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JGR/OMB (Office of Management and Budget) (1 of 2)
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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/OMB (Office of Management and Budget) (1 of 2) Box: 35 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/ THE WHITE HOUSE WASHINGTON February 3, 1983 Pls see me MEMORANDUM FOR FRED F. FIELDING FROM: JOHN G. ROBERTS DDR SUBJECT: OMB Proposed Rules on Political Advocacy by Government Grantees and Contractors By notice published in the Federal Register on January 24, 1983, OMB sought comments on a proposal to revise rules on government grants and contracts with nonprofit organizations. The purpose of the proposed revisions is stated to be to ensure that "federal tax dollars are not used, directly or indirectly, for the support of political advocacy." This purpose would be served by disallowing the costs of political advocacy in government grants and contracts. If any group that has a government grant or contract engages in political advocacy, it must segregate the costs associated with that advocacy and not recoup such costs from the government. The proposed revisions apply only to nonprofit groups, but the notice states that similar revisions will be proposed for civilian and defense contractors by Defense, NASA, and GSA. Craig Fuller has raised the concern that the logic of the proposed rules would affect traditional lobbying activities of government contractors. One of the "Q&A's" accompanying the proposal, for example, specifically notes that the costs of a corporate jet used in part to fly officials for discus- sions with congressmen could not be included as allocated overhead in a government contract. The definition of political advocacy - essentially attempting to influence any sort of governmental decision -- could snare many traditional activities of government contractors, although there is an exception of uncertain breadth for providing information in connection with a bid at the request of a government agency. The proposals paint with a much broader brush than is necessary to address the activities of govern- ment grantees that have been perceived as most objectionable It is possible to "defund the left" without alienating TRW and Boeing, but the proposals, if enacted, could do both. It is also important to recognize that the notice somewhat disingenuously takes a high moral ground by citing legal -2- precedent of limited relevance. Two decisions are cited in the notice and accompanying Q&A's for the general proposition that First Amendment values are promoted by an effort to restrict government support for political advocacy. The decisions, however, are only vaguely relevant to the pro- posed revisions. Elrod V. Burns, 427 U.S. 353 (1976), cited four times, was a 3-2-3 decision holding no more than that the routine patronage dismissal of government employees in nonpolicymaking, nonconfidential positions was illegal. Abood V. Detroit Board of Education, 431 U.S. 209 (1977), held that non-union government employees in an agency shop could not be forced to contribute funds to the union to be used for political purposes, but could be forced to contri- bute dues for more typical union activities. / VOI. 48, No. 16 / Monday, January OFFICE OF MANAGEMENT AND grantees and contractors with the advocacy in whole or in part. The BUDGET legitimate governmental interests of revision makes unallowable the costs of ensuring that the government does not buildings and office space where 5 [Circular A-122] subsidize, directly or indirectly, the percent or more of the space is devoted political advocacy activities of private to political advocacy. When federal Cost Principles for Nonprofit groups or institutions. These grant or contract recipients use Organizations governmental interests are based on facilities, equipment, or personnel concern for protecting the free and funded in part with federal monies for AGENCY: Office of Management and robust interchange of ideas. political advocacy, they may create the Budget. Americans have the First Amendment appearance of government support for ACTION: Notice. right both to engage freely in speech and their positions. Moreover, if federal political expression, and to refrain from funds are used to defray the overhead SUMMARY: This notice offers interested speaking, without interference or control costs of organizations engaged in parties an opportunity to comment on a on the part of the government or its political advocacy, it frees up the proposed revision to Circular A-122, agents. Wooley V. Maynard, 430 U.S. organization's other funds for use in this "Cost Principles for Nonprofit 705, 714 (1977). The proposed revision is political activity. Organizations." The proposed revision intended to ensure that the use of The principal effect of the revision establishes special provisions for costs Federal grants, contracts and other will be that federal grantees and related to political advocacy. Similar agreements by private organizations contractors that choose to engage in revisions are being simultaneously engaging in political advocacy does not political advocacy must separate their proposed for civilian and defense erode or infringe these constitutional grant or contract activity from their contractors through appropriate actions rights, or distort the political process by political activity. If they mix the two, by the Department of Defense, NASA encouraging or discouraging certain then they will not receive government and GSA, the three agencies with forms of political activity. reimbursement for the jointly allocable authority to issue procurement The activities of government in a regulations. The purpose of these democracy necessarily involve a degree costs. Contractors or grantees will not proposals is to ensure that federal tax of political advocacy, since government be permitted to require or induce dollars are not used, directly or officials are expected to communicate employees paid in part or in whole with indirectly, for the support of political with the people, explain their programs, federal funds to engage in political advocacy. and provide leadership and direction to advocacy activities, either as a formal Over the past 25 years, the volume of the nation. Thus, Members of Congress part of job responsibilites or on their own time. federal activity conducted through and their staffs, the President and his grantees and contractors has political appointees, necessarily The definition of political advocacy dramatically grown. Sound management participate in forms of political used in this proposal is derived of federal grants and contracts has advocacy. However, it is a distortion of generally from the Internal Revenue correspondingly gained in importance. the market place of ideas for the Code, 26 U.S.C. 4911, defining attempts The responsibility of the President government to use its financial power to to "influence legislation," with through OMB to improve the "tip the electoral process," Elrod V. modifications designed to comprise management of the executive branch of Burns, 427 U.S. 353, 356 (1976), by direct participation in elections or government with a view to efficient and subsidizing the political advocacy referenda, administrative processes, economical service, and to fulfill other activities of private organizations and certain judicial processes, and other statutory and constitutional corporations. This proposal will ensure, activity of a political advocacy nature. responsibilities, extends to issues of to the extent consistent with the These proposed revisions will become grant and contract management no less communications function of the effective 30 days after final notice in the than to issues of direct federal activity. government, that taxpayers are not Federal Register. The revisions will In recent years, the problem of the use required, directly or indirectly, "to affect only grants, contracts, and other of federal funds for political advocacy contribute to the support of an agreements entered into after the by grantees and contractors has been ideological cause[they] may oppose." effective date. Existing grants, contracts, identified by members of the public, by Abood V. Detroit Board of Education, and other/agreements will not be the Comptroller General, and by 431 U.S. 209, 235-236 (1977). The immediately affected. Agency contracts Members of Congress. As many of these proposal also seeks to avoid the and regulations will incorporate these parties have observed, the diversion to appearance that, by awarding Federal provisions to the same extent and in the political advocacy of federal funds, and grants, contracts, or other agreements to same manner as they do other of equipment procured with and organizations engaged in politicial provisions of Circular A-122. personnel compensated by federal advocacy on particular sides of public Violations of these provisions will be funds, is an abuse of the system and an issues, the Government has endorsed, a basis for cost disallowance, and in uneconomical, inefficient and fostered, or "prescribe[d] [as] orthodox" instances of serious or willful violations, inappropriate use of the public's a particular view on such issues, West may be a basis for debarment or resources. Moreover, the commingling of Virginia State Board of Education V. suspension. federal grant or contract activity with Barnette, 319 U.S. 624, 645 (1943). private political advocacy creates the Comments should be submitted in The proposed revision would make appearance of federal support for unallowable the cost of political duplicate to the Financial Management particular positions in public debate. advocacy, whether direct or indirect. Division, Office of Management and This appearance can create The revision would also make Budget, Washington, D.C. 20503. All misunderstanding and interfere with the unallowable any costs of comments should be received within 45 neutral, non-ideological administration communications equipment, personnel, days of this notice. of federally funded programs. other equipment, meetings or FOR FURTHER INFORMATION CONTACT: This proposal is designed to balance conferences, or publications, where such John J. Lordan, Chief, Financial the First Amendment rights of federal cost items are used for political Management Branch, Office of Federal Register / Vol. 48, No. 16 / Monday, January 24, 1983 / Notices 3349 Management and Budget, Washington, activities-such as transporting corporate to the organization's own interest) have been D.C. 20503, (202) 395-6823. officials to discussions with Congressmen- included in the proposal's definition, to Issued in Washington, D.C., January 20, then under the principles proposed by the ensure that such activities are not conducted 1983. Defense Department, the contractor cannot at the expense of the public. include the cost of the aircraft or of any use Candice C. Bryant, Question: What is the penalty for violating of the aircraft as part of overhead costs these provisions? Acting Deputy Associate Director for allocated in part to the contract. Answer: Cost recovery, and in instances of Administration. As an example in the non-profit area, take serious or willful violations, suspension or an organization which receives a federal Appendix debarment from federal grants or contracts. grant to promote better health services for The following questions and answers have Question: How does this proposal affect low-income individuals, which decides to been prepared by the Office of Management organize a political rally to promote more the First Amendment right of freedom of and Budget for informational purposes only. federal funding for medical programs. The speech? Question: What is the purpose of these organization could not be reimbursed for any Answer: This proposal will promote the revisions? portion