LESS THAN two months ago, the Supreme Court ruled that federal officials can be held personally responsible if they deliberately violate someone's constitutional rights. That, we said at the time, was probably a good thing because it would help restore to government some of the sense of individual accountability that many citizens believe it has lost. The Carter administration obviously disagreed and, if it has its way, that decision is not going to last long enough for anyone to determine whether it is good or bad. Legislation, pushed strongly by the Department of Justice, is now pending before the House Judiciaty Committee to undo the most beneficial aspect of what the court ordered.
To be fair about it, we should explain that the administration is not just reacting to the court's decision. It asked Congress for this legislation last winter, contending that the government itself, not an individual official, should be the target of any citizen's claim for damages based on an illegal official act. It made the same basic argument then, as a matter of policy, that it made later to the court as a matter of law. Unfortunately, its ardor for the legislation was not lessened by its defeat in the court, and its reasoning seems to have been more persuasive to members of Congress than it was to the justices.
There is some logic and there are, no doubt, some beneficial aspects to the position taken by the Department of Justice. No one wants a government full of officials who are reluctant to make decisions because of a fear that if they are wrong they will have to pay, out of their own pockets, thousands of dollars in damages. And no one wants a citizen to win a damage award that is uncollectable because it is against a bankrupt official instead of a rich government. But there has to be a better solution to those, and other, possibilities than the one approved by a House Judiciary subcommittee.
A balance must be struck between the protection government gives its employees so they can act fearlessly and the necessity to refrain from freeing them entirely from personal responsibilty for what they do. Amendments proposed to the subcommittee's bill attempt to achieve that by creating a disciplinary procedure for officials involved in liability cases or by giving citizens the right to choose whether to sue an official or the government. Those measures would improve the bill and bring it more in line with similar legislation pending in the Senate. But the balance they strike still seems imperfect.
The full Judiciary Committee ought to kill the subject for this session at its next meeting and send its subcommittee, and the administration, back to the drawing boards. Perhaps by January they will have had a chance to reflect a little more on the opinion of Justice Bryon R. White, who spoke for the court in June. He sensed something that seems missing from this legislation: the almost desperate need in this post-Watergate period for a guarantee to citizens whose rights are invaded that someone in government can be held personally accountable when things go wrong.