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Philip W. Buchen Files
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The original documents are located in Box 7, folder "Congressional - Lobbying (1)" of the
Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 7 of the Philip Buchen Files
at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
1.
Eva
Lazahus for his
Gass copy to Ken
response T. to me
FORDO is LIBRARY 074830
10/31/74
To:
Ken Lazarus
From: Phil Buchen
Could you please prepare
a response for me to
send to Bill Timmons.
Thanks.
FORD is LIBRARY DERALD
ASSISTAN ATTORNEY GENERAL
OFFICE or LEGAL COUNSEL
Department of Justice
Mashington, B.C. 20530
NOV 11 1974
MEMORANDUM TO KENNETH A. LAZARUS
Associate Counsel to the President
I enclose three OLC memoranda relevant to the effect of
the "antilobbying" provisions of Federal law upon activities
of the Executive branch.
The basic memorandum is the first, written by Mr.
Katzenbach and dated October 10, 1961. The last two, dated
May 14, 1969 and January 12, 1970, respectively, reflect the
adherence of Mr. Rehnquist to the position taken earlier.
For the record, I will note my own concurrence: Considerations
of legislative history, consistent practice and constitution-
ality favor a restrictive reading of 18 U.S.C. 1913, so as to
apply its prohibitions only to attempts by the Executive
branch to influence the Congress through the public. We do
not interpret it to prohibit direct contact between author-
ized members of the Executive branch and the Congress itself.
As these memoranda reflect, however, there are occasions
on which individual congressmen have asserted a contrary
principle. Needless to say, we have no interest in provoking
a conflict on the point. To avoid it, legislative contacts
should be handled at relatively high levels. I think it is
the prospect of hundreds of faceless bureaucrats running
about the halls of Congress which causes concern.
Scalia
Assistant Attorney General
Office of Legal Counsel
FORD
LIBRA
AME RICAN REVOLUTION
1114
1975
THE WHITE HOUSE
WASHINGTON
11-13-74
Phil:
Attached is a memorandum from
you to Bill Timmons in response to
his inquiry of October 30.
Ken k
LIBRARY GERALD ? FORD
THE WHITE HOUSE
WASHINGTON
October 30, 1974
MEMORANDUM FOR:
PHILIP W. BUCHEN
FROM:
WILLIAM E. TIMMONS
BT
SUBJECT:
Lobbying
I have received through Don Rumsfeld your memorandum
on Standards of Conduct for WH employees.
The paragraph on Lobbying reminded me to raise an
issue with you which is peculiar to the operations of the
Office of Legislative Affairs. While we like to think
we are providing information to Members of Congress,
a reasonable case could be made that we are in fact
lobbying under a strict interpretation of the law. How-
ever, the Constitution gives the President certain
legislative responsibilities and powers: Messages to
Congress, calling Special Sessions, signing or vetoing
legislation, etc. As agents of the President we do work
to obtain measures that are acceptable to the President --
and try to defeat bills that are unacceptable.
The question is what constitutes improper lobbying
activities. Are there guidelines that should be followed
in dealing with Members of Congress?
cc: Donald Rumsfeld
FORDO GENALD LIBRARY
Justice
THE WHITE HOUSE
WASHINGTON
November 13, 1974
MEMORANDUM FOR:
WILLIAM E. TIMMONS
FROM:
PHILIP W. BUCHEN T.W.B.
SUBJECT:
Lobbying
In response to your inquiry of October 30, attached are three OLC
memoranda relevant to the effect of the "antilobbying" provisions
of Federal law (18 U.S. C. 1913) upon the activities of your office.
The basic memorandum is the first, written by Mr. Katzenbach and
dated October 10, 1961 (Tab A). The last two, dated May 14, 1969
(Tab B) and January 12, 1970 (Tab C), respectively, reflect the
adherence of Mr. Rehnquist to the position taken earlier. For the
record, current Assistant Attorney General Scalia has noted to me
his concurrence with the views expressed in these papers.
Read together, these memoranda conclude that considerations of
legislative history, consistent practice and constitutionality favor
a restrictive reading of 18 U.S. C. 1913, SO as to apply its pro-
hibitions only to attempts by the Executive branch to influence the
Congress through the public. OLC does not interpret it to prohibit
direct contact between authorized members of the Executive branch
and the Congress itself.
As these memoranda reflect, however, there are occasions on
which individual congressmen have asserted a contrary principle.
Needless to say, we have no interest in provoking a conflict on the
point. To avoid it, legislative contacts should be handled through
authorized channels and at relatively high levels.
cc: Don Rumsfeld
GERALD FORD LIBRARY
Herbert 3. Miller, Jr.
Assistant Attorney General
Criminal Division
Micholas deB. Katzenbach
OCT 1 0 1951
Assistant Attorney General
Office of Legal Counsel
Letter from Congressman Gross in respect of "lobbying"
activities of Executive Branch personnel.
This is in response to your request for my comment regarding
Congressman H. R. Gross's letter of August 24, 1961 to the At-
torney General. Mr. Gross called the Attorney General's atten-
tion to testimony given on August 4, 1961 by Sargent Shriver,
Director of the Peace Corps, before the Subcommittee on Manpower
Utilization of the House Postoffice and Civil Service Committee
to the effect that Bill Moyers, a paid employee of the Peace
Corps, had joined him in conferring with various Congressmen to
enlist their support of a bill to establish that organization
on a statutory basis. Mr. Gross is of the view that this action
by Mesers. Shriver and Moyers conflicted with section 209 of the
General Government Appropriations Act, 1961 1/ and requests a
"review and disposition" of the matter.
The statute referred to by Mr. Gross reads as follows:
"No part of any appropriation contained in this or
any other Act, or of the funds available for expenditure
by any individual, corporation, or agency included in
this or any other Act, shall be used for publicity or
propaganda purposes designed to support or defeat legis-
lation pending before Congress."
A similar or identical provision has been enacted in one or more
appropriation acts each year since 1951 2/ when it appeared in
section 408 of the Department of Agriculture Appropriation
FORD
1952 3/ and shortly thereafter in section 603 of the Independent
Offices Appropriation Act, 1952. 4)
GER
LIBRARY
74 Stat. 473.
The provision vas most recently enacted as section 509 of the
General Government Matters, Department of Commerce and Related
gencies Appropriation Act, 1962, P.L. 37-125, approved August 3,
1961.
65 Stat. 247.
65 Stat. 291.
The provision made its way into the Department of Agricul-
cure Appropriation Act, 1952, by means of a floor amendment in
the House. 5/ The sponsor of the assendment, Congressman Smith
of Wisconsin, was critical of the number of public relations
personnel employed in the Government agencies and or the great
volume of Government publications. Ne recommended his amendment
and it was adopted in the context of stemming the flow of such
publications. 6/ Although there was no discussion of this amend-
ment in the Senate committee report and no mention of it in de-
bate on the Senate floor, Senate discussion of the same amendment
in the Independent Offices Appropriation Act disclosed a concern
only with the expenditure of Government funds for personal ser-
vices and publications intended to affect the course of legisla-
tion by molding public opinion. 1/ The enactment of this pro-
vision in the years since 1951 has been routine and without sig-
nificant Congressional comment.
It will be seen that the legislative history of the language
in section 209 of the General Government Matters Appropriation
Act of 1961 does not support the application of that section or
of the identical legislation currently in effect, 8/ to purely
private meetings by Executive Branch officials with Members of
Congress. Furthermore, the "publicity or propaganda purposes"
which are the sine quo non of the expenditures made unlawful by
section 209 cannot reasonably be found to inhere in such private
meetings. I am of the opinion, therefore, that Mr. Shriver and
Mr. Moyers did not violate the statutory provision referred to
by Mr. Gross when they visited Members of Congress in support of
the Peace Corps legislation.
