SINCE THE first moments of 1991 last Tuesday, it has been illegal for any federal government worker, regardless of grade level, to receive payment for any "speech, article, or appearance." The penalty: a fine of $10,000 or the amount received, whichever is greater. Surely this is one of the most ill-conceived pieces of legislation to come out of Congress in many a year.
The new law does not bar federal workers from all outside income; they remain free to use spare time to sell cosmetics, repair cars, practice law and raise apples. Only "speeches, articles, or appearances" are banned -- but even here there are distinctions for which no rational basis is discernible: Books are acceptable, articles are not; fiction is acceptable, non-fiction is not.
The statute makes no distinction between "speeches, articles, or appearances" that are related to an employee's job and those on unrelated topics. One might understand why Congress would not wish an EPA pesticide expert to earn outside income writing for a pesticide industry magazine. But why the FDA employee who writes ballet reviews for Dance magazine?
And just what is an "appearance?" The law clearly ensnares the professor-turned-lawyer in my agency who has worked for months on a speech to a learned society on differing interpretations of the Emancipation Proclamation. But could a GS-10 receiving $50 each week for singing in her church's choir be fined $10,000? Government attorneys, responding in a recent hearing to that very question from U.S. District Judge Thomas Penfield Jackson, said guidelines from the Office of Government Ethics would exempt her, but they acknowledged that the law is not clear in her case.
What could induce Congress to pass a law so contrary to common sense? The answer lies in last year's congressional pay-raise debacle. After the first effort was thwarted, it became apparent that a large segment of the public believed that congressmen and congressional staffers were being paid substantial honoraria for token appearances, sham articles and brief, inconsequential speeches. Faced with that realization, Congress approved a 25-percent increase for members of the House (the Senate demurred), federal judges and the most senior government officials -- in return for prohibiting honoraria. But remarkably, the honoraria ban was extended to all federal employees, including the hundreds of thousands who did not receive the 25-percent raise, many of whom have come to depend on their income from outside work. Why? The cynical among us might suspect that Congress sought to camouflage the evil of honoraria abuse by making it seem government-wide, rather than limited to Capitol Hill. Congress seems to have forgotten the long history of federal government workers who were writers in their spare time. Nathaniel Hawthorne and Herman Melville worked for the Customs Service, Washington Irving and William Dean Howells served in the diplomatic corps and Bret Harte worked for the Mint.
Perhaps the best example was Walt Whitman, who in 1865 was given a clerkship in the Indian Bureau of the Interior Department in recognition of his work as a nurse in Civil War hospitals. Offended by Whitman's outside writings, a newly appointed Interior secretary fired the poet. Within 24 hours, Assistant Attorney General J. Hubley Ashton, a Lincoln appointee, found a job for Whitman on the Justice Department payroll, where he would serve under seven attorneys general.
Today the Justice Department views outside writing by government workers rather differently. Last month an assistant attorney general filed a memorandum in federal court, arguing that the controlling case in this area is Arcara v. Cloud Books, Inc. In that 1986 decision, the Supreme Court held that no First Amendment issue was involved when the State of New York shut down an "adult bookstore" where acts of fellatio, for pay, were taking place in the back of the store in full view of the proprietor. The bizarre implication of the Justice Department's argument is that spare-time paid writing by federal employees is an evil analogous to performing sodomy for money. In the Justice Department's view, the fact that the new law may curtail free expression is an incidental and inconsequential effect, comparable to the fact that closing the New York brothel also closed a bookstore.
Perhaps the saddest aspect of this sorry affair is what it reflects about how writing and speaking are regarded today. To Congress, the words "article," "speech," and "appearance" do not call to mind men and women who have something to say about matters of interest and importance to the nation. Rather, the three words seem to connote only devices for buying and selling influence on Capitol Hill.
As for my interest in the matter, I am a government lawyer who, for my own pleasure, writes articles about history. I am also a plaintiff in a suit brought by the American Civil Liberties Union to challenge the statute. (Common Cause has entered the case to defend the new law.) I regard the statute as an impermissible encroachment on my First Amendment right of free expression. It is absurd that I cannot accept payment for a true account of how my grandmother sheltered a much-wanted fugitive from the Gestapo in her Berlin apartment in 1933 but can be paid if I tell the same tale, call it a short story and pretend that it is fiction.
But I believe that there is another interest at issue. The works of Whitman, Howells, Harte, Hawthorne, Irving, Melville and many lesser-known government workers make up no small part of the nation's literary heritage. The question today is whether we should honor and sustain that tradition or should instead declare that these bureaucrat-authors were committing a wrong for which the Congress of their less enlightened times had not yet enacted suitable penalties.
I am receiving payment for this article. In so doing, I am putting myself in violation of the new statute. To the Justice Department and its assistant attorney general, I can only say that you know my address from the papers filed in our lawsuit. You are cordially invited to come and get me.
Peter Crane is counsel for special projects at the U.S. Nuclear Regulatory Commission.