[34] SENTELLE, Circuit Judge, dissenting:

Although I share my colleagues' concerns that this statute may not be the best conceivable vehicle for achieving the underlying congressional aim, I dissent from their conclusion that it is unconstitutional. My dissent rests both on concerns about the precedent the Court creates today and on what I perceive to be its inconsistency with existing precedent, both of the Supreme Court and this Circuit.

I address first the inconsistency of the Court's holding today with existing law on facial challenges; second, the application of the Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), standard to the question of the constitutionality of the honorarium ban; and, third, my discreet disagreement with the "severance" exercised by the majority on the statutory term "officer or employee."

I.

I fear that the majority opinion may lead litigants to conclude that whenever a statute is unconstitutional "as-applied" to parties before the court it is also "facially" invalid. See Majority Opinion ("Maj. Op.") at 1275 n. 3 (sustaining appellees' facial challenge because the statute is unconstitutionally overbroad as to them and "the [Supreme] Court allows facial overinclusiveness claims by parties whose conduct may well be constitutionally protected"). In fact, though it is often the case, as in Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990), for example, that a plaintiff who asserts the unconstitutionality of a statute as applied to him is also heard to challenge the statute on its face, see Sanjour v. EPA, 984 F.2d 434, 444 n. 10 (D.C. Cir. 1993); National Fed'n of Fed. Employees v. Greenberg, 983 F.2d 286, 288 (D.C. Cir. 1993), that truism does not mean that facial challenges may be entertained and sustained without limitation.

Instead, the Supreme Court has held that statutes may be facially invalidated only in two "narrow" circumstances. As the Court in New York State Club Ass'n v. New York City, 487 U.S. 1, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988), recently made clear:

Although such facial challenges are sometimes permissible and often have been entertained, . . . to prevail on a facial attack the plaintiff must demonstrate that the challenged law either "could never be applied in a valid manner" or that even though it may be validly applied to the plaintiff and others, it nevertheless is so broad that it "may inhibit the constitutionally protected speech of third parties."

Id. at 11, 108 S.Ct. at 2233 (quoting Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 2125, 80 L.Ed.2d 772 (1984)).

New York State Club Ass'n also teaches that different substantive criteria govern each of the two categories of permissible facial challenges. "[T]he first kind of facial challenge will not succeed unless the court finds that ' every application of the statute create[s] an impermissible risk of suppression of ideas.'" Id. (quoting Taxpayers for Vincent, 466 U.S. at 798 n. 15, 104 S.Ct. at 2125 n. 15). On the other hand, "the second kind of facial challenge will not succeed unless the statute is 'substantially' overbroad, which requires the court to find 'a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.'" Id. (quoting Taxpayers for Vincent, 466 U.S. at 801, 104 S.Ct. at 2126). Neither type official challenge, however, succeeds unless "there is no core of easily identifiable and constitutionally proscribable conduct that the [challenged] statute prohibits." Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 965-66, 104 S.Ct. 2839, 2851-52, 81 L.Ed.2d 786 (1984); see also Sanjour v. EPA, 984 F.2d 434, 444 n. 11 (D.C. Cir. 1993) (same).

Limiting facial challenges in this manner may seem to manifest an excessive focus on semantics or an outright hostility to constitutional rights. But, as the Supreme Court has explained, the limits on permissible facial challenges "rest on more than the fussiness of judges." Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830 (1973). They are, quite simply, a requirement of the limitations inherent in Article III. "[U]nder our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws." Id. at 611, 93 S.Ct. at 2915 (citing Younger v. Harris, 401 U.S. 37, 52, 91 S.Ct. 746, 754, 27 L.Ed.2d 669 (1971)). Stated differently, "[t]he judicial power does not extend to issuing 'an opinion advising what the law would be upon a hypothetical state of facts.'" American Library Ass'n v. Barr, 956 F.2d 1178, 1189 (D.C. Cir. 1992) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937)).

Moreover, far from disadvantaging constitutional rights, these limits reflect a sensible accommodation of constitutional rights and the legitimate interests of government. Generally speaking, the Supreme Court has deemed as-applied challenges sufficient to protect precious constitutional rights. See Broadrick, 413 U.S. at 611, 93 S.Ct. at 2915. If a plaintiff demonstrates that a law impermissibly encroaches on protected activities, courts "invalidate the statute, not in toto, but only as applied to those activities," and thereby "[t]he law is refined by preventing improper applications on a case-by-case basis." Munson, 467 U.S. at 977, 104 S.Ct. at 2857 (Rehnquist, J., dissenting). That approach, in sharp contrast to facial invalidation, has the advantage of allowing statutes to stand as to the legitimate objects of legislative action while simultaneously exempting constitutionally protected activity from the statutes' reach. Id.

Only in two circumstances, representing the two exceptions elucidated in New York State Club Ass'n, has the Supreme Court found no justification for limiting plaintiffs to as-applied challenges. The first is review of a statute that has no constitutional application. Allowing facial challenges in that situation rests on the sound notion that "there is no reason to limit challenges to case-by-case 'as-applied' challenges when the statute . . . in all of its applications falls far short of constitutional demands." Munson, 467 U.S. at 966 n. 13, 104 S.Ct. at 2852 n. 13. The second arises when a statute is so overbroad as to the rights of absent third parties that "there is no core of easily identifiable and constitutionally proscribable conduct that the statute prohibits." Id. at 965-66 n. 13, 104 S.Ct. at 2851-52 n. 13; see also id. at 964-65, 104 S.Ct. at 2850-51. In such a situation, as-applied challenges have been viewed as insufficient to protect First Amendment rights because such a law's "very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick, 413 U.S. at 612, 93 S.Ct. at 2915.

In view of the existing precedent, a lower court addressing a facial challenge based on insufficient tailoring can hardly avoid distinguishing between the two types of facial challenges. In my view, the present challenge fits neither category, and that forecloses us from striking down the honorarium ban on its face. Quite clearly, appellees' facial challenge cannot succeed as a claim that the honorarium ban is unconstitutional in all of its possible applications. As the majority states, "[n]o party here has argued that § 501(b) is unconstitutional as applied to members of Congress, officers or employees of Congress, or judicial officers or employees." Maj. Op. at 1278. Indeed, appellees' brief expressly disclaims any claim that the ban is unconstitutional as to all those affected: "Plaintiffs are career executive branch employees, and they express no opinion as to the constitutionality of the honoraria ban as applied to Members of Congress, the judiciary, and high-level political appointees in the executive branch." Appellees' Br. at 36 n. 21.

