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Congressional - Lobbying (1)

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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 Gerald R. Ford donated to the United States of America his copyrights in all of his unpublished writings in National Archives collections.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 - 3 - & FORD GERALD LIBRARY 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 - 3 - LIBRARY 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). - 4 - FORD LIBRARY is 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. - 6 - FORD LIBRARY i GERALD "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. & FORD E 1 s GEBALD LIBRARY 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. - 9 - FORD GERALD LIBRARY 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 FORD - 3 - GERALD LIBRARY 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 GERALD LIBRARY 4 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. FORD GERALD LIBRARY 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 :- 02RALD LIBRARY 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 FORD copies) of the President's 1968 Farm Message, GERALD LIBRARY 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 FORD LIBRARY 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 FORD is LIBRARY

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    "ocrText": "The original documents are located in Box 7, folder \"Congressional - Lobbying (1)\" of the\nPhilip Buchen Files at the Gerald R. Ford Presidential Library.\nCopyright Notice\nThe copyright law of the United States (Title 17, United States Code) governs the making of\nphotocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United\nStates of America his copyrights in all of his unpublished writings in National Archives collections.\nWorks prepared by U.S. Government employees as part of their official duties are in the public\ndomain. The copyrights to materials written by other individuals or organizations are presumed to\nremain with them. If you think any of the information displayed in the PDF is subject to a valid\ncopyright claim, please contact the Gerald R. Ford Presidential Library.\nDigitized from Box 7 of the Philip Buchen Files\nat the Gerald R. Ford Presidential Library\nTHE WHITE HOUSE\nWASHINGTON\n1.\nEva\nLazahus for his\nGass copy to Ken\nresponse T. to me\nFORDO is LIBRARY 074830\n10/31/74\nTo:\nKen Lazarus\nFrom: Phil Buchen\nCould you please prepare\na response for me to\nsend to Bill Timmons.\nThanks.\nFORD is LIBRARY DERALD\nASSISTAN ATTORNEY GENERAL\nOFFICE or LEGAL COUNSEL\nDepartment of Justice\nMashington, B.C. 20530\nNOV 11 1974\nMEMORANDUM TO KENNETH A. LAZARUS\nAssociate Counsel to the President\nI enclose three OLC memoranda relevant to the effect of\nthe \"antilobbying\" provisions of Federal law upon activities\nof the Executive branch.\nThe basic memorandum is the first, written by Mr.\nKatzenbach and dated October 10, 1961. The last two, dated\nMay 14, 1969 and January 12, 1970, respectively, reflect the\nadherence of Mr. Rehnquist to the position taken earlier.\nFor the record, I will note my own concurrence: Considerations\nof legislative history, consistent practice and constitution-\nality favor a restrictive reading of 18 U.S.C. 1913, so as to\napply its prohibitions only to attempts by the Executive\nbranch to influence the Congress through the public. We do\nnot interpret it to prohibit direct contact between author-\nized members of the Executive branch and the Congress itself.\nAs these memoranda reflect, however, there are occasions\non which individual congressmen have asserted a contrary\nprinciple. Needless to say, we have no interest in provoking\na conflict on the point. To avoid it, legislative contacts\nshould be handled at relatively high levels. I think it is\nthe prospect of hundreds of faceless bureaucrats running\nabout the halls of Congress which causes concern.\nScalia\nAssistant Attorney General\nOffice of Legal Counsel\nFORD\nLIBRA\nAME RICAN REVOLUTION\n1114\n1975\nTHE WHITE HOUSE\nWASHINGTON\n11-13-74\nPhil:\nAttached is a memorandum from\nyou to Bill Timmons in response to\nhis inquiry of October 30.\nKen k\nLIBRARY GERALD ? FORD\nTHE WHITE HOUSE\nWASHINGTON\nOctober 30, 1974\nMEMORANDUM FOR:\nPHILIP W. BUCHEN\nFROM:\nWILLIAM E. TIMMONS\nBT\nSUBJECT:\nLobbying\nI have received through Don Rumsfeld your memorandum\non Standards of Conduct for WH employees.\nThe paragraph on Lobbying reminded me to raise an\nissue with you which is peculiar to the operations of the\nOffice of Legislative Affairs. While we like to think\nwe are providing information to Members of Congress,\na reasonable case could be made that we are in fact\nlobbying under a strict interpretation of the law. How-\never, the Constitution gives the President certain\nlegislative responsibilities and powers: Messages to\nCongress, calling Special Sessions, signing or vetoing\nlegislation, etc. As agents of the President we do work\nto obtain measures that are acceptable to the President --\nand try to defeat bills that are unacceptable.\nThe question is what constitutes improper lobbying\nactivities. Are there guidelines that should be followed\nin dealing with Members of Congress?\ncc: Donald Rumsfeld\nFORDO GENALD LIBRARY\nJustice\nTHE WHITE HOUSE\nWASHINGTON\nNovember 13, 1974\nMEMORANDUM FOR:\nWILLIAM E. TIMMONS\nFROM:\nPHILIP W. BUCHEN T.W.B.\nSUBJECT:\nLobbying\nIn response to your inquiry of October 30, attached are three OLC\nmemoranda relevant to the effect of the \"antilobbying\" provisions\nof Federal law (18 U.S. C. 1913) upon the activities of your office.\nThe basic memorandum is the first, written by Mr. Katzenbach and\ndated October 10, 1961 (Tab A). The last two, dated May 14, 1969\n(Tab B) and January 12, 1970 (Tab C), respectively, reflect the\nadherence of Mr. Rehnquist to the position taken earlier. For the\nrecord, current Assistant Attorney General Scalia has noted to me\nhis concurrence with the views expressed in these papers.\nRead together, these memoranda conclude that considerations of\nlegislative history, consistent practice and constitutionality favor\na restrictive reading of 18 U.S. C. 1913, SO as to apply its pro-\nhibitions only to attempts by the Executive branch to influence the\nCongress through the public. OLC does not interpret it to prohibit\ndirect contact between authorized members of the Executive branch\nand the Congress itself.\nAs these memoranda reflect, however, there are occasions on\nwhich individual congressmen have asserted a contrary principle.\nNeedless to say, we have no interest in provoking a conflict on the\npoint. To avoid it, legislative contacts should be handled through\nauthorized channels and at relatively high levels.\ncc: Don Rumsfeld\nGERALD FORD LIBRARY\nHerbert 3. Miller, Jr.\nAssistant Attorney General\nCriminal Division\nMicholas deB. Katzenbach\nOCT 1 0 1951\nAssistant Attorney General\nOffice of Legal Counsel\nLetter from Congressman Gross in respect of \"lobbying\"\nactivities of Executive Branch personnel.\nThis is in response to your request for my comment regarding\nCongressman H. R. Gross's letter of August 24, 1961 to the At-\ntorney General. Mr. Gross called the Attorney General's atten-\ntion to testimony given on August 4, 1961 by Sargent Shriver,\nDirector of the Peace Corps, before the Subcommittee on Manpower\nUtilization of the House Postoffice and Civil Service Committee\nto the effect that Bill Moyers, a paid employee of the Peace\nCorps, had joined him in conferring with various Congressmen to\nenlist their support of a bill to establish that organization\non a statutory basis. Mr. Gross is of the view that this action\nby Mesers. Shriver and Moyers conflicted with section 209 of the\nGeneral Government Appropriations Act, 1961 1/ and requests a\n\"review and disposition\" of the matter.\nThe statute referred to by Mr. Gross reads as follows:\n\"No part of any appropriation contained in this or\nany other Act, or of the funds available for expenditure\nby any individual, corporation, or agency included in\nthis or any other Act, shall be used for publicity or\npropaganda purposes designed to support or defeat legis-\nlation pending before Congress.\"\nA similar or identical provision has been enacted in one or more\nappropriation acts each year since 1951 2/ when it appeared in\nsection 408 of the Department of Agriculture Appropriation\nFORD\n1952 3/ and shortly thereafter in section 603 of the Independent\nOffices Appropriation Act, 1952. 4)\nGER\nLIBRARY\n74 Stat. 473.\nThe provision vas most recently enacted as section 509 of the\nGeneral Government Matters, Department of Commerce and Related\ngencies Appropriation Act, 1962, P.L. 37-125, approved August 3,\n1961.\n65 Stat. 247.\n65 Stat. 291.\nThe provision made its way into the Department of Agricul-\ncure Appropriation Act, 1952, by means of a floor amendment in\nthe House. 5/ The sponsor of the assendment, Congressman Smith\nof Wisconsin, was critical of the number of public relations\npersonnel employed in the Government agencies and or the great\nvolume of Government publications. Ne recommended his amendment\nand it was adopted in the context of stemming the flow of such\npublications. 