of the salaries of individuals engaged First Amendment value that a person can Answer: The purpose is to ensure that in organizing the political rally or for any freely speak, or refrain from speaking. on federal contracts and grants are not used to portion of other overhead costs (office political matters. The Supreme Court has support political advocacy either directly or machines, printing facilities, etc.) if the same recognized constitutional problems with indirectly. Thousands of contractors and overhead items were used for the rally. The requirements on a person "to contribute to grantees, administering hundreds of billions organization would be free to hold the rally- the support of an ideological cause he may of federal dollars, have had wide latitude to but it would do so at its own expense, and oppose." Abood V. Detroit Board of engage in political advocacy activities, often without using people, facilities or resources Education, 431 U.S. 209, 235-236 (1977). using the same facilities and personnel paid partially funded by the Federal Government. Although government in a democracy for in part by the taxpayers. The current lack Question: How is it possible to define necessarily involves some degree of political of a government-wide policy prohibiting the "political advocacy"? advocacy because of the need to use of federal grant and contract funds for Answer: The concept of political advocacy, communicate with citizens, taxpayers cannot political advocacy has been criticized by the or "influencing legislation," is used in the rightly be required to support the political General Accounting Office. It is unfair to use Internal Revenue Code restrictions on tax- advocacy of private organizations and federal tax money to support political causes. exempt organizations. The Internal Revenue corporations through federal grants and Nor is it an efficient or economical use of Code definition of "influencing legislation" is contracts. public resources to allow funds to be diverted employed in this proposal, with several Moreover, the freedom of First Amendment from statutory purposes to political modifications to take account of changes in political advocacy is jeopardized when the advocacy. political practices (e.g., development of views of particular groups are financed by A particularly important abuse is that political action committees), Supreme Court the government. The use of federal grants or many contractors and grantees have been developments (e.g., decisions declaring contracts for the support of one side in a able to defray the overhead costs of their certain forms of litigation to be political political debate, like the use of political political advocacy, at public expense, by expression), and shifts in the decisionmaking patronage for the support of a political party, allocating some part of the cost to the process (e.g., the growth of administrative can injure the "free functioning of the administration of the contract or grant. Not agencies and referenda as means of political electoral process." Elrod V. Burns, 427 U.S. only does this free up the organization's own decisionmaking). 353, 356 (1976). In the marketplace of ideas, resources for further political activity; it also In particular, the scope of the Code where differing political opinions compete for creates the appearance that the government definition ("influencing legislation") has been public acceptance, the government should not is supporting one or another side in a political expanded to cover "governmental decisions" be in the position of subsidizing the controversy. in general. Thus, for example, the Internal expression of views of particular Question: How will the proposals work? Revenue Code defines the term "influencing organizations or corporations, as to defense Answer: The proposals will revise cost legislation" as including "any attempt to or domestic policy. Nor should the principles applicable to federal grants, influence any legislation through an attempt government create the appearance of official contracts (other than competitive, firm fixed to affect the opinions of the general public or support for the political advocacy of its price contracts), and other agreements. any segment thereof." The proposed revision grantees or contractors. Recipients of federal grants, contracts, or to Circular A-122, correspondingly, defines Question: Does this proposal infringe the other agreements will be barred from "political advocacy" as including "attempting receiving government reimbursement for any to influence governmental decisions through First Amendment rights of recipient activities connected with political advocacy an attempt to affect the opinions of the organizations? at the national, state, or local levels. This general public or any segment thereof." The Answer: No. Recipients remain free to includes membership or dues in trade body of experience in interpreting the engage in political advocacy on any side of associations or other organizations that have Internal Revenue Code provision, as any issue. The proposals merely ensure that political advocacy as a substantial appropriately modified, is expected to aid in organizations engage in political advocacy at organizational purpose. In addition, salary the interpretation of the proposed revisions. their own expense-not the public's. If an costs will be unallowable to recipients who The proposals thus include as "political organization chooses to exercise its First either require their employees to pay dues to advocacy" direct participation in elections or Amendment rights, it is only fair that it keep political advocacy organizations or require referenda by means of contributions, those political activities separate from its them to engage in political advocacy on the endorsement, publicity, administration of work at the expense of the public. It should job or during non-working hours. Finally, political action committees, or similar not expect to have its political advocacy government funds will not be permitted to activity; contributions to political advocacy subsidized, or to be able to put facilities pay for facilities in which significant political organizations; attempting to influence purchased in part by tax dollars to political advocacy activities are conducted, thus government policy made through the use. Like federal agencies and employees, requiring physical separation of such regulatory process as well as the legislative federal grantees and contractors are activities from those involved in the process; and attempts to influence "expected to execute the programs of the performance of grants and contracts. government policy through litigation as an Government without bias or favoritism-for or Question: What is an example of how this amicus curiae, on behalf of the members of against any political party or group or the will work? the organization, or on behalf of another members thereof." CSC V. National Answer: Take the example of a defense party. In addition, several categories of Association of Letter Carriers, 413 U.S. 548, contractor which uses a corporate aircraft for activity excluded from the Code definition of 565 (1973). Federal grant and contract activity översight and management of a federal "influencing legislation" (e.g., will be more efficiently and fairly performed contract. If the contractor chooses to use the communications with organization members if it is not mixed with advocacy activities on aircraft also for lobbying or other political on political topics and lobbying with respect one or the other side of political debate. 3350 Federal Register / Vol. 48, No. 16 / Monday, January 24, 1983 / Notices Question: Will these proposals prevent defend their interests in court? contributing to, or paying the expenses corporations or other organizations from Answer: No. So long as an organization of a political action committee, either lobbying in Congress or the agencies for appears in court on its own behalf, litigation directly or indirectly; grants or contracts? is not defined as political advocacy. Answers: No-but they will do it at their (3) Attempting to influence However, when an organization goes into own expense, not the public's. court to represent others, or to support the governmental decisions through an Question: Will organizations engaged in claim of others, such attempts to influence attempt to affect the opinions of the political advocacy be eligible to receive policy through the judicial process are a form general public or any segment thereof; federal grants and contracts? of political advocacy, as the Supreme Court (4) Attempting to influence Answer: Absolutely. In a memorandum has held. NAACP V. Button, 371 U.S. 415, 429 governmental decisions through dated April 26, 1982, the Director of OMB (1963); In re Primus, 436 U.S. 412, 428 (1978). communications with any member or made clear that: Such activities should not be supported by employee of a legislative body, or with "The Administration will continue to federal grant or contract money, unless the any government official or employee award grants and contracts to those parties grant or contract was made expressly for that who are most effective in fulfilling statutory who may participate in the purpose. Attorneys fee award statutes are not purposes [and that] political advocacy groups affected by these proposals. decisionmaking process; may continue to receive grant and contract Question: Will these proposals make it (5) Participating in or contributing to awards." more difficult for the federal government to the expenses of litigation other than This policy will continue in effect, and just reward its political supporters? litigation in which the organization is a as agencies will be forbidden to award grants Answer: Yes. Currently, the federal party with standing to sue or defend on and contracts because of the political views government may be able to reward its its own behalf; or of applicant groups, they will also be supporters, and punish its opponents, by (6) Contributing money, services, or forbidden from discriminating against granting or denying federal grants to "parties most effective in fulfilling statutory any other thing of value, as dues or organizations engaged in political advocacy. purposes." By making such awards to a friendly otherwise, to an organization that has Question: What will be the practical effect organization the government assumes a political advocacy as a substantial on organizations that engage in political portion of that organization's overhead costs, organizational purpose, or that spends advocacy? and thus supports the organizations political $100,000 or more per year on activities Answer: Federal grantees and contractors activities. In this way, the govenment can constituting political advocacy. that choose to engage in political advocacy influence the political process by inducing C. Political advocacy does not include will need to separate their grant or contract recipients of federal funds to conform their the following activities: activity from their political activity. If they behavior to the governments desires. This (1) Making available the results of mix the two, then they will not receive was one of the dangers of the political spoils government reimbursement for the joint nonpartisan analysis, study, or research, system recognized by the Supreme Court in costs. Elrod V. Burns, 427 U.S. 347, 355-356 (1976). the distribution of which is not primarily Question: What will be the effect on the These proposals will help make the process designed to influence the outcome of employees of contractors and grantees? neutral again, by eliminating the "political any Federal, State, or local election, Answer: Employees whose salary is paid in spoils" aspect of the government funding referendum, initiative, or similar part with federal funds may not be required