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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Anti-Lobbying
Box: 2
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection.
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
anti. lobbyy
THE WHITE HOUSE
WASHINGTON
February 23, 1981
MEMORANDUM FOR MEMBERS OF THE WHITE HOUSE OFFICE STAFF
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Support of Administration Legislative Programs
This memorandum is intended to alert members of the White
House staff to proscriptions on lobbying activities imposed
by federal law and to provide general guidelines to staff
members working in this area so as to insure compliance with
those laws.
Simply stated, the so-called "Anti-Lobbying Act" (18 U.S.C.
$1913) prohibits the use of appropriated funds, directly or
indirectly, to pay for "any personal service, advertisement,
telegram, telephone, letter, printed or written matter or
other device" intended to influence a Member of Congress in
acting upon legislation, before or after its introduction.
There is also an appropriation rider, which has appeared in
appropriation bills since 1951, barring the use of appropriated
funds for "publicity or propaganda purposes" designed to
support or defeat legislation pending before Congress.
Interpretations of 18 U.S.C. $1913 by the Department of
Justice make it clear that an employee of the Executive
Branch, while acting in his or her official capacity, may
communicate with a member of Congress for the purpose of
providing information or soliciting that member's support
for the Administration's position on matters before Congress,
whether or not such contact is invited and whether or not
specific legislation is pending. Thus, the ordinary and
traditional inter-action between the Executive and Legislative
Branches is permitted. Likewise, ait is not improper for an
Executive Branch employee to provide legitimate informational
background and material to the public in support of an Administra-
tion policy effort.
Problems arise where employees of the Executive Branch become
involved, directly or indirectly, in efforts to induce or
encourage members of the public to lobby members of Congress
on Administration programs or legislation. Unfortunately,
the line separating proper and improper conduct is imprecise
- 2 -
and the propriety of an activity may well depend on each
individual situation. The following comments and examples
are intended to provide general guidance for the more
frequently encountered contacts and activities:
1) Executive Branch officials may speak freely in meetings
with individuals or groups, at public forums, at news con-
ferences, and during news interviews, but where these appear-
ances of personnel become so excessive as to be deemed to be
a publicity campaign, the activity might be challenged. Any
undue degree of direct contact with the private sector by
persons who do not ordinarily engage in such activities is
evidence of prohibited conduct.
2) Appropriated funds should not be used to produce written,
printed or electronic communications for distribution with
the intent to induce members of the public to lobby members
of Congress. For example, an organized mailing to members
of the public initiated by Executive Branch personnel, stating
the Administration's position and asking the recipients to
contact their Senators and Representatives in support of that
position should be avoided. Moreover, asking recipients to
contact their elected representatives should also be avoided
in communications sent in response to inquiries received by
the Executive Branch. However, responses to incoming communi-
cations may include information which responds to the specific
inquiries as well as explanations of the Administration's position
on matters of public policy, including proposed legislation.
Massive distribution by the Executive Branch of unsolicited
copies of a public document, such as the reprint of a public
official's speech or other informational materials, may
raise a question even though the contents are only informa-
tional and do not suggest that the recipients contact members
of Congress. Normal unsolicited distribution of press releases,
public officials' speeches, fact sheets and other informational
materials to persons, because of governmental or organizational
position or expression of interest in the subject matter,
would not ordinarily create a problem. Each such proposed
distribution must be separately judged based on the purpose
and content of the communication and the number and kind of
people who will receive the information.
3) Officials and employees of the Executive Branch may
properly have regular contact with non-governmental organiza-
tions which have among their purposes lobbying members of
Congress or attempting to influence the general public to
lobby the Congress. However, in these dealings, the officials
should not or even appear to dominate the group or use the
group as an arm of the Executive Branch.
- 3 -
(a) Examples of the kinds of activities in which Executive
Branch officials might participate in dealing with
independent outside organizations include:
(i) exchange information, as long as it is not
privileged.
(ii) make suggestions, respond to or raise
particular inquiries, or discuss the
merits of various legislative strategies
and related matters, so long as the Executive
Branch officials do not suggest organization
of grass roots pressure,
(iii) address meetings (non-fundraisers) sponsored
by such organizations:
(iv) Upon the request of an independent organization
provide to it for reproduction and distribution
by the organization:
-- sample copies of documents prepared by
Executive Branch officials (such as
press releases, public officials' speeches,
fact sheets) that are otherwise available
for public distribution.
-- letters on specific subjects written
by Executive Branch officials,
(Note that the materials must not suggest that the
recipients contact Members of Congress urging support
of particular positions; also the decision to publish
or distribute any such material must be left to the
independent organization
(b) Examples of the kinds of things which Executive Branch
officials should avoid include:
(i) responsibility for the on-going operation
of an outside organization;
(ii) requesting that an organization activate its
membership at large to contact members of
Congress on behalf of a legislative proposal;
(iii) gathering information or producing materials
specifically for such an organization which
cannot properly or would not ordinarily be
gathered or produced as part of the official's
regular work;
- 4 -
(iv) producing or providing multiple copies of
materials to be distributed by such organi-
zations;
(v)
requesting an organization to prepare or
distribute any materials that suggest directly
or indirectly that the recipients contact
members of Congress, or playing any substantial
role in advising an organization regarding
the content of material it may wish to distribute;
(vi) providing to such organizations lists of or
correspondence from persons who favor or oppose
particular policy positions;
(vii) involvement in fundraising activities
by such organizations (because of the varying
forms that such involvement might take, any
involvement should be discussed in advance
with the Counsel's office).
These legal provisions are not intended to prohibit an on-going
dialogue or interaction between the Executive Branch and the
public in an educational effort to explain Administration posi-
tions, but where that conduct develops into a publicity and
propaganda campaign designed or intended to pressure citizen
groups into contacting Congressional representatives, the
boundary of propriety has been crossed.
18 U.S.C. $1913 is a criminal statute and should be taken
seriously. In addition, any specific allegation against
White House staff members (Level IV and above) for violation
of 18 U.S.C. $1913 potentially could trigger the "Special
Prosecutors Act", 28 U.S.C. $591, et seq. The General
Accounting Office is also authorized to undertake audits
in this area, and any disallowed expenditures would have to
be borne by the individual supervising the activity that
resulted in the unauthorized use of government funds.
Because $1913 and the Appropriation rider have not often
been interpreted it is difficult to be more specific in
setting forth guidelines. Any difficult factual situation
should be brought to the attention of this office before
any action is taken.