Although Mr. Gross did not mention 18 U.S.C. $ 1913, that
statute has some relevance in connection with his complaint. In
the absence of an express Congressional authorization to the con-
trary, it prohibits the use of appropriated funds
29
to pay for any personal service, advertisement,
telegram, telephone, letter, printed or written matter,
5/ 97 Cong. Rec. 5474, May 17, 1951.
5/ 07 Cong. Rec. 5474-75, May 17, 1951.
FORD i LIBRARY 0768394
11 07 Cong. Rec. 6733-39, June 19, 1951; 97 Cong. Sec. 10065
August 15, 1951; 97 Cong. Rec. 10111, August 16, 1951.
of See in. 2, Supra.
- 2 -
x other device, intended or designed to influence
in my manner a Member of Congress, to favor or op-
pose, by vote or otherwise, any legislation or ap"
propriation by Congress, but this shall not
prevent officers or employees of the United States
or of its departments or agencies from communicating
to Members of Congress on the request of any Member
or to Congress, through the proper official channels,
requests for legislation or appropriations which
they deem necessary for the efficient conduct of the
public business." 9/
18 U.S.C. $ 1913 is derived from section 6 of the Third De-
ficiency Appropriation Act, fiscal year 1919. 10/ While the
committee reports make no mention of this section, the floor
manager of the bill in the House explained that: 11/
"It is new legislation, but it will prohibit
a practice that has been indulged in SO often,
without regard to what administration 1s in power
- the practice of a bureau chief or the head of a
department writing letters throughout the country,
sending telegrams throughout the country, for this
organization, for this man, for that company to
write his Congressmm, to wire his Congressman, in
behalf of this or that legislation.
...
The
gentleman from Kentucky, Mr. Sherley, former chair-
man of this committee, during the closing days of
the last Congress was greatly worried because he-
had on his desk thousands upon thousands of tele-
grams that had been started right here in Washington
by some official wiring out for people to wire
Congressman Sherley for this appropriation and for
that. Now, they use the contingent fund for that
purpose, and I have no doubt that the telegrams
sent for that purpose cost the Government more than
$7,500. Now, it was never the intention of Congress
to appropriate money for this purpose, and section [6]
of the bill will absolutely put a stop to that sort
of thing."
FORD i LIBRARY 038470
% A search has revealed no judicial or formal administrative
precedents concerned with 18 U.S.C. $ 1913.
10/ 41 Stat. 68.
11/ 53 Cong. Rec. 403, May 29, 1919.
0 1 E
It is apparent that 13 J.S.C. 3 1913 was marred for essen-
Haily the Jame purpose AS the recent appropriation act pro-
Loions considered above. Rowever, implied literally, 13 U.S.C.
013 would seen to preclude Executive Branch officials from
speaking x otherwise communicating in support of proposed legis-
lacton to Members of Congress, as distinguished from Congress as
A body, except upon the request of 3 Mamber. Moreover, applied
literally, the section would seem to preclude any commmications
Matsoever, whether invited or not, from representatives of the
Decutive Branch to Congress or Members of Congress for the per-
pose of expressing opposition to proposed legislation. These
extreme prohibitions have not been observed by either the Legis-
lative or the Executive Branch and, as a practical matter, could
not be observed without great harm to the lawmaking process.
Accordingly, I agree with the conclusion reached by now Senator
Thomas J. Dodd in his memorandum of June 7, 1940 to Mr. Rogge
(a copy of which you forwarded) that this statute ia to be con-
strued in the light of its purpose in order to avoid any absurd
results flowing from its literal application. Viewing the stat-
ute in this light in relation to the instant matter, I am of the
opinion that it did not bar the conversations which Mr. Moyers
had with certain Members of Congress at the direction of Mr.
Shriver even though the conversations took place at the instance
of Mr. Shriver and not at the request of the Congressmen.
Passing to the inquiry of the Deputy Attorney General as to
"bow Justice personnel can be used on the hill," I might observe
at the outset that the so-called "Federal lobby" bas more than
once been the subject of criticism by Members of Congress and
others. 12/ However, the criticism has almost always arisen
from activities by Government officials which are considered to
be aimed at rallying public opinion for or against pending legis-
lation and not from the occurrence of personal conferences be-
tween such officials and Members of Congress or their aides. 13/
12/ See Tompkins, Congressional Investigation of Lobbying: A Se-
lected Bibliography (1956), pp. 16-23, for a list of writings on
the legislative activities of the federal agencies.
13/ For example, the Subcommittee on Publicity and Propaganda FORD
the House Committee on Expenditures conducted an investigation in
1947-43 to inquire into reports of the persistent efforts within
LIBRARY
the administrative agencies of Government to discredit Congress
and to influence legislation. H. Rept. 2474, 80th Congress, 2d
Sess., P. 1 (1948).
- 4 -
In 1949 the House constituted 3 Select Comdittee on Lobbying
Activities to investigate, among other things, "all activities
of agencies of the federal government intended to influence, ent-
courage, promote or retard legislation. 1% 14/ In the course of
remarks made at the beginning of hearings on this phase of the
Committee's assignment, the Chairman stated 15/
"As I said in opening our previous sessions in this
series of hearings, it is necessary in a democracy,
for our citizens, individually or collectively, to
seek to influence legislation. It is equally neces-
sary for the executive branch of Government to be
able to make its views known to Congress on all mat-
ters in which it has responsibilities, duties, and
opinions. The executive agencies have a definite re-
quirement to express views to Congress, to make sug-
gestions, to request needed legislation, to draft
proposed bills or amendments, and so on.
...
"what I am trying to make abundantly clear here
at the start is that the executive agencies have the
right and responsibility to seek to 'influence, ea-
courage, promote or retard legislation' in many clear
and proper-and often extremely effective--respects,
and that definite machinery is provided by law and by
established custom for the exercise of these rights,
but that, under certain conditions, Federal funds cannot
be spent to influence Congress."
The concern of the Committee members during this portion of the
hearings was almost exclusively with conduct of agency heads and
lesser officials which generated public pressure on Members of
Congress. Only two or three brief exchanges in the hearings
dealt with personal efforts on the part of Government officials
to persuade Congressmen to vote for or against legislation. 16/
14 3. Res. 298, Slst Cong., 1st Sess.
B/ Hearings, Select Committee on Lobbying Activities, 81st Cong.,
2d Sess., Part 10, p. 2.
13/ For example, Congressman Halleck at one point asked the Aderin-
istrator of the Housing and Home Finance Agency whether be or any
subordinate "unsolicited, undertook to persuade members of Congress
in respect of legislation." After receiving a negative response,
Mr. Halleck observed that it seemed to him many times that "the
Executive Departments have pressed with undue vigor on matters FORD
legislation almost to the point of usurpation of the legislative
authority." Id., D. 51. At another point the Federal Security Ad-
LIBRAR
ministrator averred that "there is no law that says I cannot try to
influence Congress on my own" as an officer, if not using federal
Funds for that purpose. Id., P. 341.
- 5 -
In In Interim report 17/ the Select Committee pointed out
that Article II of the Constitution, relating to the duties and
towers of the President, provides that "he shall from time to
time give to the Congress information on the state of the Union
2nd recommend to their consideration such measures as he shall
fudge necessary and expedient." (Underlining added.) The Com-
littee vent on to comment that 18/
"
in furtherance of basic responsibilities
the executive branch, and particularly the Chief Exec-
utive and his official family of departmental and
agency heads, inform and consult with the Congress on
legislative considerations, draft bills and urge in
messages, speeches, reports, committee testimony and
by direct contact the passage or defeat of various
measures."
In its final report the Select Committee made no criticism of
any particular lobbying practices by Government officials and
concluded that 18 U.S.C. $ 1913 is adequate to prevent improper
lobbying activities by these officials. 19/
The Select Committee was sound in emphasizing that the par-
ticipation of the President in the legislative function is based
on the Constitution.
19
it was the intention of the Fathers of
the Republic that the President should be an active
power [in legislation] ... he is made by the Con-
stitution an important part of the legislative mech-
anism of our government." 20/
17/ H. Rept. 3138, 81st Cong., 2d Sess., p. 51 (1950).
13/ Id., p. 52; see also id., P. 54.
10/ H. Rept. 3239, 81st Cong., 2d Sess., pp. 35-36 (1951). The
minority party members of the Committee, although not advocating
any legislation in addition to 18 U.S.C. § 1913, criticized the
Committee as having "seen fit to defend lobbying by Government."
7d., Part 2, pp. 3-4.
10/ Norton, The Constitution of the United States, Its Sources and
Ccs Application (1940), P. 123.
- 6 1
FORD LIBRARY i GENALD
"The President's right, even ducy, to propose
detailed legislation to Congress touching every prob-
lem of American society and then to speed its passage
down the legislative transmission belt, is now an ac-
cepted usage of our constitutional system." 21
This constitutionally established role in the legislative process
has become so vital through the years that the President has been
aptly termed the Chief Legislator. 22/
The Select Committee was also sound in recognizing that the
President cannot carry out his Constitutional duties in the
legislative arena by himself and that necessarily he must en-
trust authority to his chief subordinates to act, and in turn
to direct their own subordinates to act, in this arena in his
stead. 23/ The Hoover Commission's Task Force on Departmental
Management made a similar point in stating that a department
head is at all times an assistant to the Chief Executive but
that
"as a part of the executive branch, be has also the
constitutional obligation both to consult with and
inform the Legislature, as well as to see that legis-
lative intentions expressed through statutes are
realized." 24
Congress itself has given specific recognition to the propriety
of "lobbying" activities on the part of Government officials in
section 308 of the Federal Regulation of Lobbying Act of 1946. 25/
That section in general imposes registration requirements on per-
sons who are paid for attempting to influence passage or defeat
of any legislation by Congress. However, certain categories of
21 / Rossiter, The American Presidency (2d ed. 1960), P. 113.
22/ Chamberlain, The President. Congress and Legislation (1946),
p. 14; Rossiter, OD, cit., P. 28; see also Corwin, The President
-- Office and Powers, (4th ed. 1957), PP. 265-277.
23 / Examples of significant legislative activities by Executive
agency personnel of varying ranks during the period beginning
about 1890 appear in Chamberlain, DD. cit.
24/ Report of Task Force on Departmental Management of the Hoover
Commission, appendix 1, P. 57.,
25/ 60 Stat. 841, 2 U.S.C. $ 267.
is
FORD
r s $
GERALD
All
re excepted from these requirements, Including in If
deular public officials accing in an official capacity."
it must be conceded that the Constitutional activities of
The President, and of subordinate officers of the Descutive
ranch acting on his behalf to influence legislation, can, like
other areas of his Constitutional authority, be subjected to a
neasure of control by limitations imposed by Congress upon the
use of appropriated funds. Congress "may grant or withhold ap-
propriations as it chooses, and when making an appropriation my
Mrect the purposes to which the appropriation shall be devoted.
It may also impose conditions with respect to the use of the ap-
propriation, provided always that the conditions do not require
operation of the Government in 3 way forbidden by the Constitu-
tion. 41 Op. A. C. No. 32 (July 13, 1955, P. 4, emphasis sup-
plied); see also United States V. Butler, 297 U.S. -73-74. I
would therefore consider it most doubtiul whether Congress could
Impose limitations upon the use of appropriated funds which go
30 far as to render it altogether impractical or impossible for
the President, and those acting pursuant to his direction, to
carry out a basic Constitutional function.
I would not be prepared to take the position that the line-
tation contained in the General Government Matters Appropriation
Acts DD the use of appropriated funds for publicity or propaganda
campaigns does go so far. I believe, however, that at literal 1a-
terpretation of 13 U.S.C. $ 1913 which would prevent the President
or his subordinates from formally or informally presenting his or
his administration's views to the Congress, its members or its
committees as to the need for new legislation or the wisdom of
wisting legislation, or which would prevent the administration
from assisting in the drafting of legislation, would raise serious
doubts as to the constitutionality of that statute. As so inter-
preted, it would seriously inhibit the exercise of what is now re-
garded as 2 basic Constitutional function of the President con-
cerning the legislative process. It seems clear that this con-
sideration significantly affected the view of 18 U.S.C. $ 1913
taken by the House Select Comittee on Lobbying. As understood
by that Committee, 18 U.S.C. $ 1913 prohibits only substantially
the same activities as are covered by the limitation in the ap-
propriation acts. In addition, 10 should be noted that the con-
sistent practice in the over forty years during which 13 U.S.C.
1913 has been in effect is based upon the assumption that it
les no further.
is
FORD
- 3 -
GERALD
LIBRARY
Having in mind the Constitutional provision and other =
erial referred to above, 1 make the following observations in
response to the Deputy Attorney General's inquiry as to the use
DE Department personnel at the Capitol:
1. There is no legal objection to the use of any officer
or employee of the Department to call upon Nembers or aides of
the Congress to express the position of the Department with re*
gard to proposed legislation in which it has a proper interest.
2. There is no legal objection to the Department's render-
ing drafting assistance to a Member of Congress or a Congressional
committee which requests it -- or volunteering such assistance
when the Department deems 10 appropriate.
3. There is no legal objection to the Department's placing
members of its staff at the disposal of a Congressional committee
which is meeting in executive session either to study or to mark
up a bill. 26/
4. There is DO legal objection to the Department's request-
ing permission for a representative to testify at public hearings
of a Congressional committee. Whether a request will be granted
is, of course, within the discretion of the committee and it is
therefore desirable, if possible, to ascertain in advance of the
request what the reaction is likely to be.
5. Representatives whom the Department sends to the Capitol
should leave no doubt that they are acting solely in an official
capacity and they should make certain that any Department views
and positions they may present are identified as such rather than
as their own personal views.
Attachments
35 It is interesting to note that an Executive Branch employee,
Benjamin V. Cohen, was present on the floor of the House of-Repre-
sentatives during a session in 1934 at the request of Speaker
Phybima, then Chairman of the Committee on Interstate and Foreign
Conserce, to aid him in explaining the b111 that became the Secur-
ities Exchange Act of 1934. 78 Cong. Rec. 7943-44, May 2, 1934.
= 9 -
FORD is LIBRARY QERALD
cc
MEMORANDIM FOR THE ATTORNEY GENERAL
Rs: Use of Presidential yachts by cabinet
officers to advocate legislative pro-
grams to Members of Congress.
You have asked whether there is any statutory bar to
the use of Presidential yachts by cabinet officers to hold
receptions for Members of the Congress in the course of
which their support 1a solicited for pending Administration
legislation. In my view, there is no such bar.
