(Bloomberg) -- Chief Justice John Roberts says he’s committed to ensuring the US Supreme Court adheres to the highest standards of conduct — but most federal employees already are subject to more stringent oversight than the justices.
Revelations about Justice Clarence Thomas’s failure to disclose luxury travel and other perks paid for by billionaire friend Harlan Crow are fueling debate about Supreme Court conduct. But a review of ethics policies across the federal government shows the other 2 million workers would face a harder time accepting gifts far smaller than those Crow bestowed on Thomas.
Most federal employees can accept gifts from friends or relatives, but they generally need to disclose them or receive prior approval. And they may face scrutiny if that friend is also connected to an entity with business before the government. Gifts from friends aside, most employees know they can’t accept such items as meals, flowers or tickets to an event if they’re worth more than $20.
“The lowliest entry-level employee in the bowels of some executive branch department is subject to stricter ethics laws and rules than the chief justice of the Supreme Court, and that’s a travesty,” said Walter Shaub, who ran the Office of Government Ethics for four years. “That’s ethics standing on its head.”
Thomas’s disclosures are expected to draw new scrutiny on Wednesday, when the high court releases the 2022 financial reports for all nine justices.
Technically, all federal employees across the three branches of government are subject to the 1978 Ethics in Government Act. Still, the consequences for ethical lapses vary widely. Members of Congress can be voted out of office. Executive branch workers face oversight ethics officers. Supreme Court justices operate with no outside oversight.
This chart shows what is and isn’t acceptable for a range of hypothetical scenarios based on a Bloomberg News review of regulations across federal agencies:
Source: Review of US regulations, interviews with ethics experts.
Thomas contends he didn’t have to disclose luxury trips paid for by Crow, a major Republican donor, because he’s a close friend who simply extended hospitality. Beyond those trips, ProPublica has reported that Crow made private school tuition payments for Thomas’s grandnephew and bought property from the justice and his family. Crow has said he never sought to influence Thomas.
US regulations bar most gifts, but make exceptions for those from friends and relatives. Gifts totaling over $415 in one year from a single source, including friends, must be disclosed. Under the law, thousands of senior officials are also required to make annual public disclosures of their financial assets and transactions. Another 390,000 must file confidential financial disclosures.
But ethics enforcement varies across the federal government. In Congress, that responsibility falls to the House or Senate ethics committees. Meanwhile, the Office of Government Ethics oversees executive-branch employees. For judges and their staffs, it’s the Judicial Conference.
The conference, however, has no direct authority over Supreme Court justices. The high court says it follows the code of conduct for other judges, as well as the conference’s requirements on gifts, outside income and disclosures. But it’s ultimately not binding on justices, and they’re not subject to the same investigative process as lower court judges if a member of the public tries to lodge an ethics complaint. The judiciary also has no inspector general.
A conference committee enforces the financial reporting rules, including for justices, and is required by law to refer cases to the Justice Department if a jurist is suspected of being willfully non-compliant. But most of that review is done in secret, and someone who complains can’t appeal once the conference signs off on the committee’s decision.
That’s only compounded the public furor over Thomas’s actions and led to complaints that the high court isn’t accountable like mid-level bureaucrats and everyone else in the US government.
Aside from whether or not they can accept gifts, executive-branch employees are subject to conflict-of-interest rules that bar them from participating “personally and substantially” in matters that affect investments they hold.
Cases of Conflict
Last year, the Wall Street Journal reported that 2,600 executive-branch officials invested in companies that stood to benefit from their agencies’ work from 2016 through 2021. When financial holdings caused a conflict, agencies sometimes waived the rules, the Journal reported. In most instances flagged by the paper, ethics officials said employees abided by rules that have exemptions for holding stock in cases of conflict.
Under federal law, the justices and US judges should recuse themselves from proceedings in which their impartiality may be questioned, such as when they or their family have a financial interest in a case.
The Journal also reported that 152 judges oversaw cases involving companies in which they or their family owned stock. As a result, judges in 883 cases have told courts they presided in lawsuits improperly and the cases could be reopened, the paper said.
Federal law and congressional rules limit the type of outside employment and amount of income that members of Congress and their staff can earn. House members also must certify they have no financial interest in certain types of fiscal legislation, like congressional earmarks and limited tax and tariff benefits.
For Shaub, the former ethics official, the rules should constrain the most powerful.
“The higher up you are, the more you should be accountable because you have more power to do harm,” Shaub said.
--With assistance from Greg Stohr, Billy House, Bill Allison and Zoe Tillman.
©2023 Bloomberg L.P.
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