Nor, for two reasons, does the appellees' facial challenge fall within the second category of permissible facial challenges. First, appellees' tailoring challenge does not constitute a cognizable overbreadth challenge under the second type of facial challenge. A court "may not apply overbreadth analysis to a claim 'that [a] statute is overbroad precisely because it applies to him — the plaintiff who is before us.'" Sanjour, 984 F.2d at 443 (quoting Moore v. City of Kilgore, 877 F.2d 364, 390-92 (5th Cir.), cert. denied, 493 U.S. 1003, 110 S.Ct. 562, 107 L.Ed.2d 557 (1989)). In so holding, Sanjour gave effect to the Supreme Court's explicit holding that "the second kind of facial challenge will not succeed unless the statute is 'substantially' overbroad, which requires the court to find 'a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.'" New York State Club Ass'n v. New York City, 487 U.S. 1, 11, 108 S.Ct. 2225, 2233, 101 L.Ed.2d 1 (1988) (quoting Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984)) (emphasis added).

Here, appellees do not argue that the honorarium ban will compromise the rights of absent third parties. The parties whose rights are being asserted — Executive Branch employees below GS-16 and the individually named plaintiffs — are before the Court. The District Court properly certified appellee NTEU to represent the class in question under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Given the nature of a class action, all of the members of the class — not just the class representative — are before the Court. See FED.R.CIV.P. 23(c)(3) (providing that "[t]he judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include . . . members of the class") (emphasis added); see generally 7B CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1789, at 247 (1986) (explaining that "a member of the class in a Rule 23 suit is considered to be a party in representation, and will be bound to the same extent as an actual party"). Consequently, we have before us, not just the individually named plaintiffs, but all Executive Branch employees below GS-16.

At no time in this litigation have the rights of anyone other than the individually named plaintiffs and the certified class been asserted. As a result, appellees' "overbreadth" challenge is based exclusively on a claim that the honorarium ban is overbroad precisely because it applies to them, and the instant case involves the assertion of first-party rights of parties presently before the Court. Appellees' facial challenge, therefore, fails on the merits, in view of controlling precedent from the Supreme Court and this circuit which place cases such as this one outside the substantive bounds of the second type of facial challenge, i.e., the First Amendment overbreadth doctrine. See New York State Club Ass'n v. New York City, 487 U.S. 1, 11, 108 S.Ct. 2225, 2233, 101 L.Ed.2d 1 (1988) (holding that a claim under the First Amendment overbreadth doctrine "will not succeed unless . . . the [challenged] statute itself will significantly compromise recognized First Amendment protections of parties not before the Court"); Sanjour v. EPA, 984 F.2d at 442 (D.C. Cir. 1993) (same); see also Moore v. City of Kilgore, 877 F.2d 364, 390-92 (5th Cir.) (same), cert. denied, 493 U.S. 1003, 110 S.Ct. 562, 107 L.Ed.2d 557 (1989). By applying the overbreadth doctrine to appellees' facial challenge, the majority has loosed the overbreadth doctrine from its moorings, in direct contravention of the Supreme Court's pointed admonition that "[t]he scope of the First Amendment overbreadth doctrine . . . must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted." New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982).

Second, under Sanjour v. EPA, 984 F.2d 434 (D.C. Cir. 1993), and the cases on which it relied, facial invalidation is proper under the second type of facial challenge only if "there is no core of easily identifiable and constitutionally proscribable conduct that the statute prohibits." Id. at 444 n. 11 (internal quotation marks omitted). Not only have appellees failed to make that showing, the majority correctly holds that the honorarium ban is constitutional as to Congress and the judicial branch, see Maj. Op. at 1278, and concedes that "for some of § 501(b)'s applications — perhaps many of them — the Pickering balance supports its constitutionality." Id. at 1274.

Although the fact that the ban has constitutionally permissible applications does not mean that the ban is narrowly tailored, see Ward v. Rock Against Racism, 491 U.S. 781, 800, 109 S.Ct. 2746, 2758, 105 L.Ed.2d 661 (1989), it does necessarily mean that the statute may not be invalidated on its face, assuming the constitutionally permissible applications are "easily identifiable." See, e.g., Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 965, 104 S.Ct. 2839, 2851, 81 L.Ed.2d 786 (1984); New York v. Ferber, 458 U.S. 747, 770 n. 25, 102 S.Ct. 3348, 3361 n. 25, 73 L.Ed.2d 1113 (1982); United States Civil Serv. Comm'n v. Letter Carriers, 413 U.S. 548, 580-81, 93 S.Ct. 2880, 2897-98, 37 L.Ed.2d 796 (1973). Here, the honorarium ban does have an easily identifiable core of constitutional application — at the very least, it may constitutionally be applied to judges and their staff and Members of Congress and their staff. See Maj. Op. at 1279. Thus, the ban cannot be invalidated on its face consistently with the above cases.

For the foregoing reasons, sustaining appellees' facial challenge runs counter to the mandate of several Supreme Court cases. See New York State Club Ass'n v. New York City, 487 U.S. 1, 11, 108 S.Ct. 2225, 2233, 101 L.Ed.2d 1 (1988); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 964-65, 967 n. 13, 104 S.Ct. 2839, 2850-51, 2852 n. 13, 81 L.Ed.2d 786 (1984); Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984); New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982). It also runs counter to this Circuit's decision in Sanjour v. EPA, 984 F.2d 434 (D.C. Cir. 1993). Further, it creates a conflict with the Fifth Circuit. See Moore v. City of Kilgore, 877 F.2d 364, 390-92 (5th Cir.), cert. denied, 493 U.S. 1003, 110 S.Ct. 562, 107 L.Ed.2d 557 (1989). "Believing that in this case the overbreadth doctrine is not merely 'strong medicine,' but 'bad medicine,'" Munson, 467 U.S. at 975, 104 S.Ct. at 2856 (Rehnquist, J., dissenting) (citation omitted), I cannot join the majority's facial invalidation of the honorarium ban.

II.

I agree with the majority that Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), is the standard by which the constitutionality of the honorarium ban must be judged. Under the Pickering test, we must balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. at 568, 88 S.Ct. at 1734.

I differ from the majority as to both sides of the balance. On the one hand, I find the burden the honorarium ban imposes on appellees' First Amendment rights lighter than the majority perceives; the weight of the government's interest in avoiding the appearance of impropriety or corruption, I find much, much greater.

A. The Employees' Interest

The majority holds, correctly, that financial disincentives on speech do burden First Amendment rights and the fact that such disincentives do not prohibit expressive activity only affects the weight of the burden. See Maj. Op. at 1273. This Court recently held as much. See Sanjour v. EPA, 984 F.2d 434, 441 (D.C. Cir. 1993) (holding that financial disincentives on speech burden First Amendment rights for purposes of the Pickering balance). I find the majority's conclusion as to the effect of that holding on the present controversy inconsistent with Circuit precedent.

In Sanjour this Court addressed the constitutionality of a financial disincentive on speech that closely resembles the honorarium ban in certain respects. There, the Environmental Protection Agency ("EPA") issued an Ethics Advisory allowing employees to accept expense reimbursement from nonfederal sources if they spoke "officially" — that is, on behalf of the agency — but not "unofficially." The plaintiffs in Sanjour claimed that the Ethics Advisory all but eliminated their ability to engage in expressive activity, given that they, as federal employees, generally are of modest means. Indeed, the dissent in Sanjour took the argument one step further, arguing that the Advisory "would apply even if the employee loses income because he has taken uncompensated leave to give the speech." Sanjour, 984 F.2d 434, 456 n. 6 (Wald, J.).

In spite of those considerations, Sanjour rejected the plaintiffs' contention that the Ethics Advisory "imposes a severe burden on the First Amendment rights of EPA employees" and held that the burden was "moderate, though not insignificant." Sanjour, at 441. In so ruling, Sanjour stressed that the Advisory "allows [employees] to speak whenever and on whatever topics they choose." Id. at 440.

Given the decision in Sanjour, we cannot consistently hold that the honorarium ban imposes more than a moderate burden at most on appellees' First Amendment rights. Like the EPA Ethics Advisory, the honorarium ban does not prohibit speech, as even the majority is constrained to concede. See Maj. Op. at 1273. Moreover, the ban imposes significantly less of a burden on appellees' First Amendment rights than did the Ethics Advisory upheld in Sanjour. Unlike the Ethics Advisory, the ban allows employees to recover all of the costs they necessarily incur in expressive activity. The ban only prevents employees from profiting from their outside activities.

As then-Judge Thomas wrote for the Court in our prior decision in this case:

Many of the [employees] state that they cannot afford to pay the expenses they incur in connection with their First Amendment activities. The ban does not preclude them from recovering these costs, however. The Act and the OGE regulations expressly exclude "actual and necessary travel expenses" from the definition of an honorarium. An employee need not receive a direct reimbursement to recover his travel costs; he complies with the honorarium ban as long as he does not earn income for his speaking and writing in excess of his actual and necessary travel expenses. The regulations also exclude from the honorarium ban "[a]ctual expenses in the nature of typing, editing and reproduction costs," and "[m]eals or other incidents of attendance, such as waiver of attendance fees or course materials furnished as part of the event at which an appearance or speech is made." Fairly read, these provisions encompass all of the necessary expenses that the [employees] incur.

National Treasury Employees Union v. United States, 927 F.2d 1253, 1255 (D.C. Cir. 1991) (emphasis added) (citations omitted). Appellees thus are entirely off the mark in their contention that the honorarium ban "severely handicaps the ability of all but the independently wealthy to seriously pursue writing and speaking activities." Appellees' Br. at 22.

There are, of course, two senses in which NTEU's assertion that the honorarium ban severely burdens free speech rights is theoretically correct, but nonetheless unavailing. First, it may be argued that because appellees' conduct enjoys First Amendment protection, any burden on those rights is necessarily severe for Pickering purposes. See Maj. Op. at 1273-74 (failing to specify the particular weight of the employee's side of the balance). That assumption places the analytical cart before the horse: "[C]onduct of government employees is 'protected' when, after balancing the interests of employee and employer, it is concluded that the employee's interest in speech outweighs the government's interest as an employer in efficient management." Foster v. Ripley, 645 F.2d 1142, 1148 (D.C. Cir. 1981). Moreover, such an absolutist approach to the employee's side of the balance would be inconsistent with the Supreme Court's directive that "[t]he problem in any case is to arrive at a balance between" the competing interests. Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). Assuming that any burden on free speech rights is severe renders Pickering a balancing test in name only.

Second, the honorarium ban might be said to be severe in its effect on appellees' rights to the extent they depend on honoraria to pay their bills. There is evidence in the record suggesting that at least some Executive Branch employees below GS-16 are financially dependent on the income they have received for their expressive activity. See, e.g., Affidavit of John C. Shelton ¶ 8, at 2 (stating that "based on my current financial situation, I will not be able to continue making payments on my mortgage if I have to give up the income from my writing"). However, to the extent that appellees may be financially dependent on honoraria, the weight of the government interest in avoiding the appearance of impropriety or corruption is greatly bolstered. See infra p. 1292.

In view of the foregoing, the honorarium ban only has a moderate impact on appellees' First Amendment rights. See generally Snepp v. United States, 444 U.S. 507, 100 S.Ct. 763, 62 L.Ed.2d 704 (1980) (per curiam) (holding that the Central Intelligence Agency could, consistent with the First Amendment, impose a constructive trust denying a former employee the proceeds from expressive activity that harmed a substantial government interest). To the extent the majority accords the employees' side of the balance greater weight, I disagree.

B. The Government's Interest

The majority concedes that the government has a "strong" interest in avoiding the appearance of impropriety or corruption in the public service. Maj. Op. at 1274. I would style the identified government interests "compelling." See Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 208, 103 S.Ct. 552, 559, 74 L.Ed.2d 364 (1982); Buckley v. Valeo, 424 U.S. 1, 26-29, 96 S.Ct. 612, 638-39, 46 L.Ed.2d 659 (1976) (per curiam). The majority holds that interest sufficiently heavy "to outweigh government employees' interest in engaging in speech for compensation where the compensation creates . . . an appearance [of impropriety]." Maj. Op. at 1274 (emphasis omitted). However, the majority concludes that this balancing "will not save section 501(b) . . . if it is either 'overbroad' or manifests a want of 'narrow tailoring.'" Id. at 1274. The majority thereafter rejects the result of the Pickering balance insofar as the statute applies beyond Members of Congress, officers and employees of Congress, judicial officers and judicial employees. Apparently, the majority does not find the appearance-of-impropriety weight to sit on the government side of the balance in any other cases. I do not find the majority's justifications for rejecting the applicability of its initial Pickering balancing to Executive Branch officers and employees to be convincing.

First, perceiving a lack of legislative of record evidence supporting the legislative premise that accepting honoraria may give rise to an appearance of impropriety or corruption, the majority dismisses as "hypothetical" the risk of either appearance in this case. Maj. Op. at 1276-77. Second, the majority argues that honoraria cannot give rise to an appearance of impropriety or corruption, unless (1) the payor has a conflict of interest with the employee's employing agency or (2) the subject matter of the employee's expressive activity bears a nexus with the employee's government job. I address each of these arguments below.

1. The Majority's Evidence Requirement

The majority argues that the honorarium ban must be deemed not to advance the asserted government interest because "[t]he government points neither to improprieties in the pre- § 501(b) era that would have been prevented by § 501(b) but not by the prior regulations, nor to any serious enforcement or line-drawing costs associated with those regulations." Maj. Op. at 1276. For two reasons, the majority's reasoning does not justify its result.