Department of Justice
Mashington, D.C. 20530
NOV 2 y 1977
MEMORANDUM TO THE HONORABLE ROBERT J. LIPSHUTZ
Counsel to the President
Re: Anti-lobbying laws
Attached is the detailed review of the statutory re-
straints on lobbying activity by federal officials that
you have requested. Our re-examination of this area of
the law has led us to conclude that both 18 U.S.C. § 1913
and the series of "publicity or propaganda" appropriation
riders that have been enacted since 1951 were intended to
direct Executive branch efforts to affect public opinion
with respect to pending legislation away from the creation
of a government public relations arm and into the use of
more appropriate channels--public forums, the press,
and traditional lobbying activities involving citizen
groups and members of Congress.
In our view, neither provision will be violated so
long as no publicity campaign or other activity that
amounts to overreaching by the Executive branch is under-
taken; conduct which qualifies as overreaching presents
a problem whenever it explicitly or implicitly calls for
citizen action in contacting Congressional representatives.
Although we have discussed this fairly straightforward
rule at some length, we must continue to advise you that
particular fact situations may involve close questions of
interpretation that necessitate individualized consideration.
Each case stands on its facts. While we hope this memorandum will
provide general guidance, we will continue to do our best to advise you
of the applicability of the anti-lobbying laws to specific proposed
activities.
John Assistant John M. Marman Harmon Attorney
General
Office
of
Legal
Counsel
Department of Justice
Mashington, D.C. 20530
NOV 2 9 1977
MEMORANDUM TO THE HONORABLE ROBERT J. LIPSHUTZ
Counsel to the President
Re: Statutory Restraints on Lobbying Activity by
Federal Officials
This is in response to your request that we review
the provisions of federal law prohibiting the use of
appropriated funds for lobbying purposes in order to
provide guidance for the White House in its activities
in support of the President's legislative program.
In doing so, we have re-examined the advice previously
given by this Office, and, in some instances, have found
that advice to be inconsistent with what we believe to
be the correct interpretation of the applicable statutes.
Although we have attempted, in the course of the ensuing
discussion, to provide general guidance concerning the
application of these statutes, we must at the same time
express a note of caution; the many situations that arise
under the anti-lobbying laws cannot be adequately evalu-
ated in the abstract, but must instead be considered on the
basis of their individual facts. This memorandum, there-
fore, cannot and does not purport to eliminate the need
for specific legal advice on specific fact situations.
I. Introduction: Historical Context
The two primary legal constraints on lobbying
activity by federal officials--18 U.S.C. § 1913, prohibit-
ing use of federal funds to influence legislation, and
a rider barring use of appropriated funds for "publicity
orpropaganda purposes" 1 that has appeared in appropria-
tion bills since 1951 --can best be understood in historical
1/ Section 1913 provides for fine and/or imprisonment
and removal from office in the event of violation; failure
to comply with the rider will result in GAO's disallow-
ance of the improper expenditure.
context. Since the turn of the century Congress has
attempted in various ways to control perceived excesses
that have arisen as the Executive branch has evolved.
No longer merely providing necessary support for the
Presidency, the Executive branch has become a force in
its own right, 21 achieving the status of an independent,
institutional bureaucracy. The anti-lobbying laws are
merely variations on this simpler theme, particular
examples of a continuing effort by Congress to check
the expanding activities of the federal bureaucracy
3/
not directly related to any statutory program or mission.
At the turn of the century, heads of federal agencies
frequently engaged in deliberate attempts to expend appro-
priated funds in less than the authorized available period
in order to compel Congress to pass supplemental appro-
priations bills to maintain essential services. Congress
responded by adopting criminal sanctions for such unauthor-
ized expenditures in an effort to instill a renewed appre-
ciation in the agency heads for their individual responsi-
bility under law to observe spending limitations ordained
by Congress. 4, In 1913, an effort was. made to curtail
the open practice of hiring "publicity experts" to enhance
agency reputations. The subsequent passage of what is
now 18 U.S.C. § 1913 in 1919 demonstrates the inadequacy
of the earlier "publicity expert" measure. 67 As the
legislative history of section 1913 reveals, agency heads
had begun to take. more direct action to enhance their bar-
2/ H.R. Rep. No. 2474, 80th Cong., 2d Sess. 8 (1948).
3/ The 1939 debate on the Hatch Political Activity Act
revealed concern about overreaching of another sort, the
practice engaged in by officials of requiring their
subordinates to contribute to political campaigns. See
84 Cong. Rec. 9594-9674 (1939).
4/ See L. Wilmerding, The Spending Power; A History of
the Efforts of Congress to Control Expenditures 137-179 (1943)
5/ See 5 U.S.C. § 3107, Act of October 22, 1913, ch. 32,
§ 1, 38 Stat. 212. See also 50 Cong. Rec. 4409-4411 (1913).
6/ Third Deficiency Appropriations Act, Fiscal Year 1919,
Act of July 11, 1919, ch. 6, § 6, 41 Stat. 68.
-2-
gaining position, using federal funds to contact members
of the public to urge them to lobby Congress on the
agency's behalf. The adoption of the first "publicity
or propaganda" appropriation rider in 1951 was also
stimulated by perceived bureaucratic excesses, an
inordinate flow of government publications and the
related growth of the number of personnel employed in
connection therewith under titles other than "publicity
expert.
7/ The legislative history of the provision is quite
limited. The following statement by Representative
Good, the deficiency bill's floor manager in the House,
is the single recorded explanation for the section's
inclusion:
It is new legislation, but it will pro-
hibit a practice that has been indulged in
so often, without regard to what adminis-
tration is in power--the practice of a
bureau chief or the head of a department writing
letters throughout the country, sending tele-
grams throughout the country, for this organiza-
tion, 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 chairman of this
committee, during the closing days of the last
Congress was greatly worried because he had on his
desk thousands upon thousands of telegrams that
had been started right here in Washington by some
official wiring out for people to write 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 appro-
priate money for this purpose, and section 5 of
the bill will absolutely put a stop to that
sort of thing. 58 Cong. Rec. 403 (1919).
8/
See 97 Cong. Rec. 5474-5475, 6733-6739, 6795-6799
(1951).
-3-
A pattern emerges from these somewhat varied statutes.
Many of these measures were stop-gaps, arrived at via
floor amendment, subject to only limited debate, drawn
in language that was acknowledged to be unclear. 9
We
believe that they can best be understood as part of a
trend, as attempts to accomplish the obvious, not a more
subtle or more complex goal. With this in mind, we will
first examine the appropriation rider which represents
the culmination of that trend.
II. Appropriation Rider
The rider limiting the use of appropriated funds for
"publicity or propaganda purposes" has taken several forms.
As applicable to the Executive Office of the President it
reads:
No part of any appropriation contained in this
or any other Act, or of the funds available for ex-
penditure by any corporation or agency, shall be used
for publicity or propaganda purposes designed to
support or defeat legislation pending before Congress.
90 Stat. 963, 978 (1976)
9/ See 97 Cong. Rec. 6798 (1951).
