (1st Cir. 1976), cert, denied, 431 U.S. 914 (1977). The Fifth Circuit has upheld the judicial branch disclosure provisions of the Ethics in Government Act, Duplantier v. United States, 606 F.2d 654, 669-71 (1979), as well as a state statute similar to the Act, Plante v. Gonzalez, 575 F.2d 1119 (1978), but nevertheless said that public officials' "interests in financial privacy" were "substantial." Id. at 1135. "Financial privacy is a matter of serious concern, deserving strong protection." Id. at 1136.[3]See also Slevin v. City of New York, 477 F.Supp. 1051 (S.D.N.Y. 1979). [ 342]

For these reasons, some state courts have held that statutes requiring financial disclosure are unconstitutional unless they are necessary to promote a compelling governmental interest. See, e.g., City of Carmel-by-the-Sea v. Young, 2 Cal.3d 259, 268, 466 P.2d 225, 231-32, 85 Cal.Rptr. 1, 7-8 (1970). No Federal court has gone this far. See Nixon v. Administrator of General Services, 433 U.S. at 455-65; Duplantier v. United States, supra, 606 F.2d at 670 (appropriate test is "balancing" not "strict scrutiny"); Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th Cir. 1978) (same). Compare Whalen v. Roe, 429 U.S. 589, 606-07 (1977) (Brennan, J., concurring) with Id. at 607-09 (Stewart, J., concurring). We need not express a view about the strength or contours of whatever constitutional rights exist in this area, however, because we believe that the Ethics in Government Act does meet the strictest plausible test; it is a necessary means, well-tailored to attain compelling governmental aims. A fortiori it would meet any less restrictive standard.

Congress was explicit about its objectives in requiring officials to disclose financial information to the public. Public disclosure promotes public confidence in the government, see S. Rep. No. 170, 95th Cong., 1st Sess. 21 (1977); no intragovernmental audit can be quite as successful in dispelling suspicion. Public disclosure can help correct deficiencies in the government's own auditing and reviewing procedures. See S. Rep. No. 823, 94th Cong., 2d Sess. 22 (1976). "Wide public availability of the financial disclosure reports" tends to "assure compliance with [the] disclosure requirements" themselves. H.R. Rep. No. 574, 95th Cong., 1st Sess. 11 (1977). In general, public financial disclosure makes officials' possible conflicts of interest a subject for debate and action by the public. As a result, [p]ublic financial disclosure will deter some persons who should not be entering public service from doing so. Individuals whose personal finances would not bear up to [ 343] public scrutiny, whether due to questionable sources of income or a lack of morality in business practices, will very likely be discouraged from entering public office altogether. . . .

Public financial disclosure will [also] better enable the public to judge the performance of public officials. By having access to financial disclosure statements, an interested citizen can evaluate the official's performance of his public duties in light of the official's outside financial interests

S. Rep. No. 170, 95th Cong., 1st Sess. 21-22 (1977). See also H.R. Rep. No. 574, 95th Cong., 1st Sess. 7-12. "[I]nformed public opinion is the most potent of all restraints upon misgovernment." Grosjean v. American Press Co., 297 U.S. 233, 250 (1936).

The Supreme Court has said that because these sorts of goals involve the " 'free functioning of our national institutions, ' " they can justify a decision by Congress to impose "not insignificant burdens on individual rights." Buckley v. Valeo, 424 U.S. 1, 66-67, 68, 72-74 (1976), quoting Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 97 (1961). And the Supreme Court has allowed Congress to require disclosure in order "to maintain the integrity of a basic governmental process" even if the disclosure may have "some deterrent effect" on the exercise of constitutional rights. United States v. Harriss, 347 U.S. 612, 625-26 (1954). Certain public employees can be required to sacrifice important rights—even well-established First Amendment rights that can only be stronger than the rather nebulous privacy interests involved here—in order to ensure that "confidence in the system of representative Government is not . . . eroded to a disastrous extent, " United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 565 (1973), and that "policies which the electorate has sanctioned are effectively implemented, " Elrod v. Burns, 427 U.S. 347, 372 (1976) (plurality opinion).

Disclosure does not merely enhance public confidence in the government; it also improves the quality of public debate about such matters of general concern as possible conflicts in officials' loyalties. It...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT