Mr. FRANK. Thank you.

Mr. Halperin.

Mr. HALPERIN. I am tempted to ask that my statement not be part of the record, but I will resist.

I want to say, Mr. Chairman, that as much-

Mr. FRANK. I do not think there would be any objection.

Mr. HALPERIN. That is what I was afraid of.

As much as Leslie Harris, who is here with me from the ACLU, enjoyed working with this subcommittee on this bill, and as much as we might like to come back next Congress and the one after that to testify again, we recognize that there is an interest in producing a bill. And while we still have some skepticism about whether fundamental changes are really necessary, we are ready to work with you to try to craft a bill that is consistent with the principles involved here.

I also want to say that in contrast to the Senate, and with a few exceptions here, I have never heard so much sensible said by so many people about this subject and I agree with almost all of it and I will not repeat many of the things that have been said about the foreign-domestic issue, about the agency designation issue, and

so on.

Let me just make three points. One is we are very troubled by any waiver provisions and would urge you not to try to deal with the notion that maybe this group should not be covered, but we will leave it to the Attorney General to give a waiver. We do not have as much confidence as some people may have in the long line of Attorneys General that we have had.

Second, the Senate bill deals with the issue of compensation by making it an affirmative defense that you were not compensated. That obviously has got to be an element of the crime itself.

Finally, on the question of Congress, we do remain very skeptical about whether Congress should be covered at all. We have a long list of other statutes that we would like you to include Congress under before you get to this one, and I would be glad to provide that.

But I gather there is a desire to include Congress and I would just say about that, first, I think there are real questions of what is the right, comparable provision both for Members of Congress and the staffs. We are very interested in what Congressman Smith has suggested and what we would like to do is think some more about it, in light of the fact that there seems to be a desire to include Congress, and to submit for the record our view of whether, if you are going to include Congress, what that would be.

[The statement of Mr. Halperin follows:]

Mr. Chairman and Members of the Committee:

We appreciate the opportunity to testify on behalf of the American Civil Liberties Union on the issue of restrictions on post-employment activities of Federal Officers and Employees. you know, the American Civil Liberties Union is a nonpartisan organization of over 250,000 members dedicated to the defense and enhancement of civil liberties guaranteed by the Bill of

Rights.

In the view of the ACLU, any legislation in this area must be carefully drafted to deal with potentially serious conflicts of interests posed by certain lobbying and representative activities of former high government officials and in a manner designed to avoid infringing on the protected First Amendment rights of former government employees.

Such an approach is essential because lobbying activity is activity protected by the First Amendment. This means that its

As

regulation must be necessary to serve a compelling state interest and that it must be narrowly drawn to achieve that end. Widmar

v. Vincent, 454 U.S. 263 (1983).

Former government employees do not lose their rights as a
The Supreme Court has stated

result of government employment.

that "[f]or at least 15 years, it has been settled that a state cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of

expression."

Connick v. Myers, 461 U.S. 138 at 142 (1981).

Limits on speech during public employment must represent a

balancing of the interests of the employee, as a citizen, in commenting on matters of public concern and the interests of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. Pickering v. Board

The limits on speech

of Education, 391 U.S. 563 (1968). following employment must meet the more stringent standards of compelling state interest and least intrusive alternative

traditionally applied by the Court.

The fact that the proposed regulations apply only to

Otherwise, a

government employees and only to activities that they perform for a fee and in the service of others does not alter its character as speech protected by the First Amendment. newspaper circulated for profit would be subject to less First Amendment protection than pamphlets circulated for free.

Moreover, while commercial speech receives less protection than other speech, this legislation does not regulate speech which comes within the meaning of "commercial" speech. The definition of commercial speech turns not on whether it is paid for, but that the "expression relate[s] solely to the economic interests of the speaker and audience." Central Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980) at 561. The Court has made it clear that its holdings on commercial speech turn on the difference between speech which is "no more than a commercial transaction" and "the freedom of anyone, including casino owners, to comment publicly on such matters as legislation..." Posadas de Puerto Rico Associates Tourism Co. of Puerto Rico, 106 S. Ct.

2

2968 (1986). Similarly, in examining limitations on campaign expenditures in Buckley v. Valeo, 424 U.S. 1, 16 (1976) the Court stated, "this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment."

fee, is political speech.

Lobbying activity, even for a

The fact that the activity restricted is on behalf of a foreign entity of person and is done for pay does not affect its status as protected expression, although it might determine the nature of the state interest involved and of the appropriate balancing of interests. See generally, Attorney General of the United States v. Irish People, Inc., 684 F. 2d 928 D.C. Cir. (1982).

Thus, we deal here with restrictions on political activity which must be analyzed according to traditional First Amendment standards. As the Supreme Court has set forth in numerous cases, any statute regulating political speech must meet three criteria: (1) a compelling state interest must be at stake; (2) there must be a demonstrated need for the regulation; and (3) the restriction must be narrowly drawn so as not to impose limitations greater than those necessary to protect the interest at stake.

There is no doubt that the state has the right to protect itself from improper activities by former government officials. Serious conflicts of interests, undue influence, and possible