10/ The following alternative formulation has also been
used:
No part of any appropriation contained in
this Act shall be used for publicity or propaganda
purposes not authorized by the Congress.
90 Stat. 937, 961 (1976).
The language of the two formulations differs in three
respects. The first rider refers to "this or any other
Act," while the second applies only to "this Act." The
broad language of the former provision thus appears
to govern in any case. The second rider also lacks any
direct reference to legislation and any specific limita-
tion to matters "pending" before Congress. It is un-
likely that any more far-reaching limitation was intended
than that embodied in the first formulation, however. It
should be noted that in this regard the rider is techni-
cally less restrictive than section 1913, which applies
to both pending and as yet unproposed legislation. No
such rider is found in the appropriations measure govern-
ing the legislative brach. See, e.g., 90 Stat. 1439.
-4-
The words "publicity" and "propaganda" have related conno-
tations; they refer to a common goal, the spreading of a
partisan message, to a common target, some segment of the
public. The rider thus, in terms, addresses mass distri-
bution, the use of federal funds to underwrite a dissemina-
tion of some magnitude. While the limited Congressional de-
bate on the earlier riders focused particularly upon
publications, there is no need to give the phrase such a
limited meaning. What was to be avoided was the uncon-
trolled development and use of an in-house government
public relations machine, whatever its varied manifesta-
tions and whatever the qualifications of its supporting
personnel. 11/
Negative inferences can also be derived from the
formulation of the rider and the related debate, especial-
ly when read in light of the historical context discussed
earlier. There is no suggestion that the practice of
government officials in dealing with the press or in
giving public speeches was to be curtailed. Constitu-
tional principles support this view. The press needs
free access to all available sources--especially to
those responsible for arriving at important policy
decisions-- in order to facilitate the carefully pro-
tected democratic dialogue, see Branzburg V. Hayes,
408 U.S. 665 (1972). Moreover, the people need to hear
such views in order to remain informed, cf. Kleindeinst
V. Mandel, 408 U.S. 753 (1972), and to exercise the
franchise intelligently.
There is also no indication that Executive branch
"lobbying" of Congress or of particular citizen interest
groups was to be curtailed. Such communications are
unlikely to rise to the level of "publicity or propa-
ganda" in any event. Moreover, the important role of
high-level officials in advocating the President's legis-
lative program 12/ to members of Congress has deep roots
in
history;
so, too, does the Presidential practice
11/ Congress can, of course, authorize employment of
such personnel to the extent it deems necessary to accom-
plish legitimate government objectives.
12/ See N. Small, Some Presidential Interpretations of
the Presidency, 164-166 (1970). Such practices date
back. to the time of Jefferson and Hamilton.
-5-
of appealing 137 for public support of Administration posi-
tions.
Congressional incursion into such realms can-
not lightly be assumed. Absent more express language and
more evidence of a purpose to so intrude, we believe that
the appropriation rider should be read as principally
designed to meet the immediate evil perceived by Congress--
the unchecked growth of a government public relations arm
used to disseminate agency appeals to the public at large--
not as an effort to interfere unduly with the normal and
healthy functioning of the body politic.
Although the limited scope of the rider's prohibition
is therefore clear, further consideration of its precise
application is still necessary. In the first instance,
it may be said that the rider is directed toward non-
news sorts of disseminations. No problem of compliance
therefore is presented where the press itself seeks in-
formation or views from federal officials on pending
legislation, or when federal officials provide statements
to the press. In either case, the press itself opera-
tionally defines what is news and will not normally
publish government (or non-government) submissions that
do not meet that standard. Nor do all communications
directed specifically to the public come within the rider.
No interference with the initial expression of an
official's opinion is intended, rather a limitation is
imposed upon the subsequent dissemination by the
Government of those views when they no longer qualify
as a news event, e.g., the mass mailing of unsolicited
copies of an official, 147 speech urging support of par-
ticular legislation.
13/ Id. at 181. Although the practice of appealing
to the people through the press seems to have reached
new prominance during the tenure of Theordore Roosevelt
and Woodrow Wilson, its origins are much older; Andrew
Jackson and Abraham Lincoln are reported to have engaged
in such activity.
14/ In our view, a Presidential speech to the nation that
is voluntarily carried over radio and television by the
major networks will under most circumstances qualify as a
news event. Speeches by lower level officials appearing
in public forums will also often constitute protected news-
type communication. Extensive campaigns in support of
Administration proposals may, however, become so excessive
as to amount to forbidden overreaching by the Executive
branch. Under some circumstances, therefore, expression
that is ordinarily outside the scope of the rider may well
rise to the level of propaganda.
-6-
Not all dissemination of non-news material relating
to pending legislation is forbidden, of course. The role
of the federal government in providing "information" has
traditionally been recognized as proper, 157 although
even neutral, well-intentioned communications of this
sort have at one time been criticized as excessive and
therefore inappropriate. 16 The line between forbidden
"propaganda" and permitted "information" is therefore
not a precise one.
Guidance can be derived, however, by reference to
the rider's more explicit prohibition of propaganda
"designed to support or defeat legislation." Purportedly
informational communications may be seen to fall within
this language due to any one of several failings. An
explicit or implicit call for citizens to contact their
Congressional representatives with their views involves
a clearly forbidden effort in the nature of propaganda
to influence legislation. I77 Partisan expressions are
also suspect, although a resolution in favor of one
side of a question is not forbidden so long as a sufficient-
ly full and fair exposition of the facts is made so as to
permit an individual or the 187 public to form an independent
opinion or conclusion. Excessive distribution of even
15/ H.R. Rep. No. 3138, 81st Cong., 2d Sess. 59 (1950).
16/ See, e.g., 97 Cong. Rec. 6735 (1951) for Congression-
al criticism of such publications as "ECA's Dilemma--Can
Elephants and Water Buffalos Outwork Machinery?" But see
97 Cong. Rec. 6797 (1951) for a defense of Department of
Agriculture publications concerning fleas.
17/ See Comp. Gen. Dec. B-164105 (August 10, 1977) which
interprets the publicity or propaganda rider as precluding
"appeals addressed to the public suggesting that they con-
tact their elected representatives and indicate their sup-
port or opposition to pending or proposed legislation,
i.e., appeals to members of the public for them in turn to
urge their representatives to vote in a particular manner."
In our view, use of words short of an express request to
"write Congress" can constitute an appeal.
18/ Treas. Reg. 1.501 (c) (3) (d) (3) (1976) adopts an
analogous approach in defining the proper scope of exemp-
tion for charitable organizations under the tax law.
-7-
neutral material may also constitute the sort of over-
reaching forbidden by the statute, as can distribution
on a non-neutral basis to certain segments of the popula-
tion.