In the first place, I do not agree that the government was required to point to specific evidence of the ill effects of honoraria in the Executive Branch. It is true, as the majority points out, that in First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), the Court refused to consider the defendant's argument that corporate advocacy of political causes would undermine the democratic process, on the ground that the defendant's claim was not "supported by record or legislative findings." Id. at 789, 98 S.Ct. at 1422. However, the Supreme Court has restricted. Bellotti's demand for such findings to cases where the rights being asserted are "[r]ights of political expression and association." In re Primus, 436 U.S. 412, 434 n. 27, 98 S.Ct. 1893, 1906 n. 27, 56 L.Ed.2d 417 (1978).

Here, while appellees' expressive activities may pertain to matters of public concern, see Maj. Op. at 1273, they do not involve political expression. Appellees have written or spoken about art, Russian history, movies, plays and other interesting topics not remotely involving politics. See id. at 1275. Therefore, the mere fact that the government adduced no record or legislative evidence of Executive Branch improprieties does not justify according no weight to the governmental interests underlying the honorarium ban.

Long before Bellotti, the Supreme Court made clear that "[f]or regulation of employees it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service." United Public Workers v. Mitchell, 330 U.S. 75, 101, 67 S.Ct. 556, 570, 91 L.Ed. 754 (1947). Later, with the full development of Pickering cases into a discrete area of First Amendment law, the Supreme Court reinforced United Public Workers's holding. In 1983, the Court ruled that a governmental employer is not required to "tolerate action which he reasonably believe[s] would" cause the harm against which the prophylactic measure is directed. Connick v. Myers, 461 U.S. 138, 154, 103 S.Ct. 1684, 1693, 75 L.Ed.2d 708 (1983); see also Sanjour v. EPA, 984 F.2d 434, 440 (D.C. Cir. 1993) (holding that "employer is not required to tolerate action which it reasonably believed would cause harm") (internal quotation marks and brackets omitted); Hubbard v. EPA, 949 F.2d 453, 460 (D.C. Cir. 1991) (same), vacated in part on other grounds, 982 F.2d 531 (D.C. Cir. 1992) (en banc). Indeed, we have construed a post- Connick Supreme Court case, Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987), to allow us to "draw reasonable inference of harm" from proscribed employee activities and therefore, on that ground, rejected an argument that "objective evidence of concrete harm" is required. Hall v. Ford, 856 F.2d 255, 260-61 (D.C. Cir. 1988).

I would hold these standards, rather than Bellotti, to be controlling here, and conclude that Congress's determination that only a complete ban on honoraria can effectively avoid the ill effects of honoraria is reasonable. After all, as the record reveals, following a two-year study of Executive Branch agencies' enforcement of prior ethics laws relating to honoraria, the Government Accounting Office ("GAO") concluded that federal ethics enforcement has been consistently impeded by agencies' "overly permissive policies and practices." Report to the Chairman, Senate Subcomm. on Fed. Servs., Post Office and Civil Serv., Comm. on Governmental Affairs, Employee Conduct Standards: Some Outside Activities Present Conflict-of-Interest Issues, at 9 (Feb. 1992) ( "GAO Report"). Further, the OGE's efforts to ensure that ethics laws were more evenly enforced had been far from successful. See id. at 2 (reporting that "agencies did not always implement OGE's recommendations"); see also id. at 12-13 (same). Because of these failures to enforce ethics regulations, "agencies [had] approved activities that were questionable as to the appropriateness of accepting compensation" from sources outside the federal government. Id. at 9. The GAO Report thus supports the reasonableness of Congress's belief that only a comprehensive, categorical ban on honoraria can effectively prevent the problems of evisceration and underenforcement inherent in the prior system of patchwork ethics laws. See infra at 1291 (summarizing prior ethics laws).

Moreover, in enacting the ban, Congress had before it evidence that allowing employees in the Executive Branch to accept honoraria can give rise to an appearance of impropriety or corruption. Two separate blue-ribbon commissions, the Quadrennial Salary Commission and the Wilkey Commission, conducted hearings examining the actual or potential impact of allowing federal employees, including Members of Congress, to accept honoraria. Though separate, both commissions reached the same conclusion — accepting honoraria creates an appearance of impropriety that jeopardizes the public's faith in their government and its employees. See To Serve With Honor: Report of the President's Commission on Federal Ethics Law Reform, at 35, 36 (Mar. 1989) (hereinafter "Wilkey Commission Report") (stating that "[h]onoraria paid to officials can be a camouflage for efforts by individuals or entities to gain the officials' favor" and that "the current ailment [caused by accepting honoraria] is a serious one"); Fairness for Our Public Servants: Report of the 1989 Commission on Executive, Legislative and Judicial Salaries, at 24 (Dec. 1988) (hereinafter "Quadrennial Commission Report") (concluding that "[t]he potential for abuse or the appearance of abuse is obvious to the public" and that public confidence in the government "is threatened by the steady growth of this practice [honoraria]," particularly in Congress).

Although both commissions relied principally on the congressional experience, which revealed a venerated institution of government appearing corrupt in the eyes of the public by virtue of honoraria, they recognized that what has happened in Congress can happen in the judicial and executive branches. As the Wilkey Commission explained,

Although we are aware of no special problems associated with the receipt of honoraria within the judiciary, the Commission — in the interest of alleviating abuses within the legislative branch and in applying equitable limitations across the government — joins the Quadrennial Commission in recommending the enactment of legislation to ban the receipt of honoraria by all officials and employees in all three branches of government.

Wilkey Commission Report, at 35-36. Accordingly, both commissions recommended that honoraria should be completely abolished in all three branches of the federal government. See id.; Quadrennial Commission Report, at 24 ("strongly recommend[ing]" that "the practice of honoraria in all three branches be terminated by statute" and that "[t]he prohibition [on honoraria] should be extended to all Congressional and judicial staff").

Given these reports of the Quadrennial and Wilkey Commissions, Congress could reasonably believe that employee acceptance of honoraria can create — and in fact has created — an appearance of impropriety or corruption in the eyes of the public. In my view, given the reasonableness of that legislative premise, we are required to assign the government interest compelling weight in the Pickering balance. See Connick v. Myers, 461 U.S. 138, 154, 103 S.Ct. 1684, 1693, 75 L.Ed.2d 708 (1983); United Public Workers v. Mitchell, 330 U.S. 75, 101, 67 S.Ct. 556, 570, 91 L.Ed. 754 (1947); Sanjour v. EPA, 984 F.2d 434, 440 (D.C. Cir. 1993) (same); Hubbard v. EPA, 949 F.2d 453, 460 (D.C. Cir. 1991), vacated in part on other grounds, 982 F.2d 531 (D.C. Cir. 1992) (en banc).