6/ Although there was no discussion of this amend-\nment in the Senate committee report and no mention of it in de-\nbate on the Senate floor, Senate discussion of the same amendment\nin the Independent Offices Appropriation Act disclosed a concern\nonly with the expenditure of Government funds for personal ser-\nvices and publications intended to affect the course of legisla-\ntion by molding public opinion. 1/ The enactment of this pro-\nvision in the years since 1951 has been routine and without sig-\nnificant Congressional comment.\nIt will be seen that the legislative history of the language\nin section 209 of the General Government Matters Appropriation\nAct of 1961 does not support the application of that section or\nof the identical legislation currently in effect, 8/ to purely\nprivate meetings by Executive Branch officials with Members of\nCongress. Furthermore, the \"publicity or propaganda purposes\"\nwhich are the sine quo non of the expenditures made unlawful by\nsection 209 cannot reasonably be found to inhere in such private\nmeetings. I am of the opinion, therefore, that Mr. Shriver and\nMr. Moyers did not violate the statutory provision referred to\nby Mr. Gross when they visited Members of Congress in support of\nthe Peace Corps legislation.\nAlthough Mr. Gross did not mention 18 U.S.C. $ 1913, that\nstatute has some relevance in connection with his complaint. In\nthe absence of an express Congressional authorization to the con-\ntrary, it prohibits the use of appropriated funds\n29\nto pay for any personal service, advertisement,\ntelegram, telephone, letter, printed or written matter,\n5/ 97 Cong. Rec. 5474, May 17, 1951.\n5/ 07 Cong. Rec. 5474-75, May 17, 1951.\nFORD i LIBRARY 0768394\n11 07 Cong. Rec. 6733-39, June 19, 1951; 97 Cong. Sec. 10065\nAugust 15, 1951; 97 Cong. Rec. 10111, August 16, 1951.\nof See in. 2, Supra.\n- 2 -\nx other device, intended or designed to influence\nin my manner a Member of Congress, to favor or op-\npose, by vote or otherwise, any legislation or ap\"\npropriation by Congress, but this shall not\nprevent officers or employees of the United States\nor of its departments or agencies from communicating\nto Members of Congress on the request of any Member\nor to Congress, through the proper official channels,\nrequests for legislation or appropriations which\nthey deem necessary for the efficient conduct of the\npublic business.\" 9/\n18 U.S.C. $ 1913 is derived from section 6 of the Third De-\nficiency Appropriation Act, fiscal year 1919. 10/ While the\ncommittee reports make no mention of this section, the floor\nmanager of the bill in the House explained that: 11/\n\"It is new legislation, but it will prohibit\na practice that has been indulged in SO often,\nwithout regard to what administration 1s in power\n- the practice of a bureau chief or the head of a\ndepartment writing letters throughout the country,\nsending telegrams throughout the country, for this\norganization, for this man, for that company to\nwrite his Congressmm, to wire his Congressman, in\nbehalf of this or that legislation.\n...\nThe\ngentleman from Kentucky, Mr. Sherley, former chair-\nman of this committee, during the closing days of\nthe last Congress was greatly worried because he-\nhad on his desk thousands upon thousands of tele-\ngrams that had been started right here in Washington\nby some official wiring out for people to wire\nCongressman Sherley for this appropriation and for\nthat. Now, they use the contingent fund for that\npurpose, and I have no doubt that the telegrams\nsent for that purpose cost the Government more than\n$7,500. Now, it was never the intention of Congress\nto appropriate money for this purpose, and section [6]\nof the bill will absolutely put a stop to that sort\nof thing.\"\nFORD i LIBRARY 038470\n% A search has revealed no judicial or formal administrative\nprecedents concerned with 18 U.S.C. $ 1913.\n10/ 41 Stat. 68.\n11/ 53 Cong. Rec. 403, May 29, 1919.\n0 1 E\nIt is apparent that 13 J.S.C. 3 1913 was marred for essen-\nHaily the Jame purpose AS the recent appropriation act pro-\nLoions considered above. Rowever, implied literally, 13 U.S.C.\n013 would seen to preclude Executive Branch officials from\nspeaking x otherwise communicating in support of proposed legis-\nlacton to Members of Congress, as distinguished from Congress as\nA body, except upon the request of 3 Mamber. Moreover, applied\nliterally, the section would seem to preclude any commmications\nMatsoever, whether invited or not, from representatives of the\nDecutive Branch to Congress or Members of Congress for the per-\npose of expressing opposition to proposed legislation. These\nextreme prohibitions have not been observed by either the Legis-\nlative or the Executive Branch and, as a practical matter, could\nnot be observed without great harm to the lawmaking process.\nAccordingly, I agree with the conclusion reached by now Senator\nThomas J. Dodd in his memorandum of June 7, 1940 to Mr. Rogge\n(a copy of which you forwarded) that this statute ia to be con-\nstrued in the light of its purpose in order to avoid any absurd\nresults flowing from its literal application. Viewing the stat-\nute in this light in relation to the instant matter, I am of the\nopinion that it did not bar the conversations which Mr. Moyers\nhad with certain Members of Congress at the direction of Mr.\nShriver even though the conversations took place at the instance\nof Mr. Shriver and not at the request of the Congressmen.\nPassing to the inquiry of the Deputy Attorney General as to\n\"bow Justice personnel can be used on the hill,\" I might observe\nat the outset that the so-called \"Federal lobby\" bas more than\nonce been the subject of criticism by Members of Congress and\nothers. 12/ However, the criticism has almost always arisen\nfrom activities by Government officials which are considered to\nbe aimed at rallying public opinion for or against pending legis-\nlation and not from the occurrence of personal conferences be-\ntween such officials and Members of Congress or their aides. 13/\n12/ See Tompkins, Congressional Investigation of Lobbying: A Se-\nlected Bibliography (1956), pp. 16-23, for a list of writings on\nthe legislative activities of the federal agencies.\n13/ For example, the Subcommittee on Publicity and Propaganda FORD\nthe House Committee on Expenditures conducted an investigation in\n1947-43 to inquire into reports of the persistent efforts within\nLIBRARY\nthe administrative agencies of Government to discredit Congress\nand to influence legislation. H. Rept. 2474, 80th Congress, 2d\nSess., P. 1 (1948).\n- 4 -\nIn 1949 the House constituted 3 Select Comdittee on Lobbying\nActivities to investigate, among other things, \"all activities\nof agencies of the federal government intended to influence, ent-\ncourage, promote or retard legislation. 1% 14/ In the course of\nremarks made at the beginning of hearings on this phase of the\nCommittee's assignment, the Chairman stated 15/\n\"As I said in opening our previous sessions in this\nseries of hearings, it is necessary in a democracy,\nfor our citizens, individually or collectively, to\nseek to influence legislation. It is equally neces-\nsary for the executive branch of Government to be\nable to make its views known to Congress on all mat-\nters in which it has responsibilities, duties, and\nopinions. The executive agencies have a definite re-\nquirement to express views to Congress, to make sug-\ngestions, to request needed legislation, to draft\nproposed bills or amendments, and so on.\n...\n\"what I am trying to make abundantly clear here\nat the start is that the executive agencies have the\nright and responsibility to seek to 'influence, ea-\ncourage, promote or retard legislation' in many clear\nand proper-and often extremely effective--respects,\nand that definite machinery is provided by law and by\nestablished custom for the exercise of these rights,\nbut that, under certain conditions, Federal funds cannot\nbe spent to influence Congress.\"\nThe concern of the Committee members during this portion of the\nhearings was almost exclusively with conduct of agency heads and\nlesser officials which generated public pressure on Members of\nCongress. Only two or three brief exchanges in the hearings\ndealt with personal efforts on the part of Government officials\nto persuade Congressmen to vote for or against legislation. 16/\n14 3. Res. 298, Slst Cong., 1st Sess.\nB/ Hearings, Select Committee on Lobbying Activities, 81st Cong.,\n2d Sess., Part 10, p. 2.\n13/ For example, Congressman Halleck at one point asked the Aderin-\nistrator of the Housing and Home Finance Agency whether be or any\nsubordinate \"unsolicited, undertook to persuade members of Congress\nin respect of legislation.\" After receiving a negative response,\nMr. Halleck observed that it seemed to him many times that \"the\nExecutive Departments have pressed with undue vigor on matters FORD\nlegislation almost to the point of usurpation of the legislative\nauthority.