concurring in denial of rehearing and rehearing en banc:
Judge Silberman raises the tempting proposition, ignored by the parties to this litigation, that by moving the closing end of a parenthesis in the definition of “honorarium” we might transform the statute into one of virtually undoubted constitutionality. I believe the panel correctly resisted this temptation.
As enacted, the amended definition of honorarium reads as follows:
The term “honorarium” means a payment of money or anything of value for an appearance, speech or article (including a series of appearances, speeches, or articles if the subject matter is directly related to the individual’s official duties or the payment is made because of the individual’s status with the Government) by a Member, officer or employee, excluding any actual and necessary travel expenses incurred by such individual....
5 U.S.C.App. 7 § 505(3).
Under Judge Silberman’s microsurgery, the end of the parenthesis is moved up, so that the definition — and thus the ban — applies only to appearances, speeches and articles related to the employee’s duties or for which the payment relates to his or her status with the government. Thus:
The term “honorarium” means a payment of money or anything of value for an appearance, speech or article (including a series of appearances, speeches, or articles) if the subject matter is directly related to the individual’s official duties or the payment is made because of the individual’s status with the Government by a Member, officer or employee, excluding any actual and necessary travel expenses incurred by such individual....
Before addressing the substance of this revision, we should consider its syntax, which bears no resemblance to English. The prepositional phrase “by a Member, officer or employee” appears superficially to be a part of the subject-or-status limitation; once the reader recognizes that it is not, he must set off on a wholly unguided search for the terms the phrase really modifies (“an appearance, speech or article”).1
Judge Silberman’s justification for his adjustment rests on some legislative history and on the view that the statute is illogical as written. The legislative history — like so much legislative history — is highly ambiguous, and the statute as written is by no means so irrational as to warrant our rewriting it.
The only directly relevant item of legislative history is the following observation of the conference committee:
Subsection (b) amends the definition of ‘honorarium’ to include payment for a ‘series of appearances, speeches or articles,’ if the subject matter is related to the individ*1557ual’s duties or payment is made because of the individual’s status with the Government, rather than only payment for a single event.
H.R.Conf.Rep. No. 176, 102d Cong., 1st Sess. 12 (1991); see also Silberman, J., infra at 1561 (emphasizing the word “include”).
The committee’s observation is quite consistent with the wording used by Congress in the statute. As enacted, the amended statutory definition does “include” a series of appearances, speeches or articles when the conditions specified in the parenthesis, and in the committee report, are present. The legislative history provides no license to start shuffling parentheses around.
The same is true if we focus on the way in which the 1991 amendment changed the preexisting law. The unamended law obviously encompassed receipt of payment for a series of speeches. Before the amendment it would have been an odd defense, and surely a losing one, for an employee to say, “Not guilty — I took payment for three speeches, not one.” As the implementing regulations promulgated by the Office of Government Ethics (“OGE”) confirm, people understood the unamended statute to treat a series exactly like a single event. “An economist employed by the Department of the Treasury,” went one of the OGE’s examples, “has entered into an agreement with a speakers bureau to deliver ten after-dinner speeches to be arranged by the speakers bureau over a 6 month period. The employee may not receive the contract fee of $10,000.” 56 Fed.Reg. 1721, 1725 (1991).2 Since the original act treated a series of speeches the same as a single speech, the only plausible reason for adding a reference to a series of speeches must have been to treat them differently.
Citing a Senate committee report saying that under the pre-amendment ban a federal employee “can teach a full semester course on a particular subject, but cannot be paid for a single lecture on the same subject”, S.Rep. No. 29, 102d Cong., 1st Sess. 5 (1991), Judge Silberman argues that Congress did not think that the unamended statute covered payments for a series of events. See Silberman, J., infra at 1563-64. But the exception for teaching arose not from any distinction between a series and a single event but from the statute itself. The Ethics Reform Act of 1989 barred Members of Congress, officers of the federal government, and high-level federal employees other than career civil servants from receiving compensation for teaching unless they secured “the prior notification and approval” of the appropriate entity. Pub.L. No. 101-194, 103 Stat. 1761 (1989); see 5 U.S.CApp. 7 § 502(a)(5) (1992). The plain implication, as the commentary to regulations issued by the Judicial Conference of the United States explains, was that “the prohibition on receipt of hono-raria does not foreclose teaching for compensation.” 2 Administrative Office of the United States Courts, Guide to Judiciary Policies and Procedures V-41 (1991). Thus, OGE’s implementing regulations excluded from the honorarium ban “[cjompensation for teaching a course involving multiple presentations by the employee offered as part of the regularly established curriculum of an institution of higher education.” See 56 Fed.Reg. 1725 (1991).
Moreover, the Senate committee was not concerned with some fantastic loophole for multiple speeches but with the ban’s unduly harsh treatment of activities other than teaching. The committee’s bill accordingly sought to introduce a broad subject-or-status limitation for “an appearance, a speech, or an article”, language the committee used to cover both isolated events and elements of a series. See S.Rep. 102-29 at 17. But Congress never enacted this broad limitation. Instead, the 1991 amendment left in place the flat ban on honoraria for isolated events, while relaxing it for a series. In sum, Congress never supposed that the ban exempted *1558multiple speeches (other than those encompassed in the special treatment of teaching), and the effort to impose a general subject-or-status limitation fizzled.
As to the sense of the amended statute: Congress may well have thought that the added effort required for a government official to make a seríes of speeches, etc. (not to mention the added effort of his listeners) provided an inherent limitation on this avenue of corruption, justifying a more relaxed approach. To be sure, this limitation is not perfect. It may take no more effort to write a series of three 10,000-word articles on a single subject than to write one 30,000-word article. What is more, as the illicit effect of the payment will turn in part on its relation to the worker’s effort, payors could achieve their corrupt purposes simply by boosting the payment.