Although we cannot anticipate and discuss all poten-
tial problems, we suggest that compliance with a rather
simple guideline should assure conformance with this facet
of the law: federal officials are free to speak their
minds to the press and to the public in all respects;
what they must avoid is any effort to serve as their own
press by cranking out their own propaganda for distribu-
tion via any of a variety of media or by shifting personnel
resources into the field of public relations without
Congressional authorization.
III. 18 U.S.C. § 1913
The language 197 of section 1913 is rather sweeping
and unclear:
19/ No criminal prosecutions have been undertaken pur-
suant to this provision; nor are formal administrative
interpretations or useful judicial constructions avail-
able to assist in defining its scope. Only two cases
involving section 1913 are reported. In National Associ-
ation for Community Development V. Hodgson, 356 F. Supp.
1399 (D.D.C. 1973), private plaintiffs sought to prevent
the Department of Labor from providing any federal funds
to an organization of state unemployment offices which
plaintiffs claimed engaged in lobbying activities. The
court failed to uncover section 1913's somewhat obscure
legislative history. Rather, it attempted to derive some
understanding of the legislative intent by analogy to
the Federal Regulation of Lobbying Act, a statute en-
acted more than 25 years later for quite different pur-
poses. Little useful insight may therefore be gained
from this decision. The court in American Public Gas
Association V. Federal Energy Administration, 408 F.
Supp. 640 (D.D.C. 1976), the only other reported case
dealing with section 1913, spoke but briefly of the
statute, since it found that the requirements for in-
junctive relief, the remedy sought by private plaintiffs,
had not been met. The only relevant scholarly commentary,
Engstrom & Walker, "Statutory Restraints on Administrative
Lobbying--Legal Fiction," 19 J. Pub. Law 89 (1970), pre-
ceded these decisions and adds no helpful insight.
-8-
No part of the money appropriated by
any enactment of Congress shall, in the ab-
sence of express authorization by Congress,
be used directly or indirectly to pay for
any personal service, advertisement, telegram,
telephone, letter, printed or written matter,
or other device, intended or designed to influ-
ence in any manner a Member of Congress, to
favor or oppose, by vote or otherwise, any
legislation or appropriation by Congress,
whether before or after the introduction of
any bill or resolution proposing such legis-
lation or appropriation; 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, re-
quests for legislation or appropriations
which they deem necessary for the efficient
conduct of the public business.
Although titled "Lobbying with appropriated funds" in
the most recent version of Title 18 of the United States
Code (which has been enacted into positive law) the
provision first appeared in codified form in 1926 as "Use
of appropriations to pay for personal services to in-
fluence Member of Congress to favor or oppose legisla-
tion." Like the other legislation previously discussed,
this stop-gap rider sought to stem the growing federal
bureaucracy's tendency to abandon ordinary straight-
forward contact with the Congress in preference for
more indirect and perhaps more persuasive channels of.
communication. The statute does enumerate the possible
vehicles of abuse "personal services" (the "publicity
expert" found offensive six years earlier), "advertise-
ment, telegram, telephone, letter, printed or written
matter," or "other device" (any unspecified machination,
plot or procedure). It fails, however, to identify
either the context in which its prohibition is to apply
or the contents of such communications. deemed to be
offensive. Both omissions can be easily explained.
The intent of Congress was to bar improper use of any of
the listed devices--excessive, overreaching, abusive
utilization of any such channel- but not their routine
use as a matter of course. To frame a statute in terms
of "improper use, or yet to attempt to put into words a
clear definition of such organic abuse while at the same
time exempting "proper" use, is, of course, a practically
-9-
hopeless exercise. No mention of forbidden content
appears for yet a more obvious reason; no regulation of
content was intended, only the eradication of improper
and abusive use of the channels of communication.
We therefore conclude that section 1913 should be
given no broader scope than the appropriation rider.
It does not refer to speeches or newspapers; it intends
no incursion into the realm of First Amendment interests
earlier discussed. As long, therefore, as a federal
official limits himself to public forums and relies
upon normal workings of the press, he may say anything
he wishes without fear of violating section 1913. 207
Nor is it necessary to censor the content of Executive
branch correspondence; only the abusive use of letters
in a way that exceeds the bounds of proper official con-
duct falls within the statutory prohibition. 217
More subtle implications arise, however, in connec-
tion with traditional lobbying conduct, by virtue of the
statute's peculiar language: "No money
shall
be used directly or indirectly to pay for
[any]
device, intended or designed to influence in any manner
a Member of Congress, to favor or oppose, by vote or
otherwise, any legislation or appropriation
11
Unlike the appropriations rider discussed earlier,
section 1913 is not cast in words that clearly encompass
only broad appeals to the public. The statute would
therefore appear to apply in certain situations in-
volving more individualized contact. There is really
no reason to so extend the force of the provision, how-
ever. The well-established tradition of Executive-
20/ As noted earlier at note 14, however, he cannot en-
gage in an excessive speech-making campaign that amounts
to an attempt to propagandize the public from the podium.
21/ For example, a campaign to contact a large group of
citizens by means of a form letter prepared and signed
by a federal official would be improper. Mentioning
the need for support of a particular legislative proposal
would, on the other hand, be permissible, where the re-
quest appeared in a limited number of individual letters
sent to persons with whom the official had had previous
contact concerning related matters of policy. Factual
situations that fall between these two extremes may or
may not constitute the kind of abusive overreaching that
section 1913 sought to prevent; each such situation must
therefore be examined on its own merits.
-10-
Legislative branch contacts concerning legislation is
recognized in the statute's savings clause: "but
this shall not prevent officers or employees of the United
States or of its departments or agencies from communicat-
ing to Members of Congress, on the request of any Member
or to Congress, through the proper official channels, re-
quests for legislation or appropriations which they
deem necessary for the efficient conduct of the public
business. " Moreover, the statute, as seen in historical
context, was not intended to apply to such conduct in
the first place. Thus, the savings proviso, although
specifically speaking only of responses to requests by
Members of Congress and communications to Congress as a
whole, can be read merely as reassurance to federal
employees that they might continue to send practical
suggestions to Congress, 227 not an attempt to brush
away, by implication, years of practice based on
well-recognized practical and constitutional necessity.
Similarly, Executive branch contact with individual
citizens and citizen groups could not be significantly
curtailed without grave injury to First Amendment
interests. The people have a right to petition the Gov-
ernment, including the Executive branch, for redress
of grievances, California Motor Transport V. Trucking
Unlimited, 404 U.S. 508, 510 (1972) that right would seem
to extend to petitions for Executive support of legisla-
tive programs as well. Such contacts are also of great
practical importance in providing the Executive branch 23/
with information necessary to its proper functioning.
This information may be factual, highlighting the exis-
tence of social problems and serving as a basis for pro-
posed remedial legislation; it may also pertain to the
political climate, an important factor in gauging whether
various proposals command sufficient public support to
warrant their submission to Congress. Express recognition
of the need for comparable freedom of action in the public
22/ This inference arises from the Congressional
debate over a proposed amendment to section 1913 that
was ultimately rejected. See 58 Cong. Rec. 425-426 (1919)
23/ See Hearings before House Select Committee on Lob-
bying Activities, 81st Cong., 2d Sess., pt. 10, at
44-45 (1950).
-11-
sphere is reflected in the approach taken by the Hatch
Political Activity Act, 247 and in the conclusions of
the House Select Committee on Lobbying which investi-
gated the lobbying activities of federal agencies and
24/ Such sentiments were voiced repeatedly during the
course of the Congressional debate on the Hatch Political
Activity Act, Act of August 2, 1939, ch. 410, 53 Stat. 1149:
MR. CELLER: 11
Just imagine, the President
endeavoring to test out some theory, measure,
plan or policy, and being unable to permit one of
his trusted lieutenants to sound out public opin-
ion by making a political speech."
84 Cong. Rec. 9624 (1939).
MR. WHITE: "
A President of the United
States should have the right to defend his
record in the arena of politics, and the same
thing is true of a Cabinet member or policy-
making officials who naturally must defend the
policies for which they are responsible in the
field of political activity."
84 Cong. Rec. 9630 (1939).
MR. HATCH:
"
As I have often said, when
policymaking officials of the Government,
such as the President and Members of the
Cabinet inaugurate and carry on great policies
of government, they must necessarily frequently
go before the country and the people and explain
their policies, and often it is true that they
must defend them when they are assailed. It is
but right and proper that they should have the
full privilege of doing so, and the bill now
so provides.
84 Cong. Rec. 9672 (1939).
These views are reflected in section 9 (d) of the Act,
5 U.S.C. § 7324(d), which details those exempted from
coverage, including employees paid from the appropri-
ation for the office of the President, heads or assistant
heads of Executive or military deparments, and
certain policy-making officials appointed by the Presi-
dent with the advice and consent of the Senate.
-12-
25/
others in 1950.
It cannot lightly be assumed that
Congress intended to limit the subject matter to be
discussed in the course of such meetings between citizens
and federal officials so as effectively to chill this
protected discourse.
Interaction with citizen groups can, however, in
other circumstances, come within the statute's ban,
for citizen groups may be used in a variety of ways as
another "device" intended to influence legislation.
It is clearly improper under the statute to create or
to come to dominate a citizen group in order to
use that group as an alter ego or agent capable of carry-
ing out propaganda activities forbidden to the federal
official in the first instance. 267 Even more subtle
25/ Quoting from the Report of the Task Force on Depart-
mental Management of the Hoover Commission, the Committee's
interim report stated:
Apart from his responsibility as spokesman,
the department head has another obligation in a
democracy: to keep the public informed about the
activities of his agency. How far to go and
what media to use in this effort present touchy
issues of personal and administrative integrity.
But of the basic obligation there can be little
doubt.
H. R. Rep. No. 3138, 81st Cong., 2d Sess. 53 (1950).
With particular reference to high-level officials, the
Committee continued:
Their relation to the Chief Executive and their
public responsibilities on matters within their
jurisdiction impose duties of leadership in matters
of. public policy upon officers of Cabinet and near-
Cabinet rank. The traditional and statutory re-
quirements on the dissemination of information by
departments and agencies are a further expression of
the duties of the executive branch which sometimes
bear on legislative issues.
Id. at 59.
26/ Such conduct by Federal Security Administrator
Oscar Ewing in creating an organization to press for
adoption of a national health plan was expressly criticized
during the course of the 1950 hearings. See Hearings
before House Select Committee on Lobbying Activities,
81st Cong., 2d Sess., pt. 10, at 354-430 (1950).
-13-
relationships with citizen lobby groups may be subject
to question. Federal officers and employees cannot play
any integral part in even an independent lobbying organi-
zation where private funds would otherwise have to be
used to ensure that the functions they assume were per-
formed. Similarly, requesting even an independent group
to distribute a letter prepared by federal officials would
be forbidden. Congress intended that Executive branch
resources not be used for purposes of maintaining 21 a
private communications network of this sort.
Whatever strictures exist on interlocking relation-
ships between federal officials and citizen lobby groups,
it remains clear that officials can talk freely with
such citizen representatives on any sort of informal basis.
They can make suggestions, respond to or raise particu-
lar inquiries 28/ or discuss the merits of various lobbying
strategies.
They cannot, however, use this forum
to pass on to lobby groups information which the officers
themselves could 297 not properly collect or us e in the
first instance.
27/ Furnishing such a letter to an independent group upon
their request or signing a letter prepared by them may, on
the other hand, be permissible, for no federal overreach-
ing is involved and no obvious need to silence the unique
voice of the federal official from being heard through this
type of forum is apparent. However, in order to avoid
even the appearance of impropriety and the possible
issue of whether the official himself pressed the organi-
zation to issue the letter, it may be best to avoid such
alternatives and to rely upon the free and independent
forum available in the press.
28/ It would be permissible, for example, to share with
citizen groups data concerning Congre ssional voting records
or positions on pending legislation collected by members
of the White House staff in connection with their own
lobbying efforts.
29/ Thus, officials cannot use federal funds to under-
write unauthorized private polls of public opinion, then
provide citizen groups with the resulting statistics to
be used for lobbying purposes. Neither can they cull in-
coming mail in order to compile and then disseminate lists
of citizens who favor or oppose particular legislation.
Since officials could acknowledge the receipt of such
mail, but not undertake repeated mailings absent a request
to that effect, see 39 U.S.C. § 3204, they would lack a
legitimate use for such a list on their own account and
could not use federal funds to maintain this unique re-
source for the sole purpose of assisting private groups.
-14-
The many other ways in which public opinion can be
molded in order to influence legislation need not be
recounted here; in each case, the facts will control. 30/
Compliance with both the appropriations rider and with
section 1913 will be ensured through the Executive's
untrammeled use of normal press channels, public forums,
androutine personal contacts to gain 31, legislative ac-
ceptance of administration programs.
An John M. Harmon
MAimmon
Assistant Attorney General
Office of Legal Counsel
30/ For example, paying representative citizens to
attend an ad hoc confederence designed to stimulate
their support of legislative programs would be prohibited
under section 1913. See discussion of allegations
against Secretary of Agriculture Brannan in Hearings
before House Select Committee on Lobbying Activities,
81st Cong., 2d Sess., pt. 10, at 59-306 (1950).
31/ For purposes of this memorandum, we have not dis-
cussed the provisions of federal law which constrain
the use of federal printing facilities and penalty mail
privileges. The Federal Advisory Committee Act, 5 U.S.C.