\" Id., D. 51. At another point the Federal Security Ad-\nLIBRAR\nministrator averred that \"there is no law that says I cannot try to\ninfluence Congress on my own\" as an officer, if not using federal\nFunds for that purpose. Id., P. 341.\n- 5 -\nIn In Interim report 17/ the Select Committee pointed out\nthat Article II of the Constitution, relating to the duties and\ntowers of the President, provides that \"he shall from time to\ntime give to the Congress information on the state of the Union\n2nd recommend to their consideration such measures as he shall\nfudge necessary and expedient.\" (Underlining added.) The Com-\nlittee vent on to comment that 18/\n\"\nin furtherance of basic responsibilities\nthe executive branch, and particularly the Chief Exec-\nutive and his official family of departmental and\nagency heads, inform and consult with the Congress on\nlegislative considerations, draft bills and urge in\nmessages, speeches, reports, committee testimony and\nby direct contact the passage or defeat of various\nmeasures.\"\nIn its final report the Select Committee made no criticism of\nany particular lobbying practices by Government officials and\nconcluded that 18 U.S.C. $ 1913 is adequate to prevent improper\nlobbying activities by these officials. 19/\nThe Select Committee was sound in emphasizing that the par-\nticipation of the President in the legislative function is based\non the Constitution.\n19\nit was the intention of the Fathers of\nthe Republic that the President should be an active\npower [in legislation] ... he is made by the Con-\nstitution an important part of the legislative mech-\nanism of our government.\" 20/\n17/ H. Rept. 3138, 81st Cong., 2d Sess., p. 51 (1950).\n13/ Id., p. 52; see also id., P. 54.\n10/ H. Rept. 3239, 81st Cong., 2d Sess., pp. 35-36 (1951). The\nminority party members of the Committee, although not advocating\nany legislation in addition to 18 U.S.C. § 1913, criticized the\nCommittee as having \"seen fit to defend lobbying by Government.\"\n7d., Part 2, pp. 3-4.\n10/ Norton, The Constitution of the United States, Its Sources and\nCcs Application (1940), P. 123.\n- 6 1\nFORD LIBRARY i GENALD\n\"The President's right, even ducy, to propose\ndetailed legislation to Congress touching every prob-\nlem of American society and then to speed its passage\ndown the legislative transmission belt, is now an ac-\ncepted usage of our constitutional system.\" 21\nThis constitutionally established role in the legislative process\nhas become so vital through the years that the President has been\naptly termed the Chief Legislator. 22/\nThe Select Committee was also sound in recognizing that the\nPresident cannot carry out his Constitutional duties in the\nlegislative arena by himself and that necessarily he must en-\ntrust authority to his chief subordinates to act, and in turn\nto direct their own subordinates to act, in this arena in his\nstead. 23/ The Hoover Commission's Task Force on Departmental\nManagement made a similar point in stating that a department\nhead is at all times an assistant to the Chief Executive but\nthat\n\"as a part of the executive branch, be has also the\nconstitutional obligation both to consult with and\ninform the Legislature, as well as to see that legis-\nlative intentions expressed through statutes are\nrealized.\" 24\nCongress itself has given specific recognition to the propriety\nof \"lobbying\" activities on the part of Government officials in\nsection 308 of the Federal Regulation of Lobbying Act of 1946. 25/\nThat section in general imposes registration requirements on per-\nsons who are paid for attempting to influence passage or defeat\nof any legislation by Congress. However, certain categories of\n21 / Rossiter, The American Presidency (2d ed. 1960), P. 113.\n22/ Chamberlain, The President. Congress and Legislation (1946),\np. 14; Rossiter, OD, cit., P. 28; see also Corwin, The President\n-- Office and Powers, (4th ed. 1957), PP. 265-277.\n23 / Examples of significant legislative activities by Executive\nagency personnel of varying ranks during the period beginning\nabout 1890 appear in Chamberlain, DD. cit.\n24/ Report of Task Force on Departmental Management of the Hoover\nCommission, appendix 1, P. 57.,\n25/ 60 Stat. 841, 2 U.S.C. $ 267.\nis\nFORD\nr s $\nGERALD\nAll\nre excepted from these requirements, Including in If\ndeular public officials accing in an official capacity.\"\nit must be conceded that the Constitutional activities of\nThe President, and of subordinate officers of the Descutive\nranch acting on his behalf to influence legislation, can, like\nother areas of his Constitutional authority, be subjected to a\nneasure of control by limitations imposed by Congress upon the\nuse of appropriated funds. Congress \"may grant or withhold ap-\npropriations as it chooses, and when making an appropriation my\nMrect the purposes to which the appropriation shall be devoted.\nIt may also impose conditions with respect to the use of the ap-\npropriation, provided always that the conditions do not require\noperation of the Government in 3 way forbidden by the Constitu-\ntion. 41 Op. A. C. No. 32 (July 13, 1955, P. 4, emphasis sup-\nplied); see also United States V. Butler, 297 U.S. -73-74. I\nwould therefore consider it most doubtiul whether Congress could\nImpose limitations upon the use of appropriated funds which go\n30 far as to render it altogether impractical or impossible for\nthe President, and those acting pursuant to his direction, to\ncarry out a basic Constitutional function.\nI would not be prepared to take the position that the line-\ntation contained in the General Government Matters Appropriation\nActs DD the use of appropriated funds for publicity or propaganda\ncampaigns does go so far. I believe, however, that at literal 1a-\nterpretation of 13 U.S.C. $ 1913 which would prevent the President\nor his subordinates from formally or informally presenting his or\nhis administration's views to the Congress, its members or its\ncommittees as to the need for new legislation or the wisdom of\nwisting legislation, or which would prevent the administration\nfrom assisting in the drafting of legislation, would raise serious\ndoubts as to the constitutionality of that statute. As so inter-\npreted, it would seriously inhibit the exercise of what is now re-\ngarded as 2 basic Constitutional function of the President con-\ncerning the legislative process. It seems clear that this con-\nsideration significantly affected the view of 18 U.S.C. $ 1913\ntaken by the House Select Comittee on Lobbying. As understood\nby that Committee, 18 U.S.C. $ 1913 prohibits only substantially\nthe same activities as are covered by the limitation in the ap-\npropriation acts. In addition, 10 should be noted that the con-\nsistent practice in the over forty years during which 13 U.S.C.\n1913 has been in effect is based upon the assumption that it\nles no further.\nis\nFORD\n- 3 -\nGERALD\nLIBRARY\nHaving in mind the Constitutional provision and other =\nerial referred to above, 1 make the following observations in\nresponse to the Deputy Attorney General's inquiry as to the use\nDE Department personnel at the Capitol:\n1. There is no legal objection to the use of any officer\nor employee of the Department to call upon Nembers or aides of\nthe Congress to express the position of the Department with re*\ngard to proposed legislation in which it has a proper interest.\n2. There is no legal objection to the Department's render-\ning drafting assistance to a Member of Congress or a Congressional\ncommittee which requests it -- or volunteering such assistance\nwhen the Department deems 10 appropriate.\n3. There is no legal objection to the Department's placing\nmembers of its staff at the disposal of a Congressional committee\nwhich is meeting in executive session either to study or to mark\nup a bill. 26/\n4. There is DO legal objection to the Department's request-\ning permission for a representative to testify at public hearings\nof a Congressional committee. Whether a request will be granted\nis, of course, within the discretion of the committee and it is\ntherefore desirable, if possible, to ascertain in advance of the\nrequest what the reaction is likely to be.\n5. Representatives whom the Department sends to the Capitol\nshould leave no doubt that they are acting solely in an official\ncapacity and they should make certain that any Department views\nand positions they may present are identified as such rather than\nas their own personal views.\nAttachments\n35 It is interesting to note that an Executive Branch employee,\nBenjamin V. Cohen, was present on the floor of the House of-Repre-\nsentatives during a session in 1934 at the request of Speaker\nPhybima, then Chairman of the Committee on Interstate and Foreign\nConserce, to aid him in explaining the b111 that became the Secur-\nities Exchange Act of 1934. 78 Cong. Rec. 7943-44, May 2, 1934.\n= 9 -\nFORD is LIBRARY QERALD\ncc\nMEMORANDIM FOR THE ATTORNEY GENERAL\nRs: Use of Presidential yachts by cabinet\nofficers to advocate legislative pro-\ngrams to Members of Congress.