Two statutory provisions bear on the subject. The
first is 18 U.S.C. 1913 (enacted in 1919, 41 Stat. 63),
which forbids any officer or employee of the United States
or of any department or agency thereof, upon pain of criminal
prosecution and removal from office or employment by the
superior officer vested with the power of removal, to use,
in the absence of express authorization by Congress, appro-
priated funds-
"directly or indirectly to pay for any personal
service, advertisement, telegram, telephone,
letter, printed or written matter, or other de-
vice, intended or designed to influence in any
manner a Member of Congress, to favor or oppose,
by vote or otherwise, any legislation or appro-
priation by Congress, whether before or after
the introduction of any bill or resolution
proposing such legislation or appropriation." 11
An exception is provided for communications "to Members of
Congress on the request of any Member or to Congress, through
the proper official channels" regarding "requests for legis-
Lation or appropriations which they deem necessary for the
efficient conduct of the public business."
The second statutory provision uppears in 1 variety
of appropriation acts, reading substantially to the effect
that --
No part of any appropriation contained in
this Act, or of the funds available for expendi-
ture by any corporation or agency included in
this Act, shall be used for publicity or propa-
ganda purposes designed to support or defeat
legislation pending before the Congress." 1/
1. At the outset it should be noted that there are
no judicial or formal administrative precedents construing
either of these provisions. There are, however, a number
of departmental studies that have been made at various
times. A fairly recent study was prepared by this Office
in 1961 in connection with a complaint by Congressman
Gross to the Attorney General involving Sargent Shriver,
then Director of the Peace Corps, and Bill Moyers, then
one of its employees, who had conferred with various Con-
gressmen to enlist their support of a bill to establish
the Peace Corps on a statutory basis. 2/ This study con-
cluded that the activities of Mr. Shriver and Mr. Moyer
did not violate either of the provisions. It was said
that the appropriation act provision had no application
because, as disclosed by its legislative history, it was
concerned with the expenditure of appropriated funds "for
personal services and publications intended to affect the
course of legislation by molding public opinion," and not
with "purely private meetings by Executive Branch officials
with Members of Congress." II was also concluded that 18
U.S.C. 1913 had the same objective, and that its words
could not be construed literally since to do so would lead
to absurd results in that it would preclude uninvited leg-
islative communications from Executive Branch officials to
Members of Congress -- a prohibition which could not be
1/ See, e.g., $ 301, Independent Offices and Department
of Housing and Urban Development Appropriation Act, 1969.
P.L. 90-550; 32 Stat. 937.
2/ For your convenience a copy of the stuay is attached.
PA 2 up
&
FORDO
GERALD
observed without great harm to the Inwaking process."
Finally, it was noted that & 1949 report of a House Select
Committee on Lobbying had recognized that by virtue of the
provision in Article II, § 3 of the Constitution requiring
the President to recommend to the Congress "such measures
as be shall judge necessary and expedient" --
"the executive branch, and particularly the
Chief Executive and his official family of
departmental and agency heads, inform and
consult with the Congress on legislative
considerations, draft bills and urge in mes-
sages, speeches, reports, committee testimony
and by direct contact the passage or defeat
of various measures."
2. My own analysis of the problem leads me to concur
in the conclusions heretofore reached by this Office, although
it must be admitted that the literal Language of 18 U.S.C.
1913 lends itself to the view that "minvited" legislative
communications to Members of Congress are impermissible. In
order to reach a construction of the statute which is both
constitutional and sensible, it is necessary to read into.
its language a limitation that what it prohibits is the use
of appropriated funds to pay for any of the proscribed items
that are directed to the public. For example, it would be
improper to use the Presidential yachts to hold receptions
for private citizens as a device designed to induce them to
speak or write to Members of Congress to favor or oppose
legislation.
William H. Rehnquist
Assistant Attorney General
Office of Legal Counsel
Attachment
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GERALD
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JAN 1 2 1970
MEMORANDUM FOR THE HONORABLE BRYCE N. HARLOW
Counsellor to the President
artille
In accordance with your request, I enclose
]
a brief memorandum for executive congressional
liaison officials concerning the scope of restric-
tions on exacutive lobbying before the Congress.
William H. Rehnquist
Assistant Attorney General
Office of Legal Counsel
GERALD FORD LIBRARY
J
MEMORANDUM
Re: Restrictions on executive lobbying
before the Congress.
Your attention is called to the federal anti-lobbying
statute (18 U.S.C. 1913) which prohibits, upon pain of crimi-
nal prosecution and removal from office or employment, the
use, in the absence of express congressional authorization,
of appropriated funds to pay for any personal service, com-
munication, or other device intended to influence a Member
of Congress to favor or oppose any legislation.* An excep-
tion is provided with respect to official communications to
Members of Congress on the request of any Member, or to
Congress, regarding requests for legislation or appropria-
tions.
The precise kinds of activities proscribed by 18 U.S.C.
1913 are not clear, judicial precedents being lacking as a
guide. (See attached appendix for activities reviewed by
the Department of Justice.) An obvious lobbying attempt would
consist of a public distribution of a statement by a department
or agency official advising the recipients to urge their repre-
sentatives in Congress to vote in a particular way on a specific
item of legislation. Apart from such clear evasions, the House
Select Committee 01 Lobbying Activities has recognized the
traditional role of officials in the executive branch "to
inform and consult with the Congress on legislative consid-
erations, draft bills and urge in messages, speeches, reports,
committee testimony and by direct contact the passage or de-
feat of various measures." H. Rept. No. 3138, 81st Cong.
2d Sess,, P. 52 (1950). Similarly, the Department of Justice
A federal statute also prohibits the use of appropriated
funds for the compensation of publicity experts, unless spe-
cifically appropriated for that purpose. 5 U.S.C. 3107. In
addition, Congress has, in various appropriation acts, imposed
specific restrictions against lobbying with federal funds.
FORDO & LIBRARY 07V830
2
has expressed the view that the statute does not override
the responsibility of the executive branch to make known the
views of the Administration on measures pending in Congress.
It should be noted, however, that in recent years some
executive branch unsolicited communications to Members of
Congress regarding pending legislation have been the subject
of criticism, and on occasion a Member of Congress has brought
the matter to the attention of the Department of Justice for
investigation and possible prosecution. Although no prosecu-
tions have been brought, the Department carefully investigated
the facts of each case.
It is suggested that if an official has doubt as to
whether his proposed activity relating to legislation is
forbidden he should consult his department's or agency's
chief legal officer.
FORD is GERALD LIDRARY
APPENDIX
A. Examples of activities viewed by the Department
of Justice as not being contrary to 13 U.S.C. 1913:
1. Letter of August 19, 1966, from Secretary of
Agriculture to all Members of Congress as distinguished
from Committee members in which the Secretary briefly
analyzed two pieces of legislation (the Child Nutrition
Act and the Community Development District Act), and
concluded with the statement: "I urge your support of
these important measures."
2. Prior to enactment of the State Technical
Services Act of 1965, Department of Commerce officials
discussed the advantages of the bill with interested
individuals and organizations, urged support for the
bill in correspondence, and while not directly, "at
least inferentially", encouraged various persons to
present the favorable aspects of the bill to Members
of Congress. The Attorney General felt that these ac-
tivities did not demonstrate "the ultimate in discreet
judgment", but that there was no criminal violation.
3. Memorandum and material sent in 1967 to Members
of the Congress by the Vice President as Chairman of
the President's Council on Youth Opportunity urging
their support in the Stay-in-School campaign. Since this
material did not relate to pending legislation, but was
merely a part of the effort to have Members of Congress
participate in the program, it was not contrary to 13
U.S.C. 1913.
B. Example of proposed activity which the Department
of Justice felt might be contrary to 18 U.S.C. 1913, if
carried out:
1. Unsolicited widespread distribution (100,000
copies) of the President's 1968 Farm Message,
LIBRARY GERALD ? FORD
Thursday 1/16/75
3:05 I called Lazarus' office to check and see if he had
information for you on the anti-lobbying statute -----
but he has gone to a meeting.