App. I, 86 Stat. 770, may also be applicable if the
President or an Executive agency "establishes" or
"utlizes" a private "committee, board, commission,
council, conference, panel, task force, or other simi-
lar group
in the interest of obtaining advice or
recommendations.'
-15-
Department of Justice
Mashington, D.C. 20530
NOV 2 y 1977
MEMORANDUM TO THE HONORABLE ROBERT J. LIPSHUTZ
Counsel to the President
Re: Anti-lobbying laws
Attached is the detailed review of the statutory re-
straints on lobbying activity by federal officials that
you have requested. Our re-examination of this area of
the law has led us to conclude that both 18 U.S.C. § 1913
and the series of "publicity or propaganda" appropriation
riders that have been enacted since 1951 were intended to
direct Executive branch efforts to affect public opinion
with respect to pending legislation away from the creation
of a government public relations arm and into the use of
more appropriate channels--public forums, the press,
and traditional lobbying activities involving citizen
groups and members of Congress.
In our view, neither provision will be violated so
long as no publicity campaign or other activity that
amounts to overreaching by the Executive branch is under-
taken; conduct which qualifies as overreaching presents
a problem whenever it explicitly or implicitly calls for
citizen action in contacting Congressional representatives.
Although we have discussed this fairly straightforward
rule at some length, we must continue to advise you that
particular fact situations may involve close questions of
interpretation that necessitate individualized consideration.
Each case stands on its facts. While we hope this memorandum will
provide general guidance, we will continue to do our best to advise you
of the applicability of the anti-lobbying laws to specific proposed
activities.
John Assistant John Office M. of MArman Harmon Attorney Legal Counsel
General
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
June 8, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Draft Presidential Taping:
National Confectioners Association
Richard Darman has requested that comments on the above-
referenced proposed remarks be submitted directly to Aram
Bakshian by noon today. The remarks, to be taped, note the
contributions of confectioners to the economy, such as the
provision of over 70,000 jobs (presumably not including
dentists). The remarks then review the progress of the
recovery.
At one point the President would state: "You know from
running your businesses that what you spend must not exceed
what you take in. I need your help in explaining that to
the Congress. And while you're at it, I wish you'd also
make clear that you think the Government is already taking
Amper
in plenty." I do not think this raises a problem under the
RR
anti-lobbying provisions, since the President does not refer
to any specific legislation. Simply advising people to urge
Congress to spend and tax less should not be viewed as
prohibited lobbying. I read the language in question to
Larry Simms of OLC, who agreed that it was not covered by
the anti-lobbying provisions.
anti- Act
There is one editing error in the draft, which I have noted
in the proposed memorandum to Bakshian.
Attachment
anti
lobby
II
Calendar No. 306
98TH CONGRESS
1ST SESSION
S. 1646
[Report No. 98-186]
Making appropriations for the Treasury Department, the United States Postal
Service, the Executive Office of the President, and certain Independent
Agencies, for the fiscal year ending September 30, 1984, and for other
purposes.
IN THE SENATE OF THE UNITED STATES
JULY 20 (legislative day, JULY 18), 1983
Mr. ABDNOR, from the Committee on Appropriations, reported the following
original bill; which was read twice and placed on the calendar
A
BILL
Making appropriations for the Treasury Department, the United
States Postal Service, the Executive Office of the Presi-
dent, and certain Independent Agencies, for the fiscal year
ending September 30, 1984, and for other purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That the following sums are appropriated, out of any money
4 in the Treasury not otherwise appropriated, for the Treasury
5 Department, the United States Postal Service, the Executive
42
1 the Secretary of the Department in which the Coast Guard is
2 operating may have to conduct investigations under any law.
3
The authority of the Secretary of the Treasury under
4 this section shall terminate two years from the date of enact-
5 ment of this Act unless specifically renewed by the Congress.
6
SEC. 511. Of the total amount of budget authority pro-
7 vided for fiscal year 1984 by this or any other Act that would
8 otherwise be available for consulting services, management
9 and professional services, and special studies and analyses,
10 10 per centum of the amount intended for such purposes in
11 the President's budget for 1984, as amended, for any agency,
12 department, or entity subject to apportionment by the Execu-
13 tive shall be placed in reserve and not made available for
14 obligation or expenditure: Provided, That this section shall
15 not apply to any agency, department, or entity whose budget
16 request for 1984 for the purposes stated above did not
17 amount to $5,000,000.
18
TITLE VI-GENERAL PROVISIONS
19
DEPARTMENTS, AGENCIES, AND CORPORATIONS
20
SEC. 601. No part of any appropriation contained in this
21 Act shall be used for publicity or propaganda purposes within
22 the United States not heretofore authorized by the Congress.
23
SEC. 602. Unless otherwise specifically provided the
24 maximum amount allowable during the current fiscal year in
25 accordance with section 16 of the Act of August 2, 1946 (60
S 1646 RS
46
1 of such funds unless otherwise specified in the Act by which
2 they are made available: Provided, That in the event any
3 functions budgeted as administrative expenses are subse-
4 quently transferred to or paid from other funds, the limita-
5 tions on administrative expenses shall be correspondingly
6 reduced.
7
SEC. 608. Pursuant to section 1415 of the Act of July
8 15, 1952 (66 Stat. 662), foreign credits (including currencies)
9 owed to or owned by the United States may be used by Fed-
10 eral agencies for any purpose for which appropriations are
11 made for the current fiscal year (including the carrying out of
12 Acts requiring or authorizing the use of such credits), only
13 when reimbursement therefor is made to the Treasury from
14 applicable appropriations of the agency concerned: Provided,
15 That such credits received as exchange allowances or pro-
16 ceeds of sales of personal property may be used in whole or
17 part payment for acquisition of similar items, to the extent
18 and in the manner authorized by law, without reimbursement
19 to the Treasury.
20
SEC. 609. (a) No part of any appropriation contained in
21 this or any other Act, or of the funds available for expendi-
22 ture by any corporation or agency, shall be used for publicity
23 or propaganda purposes designed to support or defeat legisla-
24 tion pending before Congress.
S 1646 RS
47
1
(b) No part of any appropriation contained in this Act
2 shall be available for the payment of the salary of any officer
3 or employee of the United States Postal Service, who-
4
(1) prohibits or prevents, or attempts or threatens
5
to prohibit or prevent, any officer or employee of the
6
United States Postal Service from having any direct
7
oral or written communication or contact with any
8
Member or committee of Congress in connection with
9
any matter pertaining to the employment of such offi-
10
cer or employee or pertaining to the United States
11
Postal Service in any way, irrespective of whether
12
such communication or contact is at the initiative of
13
such officer or employee or in response to the request
14
or inquiry of such Member or committee; or
15
(2) removes, suspends from duty without pay,
16
demotes, reduces in rank, seniority, status, pay, or
17
performance or efficiency rating, denies promotion to,
18
relocates, reassigns, transfers, disciplines, or discrimi-
19
nates in regard to any employment right, entitlement,
20
or benefit, or any term or condition of employment of,
21
any officer or employee of the United States Postal
22
Service, or attempts or threatens to commit any of the
23
foregoing actions with respect to such officer or em-
24
ployee, by reason of any communication or contact of
25
such officer or employee with any Member or commit-
S 1646 RS
48
1
tee of Congress as described in paragraph (1) of this
2
subsection.
