Could Government Ethics Disclosure Be Found Unconstitutional?

This week, Linda Greenhouse pointed out, in a New York Times op-ed piece, that an April 14 decision by the D.C. Circuit could have an effect on campaign finance disclosure. It could have an effect on government ethics disclosure, as well.

The case is National Association of Manufacturers v. Securities and Exchange Commission. The matter at issue is an S.E.C. rule that, in Greenhouse's words, "required companies to certify that minerals they use in their products are not 'conflict minerals.' A company that cannot in fact certify that its products are conflict-mineral free has to disclose that fact. The appeals court held that the disclosure requirement violates the First Amendment."

The majority opinion argued that the rule "requires an issuer [of stock] to tell consumers that its products are ethically tainted, even if they only indirectly finance armed groups. An issuer ... may disagree with that assessment of its moral responsibility. And it may convey that ‘message’ through ‘silence.’ By compelling an issuer to confess blood on its hands, the statute interferes with that exercise of the freedom of speech under the First Amendment.”

Couldn't government officials make the same argument with respect to the disclosure of possible conflicts or gifts and of annual disclosure information? They might, for example, say, "You are effectively requiring me to tell my constituents that my product — myself — is ethically tainted, even if I contend that my family relationship with a contractor, a gift from a developer, or my ownership of property near a proposed subway station has no bearing whatsoever on my activities or decisions as a government official. I should be able to convey my message about my morality through silence. By compelling me to effectively confess to misconduct, our city's ethics code interferes with my exercise of free speech under the First Amendment."

Yes, the U.S. Supreme Court made it clear in its Carrigan decision in 2011 that the First Amendment does not protect local officials with respect to conflict of interest provisions (see my blog post on this). But that was about a legislator's vote, which the Court said was effectively not the legislator's, not in any personal way that confers rights.

But what about a gift that a legislator receives, or a family relationship, or the ownership of property? These are all personal. What is public is the legislator's fiduciary duty to the community, which is the basis for government ethics laws. But will this argument even be made (I haven't seen it made in legislative immunity cases)?

Fortunately, this is only the decision of two members of one appellate panel. But it is a poor precedent. Everything is not speech in the First Amendment sense, and even First Amendment speech needs to be balanced against other considerations. So far, the U.S. Supreme Court has at least protected disclosure laws. I hope this is not a sign that this too might be crumbling before the First Amendment. The affairs and relationships of a government official are not protected speech, and are required to be disclosed in order to prevent ethical misconduct and to make it appear to the public that officials are being open about their possible conflicts of interest and dealing with them responsibly. The First Amendment has nothing to do with this sort of disclosure, but it's only a matter of time before someone argues that it does.

Robert Wechsler
Director of Research-Retired, City Ethics

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