process. procedure, or any governmental or induced to engage in political advocacy, Question: Will these proposals solve the decision; either as a part of the job or on their own whole problem of federal tax money being (2) Providing technical advice or time. Nor may they be required to join or pay used to support political advocacy? dues to an organization involved in assistance to a governmental body or to Answer: No, but they make a major step in a committee or other subdivision thereof substantial political advocacy. This will the right direction. Congress and the agencies ensure that federal funds are not used to hire must continue to be vigilant to ensure that in response to a written request by such political armies or to generate political grants and contracts are not awarded for body or subdivision; membership support-practices analogous to purposes that involve political advocacy. (3) Participating in litigation on behalf these held unconstitutional in Elrod V. Burns, of other persons, if the organization has 427 U.S. 347 (1976). Of course, individual employees remain free to engage in political Circular A-122-Cost Principles for received a Federal, State, or local grant, Nonprofit Organizations contract, or other agreement for the advocacy on their own it they wish to do SO. express purpose of doing so; Question: To what organizations do the Circular A-122 is revised by proposals apply? (4) Applying or making a bid in modifying Attachment B as follows: Answer: The proposed revision to OMB connection with a grant, contract, Circular A-122 will apply to all non-profit 1. Insert a new paragraph "B 33 unsolicited proposal, or other organizations receiving federal grants, Political Advocacy." agreement, or providing information in contracts, or other agreements. Similar a. The cost of activities constituting connection with such application at the proposals are being applied by the political advocacy are unallowable. request of the government agency Department of Defense, NASA, and the b. Political advocacy is any activity awarding the grant, contract, or other General Services Administration to civilian that includes: agreement; or and defense contractors. The proposed (1) Attempting to influence the (5) Engaging in activities specifically revisions will apply to grants, contracts, and outcome of any Federal, State, or local other agreements entered into after the required by law. election, referendum, initiative, or effective date of the revisions. Existing d. An organization has political grants, contracts, and other agreements will similar procedure, through contributions, advocacy as a "substantial not be affected. endorsements, publicity, or similar organizational purpose" if: Question: Will these proposals interfere activity; (1) The organization's solicitations for with organizations due process rights to (2) Establishing, administering, membership or contributions Federal Register / Vol. 48, No. 16 / Monday, January 24, 1983 / Notices 3351 acknowledge that the organization (3) Any licensing. grant, ratemaking. (2) The following costs are engages in activities constituting formal adjudication or informal unallowable: political advocacy; or adjudication, other than actions or (a) Building or office space in which (2) Twenty percent (20%) or more of decisions related to the administration more than 5% of the usable space the organization's annual expenditures, of the specific grant, contract, or occupied by the organization or an other than those incurred in connection agreement involved. affiliated organization is devoted to with Federal, State or local grants, f. Notwithstanding the provisions of activities constituting political contracts, or other agreements, or other cost principles in this circular: advocacy; incurred in connection with political (b) Items of equipment or other items (1) Salary costs of individuals are advocacy. used in part for political advocacy; unallowable if: (c) Meetings and conferences devoted e. The term, "governmental decisions" (a) The work of such individuals in any part to political advocacy; includes: includes activities constituting political (d) Publication and printing allocable (1) The introduction, passage advocacy, other than activities that are in part to political advocacy; and amendment, defeat, signing, or veto of both ministerial and non-material; or (e) Membership in an organization legislation, appropriations, resolutions, (b) The organization has required or that has political advocacy as a or constitutional amendments at the induced such individuals to join or pay substantial organizational purpose, or Federal, State, or local level; dues to an organization, other than a that spends $100,000 or more per year in (2) Any rulemakings, guidelines, labor union, that has political advocacy connection with political advocacy. policy statements or other as a substantial organizational purpose, 2. Renumber subsequent paragraphs. administrative decisions of general or to engage in political advocacy during [FR Doc. 83-2031 Filed 1-21-83: 1:28 pm] applicability and future effect; or non-working hours. BILLING CODE 3110-01-A MEMORANDUM THE WHITE HOUSE WASHINGTON March 3, 1983 MEMORANDUM FOR FRED F. FIELDING FROM: JOHN G. ROBERTS SUBJECT: Lyn Nofziger Correspondence on OMB's Proposed Revision of Circular A-122 Lyn Nofziger has written objecting to OMB's proposed limits on political advocacy by government grantees and contractors. This proposal has become known, through shorthand designa- tion, as the "A-122 proposal.' Although A-122 itself only concerns the activities of non-profit organizations receiving government grants, the proposed revisions of A-122 announced by OMB are linked to corresponding proposals issued by Defense, GSA, and NASA concerning government contractors. Nofziger states that the proposal is vague, would require detailed records of the political activities of employees of government contractors, and will prevent business from helping obtain passage of legislation, an activity traditionally requested by White Houses. He encloses a two-page analysis of the A-122 proposal. I have drafted a brief reply for your signature, stating that OMB will soon publish a revised proposal and attaching a copy of the OMB press release announcing this fact. Attachments THE WHITE HOUSE WASHINGTON March 3, 1983 Dear Lyn: Thank you for your recent memorandum on OMB's proposed revision of Circular A-122 and the related revisions affecting government contractors. As you doubtless know by now, OMB has announced its intention to publish a revised proposal, which will start a new 45-day comment period. I attach for your information a copy of the OMB press release announcing this fact. The questions which have been raised concerning these proposals are being carefully reviewed within the White House, and you may be assured that your views will be given every appropriate consideration. Thank you for making us aware of your concerns and for sharing your analysis of the proposals with us. With best personal regards, Sincerely, Fred /s/ F. Fielding Counsel to the President Mr. Lyn Nofziger 1605 New Hampshire Avenue, NW Washington, D.C. 20009 FFF:JGR:aw 3/3/83 CC: FFFielding JGRoberts Subj. Chron EXECUTIVE OFFICE OF THE PRESIDENT STATE duning OFFICE OFFICE OF MANAGEMENT AND BUDGET WASHINGTON, D.C. 20503 FOR IMMEDIATE RELEASE OMB 83-6 February 25, 1983 OMB Public Affairs 395-3080 The Office of Management and Budget announced today that it will provide another two months for comment on proposed revisions to its Circular A-122 entitled "Cost Principles for Nonprofit Organizations." This extension will be accomplished by publication in two weeks of a revised proposal, which will start a new 45-day comment period. Meanwhile, OMB will continue to solicit comments on the current proposal until March 10, focusing on a number of specified areas that have aroused concern among affected parties. Circular A-122 governs grants by Federal Agencies to non-profit organizations. Changes have also been proposed for Government contractors in the procurement regulations of the Department of Defense and the General Services Administration, which are also expected to be revised. In all cases the proposed amendments deal with the long-standing problem of the use of Federal dollars, directly or indirectly, for political advocacy. It is anticipated that final changes in Circular A-122 will be published in the Summer, following consideration of comments received on the revised proposal. OMB stressed that any changes will be effective only for grants and contracts entered into after the conclusion of FY 1983 (September 30, 1983). Further details are available, in question and answer form, from OMB Public Affairs, 395-3080. Prohibiting the Use of Federal Funds for Political Advocacy: Commonly Asked Questions and Answers On January 24, 1983, the Office of Management and Budget published for comment proposals that would bar the use of federal funds for political advocacy by non-profit organizations. Defense and GSA published similar proposals for government contractors. Since then, OMB officials have heard many comments and questions. The following are responses to the most commonly asked questions. 1. What is the purpose of the proposals? Answer: The proposals are intended to provide uniform, enforceable rules for the treatment of costs associated with political advocacy by federal grantees and contractors. Longstanding legal provisions have prohibited the use of appropriated funds for political advocacy, but current procedures have not been adequate. For example, the Comptroller General has uncovered significant instances of improper diversion of federal funds for political advocacy activities. After a recent study of grantees under Title X (family blanning) of the Public Health -2- Services Act, the Comptroller General issued the following recommendation: "Clear federal guidance is needed both to ensure that Title X program funds are not used for lobbying and to preclude unnecessary controversy over whether grantees are violating federal restrictions. The move to revise and make more specific the cost principles applicable to all federal grantees is the appropriate mechanism to achieve these ends." Among the deficiencies in current restrictions on the use of federal funds for political advocacy are these: Current rules are haphazard and inconsistent. Grantees and contractors under different programs and agencies are subject to different restrictions, and different forms of political advocacy have been dealt with in different ways. The proposals are intended to provide uniform, evenhanded, comprehensive treatment of political advocacy by federal grantees and contractors. Present rules are often largely unenforceable, because grant and contract activities and unauthorized political advocacy activities are often conducted within the same -3- facilities and by the same personnel. It is often impossible for auditors under the current system to determine whether federal funds are being diverted to political advocacy. Even if current rules could be fully enforced, they still permit grantees and contractors to maintain federally subsidized organizational structures committed to political advocacy. When the government, for example, pays significant portions of the salaries of chief lobbyists of grantees and contractors -- whose effectiveness as lobbyists only requires periodic concentrations of their time in lobbying activities -- the government effectively subsidizes the lobbying process. And, because grantees and contractors can be expected to favor programs which finance their activities, present policies tend to subsidize only one side of most public policy debates. 2. Will the proposals affect existing contracts and grants? Answer: No. OMB is now receiving public comments on the proposals. They will not become effective until after scostantial revisions have been made. A final rule will not be -4- completed until midsummer at the earliest and then will apply only to new contracts and grants entered into after Fiscal Year 1983 -- after September 30, 1983. Existing contracts and grants will continue to be governed by current cost principles. 3. The comment period was originally scheduled to close on March 10. How does OMB intend to proceed? Will the comment period be extended? Answer: The comment period will effectively continue for an additional 60 days. This extention will be accomplished by publication in two weeks of a revised proposal, which will start a new 45-day comment period. Meanwhile, comments will continue to be solicited on the current proposal during the remaining comment period, particularly in several specific areas that have have aroused concern among affected parties. 4. Will the revised proposal contain substantive modifications? Answer: Yes, and in a number of major respects. A number of persons have suggested ways in which the practical concerns of affected parties can be accomodated without compromising the basic purpose of the proposals. In particular, ONB is -5- considering and is actively soliciting specific proposals from affected parties in the following areas: Exemption of contacts with non-legislative state and local officials, such as zoning boards, from the definition of political advocacy. Exemption of most contacts with Executive branch officials from the definition of political advocacy. Exemption from the definition of political advocacy of providing information to trade associations and similar groups. Exemption of standard marketing activities from the definition of political advocacy. Substantial exemption of equipment usage from rules governing political advocacy. Establishment of a waiver policy for inadvertent or technical violations of the rules. -6- 5. Do the proposals affect the tax deductibility of dues to trade associations or like groups? Answer: No. The tax exempt status of organizations paying dues to trade association or like groups, and rules for the tax deductibility of such dues, will in no way be affected by the proposals. 6. DO the proposals affect organizations by reason of their payment of dues to or membership in trade associations or politically active groups? Answer: No. The proposals do not in any way affect the status of organizations that join or pay dues to trade associations or politically active groups. The proposals merely prohibit the use of federal grant or contract funds for the payment of such dues. 7. Are the proposals applicable across the board, to contractors as well as non-profit grantees? Answer: Yes. 003's proposed changes in Circular A-122 apply to non-profit organizations, while identical proposals by Defense and GSA apply to contractors. The proposals do not apply to -7- state and local governments or their contractors or grantees, or to hospitals, universities, or Indian tribes. 8. Will the proposals be applicable to all forms of grants and contracts? Answer: No. Where the government acquires final products for a fixed price, its only legitimate interest is that the goods or services are of the kind and nature described in the contract. The proposals primarily deal with so-called "cost plus" grants and contracts in which the government is asked to pay for portions of the time of officials and resources, otherwise used for political advocacy purposes. MEMORANDUM THE WHITE HOUSE WASHINGTON February 24, 1983 MEMORANDUM FOR FRED F. FIELDING FROM: JOHN G. ROBERTS esr SUBJECT: Lyn Nofziger Correspondence on OMB's Proposed Revision of Circular A-122 Lyn Nofziger has written objecting to OMB's proposed limits on political advocacy by government grantees and contractors. This proposal has become known, through shorthand designa- tion, as the "A-122 proposal." Although A-122 itself only concerns the activities of non-profit organizations receiving government grants, the proposed revisions of A-122 announced by OMB are linked to corresponding proposals issued by Defense, GSA, and NASA concerning government contractors. Nofziger states that the proposal is vague, would require detailed records of the political activities of employees of government contractors, and will prevent business from helping obtain passage of legislation, an activity traditionally requested by White Houses. He encloses a two-page analysis of the A-122 proposal. I have drafted a brief reply for your signature, stating that the proposal is being carefully reviewed by the Administration -- which I take it is now the case. THE WHITE HOUSE WESHINGTON March 3, 1983 Dear Lyn: Thank you for your recent memorandum on OMB's proposed revision of Circular A-122 and the related revisions affecting government contractors. As you doubtless know by now, OMB has announced its intention to publish a revised proposal, which will start a new 45-day comment period. I attach for your information a copy of the OMB press release announcing this fact. The questions which have been raised concerning these proposals are being carefully reviewed within the White House, and you may be assured that your views will be given every appropriate consideration. Thank you for making us aware of your concerns and for sharing your analysis of the proposals with us. With best personal regards, Sincerely, Orig. signed by FFF Fred F. Fielding Counsel to the President Mr. Lyn Nofziger 1605 New Hampshire Avenue, NW Washington, D.C. 20009 FFF: :JGR:aw 3/3/83 CC: FFFielding JGRoberts Subj. Chron 126425 ID # CU WHITE HOUSE FIDD1-02 CORRESPONDENCE TRACKING WORKSHEET O . OUTGOING H . INTERNAL I . INCOMING Date Correspondence Received (YY/MM/DD) / / Name of Correspondent: Syn nofziger MI Mail Report User Codes: (A) (B) (C) Subject: OMB's circular A - 122, "Cost Principles for non- Profit requization ROUTE TO: ACTION DISPOSITION Tracking Type Completion Action Date of Date Office/Agency (Staff Name) Code YY/MM/DD Response Code YY/MM/DD WHolland ORIGINATOR 483,02,21 / / WAT 18 Referral Note: DD 83,02,21 583,03,02 Referral Note: / / / / Referral Note: / / / / I Referral Note: / / / / Referral Note: ACTION CODES: DISPOSITION CODES: A - Appropriate Action I . Info Copy Only/No Action Necessary A Answered C Completed C Comment/Recommendation R Direct Reply w/Copy B - Non-Special Referral S Suspended D - Draft Response S For Signature F . Furnish Fact Sheet X Interim Reply to be used as Enclosure FOR OUTGOING CORRESPONDENCE Type of Response = Initials of Signer Code = "A" Completion Date = Date of Outgoing Comments: Keep this worksheet attached to the original incoming letter. Send all routing updates to Central Reference (Room 75, OEOB). Always return completed correspondence record to Central Files. Refer questions about the correspondence tracking system to Central Reference, ext. 2590. 5/81 LYN NOFZIGER Dobut R to February 17, 1983 126425 MEMORANDUM TO: Ed Meese Jim Baker Fred Fielding Ed Rollins FROM: Lyn Nofziger R Gentlemen: I'm sure you are aware of OMB's circular A-122, "Cost Principles for Non-Profit Organi- zations." This, of course, is OMB's proposed limits on political advocacy of government con- tractors. I know that it was aimed primarily at those people using government grants to lobby the government. But in effect it goes far beyond that intent. It is also affecting many, many companies that do business with the Federal Government and many businesses to whom White Houses have traditionally turned when they wanted help in getting legislation passed. I am enclosing a copy of an analysis that I asked to be drawn which shows you exactly what the proposal does. In addition, lawyers who have worked on this tell me the proposal is vague and may be subject to a number of inter- pretations. What this is going to do is force companies to keep detailed records on the politi- cal activities of their employees. If this is Constitutional, and I doubt much that it is, instead of getting government off of people's backs as we promised to do for lo these many years, you are adding an intolerable burden onto 1605 NEW HAMPSHIRE AVENUE. N.W. WASHINGTON, D.C. 20009 (202) 332-4030 2 the backs of many, many people. I think that you could simplify the proposed rule by just saying that persons or organizations receiving grants from the government cannot use that money to lobby the government. In any event, Gentlemen, you're going to make it almost impossible for a lot of people who want to help you get a lot of things passed from actually helping you. I really think you ought to reconsider this thing. P.S. I am sending out only four copies of this to the named people. I certainly do hope that it doesn't spread far and wide. PPS - The opposition is growing not only among the lobbyrots but also among the Republissions on the Lill. feck Brooks is thinking about hearings, Also I'm told Bob michel is upset. Ln February 16, 1983 OMB'S PROPOSED LIMITS ON POLITICAL ADVOCACY OF GOVERNMENT CONTRACTORS OMB HAS PROPOSED CHANGES IN THE COST PRINCIPLES APPLICABLE TO GOVERNMENT CONTRACTORS. EXISTING LAW DISALLOWS PAYMENT OF "POLITICAL ADVOCACY" COSTS. OMB'S DRAFT REGULATION (A-122) WOULD GO FURTHER BY DISALLOWING: - The entire salary of any employee -- whose work includes any political advocacy ----- this will inevitably include all corporate officers, lawyers, public relations activity, etc. -- who has been "induced" to join any organization, other than a labor union, that has political advocacy as a substantial organizational purpose --- such organizations include industry associations like the Defense Preparedness Industry Association, the American Bar Association, etc. -- who has been "induced" to engage in any political advocacy during non-working hours - The entire cost of a building or office space if more than 5% of the usable space is used for any political advocacy -- thus the presence of a corporate vice president or division head engaged (inevitably) in advocacy would taint his entire facility, if he and his support staff use more than 5% of the space - The entire cost of items of equipment used in any part for political advocacy. -- thus, one "political" use would impugn charges for all time of a --- phone system word processing system --- company airplane OMB'S DRAFT REGULATION WOULD GREATLY EXPAND THE DEFINITION OF POLITICAL ADVOCACY TO INCLUDE: - Attempting to affect any local, state or federal decision by -- communicating with officials or legislators, or -- influencing public opinion - Attempting to influence any federal, state or local -- election and -- referendum or initiative - Starting, operating, or contributing to a PAC THE PROPOSED CHANGES ARE OBJECTIONABLE BECAUSE THEY: - Unfairly and unconstitutionally penalize government contrac- tors for participation in public debate undertaken at their own costs -- the value of a contractor's service to the government should not be reduced because, with his own funds, he is involved in public discussions - Undermines precisely the kind of support the administration frequently requests from contractors - unsolicited Congressional appearances, phone calls, educative advertising, etc., are all proscribed - Penalizes many activities required in the normal course of business - for example, participating in a municipal referendum affecting zoning, environmental control, etc. - Creates an administrative nightmare and a source of gross inefficiency by demanding segregation of facilities and corporate officers. - 2 - EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF management AND BUDGET . STREET / WASHINGTON, D.C. 20503 For Immediate Release OMB 84-4 January 20, 1983 The Administration announced today several steps designed to ensure that Federal dollars are not used, directly or indirectly, for political advocacy. The changes involve Federal contracts, including military contracts, and Federal grants to nonprofit organizations. While assuring a full right of eligibility to compete for and receive Federal grants and contracts by organizations in- volved in political advocacy, the changes seek to assure that the Government does not subsidize such activities. Political advo- cacy includes lobbying and other attempts to influence legis- lation, as well as direct participation in elections or refer- enda, administrative processes and certain judicial processes. Today's actions are designed to achieve a complete separa- tion of costs involved in carrying out the Federal purposes for which grants or contracts are made, from costs associated with advocacy. The separation of functions paid for by Federal grants and contracts from all kinds of political advocacy would mean a rig- orous division of such "overhead" elements as office space and automobiles between those used for the Federal grant and those used for advocacy. For example, office complexes housing grantees or contractors where more than 5 percent of the space is used for political advocacy may not be charged to Federal grants or contracts, meaning that there would have be physical separa- tion of the two activities. The changes would also deny payment of salaries from Federal grants or contracts for employees who engage in political advo- cacy as part of their jobs, or who are required, coerced or in- duced into joining advocacy organizations or participating in political advocacy activities on the job or during non-working hours. In addition, grant or contract funds could not be used to pay for membership dues in advocacy organizations. For contracts, the changes would assure that the cost of lobbying Congress for specific weapons systems, for example, would not be included in the contract amount to be paid by the Government. The changes announced are in two forms: O The Office of Management and Budget proposed for comment revisions in its Circular A-122, "Cost Principles for Nonprofit Organizations. = O The main contracting agencies -- the Department of Defense, the General Services Administration and the National Aero- nautics and Space Administration -- are simultaneously an- nouncing proposed changes in their contracting regulations. (Vol. 39) 179 News Allowable Costs tial organizational purpose, or to engage in political advocacy during non-working hours." OMB PROPOSING DISALLOWANCE OF LOBBYING Regarding building or office space, the entire space COSTS FOR CONTRACTS, GRANTS is unallowable if more than 5 percent of it is devoted The Office of Management and Budget is proposing to political advocacy. The same applies to items of a stringent. governmentwide policy on the charging of equipment or other items used in part for political lobbying costs to federal contracts and grants. advocacy; meetings and conferences devoted in any Under the proposed policy. contractors and grantees part to political advocacy; and publication and print- would be barred from using federal funds for "politi- ing allocable in part to political advocacy. cal advocacy," a term that embraces far more than the traditional notion of lobbying as trying to influ- Exception for Legislative Liaison ence a member of Congress to vote a certain way on a However, certain activities are specifically ex- particular issue. cluded from the definition of political advocacy under Political advocacy, as used in the OMB proposal, the proposal. Such allowable activities include: includes not only legislative activities but also efforts making available the results of a nonpartisan aimed at influencing rulemaking or other administra- study or analysis, provided the distribution is not tive processes in the executive branch of the govern- intended to influence the outcome of any federal, ment-the White House and the federal departments state, or local election, referendum, or other proce- and agencies. dure, or any governmental decision; The term also includes participation in or contribu- applying for or bidding on a grant, contract, un- tions to the expenses of litigation other than litigation solicited proposal, or other agreement, or providing in which the organization is a party or has standing to information in connection with such application at the participate in its own behalf. request of the government agency awarding the grant, In addition. particpation in elections or referenda at contract, or other agreement; any level of government, as well as contributions of providing technical advice or assistance to a gov- membership dues, money, or services to any organiza- ernmental body or to a committee or subcommittee in tion having political advocacy as a "substantial orga- response to a written request. nizational purpose," are considered political advocacy This latter category includes certain legislative liai- and thus would be off-limits to those receiving federal son activities presently disallowed under the DOD funds, under the new proposal. lobbying cost policy and in this respect would be more Currently, federal policies on lobbying costs vary favorable to DOD contractors than the current policy, from agency to agency. Under the lobbying cost policy according to DAR Council director James Brannan. issued by DOD last October. the costs of both lobbying At present, there is no specific lobbying cost princi- and legislative liaison activities at all levels of gov- ernment are unallowable on defense contracts (38 ple governing all federal grants, though there are statutory prohibitions governing lobbying in general FCR 721, 741). A month later, the General Services Administration issued a lobbying cost principle for all and certain grantmaking departments in particular. If adopted in final form, the proposed policy would non-defense contracts that disallowed lobbying costs suspersede both the DOD and GSA lobbying policies but not costs for legislative liaison activities (38 FCR and ensure a uniform approach to the issue for all uses 760). of federal funds, grants and contracts alike. Commingling Forbidden Proposed Circular A-122, DAR Changes Under current lobbying guidelines, contractors may The changes as they affect grantees are being pro- separate out the portion of time or other resources posed as a revision to OMB Circular A-122, "Cost devoted to unallowable activities when computing Priniples for Nonprofit Organizations." The proposed their costs on a contract. But that will be virtually revision is scheduled to appear this week in the Fed- impossible to do under the proposed policy, since any eral Register and carries a 45-day comment period. item or activity above a bare minimum that is devot- Parallel changes are likewise being proposed to the ed 10 political advocacy renders the entire item or Defense Acquisition Regulation, the Federal Procure- activity unallowable. In other words, contractors will ment Regulations, and the NASA Procurement be forced to keep their political advocacy items and Regulation. activities strictly separate from those devoted to per- On Jan. 20, the same day that the proposed revision forming the functions of the contract. to OMB circular A-122 was formally released, DOD For example. salary costs of individuals are totally issued a letter to industry seeking comment within 45 unallowable if "the work of such individuals includes days on the proposed DAR change. DOD, GSA, and activities constituting political advocacy," or if the NASA plan to coordinate their activities in order to imployer has "required or induced" them achieve the desired consistency in policy. to "join or pay dues to an organization other than a The circumstances surrounding the development Libor union that has political advocacy as a substan- and issuance of the proposed lobbying policy are Federal Contracts Report 0014-9063/83/$00 180 (Vol. 39) FEDERAL CONTRACTS REPORT puzzling. Although OMB has been working with an (3) Attempting to influence governmental decisions interagency group for several weeks on the proposed through an attempt to affect the opinions of the gener- policy, many senior officials at DOD, GSA, and NASA al public or any segment thereof; were not aware that any change was being contem- (4) Attempting to influence governmental decisions plated until the day it was issued. through communication with any member or employ- Officials from those three agencies who were con- ee of a legislative body, or with any government tacted by FCR were not happy with the proposal, and official or employee who may participate in the deci- indicated that it was entirely OMB's initiative. All sionmaking process; indicated that the comments they receive on the pro- (5) Participating in or contributing to the expenses posal will shape the final form of the cost principle, of litigation other than litigation in which the organi- but the general expectation is that some changes to zation is a party with standing to sue or defend on its their current lobbying policies will be made in light of own behalf: or the OMB proposal. (6) Contributing money, services, or any other thing John Lordan, head of OMB's financial management of value, as dues or otherwise, to an organization that branch and the person directly responsible for coordi- has political advocacy as a substantial organization nating the development of the policy, said merely that purpose, or that spends $100,000 or more per year on the initiative stems from the Administration's concern activities constituting political advocacy. that federal dollars not be used in any way to subsi- (c) Political advocacy does not include the following dize political advocacy activities. activities: Text of the OMB proposal on lobbying that applies (1) Making available the results of nonpartisan anal- to grantees appears at page 230. ysis, study, or research, the distribution of which is not Text of the DAR letter to industry regarding the primarily designed to influence the outcome of any proposed cost principle on political advocacy follows: Federal, State, or local election, referendum, initia- The Administration is concerned with using Govern- tive, or similar procedure, or any governmental ment funds for political advocacy purposes. In con- decision; junction with proposed changes to OMB Circular A- (2) Providing technical advice or assistance to a 122, "Cost principles for nonprofit organizations," governmental body or to a committee or other subdi- concerning political advocacy, the attached proposed vision thereof in response to a written request by such cost principle is under consideration by DOD, GSA, body or subdivision; and NASA. The proposed changes define political ad- (3) Participating in litigation on behalf of other vocacy and make those costs unallowable. persons, if the organization has received a Federal, The definition of political advocacy used in this State, or local grant, contract, or other agreement for proposal is derived generally from the Internal Rev- the express purpose of doing so; enue Code, 26 U.S.C. 4911, defining attempts to "in- (4) Applying or making a bid in connection with a fluence legislation." with modifications designed to grant, contract, unsolicited proposal, or other agree- comprise direct participation in elections or refer- ment, or providing information in connection with enda, administrative processes, certain judicial pro- such application at the request of the government cesses, and other activity of a political advocacy agency awarding the grant, contract, or other agree- nature. ment; or Your comments (15 copies) are requested within 45 (5) Engaging in activities specifically required by days of the date of this letter. Please address your law. comments to: (d) An organization has political advocacy as a "substantial organizational purpose" if: Mr. James T. Brannan (1) The organization's solicitations for membership Director, Defense Acquisition or contributions acknowledge that the organization Regulatory System, OUSDRE(AM) engages in activities constituting political advocacy; Room 3C257, Pentagon or Washington, D.C. 20301 (2) Twenty percent (20%) or more of the organiza- tion's annual expenditures, other than those incurred Sincerely, in connection with Federal, State or local grants, contracts, or other agreements, are incurred in con- WILLIAM A. LONG nection with political advocacy. Deputy Under Secretary (e) The term, "governmental decisions" includes: (Acquisition Management) (1) The introduction, passage, amendment, defeat, Attachment as stated signing, or veto of legislation, appropriations, resolu- 15.XXX.XX Political Advocacy (CWAS-NA) tions, or constitutional amendments at the Federal, (a) The cost of activities constituting political advo- State, or local level; cacy are unallowable. (2) Any rulemakings, guidelines, policy statements, (b) Political advocacy is any activity that includes: or other administrative decisions of general applica- (1) Attempting to influence the outcome of any bility and future effect; or Federal. State, or local election, referendum, initia- (3) Any licensing, grant, ratemaking, formal adjudi- tive, or similar procedure, through contributions, en- cation, or informal adjudication, other than actions or dorsements. publicity, or similar activity; decisions related to the administration of the specific (2) Establishing, administering, contributing to, or grant, contract, or agreement involved. paying the expenses of a political action committee, (f) Notwithstanding the provisions of other. cost prin- either directly or indirectly; ciples in this part: 1-24-83 Copyright © 1983 by The Bureau of National Affairs, Inc. 0014-9063/83/$00.50 NEWS (Vol. 39) 181 $ (1) Salary costs of individuals are unallowable if: curement decision should generally not be overturned (i) the work of such individuals includes activities unless a disappointed bidder can show that the deci- constituting political advocacy, other than activities sion lacked a rational basis, the court concludes. that are both ministerial and non-material: or (ii) the organization has required or induced such Correct Size Standard Applied individuals to join or pay dues to an organization other Baird maintained that since the night vision devices than a labor union that has political advocacy as a would be installed in military tanks and other ar- substantial organizational purpose, or to engage in mored vehicles, the small business size standard (1,000 political advocacy during non-working hours. employees) applicable to manufacturers of military (2) The following costs are unallowable: vehicles should have been applied. Moreover, the com- (i) building or office space in which more than 5% pany noted, the larger size standard is also used for of the usable space occupied by the organization or an producers of periscopes and other types of daytime affiliated organization is devoted to activities consti- viewing devices used in military vehicles. tuting political advocacy; However, Judge Lydon points out, all production (ii) items of equipment or other items used in part contracts for this particular night vision device since for political advocacy; the mid-1970s have used the [750-employee] size stan- (iii) meetings and conferences devoted in any part to dard for makers of light and heat detection devices. political advocacy; Furthermore, the SBA Size Appeals Board subsequent- (iv) publication and printing allocable in part to ly ruled against Baird, noting that the night vision political advocacy; and device is not only installed independently of any day- (v) membership in an organization that has political time viewing aids, but also that its two major compo- advocacy as a substantial organizational purpose, or nents (an image intensifier and a magnifier) are prop- that spends $100,000 or more per year in connection erly classifiable as light detection devices. with political advocacy. "The point here is that classification of an item is a discretionary act and reasonable minds may well disagree," the judge explains. Since the Army's use of Judicial Review the lower size standard was reasonable, there is no basis for the court to change it, he concludes. REVIEW OF PRE-AWARD PROTESTS IS Attacking the Set-Aside LIMITED IN SCOPE, CLAIMS COURT SAYS Baird also contended that using a small business The scope of the Claims Court's review of pre- set-aside for the procurment was improper. The Army award protests is limited. the court decides. Only violated a Defense Acquisition Regulation provision when an agency's pre-award decisions are clearly which prohibits a total small business set-aside when irrational or unreasonable should they be overturned, at least one "planned emergency producer" wants to the court rules, adopting the District of Columbia "participate in the acquisition," Baird maintained. Circuit's Steinthal standard. (Baird Corp. V. U.S., Cls. The company argued that it had previously qualified Ct. No. 645-82C, 1/14/83). for PEP status. Last year the Army issued a solicitation for night However, Baird hasn't qualified under the PEP vision devices. The procurement was set aside for program with respect to the particular night vision small businesses, and was limited to firms with less device needed in this procurement, Judge Lydon than 750 employees. Baird maintained that a larger, states. Rather, Baird had attained PEP status for 1,000-employee size standard should have been used, another night viewing device with a different federal and asked the Army to delay the award pending a stock number. "It should not be left to the PEP ruling from the Small Business Administration's Size supplier to determine on its own which item the Appeals Board. government wants, "he states. The contracting officer denied the request, and bids Moreover, the procurement was not a total set-aside were opened as scheduled. Baird was low bidder, but for small business, the judge adds. An Army form was disqualified for noncompliance with the 750-em- which provided information to prospective offerors ployee size standard. The company filed suit in the did indicate that a 100 percent small business set- Claims Court to block the award. aside was contemplated, he concedes. However, in Standard of Review considering pre-award protests, the court must consid- er the totality of the procurement process, he Writing for the court, Judge Thomas J. Lydon points explains. out that judicial review of an agency's pre-award In fact, the Army planned to buy nearly 2,300 of decisions must be limited in scope. "The court should these night vision devices in 1982, and originally con- not substitute its judgment on such matters for that of templated two separate awards, the judge notes. Baird the agency, but should intervene only when it is clear- won the first (unrestricted) contract, but the second ly determined that the agency's determinations were solicitation (a partial set-aside) was the subject of irrational or unreasonable." several bid protests. As a result, the solicitation was Citing M. Steinthal & Co. V. Seamans (400 FCR A-1, split into two smaller procurements. Baird then won D-1), the judge stresses that judicial intrusions into the the first of these smaller contracts. The second pro- procurement process should be infrequent. "In the curement, which is the subject of this litigation, is a absence of overriding public interest considerations, direct descendant of the partial set-aside, he the court should refuse to look favorably on declara- emphasizes. tory or injunctive relief requests in pre-award bid Thus, it is reasonable to conclude that the set-aside protest actions." Thus, an agency's pre-award pro- was part of a larger procurement, the judge declares. Federal Contracts Report 0014-9063/83/$00 3348 Federal Register / Vol. 48. No. 16 / Monday, January 24. 1983 / Notices OFFICE OF MANAGEMENT AND grantees and contractors with the advocacy in whole or in part. The BUDGET legitimate governmental interests of revision makes unallowable the costs of ensuring that the government does not buildings and office space where 5 [Circular A-122) subsidize, directly or indirectly, the percent or more of the space is devoted political advocacy activities of private to political advocacy. When federal Cost Principles for Nonprofit groups or institutions. These grant or contract recipients use Organizations governmental interests are based on facilities. equipment, or personnel concern for protecting the free and funded in part with federal monies for AGENCY: Office of Management and robust interchange of ideas. political advocacy, they may create the Budget. Americans have the First Amendment appearance of government support for ACTION: Notice. right both to engage freely in speech and their positions. Moreover, if federal political expression, and to refrain from funds are used to defray the overhead SUMMARY: This notice offers interested speaking, without interference or control costs of organizations engaged in parties an opportunity to comment on a on the part of the government or its political advocacy, it frees up the proposed revision to Circular A-122. agents. Wooley V. Maynard, 430 U.S. organization's other funds for use in this "Cost Principles for Nonprofit 705, 714 (1977). The proposed revision is political activity. Organizations." The proposed revision intended to ensure that the use of The principal effect of the revision establishes special provisions for costs Federal grants, contracts and other will be that federal grantees and related to political advocacy. Similar agreements by private organizations contractors that choose to engage in revisions are being simultaneously engaging in political advocacy does not political advocacy must separate their proposed for civilian and defense erode or infringe these constitutional grant or contract activity from their contractors through appropriate actions rights, or distort the political process by political activity. If they mix the two, by the Department of Defense, NASA encouraging or discouraging certain then they will not receive government and GSA. the three agencies with forms of political activity. reimbursement for the jointly allocable authority to issue procurement The activities of government in a democracy necessarily involve a degree costs. Contractors or grantees will not regulations. The purpose of these of political advocacy, since government be permitted to require or induce proposals is to ensure that federal tax officials are expected to communicate employees paid in part or in whole with dollars are not used. directly or indirectly, for the support of political with the people, explain their programs, federal funds to engage in political advocacy. and provide leadership and direction to advocacy activities, either as a formal Over the past 25 years, the volume of the nation. Thus, Members of Congress part of job responsibilites or on their own time. federal activity conducted through and their staffs, the President and his grantees and contractors has political appointees, necessarily The definition of political advocacy dramatically grown. Sound management participate in forms of political used in this proposal is derived of federal grants and contracts has advocacy. However. it is a distortion of generally from the Internal Revenue correspondingly gained in importance. the market place of ideas for the Code, 26 U.S.C. 4911, defining attempts The responsibility of the President government to use its financial power to to "influence legislation," with through OMB to improve the "tip the electoral process," Elrod V. modifications designed to comprise management of the executive branch of Burns, 427 U.S. 353, 356 (1976), by direct participation in elections or government with a view to efficient and subsidizing the political advocacy referenda. administrative processes, economical service. and to fulfill other activities of private organizations and certain judicial processes, and other statutory and constitutional corporations. This proposal will ensure, activity of a political advocacy nature. responsibilities. extends to issues of to the extent consistent with the These proposed revisions will become grant and contract management no less communications function of the effective 30 days after final notice in the than to issues of direct federal activity. government, that taxpayers are not Federal Register. The revisions will In recent years. the problem of the use required, directly or indirectly, "to affect only grants, contracts, and other of federal funds for political advocacy contribute to the support of an agreements entered into after the by grantees and contractors has been ideological cause [they] may oppose." effective date. Existing grants. contracts, identified by members of the public, by Abood V. Detroit Board of Education, and other agreements will not be the Comptroller General. and by 431 U.S. 209, 235-236 (1977). The immediately affected. Agency contracts Members of Congress. As many of these proposal also seeks to avoid the and regulations will incorporate these parties have observed. the diversion to appearance that, by awarding Federal provisions to the same extent and in the political advocacy of federal funds. and grants, contracts, or other agreements to same manner as they do other of equipment procured with and organizations engaged in politicial provisions of Circular A-122. personnel compensated by federal advocacy on particular sides of public Violations of these provisions will be funds. is an abuse of the system and an issues, the Government has endorsed, a basis for cost disallowance. and in uneconomical. inefficient and fostered, or "prescribe[d] [as] orthodox" instances of serious or willful violations, inappropriate use of the public's a particular view on such issues, West may be a basis for debarment or resources. Moreover. the commingling of Virginia State Board of Education V. federal grant or contract activity with suspension. Barnette, 319 U.S. 624, 645 (1943). private political advocacy creates the Comments should be submitted in The proposed revision would make appearance of federal support for unallowable the cost of political duplicate to the Financial Management particular positions in public debate. advocacy, whether direct or indirect. Division, Office of Management and This appearance can create The revision would also make Budget, Washington, D.C. 20503. All misunderstanding and interfere with the unallowable any costs of comments should be received within 45 neutral, non-ideological administration communications equipment. personnel. days of this notice. of federally funded programs. other equipment, meetings or FOR FURTHER INFORMATION CONTACT: This proposal is designed to balance conferences, or publications, where such John J. Lordan, Chief. Financial the First Amendment rights of federal cost items are used for political Management Branch, Office of Federal Register / Vol. 48, No. 16 / Monday, January 24, 1983 / Notices 3349 Management and Budget. Washington, activities-such as transporting corporate to the organization's own interest) have been D.C. 20503. (202) 395-6823. officials to discussions with Congressmen- included in the proposal's definition. to then under the principles proposed by the ensure that such activities are not conducted Issued in Washington. D.C., January 20. Defense Department. the contractor cannot 1983. at the expense of the public. include the cost of the aircraft or of any use Question: What is the penalty for violating Candice C. Bryant, of the aircraft as part of overhead costs these provisions? Acting Deputy Associate Director for allocated in part to the contract. Answer: Cost recovery, and in instances of Administration. As an example in the non-profit area, take serious or willful violations, suspension or an organization which receives a federal Appendix debarment from federal grants or contracts. grant to promote better health services for Question: How does this proposal affect The following questions and answers have low-income individuals, which decides to been prepared by the Office of Management organize a political rally to promote more the First Amendment right of freedom of and Budget for informational purposes only. federal funding for medical programs. The speech? Question: What is the purpose of these organization could not be reimbursed for any Answer: This proposal will promote the revisions? portion of the salaries of individuals engaged First Amendment value that a person can Answer: The purpose is to ensure that in organizing the political rally or for any freely speak, or refrain from speaking, on federal contracts and grants are not used to portion of other overhead costs (office political matters. The Supreme Court has support political advocacy either directly or machines, printing facilities, etc.) if the same recognized constitutional problems with indirectly. Thousands of contractors and overhead items were used for the rally. The requirements on a person "to contribute to granices. administering hundreds of billions organization would be free to hold the rally- the support of an ideological cause he may of federal dollars. have had wide latitude to but it would do so at its own expense, and oppose." Abood V. Detroit Board of engage in political advocacy activities, often without using people. facilities or resources Education, 431 U.S. 209, 235-236 (1977). using the same facilities and personnel paid partially funded by the Federal Government. Although government in a democracy for in part by the taxpayers. The current lack Question: How is it possible to define necessarily involves some degree of political of a government-wide policy prohibiting the "political advocacy"? advocacy because of the need to use of federal grant and contract funds for Answer: The concept of political advocacy. communicate with citizens, taxpayers cannot political advocacy has been criticized by the or "influencing legislation," is used in the rightly be required to support the political General Accounting Office. It is unfair to use Internal Revenue Code restrictions on tax- advocacy of private organizations and federal tax money to support political causes. exempt organizations. The Internal Revenue corporations through federal grants and Nor is it an efficient or economical use of Code definition of "influencing legislation" is contracts. public resources to allow funds to be diverted employed in this proposal, with several Moreover. the freedom of First Amendment from statutory purposes to political modifications to take account of changes in political advocacy is jeopardized when the advocacy. political practices (e.g., development of views of particular groups are financed by A particularly important abuse is that political action committees), Supreme Court the government. The use of federal grants or many contractors and grantees have been developments (e.g., decisions declaring contracts for the support of one side in a able to defray the overhead costs of their certain forms of litigation to be political political debate. like the use of political political advocacy. at public expense. by expression). and shifts in the decisionmaking patronage for the support of apolitical party. allocating some part of the cost to the process (e.g., the growth of administrative can injure the "free functioning of the administration of the contract or grant. Not agencies and referenda as means of political electoral process." Elrod V. Burns. 427 U.S. only does this free up the organization's own decisionmaking). 353, 356 (1976). In the marketplace of ideas, resources for further political activity: it also In particular, the scope of the Code where differing political opinions compete for creates the appearance that the government definition ("influencing legislation") has been public acceptance, the government should not is supporting one or another side in a political expanded to cover "governmental decisions" be in the position of subsidizing the controversy. in general. Thus, for example, the Internal expression of views of particular Question: How will the proposals work? Revenue Code defines the term "influencing Answer: The proposals will revise cost organizations or corporations, as to defense legislation" as including "any attempt to principles applicable to federal grants, or domestic policy. Nor should the influence any legislation through an attempt contracts (other than competitive, firm fixed government create the appearance of official to affect the opinions of the general public or price contracts). and other agreements. support for the political advocacy of its any segment thereof." The proposed revision Recipients of federal grants. contracts, or to Circular A-122. correspondingly. defines grantees or contractors. other agreements will be barred from "political advocacy" as including "attempting Question: Does this proposal infringe the receiving government reimbursement for any to influence governmental decisions through First Amendment rights of recipient activities connected with political advocacy an attempt to affect the opinions of the organizations? at the national. state, or local levels. This general public or any segment thereof." The Answer: No. Recipients remain free to includes membership or dues in trade body of experience in interpreting the engage in political advocacy on any side of associations or other organizations that have Internal Revenue Code provision. as any issue. The proposals merely ensure that political advocacy as a substantial appropriately modified, is expected to aid in organizations engage in political advocacy at organizational purpose. In addition, salary the interpretation of the proposed revisions. their own expense-not the public's. If an COSTS will be unallowable to recipients who The proposals thus include as "political organization chooses to exercise its First wither require their employees to pay dues to advocacy" direct participation in elections or Amendment rights, it is only fair that it keep political advocacy organizations or require referenda by means of contributions, those political activities separate from its them to engage in political advocacy on the endorsement, publicity, administration of work at the expense of the public. It should job OF during non-working hours. Finally, political action committees, or similar not expect to have its political advocacy government funds will not be permitted to activity; contributions to political advocacy subsidized, or to be able to put facilities pay for facilities in which significant political organizations: attempting to influence purchased in part by tax dollars to political advocacy activities are conducted, thus government policy made through the use. Like federal agencies and employees, requiring physical separation of such regulatory process as well as the legislative federal grantces and contractors are activities from those involved in the process; and attempts to influence "expected to execute the programs of the performance of grants and contracts. government policy through litigation as an Government without bias or favoritism for or Question: What is an example of how this amicus curiae, on behalf of the members of against any political party or group or the will work? the organization, or on behalf of another members thereof." CSC V. National Answer: Take the example of a defense party. In addition, several categories of Association of Letter Carriers, 413 U.S. 548, contractor whit b uses a corporate aircraft for activity excluded from the Code definition of 565 (1973). Federal grant and contract activity oversight and management of a federal "influencing legislation" (e.g., will be more efficiently and fairly performed contract. If the contractor chooses to use the communications with organization members if it is not mixed with advocacy activities on aircraft also for lobbying or other political on political topics and lobbying with respect one or the other side of political debate. 