Wholly apart from the majority's erroneous refusal to give effect to Congress's reasonable belief that a complete ban on honoraria was necessary, the majority's demand for evidence of honoraria-induced harm in the Executive Branch which was not adequately addressed by prior law presses judicial review beyond its proper bounds. As the Supreme Court has commanded, courts should not "second-guess a legislative determination as to the need for prophylactic measures where corruption is the evil to be feared." Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 210, 103 S.Ct. 552, 561, 74 L.Ed.2d 364 (1982); see also Buckley v. Valeo, 424 U.S. 1, 27, 96 S.Ct. 612, 638, 46 L.Ed.2d 659 (1976) (per curiam) (upholding campaign contribution limitations designed to address the real or perceived problem with quid pro quo arrangements even though bribery laws and disclosure requirements already dealt with that concern). That is especially so, given that the honorarium ban is but the latest step in Congress's careful adjustment of federal ethics laws. See National Right to Work Comm., 459 U.S. at 209, 103 S.Ct. at 560 (stating that courts owe "considerable deference" to Congress's "careful legislative adjustment of the federal electoral laws, in a cautious advance, step by step") (internal quotation marks omitted).

In rejecting Congress's assessment that prior ethics laws were inadequate to avoid honoraria-induced appearances of impropriety, the majority relies on Boos v. Barry, 485 U.S. 312, 324-29, 108 S.Ct. 1157, 1165-68, 99 L.Ed.2d 333 (1988), for the proposition that "the 'most useful starting point' for assessing whether a statute is narrowly tailored is to 'compare it with an analogous statute.'" Maj. Op. at 1276. True, in that decision, the Supreme Court did compare the statute challenged as not narrowly tailored for the asserted governmental interest to an analogous statute (and its legislative history). The challenged statute, enacted in 1938, was sweeping in its reach and, the Court concluded, extended to expressive activities. 485 U.S. at 329, 108 S.Ct. at 1168. In contrast, the statute deemed analogous, which was enacted in 1972, was considerably narrower, in that it contained a provision stating that "'[n]othing contained in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the first amendment.'" Id. at 325, 108 S.Ct. at 1166 (quoting Pub.L. No. 92-539, § 301(e), 86 Stat. 1073 (1972)). The analogous statute was further narrowed in 1976, when Congress deleted a provision that it felt "'raise[d] serious Constitutional questions because it appear[ed] to include within its purview conduct and speech protected by the First Amendment.'" Id. at 326, 108 S.Ct. at 1166 (quoting S.Rep. No. 1273, 94th Cong., 2d Sess. 8 n. 9 (1976)).

The comparison between the challenged law and the analogous statute, according to the Court, revealed that "Congress has determined that [the challenged statute] adequately satisfies the Government's interest." Id. Deferring to that determination by Congress, the Court "conclude[d] that the availability of alternatives such as [the analogous statute] amply demonstrates that the [challenged law] is not crafted with sufficient precision to withstand First Amendment scrutiny." Id. at 329, 108 S.Ct. at 1168. Boos, then, is simply the flip side of cases such as National Right to Work Comm. and supports, rather than undermines, the judicial duty to give considerable deference to Congress's evaluation of the effectiveness of its prior laws. Here, because Congress has concluded that prior law was too narrow to effectuate the relevant government interests, National Right to Work Comm., the Hatch Act cases and their progeny are the applicable precedents, not Boos.

In the case before us, a comparison of the honorarium ban to prior ethics laws unmistakably reveals a congressional determination that only a broad, government-wide ban on honoraria is sufficient to protect against the appearances of impropriety or corruption accepting honoraria creates. Congress at first determined to allow people in all three branches of the federal government to accept honoraria, subject to amount limitations. See Pub.L. No. 93-443, § 101(f)(1), 88 Stat. 1268 (1974) (establishing $1,000 cap on honoraria for each covered activity and $15,000 annual cap, both exclusive of actual travel and subsistence expense reimbursement); Pub.L. No. 94-283, § 112(2), 90 Stat. 475, 494 (1976) (raising the individual and annual limits to $2,000 and $25,000, respectively). When Congress determined that these limitations were insufficient to curb actual or perceived abuses in Congress, each House adopted rules drastically restricting Members' ability to accept honoraria, although only the House of Representatives' rule actually went into effect. See Financial Ethics: Communication from the Chairman, House Committee on Administrative Review, H.R. Doc. No. 73, 95th Cong., 1st Sess. 9-12 (1977) (setting $750 limit for individual covered activities, as well as rules limiting acceptable outside income and expense reimbursement); Senate Code of Official Conduct: Report of the Senate Special Committee on Official Conduct, S.Rep. No. 49, 95th Cong., 1st Sess. 8-9, 37-40 (1977) (adopting similar restrictions as to Senate).

Some classes of congressional and judicial staff completely fell through the cracks of this patchwork of ethics regulations and were able to accept honoraria without limitation. See Quadrennial Commission Report, at 24. Even employees who were covered often were able to circumvent the limitations by, for example, receiving approval by their employing agencies of prohibited transactions. See GAO Report (concluding after survey of Executive Branch enforcement of ethics regulations that improper transactions frequently occur by virtue of lax enforcement).

Ultimately, Congress decided to dispense with its step-by-step approach to regulating honoraria, in favor of a uniform, government-wide ban. See 5 U.S.C. app. § 501 et seq. (1988 Supp. I). Congress made that decision based on two reports recommending that such action was critical to restoring or maintaining public confidence in the propriety of government employees' performance of their public functions. Congress's careful and deliberate approach to addressing the appearance of impropriety caused by employees accepting honoraria, as well as Congress's assessment of the ineffectiveness of prior ethics laws, are entitled to "considerable deference" from this Court. Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 209, 103 S.Ct. 552, 560, 74 L.Ed.2d 364 (1982). I, therefore, cannot accept the majority's conclusion that there were no "improprieties in the pre- § 501(b) era that would have been prevented by § 501(b) but not by the prior regulations." Maj. Op. at 1276.

2. The Majority's Nexus Requirement

I also cannot accept the majority's proposition that "[t]o create the sort of impropriety or appearance of impropriety at which the statute is evidently aimed, there would have to be some sort of nexus between the employee's job and either the subject matter of the expression or the character of the payor." Maj. Op. at 1275. As amicus Common Cause puts it, "a defense contractor can just as easily and just as effectively gain improper influence by paying an honorarium to a Defense Department official to speak about hydrangeas as about hydraulics." Amicus Br. at 25. We recognized this in Sanjour, 984 F.2d 434, 450 (D.C. Cir. 1993), stating that apart from any payor-payee or subject-matter nexus, "accepting valuable benefits from non-federal sources . . . is the root cause of such an appearance," that is, an appearance of impropriety. All the public sees are employees, entrusted with carrying out the business of the government, receiving substantial payments from entities outside of the government — the public may not pause to consider whether there is a relationship between the payor and payee or the activity for which the honorarium is paid and the payee's job.