Since you have a call in to Ken Cole, thought you might
want to bring this up -- when he calls back.
(Attached is all I have in my file on the subject.)
FORD i LIBRARY GERALD
THE WHITE HOUSE
WASHINGTON
January 16, 1975
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
DICK CHENEY
D
Phil, you ought to ask somebody in your shop to take a look at the
history of the anti-lobbying statute. Supposedly in 1973 the Nixon
Administration got in trouble with a proposed Clawson effort to sell
the battle of the budget that year. Talk to Ken Cole. He can give
you some guidance on the background of it. We ought to make
certain we are in compliance with the statutes and whatever court
orders have been issued since then.
FORD & LIBRARY CERALD
Cong.
THE WHITE HOUSE
lobbying
WASHINGTON
November 13, 1974
MEMORANDUM FOR:
WILLIAM E. TIMMONS
FROM:
PHILIP W. BUCHEN P.W.B.
SUBJECT:
Lobbying
In response to your inquiry of October 30, attached are three OLC
memoranda relevant to the effect of the "antilobbying" provisions
of Federal law (18 U.S.C. 1913) upon the activities of your office.
The basic memorandum is the first, written by Mr. Katzenbach and
dated October 10, 1961 (Tab A). The last two, dated May 14, 1969
(Tab B) and January 12, 1970 (Tab C), respectively, reflect the
adherence of Mr. Rehnquist to the position taken earlier. For the
record, current Assistant Attorney General Scalia has noted to me
his concurrence with the views expressed in these papers.
Read together, these memoranda conclude that considerations of
legislative history, consistent practice and constitutionality favor
a restrictive reading of 18 U.S. C. 1913, so as to apply its pro-
hibitions only to attempts by the Executive branch to influence the
Congress through the public. OLC does not interpret it to prohibit
direct contact between authorized members of the Executive branch
and the Congress itself.
As these memoranda reflect, however, there are occasions on
which individual congressmen have asserted a contrary principle.
Needless to say, we have no interest in provoking a conflict on the
point. To avoid it, legislative contacts should be handled through
authorized channels and at relatively high levels.
cc: Don Rumsfeld
GERALD FORD VIBRARY
Herbert 3. Miller, Jr.
Assistant Attorney General
Criminal Division
Micholas deB. Katzenbach
OCT 1 0 1951
Assistant Attorney General
out
Office of Legal Counsel
Letter from Congressman Gross in respect of "lobbying"
activities of Executive Branch personnel.
This is in response to your request for my comment regarding
Congressman E. R. Gross's letter of August 24, 1961 to the At-
torney General. Mr. Gross called the Attorney General's atten-
tion to testimony given on August 4, 1961 by Sargent Shriver,
Director of the Peace Corps, before the Subcommittee on Manpower
Utilization of the House Postoffice and Civil Service Committee
to the effect that Bill Moyers, a paid employee of the Peace
Corps, had joined him in conferring with various Congressmen to
enlist their support of a bill to establish that organization
on a statutory basis. Mr. Cross is of the view that this action
by Messrs. Shriver and Moyers conflicted with section 209 of the
General Government Appropriations Act, 1961 1/ and requests at
"review and disposition" of the matter.
The statute referred to by Mr. Gross reads as follows:
"No part of any appropriation contained in this or
any other Act, or of the funds available for expenditure
by any individual, corporation, or agency included in
this or any other Act, shall be used for publicity or
propaganda purposes designed to support or dafeat legis-
lation pending before Congress."
A similar or identical provision has been enacted in one or more
appropriation acts each year since 1951 2/ when it appeared in
section 408 of the Department of Agriculture Appropriation Act,
1952 3/ and shortly thereafter in section 603 of the Independent
Offices Appropriation Act, 1952. 4)
1/ 74 Stat. 478.
I/ The provision vas most recently euacted as section 509 03028
General Government Matters, Department of Commerce and Relited
1961.
Agencies Appropriation Act, 1962, P.L. 37-125, approved DERAIL August
LIBITY
65 Stat. 247.
7/ 65 Stat. 291.
The provision made its way into the Department of Agricul-
cure Appropriation Act, 1952, by means of a floor amondment in
the House. 5/ The sponsor of the assendment, Congreseman Smith
of Wisconsin, was critical of the number of public relations
personnel employed in the Government agencies and of the great
volume of Government publications. Ne recommended his amendment
and it was adopted in the context of stemming the flow of such
publications. S/ Although there was no discussion of this amend-
ment in the Senate committee report and no mention of 1t in de-
bate on the Senate floor, Senate discussion of the same amendment
in the Independent Offices Appropriation Act disclosed a concern
only with the expenditure of Government funds for personal ser-
vices and publications intended to affect the course of legisla-
tion by molding public opinion. 11 The enactment of this pro-
vision in the years since 1951 has been routine and without sig-
nificant Congressional comment.
It will be seen that the legislative history of the language
in section 209 of the General Government Matters Appropriation
Act of 1961 does not support the application of that section or
of the identical legislation currently in effect, B/ to purely
private meetings by Executive Branch officials with Members of
Congress. Furthermore, the "publicity or propaganda purposes"
which are the sine quo non of the expenditures made unlawful by
section 209 cannot reasonably be found to inhere in such private
meetings. I am of the opinion, therefore, that Mr. Shriver and
Mr. Moyers did not violate the statutory provision referred to
by Mr. Cross when they visited Members of Congress in support of
the Peace Corps legislation.
Although Mr. Gross did not mention 13 U.S.C. $ 1913, that
statute has some relevance in connection with his complaint. In
the absence of an express Congressional authorization to the con-
trary, it prohibits the use of appropriated funds
to pay for any personal service, advertisement,
telegram, telephone, latter, printed or written matter,
5/ 97 Cong. Rec. 5474, May 17, 1951.
I 07 Cong. Rec. 5474-73, May 17, 1951.
11 07 Cong. Rec. 6733-39, June 19, 1951; 97 Cong. Sec. 10065,
August 15, 1951; 97 Cong. Rec. 10111, August 16, 1951.
1/ See in. 2, supra.
at I I
FORD is LIBRARY 03RALD
or other device, intended or designed to influence
in my manner a Member of Congress, to favor or op-
pose, by vote or otherwise, any legislation or ap-
propriation by Congress,
...
but this shall not
prevent officers or employees of the United States
be of its devartmentsor agencies from communicating
to Members of Congress on the request of any Member
or to Congress, through the proper official channels,
requests for legislation or appropriations which
they deem necessary for the efficient conduct of the
public business.'
18 U.S.C. $ 1913 is derived from section 6 of the Third De-
ficiency Appropriation Act, fiscal year 1919. 10/ While the
committee reports make no mention of this section, the floor
manager of the bill in the House explained that: 11/
"It is new legislation, but it will prohibit
a practice that has been indulged in SO often,
without regard to what administration 1s in power
- the practice of a bureau chief or the head of a
department writing letters throughout the country,
sending telegrams throughout the country, for this
organization, for this man, for that company to
write his Congressman, to wire his Congressman, in
behalf of this or that legislation. ...
The
gentleman from Kentucky, Mr. Sherley, former chair-
man of this committee, during the closing days of
the last Congress was greatly worried because he-
had on his desk thousands upon thousands of tele-
grams that had been started right here in Washington
by some official wiring out for people to wire
Congressman Sherley for this appropriation and for
that. Now, they use the contingent fund for that
purpose, and I have no doubt that the telegrams
sent for that purpose cost the Government more than
$7,500. Now, it was never the intention of Congress
to appropriate money for this purpose, and section [6]
of the bill will absolutely put a stop to that sort
of thing."
