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Could Government Ethics Disclosure Be Found Unconstitutional?

This week, <a href="http://www.nytimes.com/2014/04/17/opinion/an-indecent-burial.html&quot; target="”_blank”">Linda
Greenhouse pointed out, in a New York <i>Times</i> op-ed piece</a>,
that <a href="http://www.cadc.uscourts.gov/internet/opinions.nsf/D3B5DAF947A03F278525…; target="”_blank”">an
April 14 decision by the D.C. Circuit</a> could have an effect on
campaign finance disclosure. It could have an effect on government
ethics disclosure, as well.<br>
<br>

The case is <i>National Association of Manufacturers</i> v. <i>Securities
and Exchange Commission</i>. 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."<br>
<br>
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.”<br>
<br>
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."<br>
<br>
Yes, the U.S. Supreme Court made it clear in its <i>Carrigan </i>decision
in 2011 that the First Amendment does not protect local officials
with respect to conflict of interest provisions (see <a href="http://www.cityethics.org/content/supreme-courts-local-government-recus…; target="”_blank”">my
blog post on this</a>). But that was about a legislator's <i>vote</i>,
which the Court said was effectively not the legislator's, not in
any personal way that confers rights.<br>
<br>
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)?<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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