United States v. National Treasury Employees Union

PETITIONER: United States
RESPONDENT: National Treasury Employees Union
LOCATION: U.S. Department of Transportation

DOCKET NO.: 93-1170
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 513 US 454 (1995)
ARGUED: Nov 08, 1994
DECIDED: Feb 22, 1995

Gregory O'Duden - Argued the cause for the respondents
Paul Bender - Argued the cause for the petitioners

Facts of the case

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?

Media for United States v. National Treasury Employees Union

Audio Transcription for Oral Argument - November 08, 1994 in United States v. National Treasury Employees Union

William H. Rehnquist:

We'll hear argument first this morning in Number 93-1170, United States v. National Treasury Employees Union.

Mr. Bender.

Paul 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.

Sandra Day O'Connor:

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. "

Paul Bender:


Sandra Day O'Connor:

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.

Paul 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--

Sandra Day O'Connor:

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?

Paul 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.

Sandra Day O'Connor:

I don't think that makes sense.

Paul Bender:

It seems counterintuitive.

Sandra Day O'Connor:

Is that absurd?

Paul Bender:

I don't think it's absurd, although I admit that it is counterintuitive.

Antonin Scalia:

You can get hung for a sheep... for a lamb, but not for a sheep.