3
SEC. 610. No part of any appropriation contained in this
4 or any other Act, shall be available for interagency financing
5 of boards, commissions, councils, committees, or similar
6 groups (whether or not they are interagency entities) which
7 do not have prior and specific statutory approval to receive
8 financial support from more than one agency or instru-
9 mentality.
10
SEC. 611. Funds made available by this or any other
11 Act to (1) the General Services Administration, including the
12 fund created by the Public Buildings Amendments of 1972
13 (86 Stat. 216), and (2) the "Postal Service Fund" (39 U.S.C.
14 2003), shall be available for employment of guards for all
15 buildings and areas owned or occupied by the United States
16 or the Postal Service and under the charge and control of the
17 General Services Administration or the Postal Service, and
18 such guards shall have, with respect to such property, the
19 powers of special policemen provided by the first section of
20 the Act of June 1, 1948 (62 Stat. 281; 40 U.S.C. 318), but
21 shall not be restricted to certain Federal property as other-
22 wise requried by the proviso contained in said section, and, as
23 to property owned or occupied by the Postal Service, the
24 Postmaster General may take the same actions as the Ad-
25 ministrator of General Services may take under the provi-
S 1646 RS
II
Calendar No. 505
98TH CONGRESS
1ST SESSION
H.R.4139
IN THE SENATE OF THE UNITED STATES
OCTOBER 31, 1983
Received; read twice and placed on the calendar
AN ACT
Making appropriations for the Treasury Department, the United
States Postal Service, the Executive Office of the Presi-
dent, and certain Independent Agencies, for the fiscal year
ending September 30, 1984, and for other purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That the following sums are appropriated, out of any money
4 in the Treasury not otherwise appropriated, for the Treasury
5 Department, the United States Postal Service, the Executive
6 Office of the President, and certain Independent Agencies,
7 for the fiscal year ending September 30, 1984, and for other
8 purposes, namely:
37
1
SEC. 512. No funds appropriated in this Act for the
2 Office of Management and Budget may be used for the pur-
3 pose of reviewing any agricultural marketing orders or any
4 activities or regulations under the provisions of the Agricul-
5 tural Marketing Agreement Act of 1937 (7 U.S.C. 601 et
6 seq.)
7
SEC. 513. No funds appropriated under this Act for the
8 Department of Treasury may be used for the purpose of
9 eliminating any existing requirement for sureties on customs
10 bonds.
11
TITLE VI-GENERAL PROVISIONS
12
DEPARTMENTS, AGENCIES, AND CORPORATIONS
13
SEC. 601 No part of any appropriation contained in this
14 Act shall be used for publicity or propaganda purposes within
15 the United States not heretofore authorized by the Congress.
16
SEC. 602. Unless otherwise specifically provided the
17 maximum amount allowable during the current fiscal year in
18 accordance with section 16 of the Act of August 2, 1946 (60
19 Stat. 810), for the purchase of any passenger motor vehicle
20 (exclusive of buses and ambulances), is hereby fixed at
21 $6,000 except station wagons for which the maximum shall
22 be $6,400: Provided, That these limits may be exceeded by
23 not to exceed $1,700 for police-type vehicles, and by not to
24 exceed $3,600 for special heavy-duty vehicles: Provided fur-
25 ther, That the limits set forth in this section shall not apply to
HR 4139 RS
41
1 owed to or owned by the United States may be used by Fed-
2 eral agencies for any purpose for which appropriations are
3 made for the current fiscal year (including the carrying out of
4 Acts requiring or authorizing the use of such credits), only
5 when reimbursement therefor is made to the Treasury from
6 applicable appropriations of the agency concerned: Provided,
7 That such credits received as exchange allowances or pro-
8 ceeds of sales of personal property may be used in whole or
9 part payment for acquisition of similar items, to the extent
10 and in the manner authorized by law, without reimbursement
11 to the Treasury.
12
SEC. 609. No part of any appropriation contained in this
13 Act shall be available for the payment of the salary of any
14 officer or employee of the United States Postal Service,
15 who-
16
(1) prohibits or prevents, or attempts or threatens
17
to prohibit or prevent, any officer or employee of the
18
United States Postal Service from having any direct
19
oral or written communication or contact with any
20
Member or committee of Congress in connection with
21
any matter pertaining to the employment of such offi-
22
cer or employee or pertaining to the United States
23
Postal Service in any way, irrespective of whether
24
such communication or contact is at the initiative of
HR 4139 RS
42
1
such officer or employee or in response to the request
2
or inquiry of such Member or committee; or
3
(2) removes, suspends from duty without pay,
4
demotes, reduces in rank, seniority, status, pay, or
5
performance or efficiency rating, denies promotion to,
6
relocates, reassigns, transfers, disciplines, or discrimi-
7
nates in regard to any employment right, entitlement,
8
or benefit, or any term or condition of employment of,
9
any officer or employee of the United States Postal
10
Service, or attempts or threatens to commit any of the
11
foregoing actions with respect to such officer or em-
12
ployee, by reason of any communication or contact of
13
such officer or employee with any Member or commit-
14
tee of Congress as described in paragraph (1) of this
15
subsection.
16
SEC. 610. No part of any appropriation contained in this
17 or any other Act, shall be available for interagency financing
18 of boards, commissions, councils, committees, or similar
19 groups (whether or not they are interagency entities) which
20 do not have prior and specific statutory approval to receive
21 financial support from more than one agency or instru-
22 mentality.
23
SEC. 611. Funds made available by this or any other
V
24 Act to (1) the General Services Administration, including the
25 fund created by the Public Buildings Amendments of 1972
HR 4139 RS
fale
THE WHITE HOUSE
WASHINGTON
September 19, 1985
MEMORANDUM FOR WHITE HOUSE STAFF
FROM:
FRED F. FIELDINGS_\.
COUNSEL TO THE PRESIDENT
SUBJECT:
Anti-Lobbying Restrictions
In view of the number of new members on the Staff, and as a
reminder to all members of the Staff, I am recirculating the
attached memorandum of February 23, 1981 which sets forth
guidelines with respect to applicable anti-lobbying
restrictions.
If you should have any questions, please do not hesitate to
contact this office.
Thank you.