%) A search has revealed no judicial or formal administrative
precedents concerned with 13 U.S.C. $ 1913.
10/ 41 Stat. 68.
:
FORD
11/ 53 Cong. Rec. 403, May 29, 1919.
GERALD
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ID is apparent that 13 J.S.C. ; 1913 was seaced for essen-
daily the same purpose AS the recent appropriation act pro-
isions considered above. However, applied literally, 13 U.S.C.
1913 would seem to preclude Executive Branch officials from
speaking or otherwise communicating in support of proposed legis-
Lacton to Members of Congress, as distinguished from Congress as
1 body, except upon the request of a Mamber. Moreover, applied
literally, the section would seem to preclude any commnications
whatsoever, whether invited or not, from representatives of the
Executive Branch to Congress or Members of Congress for the pur-
pose of expressing opposition to proposed legislation. These
extreme prohibitions have not been observed by either the Legis-
lative or the Executive Branch and, as a practical matter, could
not be observed without great harm to the lawmaking process.
Accordingly, I agree with the conclusion reached by now Senator
Thomas J. Dodd in his memorandum of June 7, 1940 to Mr. Rogge
(a copy of which you forwarded) that this statute is to be con-
strued in the light of its purpose in order to avoid any absurd
results flowing from its literal application. Viewing the stat-
ute in this light in relation to the instant matter, I an of the
opinion that it did not bar the conversations which Mr. Moyers
had with certain Members of Congress at the direction of Mr.
Shriver even though the conversations took place at the instance
of Mr. Shriver and not at the request of the Congressmen.
Passing to the inquiry of the Deputy Attorney General as to
"bow Justice personnel can be used on the hill," I might observe
at the outset that the so-called "Federal lobby" bas more than
once been the subject of criticism by Members of Congress and
others. 12/ However, the criticism has almost always arisen
from activities by Covernment officials which are considered to
be aimed at rallying public opinion for or against pending legis-
lation and not from the occurrence of personal conferences be-
tween such officials and Members of Congress or their aides. 13/
12/ See Tompkins, Congressional Investigation of Lobbying: A Se-
lected Bibliography (1956), pp. 16-23, for a list of writings on
the legislative activities of the federal agencies.
13/ For example, the Subcommittee on Publicity and Propaganda of
the House Committee on Expenditures conducted an investigation in
1947-48 to inquire into reports of the persistent efforts within
che administrative agencies of Government to discredit Congress
and to influence legislation. H. Rept. 2474, 30th Congress, 2d
Sess,, P. 1 (1948).
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in 1949 the House constituted 3 Select Committee on Lobbying
Activities to investigate, among other things, "all activities
of agencies ož the federal government intended to influence, or
courage, promote or retard legislation. 1$ 14/ In the course of
remarks made at the beginning of hearings on this phase of the
Committee's assignment, the Chairman stated 15/
"As I said in opening our previous sessions in this
series of hearings, it is necessary in a democracy,
for our citizens, individually or collectively, to
seek to influence legislation. It is equally neces-
sary for the executive branch of Government to be
able to make its views known to Congress on all mat-
ters in which it has responsibilities, duties, and
opinions. The executive agencies have a definite re-
quirement to express views to Congress, to make sug-
gestions, to request needed legislation, to draft
proposed bills or amendments, and so on.
"What I am trying to make abundantly clear here
at the start is that the executive agencies have the
right and responsibility to seek to 'influence, ea-
courage, promote or retard legislation' in many clear
and proper-and often extremely effective--respects,
and that definite machinery is provided by law and by
established custom for the exercise of these rights,
but that, under certain conditions, Federal funds cannot
be spent to influence Congress."
The concern of the Committee members during this portion of the
hearings was almost exclusively with conduct of agency heads and
lesser officials which generated public pressure on Members of
Congress. Only two or three brief exchanges in the hearings
dealt with personal efforts on the part of Government officials
to persuade Congressmen to vote for or against legislation. 16/
14/ 3. Res. 298, S1st Coag., 1st Sess.
5/ Hearings, Select Committee on Lobbying Activities, 31st Cong.,
2d Sess., Part 10, p. 2.
15/ For example, Congressman Halleck at one point asked the Admin-
istrator of the Housing and Home Finance Agency whether he or any
subordinate 'unsolicited, undertook to persuade mombers of Congress
to respect of legislation." After receiving a negative response,
X. Halleck observed that it seemed to him many times that "che
Executive Departments have pressed with undue vigor on matters FORD
legislation almost to the point of usurpation of the legisla We
anthority. Id., D. 51. At another point the Federal Security Ad-
ministrator averred that "there is no law that says I cannoticity to
LIBRARY
influence Congress on my own" as an officer, if not using federal
funds for that purpose. Id., P. 341.
- 5 -
In in Interim report 17/ the Select Committee pointed DUC
that Article II of the Constitution, relating to the duties and
Dowers of the President, provides that "he shall from time to
time give to the Congress information on the state of the Union
and recommend to their consideration such measures 83 he shall
judge necessary and expedient." (Underlining added.) The Com-
ittee went on to comment that 18/
11
in furtherance of basic responsibilities
the executive branch, and particularly the Chief Exec-
utive and his official family of departmental and
agency heads, inform and consult with the Congress on
legislative considerations, draft bills and urge in
messages, speeches, reports, committee testimony and
by direct contact the passage or defeat of various
measures."
In its final report the Select Committee made no criticism of
any particular lobbying practices by Government officials and
concluded that 18 U.S.C. $ 1913 is adequate to prevent improper
lobbying activities by these officials. 19/
The Select Committee was sound in emphasizing that the par-
Licipation of the President in the legislative function is based
on the Constitution.
19
it was the intention of the Fathers of
the Republic that the President should be an active
power [in legislation]
...
he is made by the Con-
stitution an important part of the legislative mech-
anism of our government." 20/
17/ H. Rept. 3138, 81st Cong., 2d Sess., p. 51 (1950).
13/ Id., p. 52; see also id., P. 54.
19/ H. Rept. 3239, 81st Coog., 2d Sess., pp. 35-36 (1951). The
minority party members of the Committee, although not advocating
any legislation in addition to 18 U.S.C. § 1913, criticized the
Committee as having "seen fit to defend lobbying by Government."
7d., Part 2, pp. 3-4.
10/ Norton, The Constitution of the United States, Its Sources and
Tas Application (1940), D. 123.
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"The President's right, even duty, to propose
detailed legislation to Congress touching every prob-
lem of American society and then to speed its passage
down the legislative transmission belt, is now an 20-
cepted usage of our constitutional system." 21/
This constitutionally established role in the legislative process
has become so vital through the years that the President has been
aptly termed the Chief Legislator. 22/
The Select Committee was also sound in recognizing that the
President cannot carry out his Constitutional duties in the
legislative arena by himself and that necessarily he must en-
trust authority to his chief subordinates to act, and in turn
to direct their own subordinates to act, in this arena in his
stead. 23/ The Hoover Commission's Task Force on Departmental
Management made a similar point in stating that a department
head is at all times an assistant to the Chief Executive but
that
"as a part of the executive branch, be has also the
constitutional obligation both to consult with and
inform the Legislature, as well as to see that legis-
lative intentions expressed through statutes are
realized." 24/
Congress itself has given specific recognition to the propriety
of "lobbying" activities on the part of Government officials in
section 308 of the Federal Regulation of Lobbying Act of 1946. 25/
That section in general imposes registration requirements on per-
sons who are paid for attempting to influence passage or defeat
of any legislation by Congress. However, certain categories of
21 / Rossiter, The American Presidency (2d ed. 1960), P. 113.
