skip navigation
search

CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next

Congressional Regulation of Conduct in Office.—Congress has very broad powers in regulating the conduct in office of officers and employees of the United States, especially regarding their political activities. By an act passed in 1876, it prohibited “all executive officers or employees of the United States not appointed by the President, with the advice and consent of the Senate, . . . from requesting, giving to, or receiving from, any other officer or employee of the Government, any money or property or other thing of value for political purposes.”479 The validity of this measure having been sustained,480 the substance of it, with some elaborations, was in[p.517]corporated in the Civil Service Act of 1883.481 The Lloyd–La Follette Act in 1912 began the process of protecting civil servants from unwarranted or abusive removal by codifying “just cause” standards previously embodied in presidential orders, defining “just causes” as those that would promote the “efficiency of the service.”482 Substantial changes in the civil service system were instituted by the Civil Service Reform Act of 1978, which abolished the Civil Service Commission, and divided its responsibilities, its management and administrative duties to the Office of Personnel Management and its review and protective functions to the Merit Systems Protection Board.483

By the Hatch Act,484 all persons in the executive branch of the Government, or any department or agency thereof, except the President and Vice President and certain “policy determining” officers, were forbidden to “take an active part in political management or political campaigns,” although they were still permitted to “express their opinions on all political subjects and candidates.” In United Public Workers v. Mitchell,485 these provisions were upheld as “reasonable” against objections based on the First, Fifth, Ninth, and Tenth Amendments.

The Loyalty Issue.—By Sec. 9A of the Hatch Act of 1939, federal employees were disqualified from accepting or holding any position in the Government or the District of Columbia, if they belonged to an organization that he knew advocated, the overthrow of our constitutional form of government.486 The 79th Congress followed up[p.518]this provision with a rider to its appropriation acts forbidding the use of any appropriated funds to pay the salary of any person who advocated, or belonged to an organization which advocated, the overthrow of the Government by force, or of any person who engaged in a strike or who belonged to an organization which asserted the right to strike against the Government.487 These provisos ultimately wound up in permanent law requiring all government employees to take oaths disclaiming either disloyalty or strikes as a device for dealing with the Government as an employer.488 Along with the loyalty–security programs initiated by President Truman489 and carried forward by President Eisenhower,490 these measures reflected the Cold War era and the fear of subversion and espionage following the disclosures of several such instances here and abroad.491

Financial Disclosure and Limitations.—By the Ethics in Government Act of 1978,492 Congress required high–level federal personnel to make detailed, annual disclosures of their personal financial affairs.493 The aims of the legislation are to enhance public confidence in government, to demonstrate the high level of integrity of government employees, to deter and detect conflicts and interests, to discourage individuals with questionable sources of income from entering government, and to facilitate public appraisal of government employees’ performance in light of their personal financial interests.494 Despite the assertions of some that employee privacy interests are needlessly invaded by the breadth of disclosures, to date judicial challenges have been unsuccessful, absent[p.519]even a Supreme Court review.495 One provision, however, has generated much opposition and invalidation, so far, in the courts. Under Sec. 501(b) of the Ethics in Government Act,496 there is imposed a ban on Members of Congress or any officer or employee of the Government, regardless of salary level, taking any “honorarium,” which is defined as “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) . . . .”497 The statute, even interpreted in accordance with the standards applicable to speech restrictions on government employees, has been held to be overbroad and not sufficiently tailored to serve the governmental interest to be promoted by it.498 Only a Supreme Court review, of course, will finally resolve the matter.