\nYou have asked whether there is any statutory bar to\nthe use of Presidential yachts by cabinet officers to hold\nreceptions for Members of the Congress in the course of\nwhich their support 1a solicited for pending Administration\nlegislation. In my view, there is no such bar.\nTwo statutory provisions bear on the subject. The\nfirst is 18 U.S.C. 1913 (enacted in 1919, 41 Stat. 63),\nwhich forbids any officer or employee of the United States\nor of any department or agency thereof, upon pain of criminal\nprosecution and removal from office or employment by the\nsuperior officer vested with the power of removal, to use,\nin the absence of express authorization by Congress, appro-\npriated funds-\n\"directly or indirectly to pay for any personal\nservice, advertisement, telegram, telephone,\nletter, printed or written matter, or other de-\nvice, intended or designed to influence in any\nmanner a Member of Congress, to favor or oppose,\nby vote or otherwise, any legislation or appro-\npriation by Congress, whether before or after\nthe introduction of any bill or resolution\nproposing such legislation or appropriation.\" 11\nAn exception is provided for communications \"to Members of\nCongress on the request of any Member or to Congress, through\nthe proper official channels\" regarding \"requests for legis-\nLation or appropriations which they deem necessary for the\nefficient conduct of the public business.\"\nThe second statutory provision uppears in 1 variety\nof appropriation acts, reading substantially to the effect\nthat --\nNo part of any appropriation contained in\nthis Act, or of the funds available for expendi-\nture by any corporation or agency included in\nthis Act, shall be used for publicity or propa-\nganda purposes designed to support or defeat\nlegislation pending before the Congress.\" 1/\n1. At the outset it should be noted that there are\nno judicial or formal administrative precedents construing\neither of these provisions. There are, however, a number\nof departmental studies that have been made at various\ntimes. A fairly recent study was prepared by this Office\nin 1961 in connection with a complaint by Congressman\nGross to the Attorney General involving Sargent Shriver,\nthen Director of the Peace Corps, and Bill Moyers, then\none of its employees, who had conferred with various Con-\ngressmen to enlist their support of a bill to establish\nthe Peace Corps on a statutory basis. 2/ This study con-\ncluded that the activities of Mr. Shriver and Mr. Moyer\ndid not violate either of the provisions. It was said\nthat the appropriation act provision had no application\nbecause, as disclosed by its legislative history, it was\nconcerned with the expenditure of appropriated funds \"for\npersonal services and publications intended to affect the\ncourse of legislation by molding public opinion,\" and not\nwith \"purely private meetings by Executive Branch officials\nwith Members of Congress.\" II was also concluded that 18\nU.S.C. 1913 had the same objective, and that its words\ncould not be construed literally since to do so would lead\nto absurd results in that it would preclude uninvited leg-\nislative communications from Executive Branch officials to\nMembers of Congress -- a prohibition which could not be\n1/ See, e.g., $ 301, Independent Offices and Department\nof Housing and Urban Development Appropriation Act, 1969.\nP.L. 90-550; 32 Stat. 937.\n2/ For your convenience a copy of the stuay is attached.\nPA 2 up\n&\nFORDO\nGERALD\nobserved without great harm to the Inwaking process.\"\nFinally, it was noted that & 1949 report of a House Select\nCommittee on Lobbying had recognized that by virtue of the\nprovision in Article II, § 3 of the Constitution requiring\nthe President to recommend to the Congress \"such measures\nas be shall judge necessary and expedient\" --\n\"the executive branch, and particularly the\nChief Executive and his official family of\ndepartmental and agency heads, inform and\nconsult with the Congress on legislative\nconsiderations, draft bills and urge in mes-\nsages, speeches, reports, committee testimony\nand by direct contact the passage or defeat\nof various measures.\"\n2. My own analysis of the problem leads me to concur\nin the conclusions heretofore reached by this Office, although\nit must be admitted that the literal Language of 18 U.S.C.\n1913 lends itself to the view that \"minvited\" legislative\ncommunications to Members of Congress are impermissible. In\norder to reach a construction of the statute which is both\nconstitutional and sensible, it is necessary to read into.\nits language a limitation that what it prohibits is the use\nof appropriated funds to pay for any of the proscribed items\nthat are directed to the public. For example, it would be\nimproper to use the Presidential yachts to hold receptions\nfor private citizens as a device designed to induce them to\nspeak or write to Members of Congress to favor or oppose\nlegislation.\nWilliam H. Rehnquist\nAssistant Attorney General\nOffice of Legal Counsel\nAttachment\n- 3 -\n&\nFORD\nGERALD\nLIBRARY\nJAN 1 2 1970\nMEMORANDUM FOR THE HONORABLE BRYCE N. HARLOW\nCounsellor to the President\nartille\nIn accordance with your request, I enclose\n]\na brief memorandum for executive congressional\nliaison officials concerning the scope of restric-\ntions on exacutive lobbying before the Congress.\nWilliam H. Rehnquist\nAssistant Attorney General\nOffice of Legal Counsel\nGERALD FORD LIBRARY\nJ\nMEMORANDUM\nRe: Restrictions on executive lobbying\nbefore the Congress.\nYour attention is called to the federal anti-lobbying\nstatute (18 U.S.C. 1913) which prohibits, upon pain of crimi-\nnal prosecution and removal from office or employment, the\nuse, in the absence of express congressional authorization,\nof appropriated funds to pay for any personal service, com-\nmunication, or other device intended to influence a Member\nof Congress to favor or oppose any legislation.* An excep-\ntion is provided with respect to official communications to\nMembers of Congress on the request of any Member, or to\nCongress, regarding requests for legislation or appropria-\ntions.\nThe precise kinds of activities proscribed by 18 U.S.C.\n1913 are not clear, judicial precedents being lacking as a\nguide. (See attached appendix for activities reviewed by\nthe Department of Justice.) An obvious lobbying attempt would\nconsist of a public distribution of a statement by a department\nor agency official advising the recipients to urge their repre-\nsentatives in Congress to vote in a particular way on a specific\nitem of legislation. Apart from such clear evasions, the House\nSelect Committee 01 Lobbying Activities has recognized the\ntraditional role of officials in the executive branch \"to\ninform and consult with the Congress on legislative consid-\nerations, draft bills and urge in messages, speeches, reports,\ncommittee testimony and by direct contact the passage or de-\nfeat of various measures.\" H. Rept. No. 3138, 81st Cong.\n2d Sess,, P. 52 (1950). Similarly, the Department of Justice\nA federal statute also prohibits the use of appropriated\nfunds for the compensation of publicity experts, unless spe-\ncifically appropriated for that purpose. 5 U.S.C. 3107. In\naddition, Congress has, in various appropriation acts, imposed\nspecific restrictions against lobbying with federal funds.\nFORDO & LIBRARY 07V830\n2\nhas expressed the view that the statute does not override\nthe responsibility of the executive branch to make known the\nviews of the Administration on measures pending in Congress.\nIt should be noted, however, that in recent years some\nexecutive branch unsolicited communications to Members of\nCongress regarding pending legislation have been the subject\nof criticism, and on occasion a Member of Congress has brought\nthe matter to the attention of the Department of Justice for\ninvestigation and possible prosecution. Although no prosecu-\ntions have been brought, the Department carefully investigated\nthe facts of each case.\nIt is suggested that if an official has doubt as to\nwhether his proposed activity relating to legislation is\nforbidden he should consult his department's or agency's\nchief legal officer.\nFORD is GERALD LIDRARY\nAPPENDIX\nA. Examples of activities viewed by the Department\nof Justice as not being contrary to 13 U.S.C. 1913:\n1. Letter of August 19, 1966, from Secretary of\nAgriculture to all Members of Congress as distinguished\nfrom Committee members in which the Secretary briefly\nanalyzed two pieces of legislation (the Child Nutrition\nAct and the Community Development District Act), and\nconcluded with the statement: \"I urge your support of\nthese important measures.\"\n2. Prior to enactment of the State Technical\nServices Act of 1965, Department of Commerce officials\ndiscussed the advantages of the bill with interested\nindividuals and organizations, urged support for the\nbill in correspondence, and while not directly, \"at\nleast inferentially\", encouraged various persons to\npresent the favorable aspects of the bill to Members\nof Congress. The Attorney General felt that these ac-\ntivities did not demonstrate \"the ultimate in discreet\njudgment\", but that there was no criminal violation.