Still, there is another reason why Congress might have treated honoraria for isolated events or articles more strictly than honora-ria for a series. If a Member of Congress or a government employee is making repeated paid appearances before a particular group, his connection to the group is likely to be more open and more visible to the public (or the public’s watchdogs) than if he had simply accepted a one-time payment for a single appearance. Congress might reasonably have concluded that corruption is less likely under such circumstances.
* * * * * *
Judge Silberman goes on to support en banc treatment on the premise that we might wisely excise from circuit law the application of a “narrow tailoring” test to restrictions on the speech of government employees. See Silberman, J., infra at 1565-66, citing McGehee v. Casey, 718 F.2d 1137, 1143 (D.C.Cir.1983) (applying narrow tailoring test). Before the Supreme Court in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), repudiated the idea that the “narrow tailoring” concept encompassed a “least restrictive means” test in cases not subject to strict scrutiny, id. at 796-802 & n. 6, 109 S.Ct. at 2756-60 & n. 6, this proposal would have raised a most interesting issue. Post-Ward, however, it is apparent that “narrow tailoring” is itself a balancing test, under which courts inquire whether the disputed ban “burden[s] substantially more speech than is necessary to further the government’s legitimate interests.” Id. at 799, 109 S.Ct. at 2758; see also Henderson v. Lujan, 964 F.2d 1179, 1184 (D.C.Cir.1992). Thus “narrow tailoring” seems to add little more than metaphor. See id.3
Judge Silberman apparently disagrees. Courts review restrictions on the speech of government employees, he observes, by balancing “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.” Silberman, J., infra at 1565, quoting Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). Judge Silberman acknowledges that overbreadth can cause a restriction to fail this generalized balancing test, for “[w]hen the government burdens substantially more speech than ‘required’ by its asserted interest, then its asserted interest might not outweigh that greater burden.” Id. at 1565-66. But he indicates that substantial overbreadth is not always fatal; as long as the legitimate interests served by restricting the speech of government employees outweigh the burdens caused by the restriction, the restriction passes constitutional muster even if the restriction’s scope is substantially broader than the goal supports.
But if the burdens caused by a restriction on speech are substantially greater than is appropriate to achieve the government’s legitimate end, taking all line-drawing problems into account and according the political branches’ judgment due weight, it is hard to *1559see what interest justifies the excess burdens. They appear wholly unsupported, for by hypothesis the government could amply achieve its purposes by enacting a narrower restriction. As a practical matter, then, the generalized Picketing balance and the “narrow tailoring” test seem unlikely to yield different results.
Assuming that a “narrow tailoring” test does add to what is implicit in the concept of balancing, moreover, the signs from the Supreme Court appear quite consistent with applying such a test to restrictions on the speech of government employees. In 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), the Court upheld the Hatch Act only after considering whether certain provisions rendered it “fatally overbroad”. Id. at 580, 93 S.Ct. at 2898. In Pickering the Court reserved judgment on “the extent to which teachers can be required by narrowly drawn grievance procedures to submit complaints about the operation of the schools to their superiors for action thereon prior to bringing the complaints before the public.” 391 U.S. at 572 n. 4, 88 S.Ct. at 1737 n. 4 (emphasis added). And in Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980), in upholding Air Force regulations that required members of the service to get the appropriate commander’s approval before soliciting signatures for petitions on Air Force bases, the Court stated its grounds in terms that almost exactly pre-figured Ward’s formulation of “narrow tailoring”, saying that “the Air Force regulations restrict speech no more than is reasonably necessary to protect the substantial governmental interest.” Id. at 355, 100 S.Ct. at 600.
In any event, the “narrow tailoring” test applies to government restrictions on speech on a government-owned “public forum”, and I question whether the government’s interest as employer is so distinct from its interest as proprietor as to justify applying a markedly different test (assuming that were to flow from Judge Silberman’s proposal). At any rate, there seems no reason to rush into an en banc on questions that no party has raised.
. The draftsmen could have attained the aim inferred by Judge Silberman with no such confusion. For example:
The term "honorarium” means a payment of money or anything of value for an appearance, speech or article by a Member, officer or employee, if the subject matter is directly related to the individual’s official duties or the payment is made because of the individual's status with the Government, except that the term excludes any actual and necessary travel expenses incurred by such individual....
. To reflect the 1991 amendment, the OGE's implementing regulations now specify that the ten speeches are unequivocally barred if they are "unrelated”. See 5 CFR § 2636.203(a) (Example 3). The OGE, unlike Judge Silberman, reads the amended statute to mean what it says; the OGE regulations stipulate that the honorarium ban does not cover "[p]ayment for a series of three or more different but related appearances, speeches or articles, provided that the subject matter is not directly related to the employee's official duties and that the payment is not made because of the employee’s status with the Government.” 5 CFR § 2636.203(a)(13).
. Judge Silberman's "understanding]’’ the panel opinion to invalidate an honorarium ban "so long as the court believes even one employee who should be permitted to speak for pay is not permitted [to do so]”, see Silberman, J., at 1566, is of course a misunderstanding. Such a position would ignore the Ward Court’s use of the word "substantially”. The panel invalidated the ban only after finding that it "reachfed] a lot of compensation that has no nexus to government work that could give rise to the slightest concern”, Op. at 1564, and after reviewing the line-drawing concerns that might have justified the broader ban, id. at 1564-66.