Ethics in Government Act of 1978
ETHICS IN GOVERNMENT ACT OF 1978
Passed in 1978 in the shadow of the watergate scandal, the Ethics in Government Act affects many different aspects of federal government employment. Its most famous provision was the Independent Counsel Law, which gave impetus to very public investigations of officials in three presidential administrations and resulted in the impeachment trial of President bill clinton in 1999. That provision has since been allowed to lapse, but many other provisions of the act remained valid through 2003.
When Congress first debated the Ethics and Government Act in the late 1970s, it seemed as if the nation had been through a long nightmare of ethics scandals, with Watergate being only the most prominent and devastating. The purpose of the act was to increase public confidence in the level of integrity of federal government officials, to deter conflicts of interest from arising, and to stop unethical person from entering public service. Generally, the act made provisions for the authority and functions of the Office of Government Ethics, and set up administrative provisions, rules and regulations, and appropriations to enforce federal government ethics. It became law in 1978.
Conflict of Interest Provisions Conflict of interest was one of the chief areas dealt with by the Ethics in Government Act. The act sets forth financial disclosure requirements for federal personnel. (5 USCA Appx 4 § 101 et seq). The applicable provisions detail which persons are required to file financial reports, the information which must be provided in the reports, the requirements for filing the reports, and custody of, and public access to, the reports. Civil action and civil liability provisions allow actions to be brought for the failure to file the reports required or for the filing of false reports.
The act also sets up the Office of Government Ethics with a directory appointed by the president, with consent of the Senate for a term of five years. (5 U.S.C.A. App. 4 § 401). The director provides, in consultation with the Office of Personnel Management, the overall direction of executive branch policies related to preventing conflicts of interest on the part of officers and employees of any executive agency. Upon the request of the director, each executive agency is obliged to make its services, personnel, and facilities available to the director to the greatest practicable extent for the performance of functions under this act; and except when prohibited by law, furnish to the director all information and records in its possession which the director may determine to be necessary for the performance of his duties.
The act also sets government-wide limitations on outside earned income and employment. (5 U.S.C.A. app. 4 § 501) It sets specific income limits based on the government official's level of pay. It also prohibits honoraria, but that prohibition was called into question by the U.S. Supreme Court in U.S. v. National Treasury Employees Union, 513 U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 964 (U.S.Dist.Col., 1995). In that case, the High Court determined that the honoraria prohibition imposed a significant burden on expressive activity and was the kind of burden that abridges speech under the first amendment; and that the government's interest in assuring that federal officers not misuse or appear to misuse power by accepting compensation for their unofficial and nonpolitical writing and speaking activities was not served by the prohibition. However, the Court also limited relief to parties before the Court, i.e., lower level executive branch employees, and said the ruling would not be extended to senior executive branch employees. The Court reasoned senior employees received salary increases to offset an honoraria ban disincentive to speak and write, and, furthermore, government might advance a different justification for an honoraria ban limited to senior executives. Thus, the honoraria ban still applies to senior executive branch employees.
Finally in regards to conflict of interest provisions of the act, it sets up an office of Senate Legal Counsel (2 U.S.C.A. § 288). Among other duties, the Senate Legal Counsel is charged with defending the Senate as a whole, or a committee, subcommittee, member, officer, or employee of the Senate, in a court of law or against any action taken against them. The counsel also enforces Senate subpoena or orders and serves in an advisory role on various legal proceedings.
Many state statutes have been passed that follow the Ethics in Government Act in regard to disclosure by government officials. New York and California have particularly strict laws. States such as Florida, Alabama, Hawaii and Pennsylvania have also enacted ethics in government laws. The state laws generally have similar provisions to the federal government laws, though some are stricter in their requirements and penalties.
Independent Counsel Provisions Perhaps the most controversial section of the Ethics in Government Act was the provisions for independent counsel (28 U.S.C.A. § 591). This provided in certain limited circumstances for a panel of judges to appoint an independent counsel to investigate and, if necessary, prosecute high-ranking federal officials. It was done to prevent another "Saturday Night Massacre," the name for what took place in 1973 when President richard nixon fired Special Prosecutor archibald cox to try to stifle his Watergate investigations.
The independent counsel sections were the only provision of the Ethics in Government Act that had to be reauthorized. A sunset clause provided that the entire chapter of the U.S. code dealing with the Independent Counsel expired within a certain time frame. Thus the act was reauthorized in 1983 and again in 1987, with slight changes made to its provisions each time.
The chief criticism made of the independent counsel statute was that since the president could not directly fire the independent counsel, the attorney general could only remove the counsel for good cause, physical or mental disability, or any other condition that substantially impaired the performance of the independent counsel's duties. The independent counsel had too much power and resources for investigating the target, thus leading to long and involved inquiries which were expensive for the target of the investigation even if no wrongdoing was found.
Nonetheless, the Supreme Court upheld the independent counsel provision in Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (U.S.Dist.Col. 1988). In 1992, following strong Republican criticism over the investigation of the iran-contra scandal by independent counsel Lawrence Walsh, the independent counsel provision was allowed to lapse. However, it was revived in 1994 by a Democratic controlled Congress.
This decision led to the most controversial independent counsel investigation of them all: independent counsel Ken Starr's inquiry into President Bill Clinton's involvement in the whitewater real estate scandal. Starr's investigation led to the unsuccessful impeachment trial of Clinton and became the longest and most expensive independent counsel investigation in history. The results of the Clinton case were divisive to both Republicans and Democrats and led to much criticism of Starr and his methods.
Perhaps because of this episode, the independent counsel provision of the Ethics and Government Act was allowed to expire in 1999. The duties of the independent counsel were taken over by the justice department. As of 2003, no attempt to revive the provision had been made.
Cox, Archibald. 1991–92. "Ethics in Government: The Cornerstone of Public Trust." West Virginia Law Review 94 (winter).
Koffsky, Daniel L. Spring, 1995. "Coming to Terms with Bureaucratic Ethics." Journal of Law and Politics 11.
Mears, Walter. 1999. "Independent Counsel Law's Quiet Death." Los Angeles Times (June 20).
Waldman, Mitchell. 2002. "Public Officers and Employees." American Jurisprudence. St. Paul, Minn.: West.