\n3. Memorandum and material sent in 1967 to Members\nof the Congress by the Vice President as Chairman of\nthe President's Council on Youth Opportunity urging\ntheir support in the Stay-in-School campaign. Since this\nmaterial did not relate to pending legislation, but was\nmerely a part of the effort to have Members of Congress\nparticipate in the program, it was not contrary to 13\nU.S.C. 1913.\nB. Example of proposed activity which the Department\nof Justice felt might be contrary to 18 U.S.C. 1913, if\ncarried out:\n1. Unsolicited widespread distribution (100,000\ncopies) of the President's 1968 Farm Message,\nLIBRARY GERALD ? FORD\nThursday 1/16/75\n3:05 I called Lazarus' office to check and see if he had\ninformation for you on the anti-lobbying statute -----\nbut he has gone to a meeting.\nSince you have a call in to Ken Cole, thought you might\nwant to bring this up -- when he calls back.\n(Attached is all I have in my file on the subject.)\nFORD i LIBRARY GERALD\nTHE WHITE HOUSE\nWASHINGTON\nJanuary 16, 1975\nMEMORANDUM FOR:\nPHIL BUCHEN\nFROM:\nDICK CHENEY\nD\nPhil, you ought to ask somebody in your shop to take a look at the\nhistory of the anti-lobbying statute. Supposedly in 1973 the Nixon\nAdministration got in trouble with a proposed Clawson effort to sell\nthe battle of the budget that year. Talk to Ken Cole. He can give\nyou some guidance on the background of it. We ought to make\ncertain we are in compliance with the statutes and whatever court\norders have been issued since then.\nFORD & LIBRARY CERALD\nCong.\nTHE WHITE HOUSE\nlobbying\nWASHINGTON\nNovember 13, 1974\nMEMORANDUM FOR:\nWILLIAM E. TIMMONS\nFROM:\nPHILIP W. BUCHEN P.W.B.\nSUBJECT:\nLobbying\nIn response to your inquiry of October 30, attached are three OLC\nmemoranda relevant to the effect of the \"antilobbying\" provisions\nof Federal law (18 U.S.C. 1913) upon the activities of your office.\nThe basic memorandum is the first, written by Mr. Katzenbach and\ndated October 10, 1961 (Tab A). The last two, dated May 14, 1969\n(Tab B) and January 12, 1970 (Tab C), respectively, reflect the\nadherence of Mr. Rehnquist to the position taken earlier. For the\nrecord, current Assistant Attorney General Scalia has noted to me\nhis concurrence with the views expressed in these papers.\nRead together, these memoranda conclude that considerations of\nlegislative history, consistent practice and constitutionality favor\na restrictive reading of 18 U.S. C. 1913, so as to apply its pro-\nhibitions only to attempts by the Executive branch to influence the\nCongress through the public. OLC does not interpret it to prohibit\ndirect contact between authorized members of the Executive branch\nand the Congress itself.\nAs these memoranda reflect, however, there are occasions on\nwhich individual congressmen have asserted a contrary principle.\nNeedless to say, we have no interest in provoking a conflict on the\npoint. To avoid it, legislative contacts should be handled through\nauthorized channels and at relatively high levels.\ncc: Don Rumsfeld\nGERALD FORD VIBRARY\nHerbert 3. Miller, Jr.\nAssistant Attorney General\nCriminal Division\nMicholas deB. Katzenbach\nOCT 1 0 1951\nAssistant Attorney General\nout\nOffice of Legal Counsel\nLetter from Congressman Gross in respect of \"lobbying\"\nactivities of Executive Branch personnel.\nThis is in response to your request for my comment regarding\nCongressman E. R. Gross's letter of August 24, 1961 to the At-\ntorney General. Mr. Gross called the Attorney General's atten-\ntion to testimony given on August 4, 1961 by Sargent Shriver,\nDirector of the Peace Corps, before the Subcommittee on Manpower\nUtilization of the House Postoffice and Civil Service Committee\nto the effect that Bill Moyers, a paid employee of the Peace\nCorps, had joined him in conferring with various Congressmen to\nenlist their support of a bill to establish that organization\non a statutory basis. Mr. Cross is of the view that this action\nby Messrs. Shriver and Moyers conflicted with section 209 of the\nGeneral Government Appropriations Act, 1961 1/ and requests at\n\"review and disposition\" of the matter.\nThe statute referred to by Mr. Gross reads as follows:\n\"No part of any appropriation contained in this or\nany other Act, or of the funds available for expenditure\nby any individual, corporation, or agency included in\nthis or any other Act, shall be used for publicity or\npropaganda purposes designed to support or dafeat legis-\nlation pending before Congress.\"\nA similar or identical provision has been enacted in one or more\nappropriation acts each year since 1951 2/ when it appeared in\nsection 408 of the Department of Agriculture Appropriation Act,\n1952 3/ and shortly thereafter in section 603 of the Independent\nOffices Appropriation Act, 1952. 4)\n1/ 74 Stat. 478.\nI/ The provision vas most recently euacted as section 509 03028\nGeneral Government Matters, Department of Commerce and Relited\n1961.\nAgencies Appropriation Act, 1962, P.L. 37-125, approved DERAIL August\nLIBITY\n65 Stat. 247.\n7/ 65 Stat. 291.\nThe provision made its way into the Department of Agricul-\ncure Appropriation Act, 1952, by means of a floor amondment in\nthe House. 5/ The sponsor of the assendment, Congreseman Smith\nof Wisconsin, was critical of the number of public relations\npersonnel employed in the Government agencies and of the great\nvolume of Government publications. Ne recommended his amendment\nand it was adopted in the context of stemming the flow of such\npublications. S/ Although there was no discussion of this amend-\nment in the Senate committee report and no mention of 1t in de-\nbate on the Senate floor, Senate discussion of the same amendment\nin the Independent Offices Appropriation Act disclosed a concern\nonly with the expenditure of Government funds for personal ser-\nvices and publications intended to affect the course of legisla-\ntion by molding public opinion. 11 The enactment of this pro-\nvision in the years since 1951 has been routine and without sig-\nnificant Congressional comment.\nIt will be seen that the legislative history of the language\nin section 209 of the General Government Matters Appropriation\nAct of 1961 does not support the application of that section or\nof the identical legislation currently in effect, B/ to purely\nprivate meetings by Executive Branch officials with Members of\nCongress. Furthermore, the \"publicity or propaganda purposes\"\nwhich are the sine quo non of the expenditures made unlawful by\nsection 209 cannot reasonably be found to inhere in such private\nmeetings. I am of the opinion, therefore, that Mr. Shriver and\nMr. Moyers did not violate the statutory provision referred to\nby Mr. Cross when they visited Members of Congress in support of\nthe Peace Corps legislation.\nAlthough Mr. Gross did not mention 13 U.S.C. $ 1913, that\nstatute has some relevance in connection with his complaint. In\nthe absence of an express Congressional authorization to the con-\ntrary, it prohibits the use of appropriated funds\nto pay for any personal service, advertisement,\ntelegram, telephone, latter, printed or written matter,\n5/ 97 Cong. Rec. 5474, May 17, 1951.\nI 07 Cong. Rec. 5474-73, May 17, 1951.\n11 07 Cong. Rec. 6733-39, June 19, 1951; 97 Cong. Sec. 10065,\nAugust 15, 1951; 97 Cong. Rec. 10111, August 16, 1951.\n1/ See in. 2, supra.\nat I I\nFORD is LIBRARY 03RALD\nor other device, intended or designed to influence\nin my manner a Member of Congress, to favor or op-\npose, by vote or otherwise, any legislation or ap-\npropriation by Congress,\n...\nbut this shall not\nprevent officers or employees of the United States\nbe of its devartmentsor agencies from communicating\nto Members of Congress on the request of any Member\nor to Congress, through the proper official channels,\nrequests for legislation or appropriations which\nthey deem necessary for the efficient conduct of the\npublic business.'\n18 U.S.C. $ 1913 is derived from section 6 of the Third De-\nficiency Appropriation Act, fiscal year 1919. 10/ While the\ncommittee reports make no mention of this section, the floor\nmanager of the bill in the House explained that: 11/\n\"It is new legislation, but it will prohibit\na practice that has been indulged in SO often,\nwithout regard to what administration 1s in power\n- the practice of a bureau chief or the head of a\ndepartment writing letters throughout the country,\nsending telegrams throughout the country, for this\norganization, for this man, for that company to\nwrite his Congressman, to wire his Congressman, in\nbehalf of this or that legislation. ...\nThe\ngentleman from Kentucky, Mr. Sherley, former chair-\nman of this committee, during the closing days of\nthe last Congress was greatly worried because he-\nhad on his desk thousands upon thousands of tele-\ngrams that had been started right here in Washington\nby some official wiring out for people to wire\nCongressman Sherley for this appropriation and for\nthat. Now, they use the contingent fund for that\npurpose, and I have no doubt that the telegrams\nsent for that purpose cost the Government more than\n$7,500. Now, it was never the intention of Congress\nto appropriate money for this purpose, and section [6]\nof the bill will absolutely put a stop to that sort\nof thing.