Brief Fact Summary. The Ethics Reform Act of 1989 (the Act) enacted an honoraria ban, a broad prohibition against allowing federal employees from accepting any compensation for making speeches or writing articles, regardless of whether the speeches or articles have any connection to that person’s official duties.
Synopsis of Rule of Law. The fact of federal employment, alone, is not enough to allow a broad prohibition, disallowing federal employees compensation for their own expressive works.
The Supreme Court of the United States (Supreme Court) found that the ban on honoraria was significantly burdensome to a large group of employees who sought compensation for their expressive endeavors, when it had no relationship to their employment. The honoraria ban was enacted to prevent high pay-grade politicians from increasing their salaries through speeches and articles, but the burden it placed on the lower pay-grade employees was more significant than the abuses committed by those in the higher pay-grade. While it may be proper to assume that payments of honoraria to judges and high-ranking officials would appear improper, it is unfair and a violation of the expressive rights of other federal employees to also hold them accountable for non work-related expressions.
Dissent. Chief Judge Rehnquist (J. Rehnquist) dissents, arguing that the Court ignores the Governmental interest in prevention of impropriety.
Concurrence. Judge Sandra Day O’Connor (J. O’Connor) concurs, noting that the ban on honoraria should be lifted when it applies to employees who wish to be compensated for activities outside of the spectrum of their employment, but she cautions that the question of whether this ban applies to speech that bears some relationship to employment has been left unanswered.
Discussion. In considering whether federal employment bars an employee the right to receive compensation for his expressive endeavors, one must consider the type of endeavor and whether it affects the governmental interest in preventing improper compensation.