Posted on 12/01/2003 7:13:11 AM PST by jmstein7
Memo to the Senate Democrats: Firing the Capitol Hill Memo Leakers May be Unconstitutional
By Jonathan M. Stein, Hofstra University Law Review
Over the past few weeks, several memos drafted by Democrats in the Senate have been leaked to the press. One memo, from the Senate Select Intelligence Committee, highlights how the Democrats planned to use the awesome power and resources of that committee as a political weapon against the President of the United States. The other memos detail how powerful left-wing interest groups pressured Senate Democrats to impermissibly oppose judicial nominations based on characteristics such as race and gender. Now the Democrats are outraged – not by the outrageous content of their memos, but by the fact that they were leaked. Senate Democrats have demanded a probe into these leaks; their request has been granted by Republican Senator Orrin Hatch. Though the source of the leaks may be revealed, the object of the investigation may be moot, as the Senate may be constitutionally prevented from acting against the leakers.
If the leakers are fired by the Senate, they may have actionable whistleblowing claims. In a series of First Amendment cases, the Supreme Court has functionally established three tests to determine whether there exists an actionable claim for the infringement of a public employee's First Amendment rights.
According the Court in Connick v. Myers, it must first be ascertained on the basis of "the content, form, and context of a given statement, as revealed by the whole record," whether the employee in question was speaking "as a citizen upon matters of public concern. . . . [or] as an employee upon matters only of personal interest." Here, the leaked memos revealed a plot to misuse government resources for partisan gain and schemes to discriminate against judicial nominees based on race and gender. Federal Appellate Courts, such as the Courts of Appeal for the Fifth, Seventh, and Tenth Circuits, have held that substantive disclosures of corruption, impropriety or other malfeasance by public officials are clearly matters of public concern. The Supreme Court itself, in Connick, stated that abuse of public office is a matter traditionally occupying "the highest rung of the hierarchy of First Amendment values." Thus, it is quite likely that the first test would be satisfied, and a court could reasonably find that the leakers’ “speech” – in the form of the memos – was that of citizens “upon matters of public concern.”
Once it is determined that the leakers speech engendered matters of public concern, the second test, according to the Supreme Court in Pickering v. Board of Education of Topeka High School, is to balance “the interests of [the speaker], in commenting upon matters of public concern and the interest of the [government] . . . in promoting the efficiency of the public services it performs through its employees.” The information the leakers disclosed concerns alleged abuses of public office. This kind of speech weighs strongly in the leakers’ favor. As the Third Circuit stated succinctly stated in O'Donnell v. Yanchulis,
[a]n employee who accurately exposes rampant corruption in her office no doubt may disrupt and demoralize much of the office. But it would be absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle simply because the speech somewhat disrupted the office. . . .The point is simply that the balancing test articulated in Pickering is truly a balancing test, with office disruption or breached confidences being only weights on the scales.
Thus, while there is a potent public interest in exposing impropriety at the highest levels, the Senate Democrats have yet to justify any legitimate interests reflected in the substance of the leaked memos or legitimate interests in keeping such information secret and away from the public. The reason is that there probably are no such legitimate interests. Therefore, the balance here likely tips heavily in favor of the leakers, and a court could reasonable find that the second test is satisfied.
The third test, in the case of the leakers, is merely a formality. The test is one of causation, i.e. according to the Court in Mount Healthy City School District Board of Education v. Doyle, the leakers would have to demonstrate that leaking the memos was a “substantial or motivating factor” is the Senate’s decision to fire them. This is a mere tautology – if there is an investigation into the source of the leaks, and the leakers are subsequently fired as a result of such an investigation, then the leaking of the memos is the only factor in the decision to dismiss! These staffers simply cannot be fired as a result of their constitutionally protected speech. The government, thus, would be faced with the impossibility of showing “by a preponderance of the evidence that it would have reached the same decision [to fire the staffers] . . . even in the absence of the protected conduct.” Thus, the leakers could reasonably prevail.
If the Senate fires staffers for leaking memos that outline how Senate Democrats have abused, or planned to abuse, their positions as United States Senators, the staffers will likely have a cause of action against the government based on First Amendment rights. Such action, on its merits, will get to the substance of the various memos. The burden will then be on the Democrats to defend the substance of the memos – an untenable position, which includes, inter alia, defending the unprecedented filibusters of highly qualified minority nominees solely because powerful far left-wing interest groups want to merely deny Republicans the political capital associated with appointing minorities to the Federal bench.
Someone ought to draft a memo to the Senate Democrats suggesting a change in strategy – immediately.
Copyright © 2003 Jonathan M. Stein
This Copyrighted Material May Not Be Reprinted
Or Reproduced in Any Manner Without the Express
Permission of the Copyright Owner. 17 U.S.C. § 106 (2002).
I thought that the Democrats were objecting to the ideology of a few judicial nominees, not their gender or ethnic origin. Can someone quote this memo and back up this claim?
The effective result would be to pay a congressional staffer to do nothing. This is not a case where a career bureaucrat blows the whistle and needs protection. The staffer could easily lose their job every election cycle. I think in this case, if the law prevents their firing, the law is a ass.
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