22 / Chamberlain, The President, Congress and Legislation (1946),
p. 14; Rossiter, OD. cit., P. 28; see also Corwin, The President
-- Office and Powers, (4th ed. 1957), PP. 265-277.
23 / Examples of significant legislative activities by Executive
agency personnel of varying ranks during the period beginning
about 1890 appear in Chamberlain, DD. cit.
24/ Report of Task Force on Departmental Management of the Hoover
Commission, appendix 1, P. 57.
25/ 60 Stat. 341, 2 U.S.C. $ 267.
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FORD
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423008 we excessed from these requirements, including in X
Hoular public officials accing in JU orficial capacity."
It must be conceded that the Constitutional activities of
the President, and of subordinate officers of the Executive
ranch acting on his behalf to influence legislation, can, like
other areas of bis Constitutional authority, be subjected to a
measure of control by limitations imposed by Congress upon the
use of appropriated funds. Congress "may grant or withhold ap-
propriations as it chooses, and when mking an appropriation may
Mrect the purposes to which the appropriation shall be devoted.
It may also impose conditions with respect to the use of the ap-
propriation, provided always that the conditions do not require
operation of the Government in 3 way forbidden by the Constitu-
tion. 41 Op. A. G. No, 32 (July 13, 1955, p. 4, emphasis sup-
plied); see also United States V. Butler, 297 U.S. L,73-74. I
would therefore consider it most doubtiul whether Congress could
Lmpose limitations upon the use of appropriated funds which go
30 Ear as to render it altogether impractical or impossible for
the ?resident, and those acting pursuant to his direction, to
carry out a basic Constitutional function.
1 would not be prepared to take the position that the lini-
tation contained in the General Government Matters Appropriation
Acts on the use of appropriated funds for publicity or propaganda
campaigns does go so far. I believe, however, that a literal 1a-
terpretation of 18 U.S.C. $ 1913 which would prevent the President
or his subordinates from formally or informally presenting his or
his administration's views to the Congress, its members or its
committees as to the need for new legislation or the wisdom of
wisting legislation, or which would prevent the administration
from assisting in the drafting of legislation, would raise serious
doubts as to the constitutionality of that statute. Ac so inter-
preted, it would seriously inhibit the exercise of what is now re-
garded as a basic Constitutional function of the President con-
cerning the legislative process. It seems clear that this con-
sideration significantly affected the view of 18 U.S.C. § 1913
taken by the House Select Committee on Lobbying. As understood
by that Committee, 18 U.S.C. $ 1913 prohibits only substantially
the same activities as are covered by the limitation in the ap-
propriation acts. In addition, 1t should be noted that the con-
statent practice in the over forty years during which 13 U.S.C.
$ 1913 bas been in effect is based upon the assumption that It
no further.
on # 2
GERALD LIBRARY A. FORD
Having in mind the Constitutional provision and other III-
terial referred to above, I make the following observations in
response to the Deputy Attorney General's inquiry as to the use
of Department personnel at the Capitol:
1. There is no legal objection to the use of any officer
or employee of the Department to call upon Members or aides of
the Congress to express the position of the Department with re-
gard to proposed legislation in which it has at proper interest.
2. There is no legal objection to the Department's render-
ing drafting assistance to a Member of Congress or a Congressional
committee which requests it -- or volunteering such assistance
when the Department deems 10 appropriate,
3. There is no legal objection to the Department's placing
members of its staff at the disposal of a Congressional committee
which is meeting in executive session either to study or to mark
up a bill. 26/
4. There is DO legal objection to the Department's request-
ing permission for a representative to testify at public hearings
of a Congressional committee. Whether a request will be granted
is, of course, within the discretion of the committee and it is
therefore desirable, if possible, to ascertain in advance of the
request what the reaction is likely to be.
5. Representatives whom the Department sends to the Capitol
should leave no doubt that they are acting solely in an official
capacity and they should make certain that any Department views
and positions they may present are identified as such rather than
as their own personal views.
Attachments
26 / It is interesting to note that an Executive Branch employee,
Benjamin V. Cohen, was present on the floor of the House of-Repre-
sentatives during a session in 1934 at the request of Speaker
Rayburn, then Chairman of the Committee on Interstate and Foreign
Conserce, to aid him in explaining the bill that became the Secur-
ities Exchange Act of 1934. 78 Cong. Rec. 7943-44, May 2, 1934.
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CC
11:33
MEMORANDUM FOR THE ATTORNEY GENERAL
Rs: Use of Presidential yachts by cabinet
officers to advocate legislative pro-
To
grams to Members of Congress.
You have asked whether there is any statutory bar to
the use of Presidential yachts by cabinet officers to hold
receptions for Members of the Congress in the course of
which their support is solicited for pending Administration
legislation. In my view, there is no such bar.
Two statutory provisions bear on the subject. The
first is 18 U.S.C. 1913 (enacted in 1919, 41 Stat. 68),
which forbids any officer or employee of the United States
or of any department or agency thereof, upon pain of criminal
prosecution and removal from office or employment by the
superior officer vested with the power of removal, to use,
in the absence of express authorization by Congress, appro-
priated funds
"directly or indirectly to pay for any personal
service, advertisement, telegram, telephone,
letter, printed or written matter, or other de-
vice, intended or designed to influence in any
manner a Member of Congress, to favor or oppose,
by vote or otherwise, any legislation or appro-
priation by Congress, whether before or after
the introduction of any bill or resolution
proposing such legislation or appropriation."
An exception is provided for communications "to Members of
Congress on the request of any Member or to Congress, through
the proper official channels" regarding "requests for legis-
Lation or appropriations which they deem necessary for the
efficient conduct of the public business."
FORD is LIBRARY 9ERALD
The second statutory provision appears in a variety
of appropriation acts, reading substantially to the effect
that --
"No part of any appropriation contained in
this Acc, or of the funds available for expendi-
ture by any corporation or agency included in
this Act, shall be used for publicity or propa-
ganda purposes designed to support or defeat
legislation pending before the Congress. 1/
1. At the outset it should be noted that there are
no judicial or formal administrative precedents construing
either of these provisions. There are, however, a number
of departmental studies that have been made at various
times. A fairly recent study was prepared by this Office
in 1961 in connection with a complaint by Congressman
Gross to the Attorney General involving Sargent Shriver,
then Director of the Peace Corps, and Bill Moyers, then
one of its employees, who had conferred with various Con-
gressmen to enlist their support of a bill to astablish
the Peace Corps on a statutory basis. 2/ This study con-
cluded that the activities of Mr. Shriver and Mr. Moyer
did not violate either of the provisions. It was said
that the appropriation act provision had no application
because, as disclosed by its legislative history, it was
concerned with the expenditure of appropriated funds "for
personal services and publications intended to affect the
course of legislation by molding public opinion," and not
with "purely private meetings by Executive Branch officials
with Members of Congress." II was also concluded that 18
U.S.C. 1913 had the same objective, and that its words
could not be construed literally since to do so would lead
to absurd results in that it would preclude uninvited leg-
islative communications from Executive Branch officials to
Members of Congress -- a prohibition which could not be
y See, e.g., $ 301, Independent Offices and Department
of Housing and Urban Development Appropriation Act, 1969.
P.L. 90-550; 32 Stat. 937.
21 For your convenience a copy of the stuay is attached.
- 2 MP
FORD & LIBRARY 076830
observed without great harm to the lawmsking process."
