National Treasury Employees Union v. U.S.
| Decision Date | 21 September 1993 |
| Docket Number | AFL-CIO,92-5139,92-5170,92-5235,92-5236 and 92-5237,Nos. 92-5085,s. 92-5085 |
| Citation | 3 F.3d 1555 |
| Parties | NATIONAL TREASURY EMPLOYEES UNION, et al., Appellants, v. UNITED STATES of America, et al. (Two Cases). Peter G. CRANE, et al., Appellants, v. UNITED STATES of America, et al. NATIONAL TREASURY EMPLOYEES UNION, et al. v. UNITED STATES of America, et al., Appellants. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,, et al., v. UNITED STATES of America, et al., Appellants. Peter G. CRANE, et al., v. UNITED STATES of America, et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Suggestion for Rehearing En Banc.
Before: MIKVA, Chief Judge, WALD, EDWARDS, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, HENDERSON, and RANDOLPH, Circuit Judges.
Prior report: C.A.D.C., 990 F.2d 1271.
ORDER
The Suggestion for Rehearing En Banc of the United States and the response thereto have been circulated to the full Court. The taking of a vote was requested. Thereafter, a majority of the judges of the Court in regular active service did not vote in favor of the suggestion. Upon consideration of the foregoing, it is
ORDERED, by the Court en banc, that the suggestion is denied.
Circuit Judge SENTELLE would grant the suggestion for rehearing en banc.
Judge Silberman raises the tempting proposition, ignored by the parties to this litigation, that by moving the closing end of a parenthesis in the definition of "honorarium" we might transform the statute into one of virtually undoubted constitutionality. I believe the panel correctly resisted this temptation.
As enacted, the amended definition of honorarium reads as follows:
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 or the payment is made because of the individual's status with the Government) by a Member, officer or employee, excluding any actual and necessary travel expenses incurred by such individual....
Under Judge Silberman's microsurgery, the end of the parenthesis is moved up, so that the definition--and thus the ban--applies only to appearances, speeches and articles related to the employee's duties or for which the payment relates to his or her status with the government. Thus:
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 or the payment is made because of the individual's status with the Government by a Member, officer or employee, excluding any actual and necessary travel expenses incurred by such individual....
Before addressing the substance of this revision, we should consider its syntax, which bears no resemblance to English. The prepositional phrase "by a Member, officer or employee" appears superficially to be a part of the subject-or-status limitation; once the reader recognizes that it is not, he must set off on a wholly unguided search for the terms the phrase really modifies ("an appearance, speech or article"). 1
Judge Silberman's justification for his adjustment rests on some legislative history and on the view that the statute is illogical as written. The legislative history--like so much legislative history--is highly ambiguous, and the statute as written is by no means so irrational as to warrant our rewriting it.
The only directly relevant item of legislative history is the following observation of the conference committee:
Subsection (b) amends the definition of 'honorarium' to include payment for a 'series of appearances, speeches or articles,' if the subject matter is related to the individual's duties or payment is made because of the individual's status with the Government, rather than only payment for a single event.
H.R.Conf.Rep. No. 176, 102d Cong., 1st Sess. 12 (1991); see also Silberman, J., infra at 1561 (emphasizing the word "include").
The committee's observation is quite consistent with the wording used by Congress in the statute. As enacted, the amended statutory definition does "include" a series of appearances, speeches or articles when the conditions specified in the parenthesis, and in the committee report, are present. The legislative history provides no license to start shuffling parentheses around.
The same is true if we focus on the way in which the 1991 amendment changed the pre-existing law. The unamended law obviously encompassed receipt of payment for a series of speeches. Before the amendment it would have been an odd defense, and surely a losing one, for an employee to say, "Not guilty--I took payment for three speeches, not one." As the implementing regulations promulgated by the Office of Government Ethics ("OGE") confirm, people understood the unamended statute to treat a series exactly like a single event. "An economist employed by the Department of the Treasury," went one of the OGE's examples, 56 Fed.Reg. 1721, 1725 (1991). 2 Since the original act treated a series of speeches the same as a single speech, the only plausible reason for adding a reference to a series of speeches must have been to treat them differently.
Citing a Senate committee report saying that under the pre-amendment ban a federal employee "can teach a full semester course on a particular subject, but cannot be paid for a single lecture on the same subject", S.Rep. No. 29, 102d Cong., 1st Sess. 5 (1991), Judge Silberman argues that Congress did not think that the unamended statute covered payments for a series of events. See Silberman, J., infra at 1563-64. But the exception for teaching arose not from any distinction between a series and a single event but from the statute itself. The Ethics Reform Act of 1989 barred Members of Congress, officers of the federal government, and high-level federal employees other than career civil servants from receiving compensation for teaching unless they secured "the prior notification and approval" of the appropriate entity. Pub.L. No. 101-194, 103 Stat. 1761 (1989); see 5 U.S.C.App. 7 Sec. 502(a)(5) (1992). The plain implication, as the commentary to regulations issued by the Judicial Conference of the United States explains, was that "the prohibition on receipt of honoraria does not foreclose teaching for compensation." 2 Administrative Office of the United States Courts, Guide to Judiciary Policies and Procedures V-41 (1991). Thus, OGE's implementing regulations excluded from the honorarium ban "[c]ompensation for teaching a course involving multiple presentations by the employee offered as part of the regularly established curriculum of an institution of higher education." See 56 Fed.Reg. 1725 (1991).
Moreover, the Senate committee was not concerned with some fantastic loophole for multiple speeches but with the ban's unduly harsh treatment of activities other than teaching. The committee's bill accordingly sought to introduce a broad subject-or-status limitation for "an appearance, a speech, or an article", language the committee used to cover both isolated events and elements of a series. See S.Rep. 102-29 at 17. But Congress never enacted this broad limitation. Instead, the 1991 amendment left in place the flat ban on honoraria for isolated events, while relaxing it for a series. In sum, Congress never supposed that the ban exempted multiple speeches (other than those encompassed in the special treatment of teaching), and the effort to impose a general subject-or-status limitation fizzled.
As to the sense of the amended statute: Congress may well have thought that the added effort required for a government official to make a series of speeches, etc. (not to mention the added effort of his listeners) provided an inherent limitation on this avenue of corruption, justifying a more relaxed approach. To be sure, this limitation is not perfect. It may take no more effort to write a series of three 10,000-word articles on a single subject than to write one 30,000-word article. What is more, as the illicit effect of the payment will turn in part on its relation to the worker's effort, payors could achieve their corrupt purposes simply by boosting the payment.
Still, there is another reason why Congress might have treated honoraria for isolated events or articles more strictly than honoraria for a series. If a Member of Congress or a government employee is making repeated paid appearances before a particular group, his connection to the group is likely to be more open and more visible to the public (or the public's watchdogs) than if he had simply accepted a one-time payment for a single appearance. Congress might reasonably have concluded that corruption is less likely under such circumstances.
* * * * * *
Judge Silberman goes on to support en banc treatment on the premise that we might wisely excise from circuit law the application of a "narrow tailoring" test to restrictions on the speech of government employees. See Silberman, J., infra at 1565-66, citing McGehee v. Casey, 718 F.2d 1137, 1143 (D.C.Cir.1983) (). Before the Supreme Court in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), repudiated the idea that the "narrow...
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