Appellees argue that Congress's determination that a complete ban on honoraria was necessary to avoid the feared appearances is of little moment here because the reports on which it relied employed a different definition of honoraria than the honorarium ban does. It is true that both reports define honoraria to "include 'payments for public appearances to deliver a talk or engage in a colloquy at the invitation of some non-government group.'" Wilkey Commission Report, at 35 (quoting Quadrennial Commission Report, at 24), whereas Congress defined "honorarium," in pertinent part, as "a payment of money or any thing of value for an appearance, speech or article . . . by a Member [of Congress], officer or employee, excluding any actual and necessary travel expenses incurred by such individual." 5 U.S.C. app. § 505(3). That, however, is a distinction without a difference, for present purposes.

The issue here is whether a nexus is necessary for accepting honoraria to give rise to an appearance of impropriety or corruption, and on that issue, the definitions the statute and the reports utilize are in unison. Neither report defined honorarium to require the sort of nexus the majority describes. Indeed, the Wilkey Commission explained that "[t]o curtail the risk that individuals will find a way to circumvent these restrictions, the ban on honoraria necessarily needs to extend both to activities related to an individual's official duties and to other activities." Wilkey Commission Report, at 36 (emphasis added). In addition, the Quadrennial Commission reported to Congress that "honoraria should be defined so as to close present and potential loopholes such as receipt of consulting, professional or similar fees; payments for serving on boards; travel, sport, or other entertainment expenses not reasonably necessary for the appearance involved; or any other benefit that is the substantial equivalent of an honorarium." Quadrennial Commission Report, at 24 (emphasis added). Therefore, Congress's determination that appearances of impropriety can result from accepting honoraria for speeches or writings lacking a subject-matter or payor-payee nexus is reasonable.

3. Narrow Tailoring and the Pickering Balance

Based on the discussion above, I would hold that the honorarium ban is sufficiently narrowly tailored to survive facial challenge. The Supreme Court has stated that "'[a] complete ban can be narrowly tailored but only if each activity within the proscription's scope is an appropriately targeted evil.'" Ward, 491 U.S. at 800, 109 S.Ct. at 2758 (quoting Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 2502, 101 L.Ed.2d 420 (1988)). So it is here.

Here, it was appropriate to "target" employee acceptance of honoraria without a direct job nexus. First, as we have held, "accepting valuable benefits from non-federal sources . . . is the root cause" of an appearance of impropriety or corruption. Sanjour v. EPA, 984 F.2d 434, 450 (D.C. Cir. 1993). Second, based on the history of federal enforcement of honoraria regulations since Watergate, Congress could conclude that anything short of a complete ban on honoraria will allow employees to circumvent, advertently or otherwise, rules relating to honoraria. See GAO Report, at 9; Wilkey Commission Report, at 36; Quadrennial Commission Report, at 24. Although it might have been wise to allow the acceptance of honoraria in the absence of a nexus of the type the majority imposes, I cannot help but conclude that the honorarium ban is sufficiently tailored in the constitutional sense.

In fact, the conclusion that the honorarium ban is narrowly tailored follows from Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), and the Supreme Court cases upholding the Hatch Act, 5 U.S.C. § 7324 et seq. (1988), United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). In Buckley the Supreme Court upheld statutory limits on campaign contributions to candidates for federal elective office yet struck down independent campaign expenditure limitations. Both limitations were justified in part as prophylactic measures reasonably necessary to avoiding corruption or an appearance of corruption.

In upholding the contribution limitations, the Supreme Court emphasized that the feared appearance arose from the fact that the candidates who receive "large contributions" receive valuable benefits, "increasing[ly] importan[t] . . . to effective campaigning," which may be given "to secure a political quid pro quo." 424 U.S. at 26, 96 S.Ct. at 638. Such an appearance did not arise from independent campaign expenditures — that is, expenditures by entities independent from a political campaign that were not coordinated with any campaign — because the candidate received no perceptible benefit from the expenditure. Id. at 47, 96 S.Ct. at 648 (stating that "[u]nlike [campaign] contributions, such independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive"). It mattered not to the Court, in upholding the statutory campaign contribution limits, that preexisting statutes prohibited such corrupt exchanges and required disclosure of large campaign contributions: "Congress was surely entitled to conclude that . . . contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions." Id. at 28, 96 S.Ct. at 639.

There can be little question that the honorarium ban is more analogous to the contribution limitations upheld in Buckley than to the expenditure limitations invalidated therein. Honoraria, by definition, is a valuable benefit to the federal employee; it goes beyond expense reimbursement and constitutes income — a net financial gain. See National Treasury Employees Union v. United States, 927 F.2d 1253, 1255 (D.C. Cir. 1991). Even a modest honorarium can often approach or exceed an employee's weekly salary, see, e.g., Affidavit of David E. Hubler ¶ 4, at 2 (stating that he earned "$500 to $1,500 per article" as honoraria); Affidavit of Richard Deutsch ¶ 10, at 3 (stating that he had been offered $3,000 to write a magazine article), and is sufficiently great to create financial dependency on the honoraria. See, e.g., Affidavit of John C. Shelton ¶ 8, at 2 (stating that "based on my current financial situation, I will not be able to continue making payments on my mortgage if I have to give up the income from my writing"). Just as the receipt of a valuable benefit by one who may be financially dependent thereon was held to create an appearance of corruption in Buckley, see 424 U.S. at 26, 96 S.Ct. at 638, so the acceptance of honoraria — cash in excess of necessary costs — by federal employees creates an appearance of impropriety or corruption.

In the Hatch Act cases, on which the Court in Buckley relied in sustaining the campaign contribution limits, the Court upheld the Hatch Act's sweeping restrictions on the off-duty political activities of federal employees. See United States Civil Service Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). The Hatch Act forbids federal employees from "tak[ing] an active part in political management or in political campaigns," but allows employees to vote and to express their political opinions. 5 U.S.C. § 7324(a)(2) (1988). In United Public Workers, the Court held that the proscribed political activity was "reasonably deemed by Congress to interfere with the efficiency of the public service," which, the Court stressed, was all that was necessary to sustain its constitutionality. 330 U.S. at 101, 67 S.Ct. at 570.

The Court "unhesitatingly reaffirm[ed]" that conclusion almost three decades later, in Letter Carriers, 413 U.S. at 556, 93 S.Ct. at 2886. There the Court ruled that "it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent." Id. at 565, 93 S.Ct. at 2890. The Court held that Congress's determination that even off-duty political activity by federal employees threatened public confidence in the impartiality of public employees was reasonable, in that it rested on "the judgment of history, a judgment made by this country over the last century that it is in the best interest of the country, indeed essential, that . . . the political influence of federal employees on others and on the electoral process should be limited." Id. at 557, 93 S.Ct. at 2886. Neither the absence of legislative or record evidence substantiating the congressional determination nor the presence of preexisting laws addressing the evils that flow from a politicized federal workforce prevented the Court from counting the asserted government interest in the Pickering balance. Id. 413 U.S. at 564-67, 93 S.Ct. at 2889-91.