Finally, it was noted that a 1949 report of 3 House Select
Committee on Lobbying had recognized that by virtue of the
provision in Article II, $ 3 of the Constitution requiring
the President to recommend to the Congress "such measures
as he shall judge necessary and expedient" --
"the executive branch, and particularly the
Chief Executive and his official family of
departmental and agency heads, inform and
consult with the Congress on legislative
considerations, draft bills and urge in mes-
sages, speeches, reports, committee testimony
and by direct contact the passage or defeat
of various measures."
2. My own analysis of the problem leads me to concur
in the conclusions heretofore reached by this Office, although
it must be admitted that the literal language of 18 U.S.C.
1913 Lends itself to the view that "uninvited" legislative
communications to Members of Congress are impermissible. In
order to reach a construction of the statute which is both
constitutional and sensible, It is necessary to read into.
its language & limitation that what it prohibits is the use
of appropriated funds to pay for any of the proscribed items
that are directed to the public. For example, it would be
improper to use the Presidential yachts to hold receptions
for private citizens as a device designed to induce them to
speak or write to Members of Congress to favor or oppose
legislation.
William H. Rehnquist
Assistant Attorney General
Office of Legal Counsel
Attachment
4
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JAN 12 1970
MEMORANDUM FOR THE HCNORABLE BRYCE N. HARLOW
Counsellor to the President
In accordance with your request, I enclose
Autiliz
a brief memorandum for executive congressional
liaison officials concerning the scope of restric-
tions on executive lobbying before the Congress.
William H. Rehnquist
Assistant Attorney General
Office of Legal Counsel
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J
MEMORANDUM
Re: Restrictions on executive lobbying
before the Congress.
Your attention is called to the federal anti-lobbying
statute (18 U.S.C. 1913) which prohibits, upon pain of crimi-
nal prosecution and removal from office or employment, the
use, in the absence of express congressional authorization,
of appropriated funds to pay for any personal service, com-
munication, or other device intended to influence a Member
of Congress to favor or oppose any legislation.*/ An excep-
tion is provided with respect to official communications to
Members of Congress on the request of any Member, or to
Congress, regarding requests for legislation or appropria-
tions.
The precise kinds of activities proscribed by 18 U.S.C.
1913 are not clear, judicial precedents being lacking as a
guide. (See attached appendix for activities reviewed by
the Department of Justice.) An obvious lobbying attempt would
consist of a public distribution of a statement by a department
or agency official advising the recipients to urge their repre-
sentatives in Congress to vote in a particular way on a specific
item of legislation. Apart from such clear evasions, the House
Select Committee 01 Lobbying Activities has recognized the
traditional role of officials in the executive branch "to
inform and consult with the Congress on legislative consid-
erations, draft bills and urge in messages, speeches, reports,
committee testimony and by direct contact the passage or de-
feat of various measures," H, Rept. No. 3138, 81st Cong.
2d Sess., P. 52 (1950). Similarly, the Department of Justice
*/ A federal statute also prohibits the use of appropriated
funds for the compensation of publicity experts, unless spe-
cifically appropriated for that purpose. 5 U.S.C. 3107. In
addition, Congress has, in various appropriation acts, imposed
specific restrictions against lobbying with federal funds.
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2
has expressed the view that the statute does not override
the responsibility of the executive branch to make known the
views of the Administration on measures pending in Congress.
It should be noted, however, that in recent years some
executive branch unsolicited communications to Members of
Congress regarding pending legislation have been the subject
of criticism, and on occasion a Member of Congress has brought
the matter to the attention of the Department of Justice for
investigation and possible prosecution. Although no prosecu-
tions have been brought, the Department carefully investigated
the facts of each case.
It is suggested that if an official has doubt as to
whether his proposed activity relating to legislation is
forbidden he should consult his department's or agency's
chief legal officer.
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APPENDIX
A. Examples of activities viewed by the Department
of Justice as not being contrary to 18 U.S.C. 1913:
1. Letter of August 19, 1966, from Secretary of
Agriculture to all Members of Congress as distinguished
from Committee members in which the Secretary briefly
analyzed two pieces of legislation (the Child Nutrition
Act and the Community Development District Act), and
concluded with the statement: "I urge your support of
these important measures."
2. Prior to enactment of the State Technical
Services Act of 1965, Department of Commerce officials
discussed the advantages of the bill with interested
individuals and organizations, urged support for the
bill in correspondence, and while not directly, "at
least inferentially", encouraged various persons to
present the favorable aspects of the bill to Members
of Congress. The Attorney General felt that these ac-
tivities did not demonstrate "the ultimate in discreet
judgment", but that there was no criminal violation.
3. Memorandum and material sent in 1967 to Members
of the Congress by the Vice President as Chairman of
the President's Council on Youth Opportunity urging
their support in the Stay-in-School campaign. Since this
material did not relate to pending legislation, but was
merely a part of the effort to have Members of Congress
participate in the program, it was not contrary to 13
U.S.C. 1913.
B. Example of proposed activity which the Department
of Justice felt might be contrary to 18 U.S.C. 1913, if
carried out:
1. Unsolicited widespread distribution (100,000
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ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL COUNSEL
Department of Justice
Mashington, D.C. 20530
NOV 11 1974
MEMORANDUM TO KENNETH A. LAZARUS
Associate Counsel to the President
I enclose three OLC memoranda relevant to the effect of
the "antilobbying" provisions of Federal law upon activities
of the Executive branch.
The basic memorandum is the first, written by Mr.
Katzenbach and dated October 10, 1961. The last two, dated
May 14, 1969 and January 12, 1970, respectively, reflect the
adherence of Mr. Rehnquist to the position taken earlier.
For the record, I will note my own concurrence: Considerations
of legislative history, consistent practice and constitution-
ality favor a restrictive reading of 18 U.S.C. 1913, so as to
apply its prohibitions only to attempts by the Executive
branch to influence the Congress through the public. We do
not interpret it to prohibit direct contact between author-
ized members of the Executive branch and the Congress itself.
As these memoranda reflect, however, there are occasions
on which individual congressmen have asserted a contrary
principle. Needless to say, we have no interest in provoking
a conflict on the point. To avoid it, legislative contacts
should be handled at relatively high levels. I think it is
the prospect of hundreds of faceless bureaucrats running
about the halls of Congress which causes concern.
Scalia
Assistant Attorney General
Office of Legal Counsel
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AMERICAN REVOLUTION INFORMATION
1176
1776-1976
THE WHITE HOUSE
WASHINGTON
10/31/74
To:
Ken Lazarus
From: Phil Buchen
Could you please prepare
a response for me to
send to Bill Timmons.
Thanks.
FORD & LIBRARY GLUBTO
THE WHITE HOUSE
WASHINGTON
October 30, 1974
MEMORANDUM FOR:
PHILIP W. BUCHEN
FROM:
WILLIAM E. TIMMONS
SUBJECT:
Lobbying
I have received through Don Rumsfeld your memorandum
on Standards of Conduct for WH employees.
The paragraph on Lobbying reminded me to raise an
issue with you which is peculiar to the operations of the
Office of Legislative Affairs. While we like to think
we are providing information to Members of Congress,
a reasonable case could be made that we are in fact
lobbying under a strict interpretation of the law. How-
ever, the Constitution gives the President certain
legislative responsibilities and powers: Messages to
Congress, calling Special Sessions, signing or vetoing
legislation, etc. As agents of the President we do work
to obtain measures that are acceptable to the President - -
and try to defeat bills that are unacceptable.
The question is what constitutes improper lobbying
activities. Are there guidelines that should be followed
in dealing with Members of Congress?
cc: Donald Rumsfeld
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