\"\n%) A search has revealed no judicial or formal administrative\nprecedents concerned with 13 U.S.C. $ 1913.\n10/ 41 Stat. 68.\n:\nFORD\n11/ 53 Cong. Rec. 403, May 29, 1919.\nGERALD\n- 3 -\nLIBRARY\nID is apparent that 13 J.S.C. ; 1913 was seaced for essen-\ndaily the same purpose AS the recent appropriation act pro-\nisions considered above. However, applied literally, 13 U.S.C.\n1913 would seem to preclude Executive Branch officials from\nspeaking or otherwise communicating in support of proposed legis-\nLacton to Members of Congress, as distinguished from Congress as\n1 body, except upon the request of a Mamber. Moreover, applied\nliterally, the section would seem to preclude any commnications\nwhatsoever, whether invited or not, from representatives of the\nExecutive Branch to Congress or Members of Congress for the pur-\npose of expressing opposition to proposed legislation. These\nextreme prohibitions have not been observed by either the Legis-\nlative or the Executive Branch and, as a practical matter, could\nnot be observed without great harm to the lawmaking process.\nAccordingly, I agree with the conclusion reached by now Senator\nThomas J. Dodd in his memorandum of June 7, 1940 to Mr. Rogge\n(a copy of which you forwarded) that this statute is to be con-\nstrued in the light of its purpose in order to avoid any absurd\nresults flowing from its literal application. Viewing the stat-\nute in this light in relation to the instant matter, I an of the\nopinion that it did not bar the conversations which Mr. Moyers\nhad with certain Members of Congress at the direction of Mr.\nShriver even though the conversations took place at the instance\nof Mr. Shriver and not at the request of the Congressmen.\nPassing to the inquiry of the Deputy Attorney General as to\n\"bow Justice personnel can be used on the hill,\" I might observe\nat the outset that the so-called \"Federal lobby\" bas more than\nonce been the subject of criticism by Members of Congress and\nothers. 12/ However, the criticism has almost always arisen\nfrom activities by Covernment officials which are considered to\nbe aimed at rallying public opinion for or against pending legis-\nlation and not from the occurrence of personal conferences be-\ntween such officials and Members of Congress or their aides. 13/\n12/ See Tompkins, Congressional Investigation of Lobbying: A Se-\nlected Bibliography (1956), pp. 16-23, for a list of writings on\nthe legislative activities of the federal agencies.\n13/ For example, the Subcommittee on Publicity and Propaganda of\nthe House Committee on Expenditures conducted an investigation in\n1947-48 to inquire into reports of the persistent efforts within\nche administrative agencies of Government to discredit Congress\nand to influence legislation. H. Rept. 2474, 30th Congress, 2d\nSess,, P. 1 (1948).\n- 4 -\nFORD LIBRARY is\nin 1949 the House constituted 3 Select Committee on Lobbying\nActivities to investigate, among other things, \"all activities\nof agencies ož the federal government intended to influence, or\ncourage, promote or retard legislation. 1$ 14/ In the course of\nremarks made at the beginning of hearings on this phase of the\nCommittee's assignment, the Chairman stated 15/\n\"As I said in opening our previous sessions in this\nseries of hearings, it is necessary in a democracy,\nfor our citizens, individually or collectively, to\nseek to influence legislation. It is equally neces-\nsary for the executive branch of Government to be\nable to make its views known to Congress on all mat-\nters in which it has responsibilities, duties, and\nopinions. The executive agencies have a definite re-\nquirement to express views to Congress, to make sug-\ngestions, to request needed legislation, to draft\nproposed bills or amendments, and so on.\n\"What I am trying to make abundantly clear here\nat the start is that the executive agencies have the\nright and responsibility to seek to 'influence, ea-\ncourage, promote or retard legislation' in many clear\nand proper-and often extremely effective--respects,\nand that definite machinery is provided by law and by\nestablished custom for the exercise of these rights,\nbut that, under certain conditions, Federal funds cannot\nbe spent to influence Congress.\"\nThe concern of the Committee members during this portion of the\nhearings was almost exclusively with conduct of agency heads and\nlesser officials which generated public pressure on Members of\nCongress. Only two or three brief exchanges in the hearings\ndealt with personal efforts on the part of Government officials\nto persuade Congressmen to vote for or against legislation. 16/\n14/ 3. Res. 298, S1st Coag., 1st Sess.\n5/ Hearings, Select Committee on Lobbying Activities, 31st Cong.,\n2d Sess., Part 10, p. 2.\n15/ For example, Congressman Halleck at one point asked the Admin-\nistrator of the Housing and Home Finance Agency whether he or any\nsubordinate 'unsolicited, undertook to persuade mombers of Congress\nto respect of legislation.\" After receiving a negative response,\nX. Halleck observed that it seemed to him many times that \"che\nExecutive Departments have pressed with undue vigor on matters FORD\nlegislation almost to the point of usurpation of the legisla We\nanthority. Id., D. 51. At another point the Federal Security Ad-\nministrator averred that \"there is no law that says I cannoticity to\nLIBRARY\ninfluence Congress on my own\" as an officer, if not using federal\nfunds for that purpose. Id., P. 341.\n- 5 -\nIn in Interim report 17/ the Select Committee pointed DUC\nthat Article II of the Constitution, relating to the duties and\nDowers of the President, provides that \"he shall from time to\ntime give to the Congress information on the state of the Union\nand recommend to their consideration such measures 83 he shall\njudge necessary and expedient.\" (Underlining added.) The Com-\nittee went on to comment that 18/\n11\nin furtherance of basic responsibilities\nthe executive branch, and particularly the Chief Exec-\nutive and his official family of departmental and\nagency heads, inform and consult with the Congress on\nlegislative considerations, draft bills and urge in\nmessages, speeches, reports, committee testimony and\nby direct contact the passage or defeat of various\nmeasures.\"\nIn its final report the Select Committee made no criticism of\nany particular lobbying practices by Government officials and\nconcluded that 18 U.S.C. $ 1913 is adequate to prevent improper\nlobbying activities by these officials. 19/\nThe Select Committee was sound in emphasizing that the par-\nLicipation of the President in the legislative function is based\non the Constitution.\n19\nit was the intention of the Fathers of\nthe Republic that the President should be an active\npower [in legislation]\n...\nhe is made by the Con-\nstitution an important part of the legislative mech-\nanism of our government.\" 20/\n17/ H. Rept. 3138, 81st Cong., 2d Sess., p. 51 (1950).\n13/ Id., p. 52; see also id., P. 54.\n19/ H. Rept. 3239, 81st Coog., 2d Sess., pp. 35-36 (1951). The\nminority party members of the Committee, although not advocating\nany legislation in addition to 18 U.S.C. § 1913, criticized the\nCommittee as having \"seen fit to defend lobbying by Government.\"\n7d., Part 2, pp. 3-4.\n10/ Norton, The Constitution of the United States, Its Sources and\nTas Application (1940), D. 123.\n- 6 -\nFORD LIBRARY i GERALD\n\"The President's right, even duty, to propose\ndetailed legislation to Congress touching every prob-\nlem of American society and then to speed its passage\ndown the legislative transmission belt, is now an 20-\ncepted usage of our constitutional system.\" 21/\nThis constitutionally established role in the legislative process\nhas become so vital through the years that the President has been\naptly termed the Chief Legislator. 22/\nThe Select Committee was also sound in recognizing that the\nPresident cannot carry out his Constitutional duties in the\nlegislative arena by himself and that necessarily he must en-\ntrust authority to his chief subordinates to act, and in turn\nto direct their own subordinates to act, in this arena in his\nstead. 23/ The Hoover Commission's Task Force on Departmental\nManagement made a similar point in stating that a department\nhead is at all times an assistant to the Chief Executive but\nthat\n\"as a part of the executive branch, be has also the\nconstitutional obligation both to consult with and\ninform the Legislature, as well as to see that legis-\nlative intentions expressed through statutes are\nrealized.\" 24/\nCongress itself has given specific recognition to the propriety\nof \"lobbying\" activities on the part of Government officials in\nsection 308 of the Federal Regulation of Lobbying Act of 1946. 