Here, just as in the Hatch Act cases, Congress relied on the judgment of history in enacting the honorarium ban. That history reveals several facts that support the reasonableness of Congress's determination that honoraria must be banned from the federal government. First, honoraria undermine public confidence in government by creating an appearance of impropriety or corruption. Wilkey Commission Report, at 35, 36 (stating that "[h]onoraria paid to officials can be a camouflage for efforts by individuals or entities to gain the officials' favor" and that "the current ailment [caused by accepting honoraria] is a serious one"); Quadrennial Commission Report, at 24 (concluding that "[t]he potential for abuse or the appearance of abuse is obvious to the public" and that public confidence in the government "is threatened by the steady growth of this practice [honoraria]," particularly in Congress).

Second, only a uniform, government-wide ban will prevent determined federal employees from attempting to supplement their salaries by exploiting loopholes in ethics laws. See GAO Report, at 9 (concluding from survey of Executive Branch enforcement of prior ethics laws that federal ethics enforcement has been impeded by agencies' "overly permissive policies and practices"); see also Wilkey Commission Report, at 36 (explaining that "[t]o curtail the risk that individuals will find a way to circumvent these restrictions, the ban on honoraria necessarily needs to extend both to activities related to an individual's official duties and to other activities"); Quadrennial Commission Report, at 24 (concluding that "honoraria should be defined so as to close present and potential loopholes such as receipt of consulting, professional or similar fees; payments for serving on boards; travel, sport, or other entertainment expenses not reasonably necessary for the appearance involved; or any other benefit that is the substantial equivalent of an honorarium"). The conclusion that the honorarium ban is narrowly tailored under Ward, in sum, is all but dictated by the Supreme Court's decisions in United Public Workers and Letter Carriers, not to mention Buckley.

In view of my conclusion that the ban is narrowly tailored under Ward, it follows that the Pickering balance favors the honorarium ban. The ban imposes at most only a moderate burden on First Amendment rights because it allows appellees to engage in covered activities whenever and on whatever topics they choose and to accept reimbursement for all expenses they necessarily incur in doing so. At the same time, the ban fully effectuates the compelling government interest in avoiding the appearance of impropriety that allowing employees to accept honoraria causes, an interest Congress reasonably believed is harmed by tolerating honoraria. As a consequence, I would hold the honorarium ban constitutional under Pickering.

III.

I also find unacceptable the majority's mode of severance. The majority limits its holding by "strik[ing] 'officer or employee' from § 501(b) except in so far as those terms encompass [M]embers of Congress, officers and employees of Congress, judicial officers and judicial employees," Maj. Op. at 1279, treating its redefinition of "officer or employee" as "a proper form of severance." Id. I do not believe this is consistent with controlling precedent on the subject of severance.

It is, of course, true that "if [a] federal statute is not subject to a narrowing construction and is impermissibly overbroad, . . . only the unconstitutional portion is to be invalidated." New York v. Ferber, 458 U.S. 747, 769 n. 24, 102 S.Ct. 3348, 3361 n. 24, 73 L.Ed.2d 1113 (1982); see also Regan v. Time, Inc., 468 U.S. 641, 652, 104 S.Ct. 3262, 3268, 82 L.Ed.2d 487 (1984) (plurality opinion). However, it is settled that the duty to sever does not empower courts to "introduce words of limitation in order to uphold the valid applications" of a challenged statute. NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 44.16, at 529 (4th ed. 1986) (citing cases). "[T]he general federal rule is that courts do not rewrite statutes to create constitutionality." Eubanks v. Wilkinson, 937 F.2d 1118, 1122 (6th Cir. 1991); see generally id. at 1124-25 (canvassing relevant caselaw of the Supreme Court).

Though severability may be achieved "by striking out or disregarding words that are in the [challenged] section," it may not be achieved "by inserting [words] that are not now there." United States v. Reese, 92 U.S. (2 Otto) 214, 221, 23 L.Ed. 563 (1875). Inserting into a statute words that Congress did not enact "would be to make a new law, not to enforce an old one," which "is no part of our [judicial] duty." Id.; see also Trade-Mark Cases, 100 U.S. (10 Otto) 82, 98, 25 L.Ed. 550 (1879) (holding that "it is not within the judicial province to give the words used by Congress a narrower meaning than they were manifestly intended to bear in order that crimes may be punished which are not described in language that brings them within the constitutional power of that body"). Although the Supreme Court cases discussed above involved penal Acts of Congress, their mandate, which is of continuing vitality, "has not been limited to penal statutes." Eubanks, 937 F.2d at 1125. Thus, for example, the Supreme Court, in American Tobacco Co. v. Patterson, 456 U.S. 63, 75, 102 S.Ct. 1534, 1540, 71 L.Ed.2d 748 (1982), noted that its decisions have "refused to narrow § 703(h)[, 42 U.S.C. § 2000e-2(h) (1988)] by reading into it limitations not contained in the statutory language."

As one state court summarized the Supreme Court's severance precedents:

[W]henever a court, in order to uphold the provisions of a statute as constitutional, has to interpolate in such statute provisions not put there by the Legislature, in order, by such interpolation, to make the provision which the Legislature did put there constitutional, this is no case of severance, in any proper legal sense; nor is it in any legal or logical sense, a proper limitation of the provisions which are in a statute by judicial construction. Such an action by a court is nothing less than judicial legislation pure and simple.

Ballard v. Mississippi Cotton Oil Co., 81 Miss. 507, 574, 34 So. 533, 554 (1902) (citing United States Supreme Court cases). In the Supreme Court's words, "it is for Congress, not this Court, to rewrite . . . [federal] statute[s]." Blount v. Rizzi, 400 U.S. 410, 419, 91 S.Ct. 423, 429, 27 L.Ed.2d 498 (1971).

Viewed in light of these principles, the majority's severance in this case is "nothing less than judicial legislation." Ballard, 81 Miss. at 574, 34 So. at 554. Expressly disclaiming any intent to strike "officer or employee" from the honorarium ban because "that would invalidate the ban beyond the executive branch," the majority writes into the statutory definition of that phrase a limitation to "[M]embers of Congress, officers and employees of Congress, judicial officers and judicial employees." Maj. Op. at 1279. This is precisely what the Supreme Court has said federal courts may not do. See generally Eubanks v. Wilkinson, 937 F.2d 1118, 1124-25 (6th Cir. 1991) (discussing Supreme Court cases holding that federal courts may not rewrite federal statutes, under the guise of severance or otherwise).

