No (Paid) Free Speech For Federal Workers   

Government employees may soon be able to accept payment again for freelancing.

Accepting money for articles, speeches and appearances outside work has been off-limits for federal workers since January 1, 1991, under the Ethics Reform Act of 1989. But protests by unions, a feisty federal attorney and some sympathetic senators may lead to a revision in the law.

The act aimed to prevent payment to bureaucrats for outside activities that might create a conflict of interest with their jobs. But the Office of Government Ethics interpreted the law to mean that all such activity is prohibited, even if it is not related to an employee's regular work.

The American Civil Liberties Union and several federal employee unions protested that the law curtailed freedom of speech. And a number of legislators agreed to correct the language. Even Office of Government Ethics Director Stephen Potts publicly opposed the ban.

But government attorneys stood fast, arguing in court that the new law did not prohibit free speech but only payment for the speech.

In January, a Nuclear Regulatory Commission attorney, Peter Crane, challenged the government's position by writing an opinion piece for The Washington Post , daring federal authorities to fine him the statutory $10,000 for violating the new law.

"What could induce Congress to pass a law so contrary to common sense?" Crane asked. Understandably, the lawmakers wanted to dispel the public's perception that they "were being paid substantial honoraria for token appearances, sham articles and brief inconsequential speeches," he explained. "But the ban was extended to all federal employees...who did not receive the 25 percent raise...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."

Several members of Congress proposed bills to overturn the prohibition. By October, the House Subcommittee on Administrative Law had worked out a compromise that would allow all federal employees including GS-15s – who earn up to $80,138 – to accept outside pay for articles, appearances and speeches so long as there is no conflict of interest. The revision would be retroactive to January 1, 1991.

Higher-level employees earning up to $101,300 a year would have to notify agency ethics officials before accepting payment, and a record of their earnings would be made public. Those who earn more would remain gagged – at least for pay.