25/\nThat section in general imposes registration requirements on per-\nsons who are paid for attempting to influence passage or defeat\nof any legislation by Congress. However, certain categories of\n21 / Rossiter, The American Presidency (2d ed. 1960), P. 113.\n22 / Chamberlain, The President, Congress and Legislation (1946),\np. 14; Rossiter, OD. cit., P. 28; see also Corwin, The President\n-- Office and Powers, (4th ed. 1957), PP. 265-277.\n23 / Examples of significant legislative activities by Executive\nagency personnel of varying ranks during the period beginning\nabout 1890 appear in Chamberlain, DD. cit.\n24/ Report of Task Force on Departmental Management of the Hoover\nCommission, appendix 1, P. 57.\n25/ 60 Stat. 341, 2 U.S.C. $ 267.\n&\nFORD\nE 1 s\nGEBALD\nLIBRARY\n423008 we excessed from these requirements, including in X\nHoular public officials accing in JU orficial capacity.\"\nIt must be conceded that the Constitutional activities of\nthe President, and of subordinate officers of the Executive\nranch acting on his behalf to influence legislation, can, like\nother areas of bis Constitutional authority, be subjected to a\nmeasure of control by limitations imposed by Congress upon the\nuse of appropriated funds. Congress \"may grant or withhold ap-\npropriations as it chooses, and when mking an appropriation may\nMrect the purposes to which the appropriation shall be devoted.\nIt may also impose conditions with respect to the use of the ap-\npropriation, provided always that the conditions do not require\noperation of the Government in 3 way forbidden by the Constitu-\ntion. 41 Op. A. G. No, 32 (July 13, 1955, p. 4, emphasis sup-\nplied); see also United States V. Butler, 297 U.S. L,73-74. I\nwould therefore consider it most doubtiul whether Congress could\nLmpose limitations upon the use of appropriated funds which go\n30 Ear as to render it altogether impractical or impossible for\nthe ?resident, and those acting pursuant to his direction, to\ncarry out a basic Constitutional function.\n1 would not be prepared to take the position that the lini-\ntation contained in the General Government Matters Appropriation\nActs on the use of appropriated funds for publicity or propaganda\ncampaigns does go so far. I believe, however, that a literal 1a-\nterpretation of 18 U.S.C. $ 1913 which would prevent the President\nor his subordinates from formally or informally presenting his or\nhis administration's views to the Congress, its members or its\ncommittees as to the need for new legislation or the wisdom of\nwisting legislation, or which would prevent the administration\nfrom assisting in the drafting of legislation, would raise serious\ndoubts as to the constitutionality of that statute. Ac so inter-\npreted, it would seriously inhibit the exercise of what is now re-\ngarded as a basic Constitutional function of the President con-\ncerning the legislative process. It seems clear that this con-\nsideration significantly affected the view of 18 U.S.C. § 1913\ntaken by the House Select Committee on Lobbying. As understood\nby that Committee, 18 U.S.C. $ 1913 prohibits only substantially\nthe same activities as are covered by the limitation in the ap-\npropriation acts. In addition, 1t should be noted that the con-\nstatent practice in the over forty years during which 13 U.S.C.\n$ 1913 bas been in effect is based upon the assumption that It\nno further.\non # 2\nGERALD LIBRARY A. FORD\nHaving in mind the Constitutional provision and other III-\nterial referred to above, I make the following observations in\nresponse to the Deputy Attorney General's inquiry as to the use\nof Department personnel at the Capitol:\n1. There is no legal objection to the use of any officer\nor employee of the Department to call upon Members or aides of\nthe Congress to express the position of the Department with re-\ngard to proposed legislation in which it has at proper interest.\n2. There is no legal objection to the Department's render-\ning drafting assistance to a Member of Congress or a Congressional\ncommittee which requests it -- or volunteering such assistance\nwhen the Department deems 10 appropriate,\n3. There is no legal objection to the Department's placing\nmembers of its staff at the disposal of a Congressional committee\nwhich is meeting in executive session either to study or to mark\nup a bill. 26/\n4. There is DO legal objection to the Department's request-\ning permission for a representative to testify at public hearings\nof a Congressional committee. Whether a request will be granted\nis, of course, within the discretion of the committee and it is\ntherefore desirable, if possible, to ascertain in advance of the\nrequest what the reaction is likely to be.\n5. Representatives whom the Department sends to the Capitol\nshould leave no doubt that they are acting solely in an official\ncapacity and they should make certain that any Department views\nand positions they may present are identified as such rather than\nas their own personal views.\nAttachments\n26 / It is interesting to note that an Executive Branch employee,\nBenjamin V. Cohen, was present on the floor of the House of-Repre-\nsentatives during a session in 1934 at the request of Speaker\nRayburn, then Chairman of the Committee on Interstate and Foreign\nConserce, to aid him in explaining the bill that became the Secur-\nities Exchange Act of 1934. 78 Cong. Rec. 7943-44, May 2, 1934.\n- 9 -\nFORD\nGERALD\nLIBRARY\nCC\n11:33\nMEMORANDUM FOR THE ATTORNEY GENERAL\nRs: Use of Presidential yachts by cabinet\nofficers to advocate legislative pro-\nTo\ngrams to Members of Congress.\nYou have asked whether there is any statutory bar to\nthe use of Presidential yachts by cabinet officers to hold\nreceptions for Members of the Congress in the course of\nwhich their support is solicited for pending Administration\nlegislation. In my view, there is no such bar.\nTwo statutory provisions bear on the subject. The\nfirst is 18 U.S.C. 1913 (enacted in 1919, 41 Stat. 68),\nwhich forbids any officer or employee of the United States\nor of any department or agency thereof, upon pain of criminal\nprosecution and removal from office or employment by the\nsuperior officer vested with the power of removal, to use,\nin the absence of express authorization by Congress, appro-\npriated funds\n\"directly or indirectly to pay for any personal\nservice, advertisement, telegram, telephone,\nletter, printed or written matter, or other de-\nvice, intended or designed to influence in any\nmanner a Member of Congress, to favor or oppose,\nby vote or otherwise, any legislation or appro-\npriation by Congress, whether before or after\nthe introduction of any bill or resolution\nproposing such legislation or appropriation.\"\nAn exception is provided for communications \"to Members of\nCongress on the request of any Member or to Congress, through\nthe proper official channels\" regarding \"requests for legis-\nLation or appropriations which they deem necessary for the\nefficient conduct of the public business.\"\nFORD is LIBRARY 9ERALD\nThe second statutory provision appears in a variety\nof appropriation acts, reading substantially to the effect\nthat --\n\"No part of any appropriation contained in\nthis Acc, or of the funds available for expendi-\nture by any corporation or agency included in\nthis Act, shall be used for publicity or propa-\nganda purposes designed to support or defeat\nlegislation pending before the Congress. 1/\n1. At the outset it should be noted that there are\nno judicial or formal administrative precedents construing\neither of these provisions. There are, however, a number\nof departmental studies that have been made at various\ntimes. A fairly recent study was prepared by this Office\nin 1961 in connection with a complaint by Congressman\nGross to the Attorney General involving Sargent Shriver,\nthen Director of the Peace Corps, and Bill Moyers, then\none of its employees, who had conferred with various Con-\ngressmen to enlist their support of a bill to astablish\nthe Peace Corps on a statutory basis. 2/ This study con-\ncluded that the activities of Mr. Shriver and Mr. Moyer\ndid not violate either of the provisions. It was said\nthat the appropriation act provision had no application\nbecause, as disclosed by its legislative history, it was\nconcerned with the expenditure of appropriated funds \"for\npersonal services and publications intended to affect the\ncourse of legislation by molding public opinion,\" and not\nwith \"purely private meetings by Executive Branch officials\nwith Members of Congress.\" II was also concluded that 18\nU.S.C. 1913 had the same objective, and that its words\ncould not be construed literally since to do so would lead\nto absurd results in that it would preclude uninvited leg-\nislative communications from Executive Branch officials to\nMembers of Congress -- a prohibition which could not be\ny See, e.g., $ 301, Independent Offices and Department\nof Housing and Urban Development Appropriation Act, 1969.\nP.L. 90-550; 32 Stat. 937.\n21 For your convenience a copy of the stuay is attached.\n- 2 MP\nFORD & LIBRARY 076830\nobserved without great harm to the lawmsking process.