Attachment
THE WHITE HOUSE
WASHINGTON
March 14, 1986
MEMORANDUM FOR WHITE HOUSE STAFF
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Anti-Lobbying Restrictions
In view of the number of new members on the staff, and as a
reminder to all members of the staff, I am recirculating the
attached memorandum of February 23, 1981, which sets forth guide-
lines with respect to applicable anti-lobbying restrictions. If
you should have any questions, please do not hesitate to contact
this office.
Thank you.
Attachment
THE WHITE HOUSE
WASHINGTON
February 23, 1981
MEMORANDUM FOR MEMBERS OF THE WHITE HOUSE OFFICE STAFF
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Support of Administration Legislative Programs
This memorandum is intended to alert members of the White
House staff to proscriptions on lobbying activities imposed
by federal law and to provide general guidelines to staff
members working in this area so as to insure compliance with
those laws.
Simply stated, the so-called "Anti-Lobbying Act" (18 U.S.C.
$1913) prohibits the use of appropriated funds, directly or
indirectly, to pay for "any personal service, advertisement,
telegram, telephone, letter, printed or written matter or
other device" intended to influence a Member of Congress in
acting upon legislation, before or after its introduction.
There is also an appropriation rider, which has appeared in
appropriation bills since 1951, barring the use of appropriated
funds for "publicity or propaganda purposes" designed to
support or defeat legislation pending before Congress.
Interpretations of 18 U.S.C. $1913 by the Department of
Justice make it clear that an employee of the Executive
Branch, while acting in his or her official capacity, may
communicate with a member of Congress for the purpose of
providing information or soliciting that member's support
for the Administration's position on matters before Congress,
whether or not such contact is invited and whether or not
specific legislation is pending. Thus, the ordinary and
traditional inter-action between the Executive and Legislative
Branches is permitted. Likewise, it is not improper for an
Executive Branch employee to provide legitimate informational
background and material to the public in support of an Administra-
tion policy effort.
Problems arise where employees of the Executive Branch become
involved, directly or indirectly, in efforts to induce or
encourage members of the public to lobby members of Congress
on Administration programs or legislation. Unfortunately,
the line separating proper and improper conduct is imprecise
- 2 -
and the propriety of an activity may well depend on each
individual situation. The following comments and examples
are intended to provide general guidance for the more
frequently encountered contacts and activities:
1) Executive Branch officials may speak freely in meetings
with individuals or groups, at public forums, at news con-
ferences, and during news interviews, but where these appear-
ances of personnel become so excessive as to be deemed to be
a publicity campaign, the activity might be challenged. Any
undue degree of direct contact with the private sector by
persons who do not ordinarily engage in such activities is
evidence of prohibited conduct.
2) Appropriated funds should not be used to produce written,
printed or electronic communications for distribution with
the intent to induce members of the public to lobby members
of Congress. For example, an organized mailing to members
of the public initiated by Executive Branch personnel, stating
the Administration's position and asking the recipients to
contact their Senators and Representatives in support of that
position should be avoided. Moreover, asking recipients to
contact their elected representatives should also be avoided
in communications sent in response to inquiries received by
the Executive Branch. However, responses to incoming communi-
cations may include information which responds to the specific
inquiries as well as explanations of the Administration's position
on matters of public policy, including proposed legislation.
Massive distribution by the Executive Branch of unsolicited
copies of a public document, such as the reprint of a public
official's speech or other informational materials, may
raise a question even though the contents are only informa-
tional and do not suggest that the recipients contact members
of Congress. Normal unsolicited distribution of press releases,
public officials' speeches, fact sheets and other informational
materials to persons, because of governmental or organizational
position or expression of interest in the subject matter,
would not ordinarily create a problem. Each such proposed
distribution must be separately judged based on the purpose
and content of the communication and the number and kind of
people who will receive the information.
3) Officials and employees of the Executive Branch may
properly have regular contact with non-governmental organiza-
tions which have among their purposes lobbying members of
Congress or attempting to influence the general public to
lobby the Congress. However, in these dealings, the officials
should not or even appear to dominate the group or use the
group as an arm of the Executive Branch.
- 3 -
(a) Examples of the kinds of activities in which Executive
Branch officials might participate in dealing with
independent outside organizations include:
(i) exchange information, as long as it is not
privileged.
(ii) make suggestions, respond to or raise
particular inquiries, or discuss the
merits of various legislative strategies
and related matters, so long as the Executive
Branch officials do not suggest organization
of grass roots pressure;
(iii) address meetings (non-fundraisers) sponsored
by such organizations:
(iv) Upon the request of an independent organization
provide to it for reproduction and distribution
by the organization:
--
sample copies of documents prepared by
Executive Branch officials (such as
press releases, public officials' speeches,
fact sheets) that are otherwise available
for public distribution.
--
letters on specific subjects written
by Executive Branch officials.
(Note that the materials must not suggest that the
recipients contact Members of Congress urging support
of particular positions; also the decision to publish
or distribute any such material must be left to the
independent organization.)
(b) Examples of the kinds of things which Executive Branch
officials should avoid include:
(i) responsibility for the on-going operation
of an outside organization;
(ii) requesting that an organization activate its
membership at large to contact members of
Congress on behalf of a legislative proposal;
(iii) gathering information or producing materials
specifically for such an organization which
cannot properly or would not ordinarily be
gathered or produced as part of the official's
regular work;
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(iv) producing or providing multiple copies of
materials to be distributed by such organi-
zations;
(v) requesting an organization to prepare or
distribute any materials that suggest directly
or indirectly that the recipients contact
members of Congress, or playing any substantial
role in advising an organization regarding
the content of material it may wish to distribute;
(vi) providing to such organizations lists of or
correspondence from persons who favor or oppose
particular policy positions;
(vii) involvement in fundraising activities
by such organizations (because of the varying
forms that such involvement might take, any
involvement should be discussed in advance
with the Counsel's office).
These legal provisions are not intended to prohibit an on-going
dialogue or interaction between the Executive Branch and the
public in an educational effort to explain Administration posi-
tions, but where that conduct develops into a publicity and
propaganda campaign designed or intended to pressure citizen
groups into contacting Congressional representatives, the
boundary of propriety has been crossed.
18 U.S.C. $1913 is a criminal statute and should be taken
seriously. In addition, any specific allegation against
White House staff members (Level IV and above) for violation
of 18 U.S.C. $1913 potentially could trigger the "Special
Prosecutors Act", 28 U.S.C. $591, et seq. The General
Accounting Office is also authorized to undertake audits
in this area, and any disallowed expenditures would have to
be borne by the individual supervising the activity that
resulted in the unauthorized use of government funds.
Because $1913 and the Appropriation rider have not often
been interpreted it is difficult to be more specific in
setting forth guidelines. Any difficult factual situation
should be brought to the attention of this office before
any action is taken.