Footnotes

479 19 Stat. 143, 169 (1876).
480 Ex parte Curtis, 106 U.S. 371 (1882). Chief Justice Waite’s opinion extensively reviews early congressional legislation regulative of conduct in office. Id., 372–373.
481 22 Stat. 403 (the Pendleton Act). On this law and subsequent enactments that created the civil service as a professional cadre of bureaucrats insulated from politics, see Developments in the Law – Public Employment, 97 Harv. L. Rev. 1611, 1619–1676 (1984).
482 Act of Aug. 24, 1912, Sec. 6, 37 Stat. 539, 555 , codified as amended at 5 U.S.C. Sec. 7513 . The protection was circumscribed by the limited enforcement mechanisms under the Civil Service Commission, which were gradually strengthened. See id., n.481, 97 Harv. L. Rev., 1630–1631.
483 92 Stat. 1111 (codified in scattered sections of titles 5, 10, 15, 28, 31, 38, 39, and 42 U.S.C.). For the long development, see id., n.481, 97 Harv. L. Rev., 1632–1650.
484 54 Stat. 767 (1940), then 5 U.S.C. Sec. 7324 (a). By P. L. 103–94, §§ 2(a), 12, 107 Stat. 1001, 1011 , to be codified at 5 U.S.C. §§ 7321 –7325, Congress liberalized the restrictions of the Act, allowing employees to take an active part in political management or in political campaigns, subject to specific exceptions. The 1940 law, Sec. 12(a), 54 Stat. 767 –768, also applied the same broad ban to employees of federally funded state and local agencies, but this provision was amended in 1974 to bar state and local government employees only from running for public office in partisan elections. Act of Oct. 15, 1974, P. L. 93–443, Sec. 401(a), 88 Stat. 1290 , 5 U.S.C. Sec. 1502 .
485 330 U.S. 75 (1947). See also CSC. v. National Assn. of Letter Carriers, 413 U.S. 548 (1973), in which the constitutional attack was renewed, in large part based on the Court’s expanding jurisprudence of First Amendment speech, but the Act was again sustained. A “little Hatch Act” of a State, applying to its employees, was sustained in Broadrick v. Oklahoma, 413 U.S. 601 (1973).
486 53 Stat. 1147 , 5 U.S.C. Sec. 7311 .
487 See Report of the Special Committee on The Federal Loyalty– Security Program, The Association of the Bar of the City of New York (New York: 1956), 60.
488 5 U.S.C. Sec. 3333 . The loyalty disclaimer oath was declared unconstitutional in Stewart v. Washington, 301 F. Supp. 610 (D.C.D.C. 1969), and the Government elected not to appeal. The strike disclaimer oath was voided in National Association of Letter Carriers v. Blount, 305 F. Supp, 546 (D.C.D.C. 1969); after noting probable jurisdiction, 397 U.S. 1062 (1970), the Court dismissed the appeal on the Government’s motion. 400 U.S. 801 (1970). The actual prohibition on strikes, however, has been sustained. United Federation of Postal Clerks v. Blount, 325 F. Supp. 879 (D.C.D.C. 1971), affd. per curiam, 404 U.S. 802 (1971).
489 E.O. 9835, 12 Reg.1935 (1947).
490 E.O. 10450, 18 Reg.2489 (1953).
491 See generally, Report of the Special Committee on The Federal Loyalty–Security Program, The Association of the Bar of the City of New York (New York: 1956).
492 P. L. 95–521, tits. I–III, 92 Stat. 1824 –1861. The Act was originally codified in three different titles, 2, 5, and 28, corresponding to legislative, executive, and judicial branch personnel, but by P. L. 101–194, title II, 103 Stat. 1725 (1989), one comprehensive title, as amended, applying to all covered federal personnel was enacted. 5 U.S.C.App. §§ 101–111.
493 See op. cit., n.481, 97 Harv. L. Rev., 1660–1669.
494 Id., 1661 (citing S. Rept. 170, 95th Cong., 2d sess. (1978), 21–22).
495 Id., 1664–1669. The Ethics Act also expanded restrictions on postemployment by imposing bans on employment, varying from a brief period to an out–and–out lifetime ban in certain cases. Id., 1669–1676. The 1989 revision enlarged and expanded on these provisions. 103 Stat. 1716 –1724, amending 18 U.S.C. Sec. 207 .
496 92 Stat. 1864 (1978), as amended, 103 Stat. 1760 (1989), as amended, 5 U.S.C.App. §§ 501–505.
497 5 U.S.C.App. Sec. 505(3).
498 NTEU v. United States, 990 F.2d 1271 (D.C.Cir.), pet. for reh. en banc den., 3 F.3d 1555 (D.C.Cir. 1993).

Supplement: [P. 519, add to n.498:]

The Supreme Court held this provision unconstitutional in United States v. NTEU, 513 U.S. 454 (1995) .

Article II -- Table of ContentsPrev | Next