The majority reads Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794 86 L.Ed.2d 394 (1985), as support for the proposition that federal courts may, under the rubric of "severance," insert words of limitation into a statute. Brockett, the majority explains, "'pretermit[ed]' the issue of whether [the statutory term] 'lust' might be construed as referring only to morbid and shameful interests . . . and instead severed from the statute any meaning of lust other than shameful and morbid interests." Maj. Op. at 1279 (quoting Brockett, 472 U.S. at 500, 105 S.Ct. at 2800). Actually, the issue the Court pretermitted was whether or not it was required to defer to the lower court's conclusion that a saving construction of the term "lust" was impossible. 472 U.S. at 500, 105 S.Ct. at 2800. In any event, Brockett, properly understood, has no application here on the issue of severance (it is nonetheless instructive insofar as it declined to invalidate facially a statute held to be not narrowly tailored, on the ground the statute nonetheless had an easily identifiable core of constitutionally permissible application). See supra p. 1284 n. 6.

First, in Brockett it was far from clear that the legislature intended for "lust," the challenged statutory term, to have the reach the plaintiffs ascribed to it. See 472 U.S. at 500 n. 10, 105 S.Ct. at 2800 n. 10 (stating that "[a]ppellants make a strong argument that the Court of Appeals erred in construing the Washington statute"). Here, of course, the contrary is true — Congress unmistakably intended to prohibit appellees, and their counterparts in the other branches of the federal government, from accepting honoraria. See 5 U.S.C. app. § 505(2) (applying the honorarium ban to "any officer or employee of the Government" except as exempted by statute). Even appellees concede that point. See Appellees' Br. at 34 (disclaiming any suggestion that "[Executive Branch employees'] coverage was 'inadvertent'").

Second, Brockett's holding was the product of the unusual and unique circumstances therein presented. Prevented from imposing a saving construction by the difficult issue of whether it was required to defer to the lower court's interpretation of the statute, the Court accomplished the same result via severance. Outside the unique circumstances of Brockett, no Supreme Court decision has employed the type of "severance" the majority employs here. Indeed, the Court on several occasions since Brockett has expressly refused to introduce words of limitation into statutes under the guise of "severance." See, e.g., Wyoming v. Oklahoma, ___ U.S. ___, ___, 112 S.Ct. 789, 803, 117 L.Ed.2d 1 (1992) (refusing to perform "severance," excluding the unconstitutional applications from Oklahoma statute requiring all utilities seeking to provide electricity in Oklahoma to purchase at least 10% of its coal from Oklahoma sources, because "it is clearly not this Court's province to rewrite a state statute"); cf. Thornburgh v. American College of Obstetricians Gynecologists, 476 U.S. 747, 764-65, 106 S.Ct. 2169, 2180-81, 90 L.Ed.2d 779 (1986) (refusing to sever from a statute restricting abortion a requirement that women seeking abortions be informed of the medical and psychological risks associated with abortion because "[t]he radical dissection necessary for [severance] would leave [the statute] with little resemblance to that intended by the Pennsylvania Legislature"), overruled in part on other grounds, Planned Parenthood of Southeastern Pennsylvania v. Casey, ___ U.S. ___, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).

The majority's "severance" appears to me inconsistent with these post- Brockett cases. Even though the statute construed in Wyoming, as in Brockett, unlike the honorarium ban, contained a severability clause, the Court refused to introduce words of limitation in the statute to save its constitutionality, explaining:

[The statute] applies to "[a]ll entities providing electric power for sale to the consumer in Oklahoma" and commands them to purchase 10% Oklahoma-mined coal. Nothing remains to be saved once that provision is stricken. Accordingly, the Act must stand or fall on its own. We decline Oklahoma's suggestion that the term "all entities" be read to uphold the Act only as to the [Grand River Dam Authority, an agency of the state of Oklahoma], for it is clearly not this Court's province to rewrite a state statute. If "all entities" is to mean "the GRDA" or "state-owned utilities," the Oklahoma Legislature must be the one to decide.

___ U.S. at ___, 112 S.Ct. at 803-04 (emphasis added) (quoting Oklahoma statute). Although Wyoming dealt with a state statute, it cannot seriously be doubted that federal courts do not have license to rewrite federal statutes. See Blount v. Rizzi, 400 U.S. 410, 419, 91 S.Ct. 423, 429, 27 L.Ed.2d 498 (1971); Eubanks v. Wilkinson, 937 F.2d 1118, 1122 (6th Cir. 1991).

As applied to this case, Wyoming teaches that a Brockett-type "severance" is entirely inappropriate. Like the protectionist statute invalidated in Wyoming, the honorarium ban is sweeping in its application, reaching "any officer or employee of the Government" (with a narrow statutory exception). 5 U.S.C. app. § 505(2). Also, here, as in Wyoming, the legislature unmistakably intended the breadth of their respective statutes; in this respect, each case differs from Brockett.

Finally, in this case, no less than in Wyoming, severance would leave in place "a fundamentally different piece of legislation" than originally enacted, Wyoming, ___ U.S. at ___, 112 S.Ct. at 804, for Congress enacted a uniform, government-wide ban on honoraria. See Wilkey Commission Report, at 35-37 (referring, e.g., to "the extreme lack of uniformity across the three branches of government in the rules governing honoraria" and a need for "applying equitable limitations [on honoraria] across the government"). Leaving the ban operative as to officers or employees in the legislative and judicial branches, but not the Executive Branch, contravenes that congressional intent, and it is the intent of Congress that is controlling on the issue of severability. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684-85, 107 S.Ct. 1476, 1479-80, 94 L.Ed.2d 661 (1987); Regan v. Time, Inc., 468 U.S. 641, 653, 104 S.Ct. 3262, 3269, 82 L.Ed.2d 487 (1984) (plurality opinion).

In short, since the majority has facially invalidated the honorarium ban, it should strike "officer or employee" in its entirety from the statute, leaving the honorarium ban in place only as to Members of Congress. Its failure to do so may reflect a reluctance to facially invalidate the honorarium ban. That reluctance, however, would be better served by striking the statute down as applied to appellees or, better yet, upholding the constitutionality of the statute.

IV.

In conclusion, the Supreme Court's jurisprudence regarding facial challenges forecloses us from striking down the honorarium ban on its face. Under controlling caselaw, appellees should be required to demonstrate that applying the ban to them would violate the First Amendment. They have failed to make that showing, as the admittedly prophylactic ban is narrowly tailored to serve the government's compelling interest in avoiding the appearance of corruption or impropriety in its workforce. Moreover, because the honorarium ban imposes only a moderate burden on employees' First Amendment rights, the Pickering balance favors appellants in this case. I would therefore reverse the judgment below. Because the majority has chosen to take a different course, I respectfully dissent.