\"\nFinally, it was noted that a 1949 report of 3 House Select\nCommittee on Lobbying had recognized that by virtue of the\nprovision in Article II, $ 3 of the Constitution requiring\nthe President to recommend to the Congress \"such measures\nas he shall judge necessary and expedient\" --\n\"the executive branch, and particularly the\nChief Executive and his official family of\ndepartmental and agency heads, inform and\nconsult with the Congress on legislative\nconsiderations, draft bills and urge in mes-\nsages, speeches, reports, committee testimony\nand by direct contact the passage or defeat\nof various measures.\"\n2. My own analysis of the problem leads me to concur\nin the conclusions heretofore reached by this Office, although\nit must be admitted that the literal language of 18 U.S.C.\n1913 Lends itself to the view that \"uninvited\" legislative\ncommunications to Members of Congress are impermissible. In\norder to reach a construction of the statute which is both\nconstitutional and sensible, It is necessary to read into.\nits language & limitation that what it prohibits is the use\nof appropriated funds to pay for any of the proscribed items\nthat are directed to the public. For example, it would be\nimproper to use the Presidential yachts to hold receptions\nfor private citizens as a device designed to induce them to\nspeak or write to Members of Congress to favor or oppose\nlegislation.\nWilliam H. Rehnquist\nAssistant Attorney General\nOffice of Legal Counsel\nAttachment\n4\nFORD\n- 3 -\nGERALD\nLIBRARY\nJAN 12 1970\nMEMORANDUM FOR THE HCNORABLE BRYCE N. HARLOW\nCounsellor to the President\nIn accordance with your request, I enclose\nAutiliz\na brief memorandum for executive congressional\nliaison officials concerning the scope of restric-\ntions on executive lobbying before the Congress.\nWilliam H. Rehnquist\nAssistant Attorney General\nOffice of Legal Counsel\nGERALD LIBRARY 4\nJ\nMEMORANDUM\nRe: Restrictions on executive lobbying\nbefore the Congress.\nYour attention is called to the federal anti-lobbying\nstatute (18 U.S.C. 1913) which prohibits, upon pain of crimi-\nnal prosecution and removal from office or employment, the\nuse, in the absence of express congressional authorization,\nof appropriated funds to pay for any personal service, com-\nmunication, or other device intended to influence a Member\nof Congress to favor or oppose any legislation.*/ An excep-\ntion is provided with respect to official communications to\nMembers of Congress on the request of any Member, or to\nCongress, regarding requests for legislation or appropria-\ntions.\nThe precise kinds of activities proscribed by 18 U.S.C.\n1913 are not clear, judicial precedents being lacking as a\nguide. (See attached appendix for activities reviewed by\nthe Department of Justice.) An obvious lobbying attempt would\nconsist of a public distribution of a statement by a department\nor agency official advising the recipients to urge their repre-\nsentatives in Congress to vote in a particular way on a specific\nitem of legislation. Apart from such clear evasions, the House\nSelect Committee 01 Lobbying Activities has recognized the\ntraditional role of officials in the executive branch \"to\ninform and consult with the Congress on legislative consid-\nerations, draft bills and urge in messages, speeches, reports,\ncommittee testimony and by direct contact the passage or de-\nfeat of various measures,\" H, Rept. No. 3138, 81st Cong.\n2d Sess., P. 52 (1950). Similarly, the Department of Justice\n*/ A federal statute also prohibits the use of appropriated\nfunds for the compensation of publicity experts, unless spe-\ncifically appropriated for that purpose. 5 U.S.C. 3107. In\naddition, Congress has, in various appropriation acts, imposed\nspecific restrictions against lobbying with federal funds.\nFORD\nGERALD\nLIBRARY\n2\nhas expressed the view that the statute does not override\nthe responsibility of the executive branch to make known the\nviews of the Administration on measures pending in Congress.\nIt should be noted, however, that in recent years some\nexecutive branch unsolicited communications to Members of\nCongress regarding pending legislation have been the subject\nof criticism, and on occasion a Member of Congress has brought\nthe matter to the attention of the Department of Justice for\ninvestigation and possible prosecution. Although no prosecu-\ntions have been brought, the Department carefully investigated\nthe facts of each case.\nIt is suggested that if an official has doubt as to\nwhether his proposed activity relating to legislation is\nforbidden he should consult his department's or agency's\nchief legal officer.\nFORD :- 02RALD LIBRARY\nAPPENDIX\nA. Examples of activities viewed by the Department\nof Justice as not being contrary to 18 U.S.C. 1913:\n1. Letter of August 19, 1966, from Secretary of\nAgriculture to all Members of Congress as distinguished\nfrom Committee members in which the Secretary briefly\nanalyzed two pieces of legislation (the Child Nutrition\nAct and the Community Development District Act), and\nconcluded with the statement: \"I urge your support of\nthese important measures.\"\n2. Prior to enactment of the State Technical\nServices Act of 1965, Department of Commerce officials\ndiscussed the advantages of the bill with interested\nindividuals and organizations, urged support for the\nbill in correspondence, and while not directly, \"at\nleast inferentially\", encouraged various persons to\npresent the favorable aspects of the bill to Members\nof Congress. The Attorney General felt that these ac-\ntivities did not demonstrate \"the ultimate in discreet\njudgment\", but that there was no criminal violation.\n3. Memorandum and material sent in 1967 to Members\nof the Congress by the Vice President as Chairman of\nthe President's Council on Youth Opportunity urging\ntheir support in the Stay-in-School campaign. Since this\nmaterial did not relate to pending legislation, but was\nmerely a part of the effort to have Members of Congress\nparticipate in the program, it was not contrary to 13\nU.S.C. 1913.\nB. Example of proposed activity which the Department\nof Justice felt might be contrary to 18 U.S.C. 1913, if\ncarried out:\n1. Unsolicited widespread distribution (100,000\nFORD\ncopies) of the President's 1968 Farm Message,\nGERALD\nLIBRARY\nASSISTANT ATTORNEY GENERAL\nOFFICE OF LEGAL COUNSEL\nDepartment of Justice\nMashington, D.C. 20530\nNOV 11 1974\nMEMORANDUM TO KENNETH A. LAZARUS\nAssociate Counsel to the President\nI enclose three OLC memoranda relevant to the effect of\nthe \"antilobbying\" provisions of Federal law upon activities\nof the Executive branch.\nThe basic memorandum is the first, written by Mr.\nKatzenbach and dated October 10, 1961. The last two, dated\nMay 14, 1969 and January 12, 1970, respectively, reflect the\nadherence of Mr. Rehnquist to the position taken earlier.\nFor the record, I will note my own concurrence: Considerations\nof legislative history, consistent practice and constitution-\nality favor a restrictive reading of 18 U.S.C. 1913, so as to\napply its prohibitions only to attempts by the Executive\nbranch to influence the Congress through the public. We do\nnot interpret it to prohibit direct contact between author-\nized members of the Executive branch and the Congress itself.\nAs these memoranda reflect, however, there are occasions\non which individual congressmen have asserted a contrary\nprinciple. Needless to say, we have no interest in provoking\na conflict on the point. To avoid it, legislative contacts\nshould be handled at relatively high levels. I think it is\nthe prospect of hundreds of faceless bureaucrats running\nabout the halls of Congress which causes concern.\nScalia\nAssistant Attorney General\nOffice of Legal Counsel\nFORD LIBRARY\nAMERICAN REVOLUTION INFORMATION\n1176\n1776-1976\nTHE WHITE HOUSE\nWASHINGTON\n10/31/74\nTo:\nKen Lazarus\nFrom: Phil Buchen\nCould you please prepare\na response for me to\nsend to Bill Timmons.\nThanks.\nFORD & LIBRARY GLUBTO\nTHE WHITE HOUSE\nWASHINGTON\nOctober 30, 1974\nMEMORANDUM FOR:\nPHILIP W. BUCHEN\nFROM:\nWILLIAM E. TIMMONS\nSUBJECT:\nLobbying\nI have received through Don Rumsfeld your memorandum\non Standards of Conduct for WH employees.\nThe paragraph on Lobbying reminded me to raise an\nissue with you which is peculiar to the operations of the\nOffice of Legislative Affairs. While we like to think\nwe are providing information to Members of Congress,\na reasonable case could be made that we are in fact\nlobbying under a strict interpretation of the law. How-\never, the Constitution gives the President certain\nlegislative responsibilities and powers: Messages to\nCongress, calling Special Sessions, signing or vetoing\nlegislation, etc. As agents of the President we do work\nto obtain measures that are acceptable to the President - -\nand try to defeat bills that are unacceptable.\nThe question is what constitutes improper lobbying\nactivities. Are there guidelines that should be followed\nin dealing with Members of Congress?\ncc: Donald Rumsfeld\nFORD is LIBRARY"
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