3350 Federal Register / Vol. 48. No. 16 / Monday. January 24. 1983 / Notices Question: Will these proposals prevent defend their interests in court? contributing to, or paying the expenses corporations or other organizations from Answer: No. So long as an organization of a political action committee, either lobbying in Congress or the agencies for appears in court on its own behalf. litigation directly or indirectly; grants or contracts? is not defined as political advocacy. Answers: No-but they will do it at their (3) Attempting to influence However, when an organization goes into own expense. not the public's. court to represent others, or to support the governmental decisions through an Question: Will organizations engaged in claim of others. such attempts to influence attempt to affect the opinions of the political advocacy be eligible to receive policy through the judicial process are a form general public or any segment thereof: federal grants and contracts? of political advocacy. as the Supreme Court (4) Attempting to influence Answer: Absolutely. In a memorandum has held. NAACP V. Button. 371 U.S. 415, 429 governmental decisions through dated April 26. 1982. the Director of OMB (1963); In re Primus, 436 U.S. 412. 428 (1978). communications with any member or made clear that: Such activities should not be supported by employee of a legislative body, or with "The Administration will continue to federal grant or contract money, unless the award grants and contracts to those parties any government official or employee grant or contract was made expressly for that who are mos! effective in fulfilling statutory purpose. Attorneys fee award statutes are not who may participate in the purposes [and that] political advocacy groups affected by these proposals. decisionmaking process; may continue to receive grant and contract Question: Will these proposals make it (5) Participating in or contributing to awards." more difficult for the federal government to the expenses of litigation other than This policy will continue in effect. and just reward its political supporters? litigation in which the organization is a HS agencies will be forbidden to award grants Answer: Yes. Currently, the federal party with standing to sue or defend on and contracts because of the political views government may be able to reward its its own behalf; or of applicant groups. they will also be supporters, and punish its opponents. by (6) Contributing money, services, or forbidden from discriminating against granting or denying federal grants to "parties most effective in fulfilling statutory any other thing of value, as dues or organizations engaged in political advocacy. purposes." By making such awards to a friendly otherwise, to an organization that has Question: What will be the practical effect organization the government assumes a political advocacy as a substantial on organizations that engage in political portion of that organization's overhead costs, organizational purpose, or that spends advocacy? and thus supports the organizations political $100.000 or more per year on activities Answer: Federal grantees and contractors activities. In this way, the govenment can constituting political advocacy. that choose to engage in political advocacy influence the political process by inducing C. Political advocacy does not include will need to separate their grant or contract recipients of federal funds to conform their the following activities: activity from their political activity. If they behavior to the governments desires. This mix the two. then they will not receive (1) Making available the results of was one of the dangers of the political spoils government reimbursement for the joint system recognized by the Supreme Court in nonpartisan analysis, study, or research, costs. Elrod V. Burns. 427 U.S. 347, 355-356 (1976). the distribution of which is not primarily Question: What will be the effect on the These proposals will help make the process designed to influence the outcome of employees of contractors and grantees? neutral again, by eliminating the "political any Federal, State, or local election. Answer: Employees whose salary is paid in spoils" aspect of the government funding referendum, initiative, or similar part with federal funds may not be required process. procedure, or any governmental or induced to engage in political advocacy, Question: Will these proposals solve the decision: either as a part of the job or on their own whole problem of federal tax money being time. Nor may they be required to join or pay (2) Providing technical advice or used to support political advocacy? dues to an organization involved in Answer: No. but they make a major step in assistance to a governmental body or to substantial political advocacy. This will a committee or other subdivision thereof the right direction. Congress and the agencies ensure that federal funds are not used to hire must continue to be vigilant to ensure that in response to a written request by such political armies or to generate political grants and contracts are not awarded for body or subdivision; membership support-practices analogous to purposes that involve political advocacy. (3) Participating in litigation on behalf these held unconstitutional in Elrod V. Burns. of other persons, if the organization has 427 U.S. 347 (1976). Of course. individual employees remain free to engage in political Circular A-122-Cost Principles for received a Federal, State, or local grant. Nonprofit Organizations contract, or other agreement for the advocacy on their own it they wish to do so. Question: To what organizations do the express purpose of doing so; Circular A-122 is revised by proposals apply? (4) Applying or making a bid in Answer: The proposed revision to OMB modifying Attachment B as follows: connection with a grant, contract. Circular A-122 will apply to all non-profit 1. Insert a new paragraph "B 33 unsolicited proposal. or other organizations receiving federal grants. Political Advocacy." agreement. or providing information in contracts. or other agreements. Similar a. The cost of activities constituting connection with such application at the proposals are being applied by the political advocacy are unallowable. Department of Defense. NASA. and the b. Political advocacy is any activity request of the government agency that includes: awarding the grant, contract, or other General Services Administration to civilian and defense contractors. The proposed agreement; or (1) Attempting to influence the revisions will apply to grants. contracts. and (5) Engaging in activities specifically outcome of any Federal, State, or local other agreements entered into after the required by law. election, referendum. initiative, or effective date of the revisions. Existing d. An organization has political grants, contracts. and other agreements will similar procedure, through contributions. advocacy as a "substantial not be affected. endorsements, publicity, or similar organizational purpose" if: Question: Will these proposals interfere activity; (1) The organization's solicitations for with organizations due process rights to (2) Establishing, administering, membership or contributions Federal Register / Vol. 48. No. 16 / Monday. January 24. 1983 / Notices 3351 acknowledge that the organization (3) Any licensing. grant, ratemaking. (2) The following costs are engages in activities constituting formal adjudication or informal unallowable: - political advocacy: or adjudication. other than actions or (a) Building or office space in which (2) Twenty percent (20%) or more of decisions related to the administration more than 5% of the usable space the organization's annual expenditures. of the specific grant. contract. or occupied by the organization or an other than those incurred in connection agreement involved. affiliated organization is devoted to with Federal. State or local grants. f. Notwithstanding the provisions of activities constituting political contracts. or other agreements. or other cost principles in this circular: advocacy: incurred in connection with political (b) Items of equipment or other items (1) Salary costs of individuals are advocacy. used in part for political advocacy; unallowable if: (c) Meetings and conferences devoted e. The term. "governmental decisions" (a) The work of such individuals in any part to political advocacy; includes: includes activities constituting political (d) Publication and printing allocable (1) The introduction. passage advocacy, other than activities that are in part to political advocacy: and amendment. defeat. signing, or veto of both ministerial and non-material: or (e) Membership in an organization legislation. appropriations. resolutions. (b) The organization has required or that has political advocacy as a or constitutional amendments at the induced such individuals to join or pay substantial organizational purpose. or Federal. State, or local level: dues to an organization, other than a that spends $100.000 or more per year in (2) Any rulemakings, guidelines. labor union. that has political advocacy connection with political advocacy. policy statements or other as a substantial organizational purpose, 2. Renumber subsequent paragraphs. administrative decisions of general or to engage in political advocacy during [FR Due 83-2031 Filed 1-21-83 1:28 pm) applicability and future effect: or non-working hours. BILLING CODE 3110-01-M (Vol. 39) 179 News BNA Allowable Costs tial organizational purpose, or to engage in political advocacy during non-working hours." OMB PROPOSING DISALLOWANCE OF LOBBYING Regarding building or office space, the entire space COSTS FOR CONTRACTS, GRANTS is unallowable if more than 5 percent of it is devoted The Office of Management and Budget is proposing to political advocacy. The same applies to items of a stringent. governmentwide policy on the charging of equipment or other items used in part for political lobbying costs to federal contracts and grants. advocacy; meetings and conferences devoted in any Under the proposed policy. contractors and grantees part to political advocacy; and publication and print- would be barred from using federal funds for "politi- ing allocable in part to political advocacy. cal advocacy," a term that embraces far more than the traditional notion of lobbying as trying to influ- Exception for Legislative Liaison ence a member of Congress to vote a certain way on a However, certain activities are specifically ex- particular issue. cluded from the definition of political advocacy under Political advocacy. as used in the OMB proposal, the proposal. Such allowable activities include: includes not only legislative activities but also efforts making available the results of a nonpartisan aimed at influencing rulemaking or other administra- study or analysis, provided the distribution is not tive processes in the executive branch of the govern- intended to influence the outcome of any federal, ment-the White House and the federal departments state, or local election, referendum, or other proce- and agencies. dure, or any governmental decision; The term also includes participation in or contribu- applying for or bidding on a grant, contract, un- tions to the expenses of litigation other than litigation solicited proposal, or other agreement, or providing in which the organization is a party or has standing to information in connection with such application at the participate in its own behalf. request of the government agency awarding the grant, In addition, particpation in elections or referenda at contract, or other agreement; any level of government, as well as contributions of providing technical advice or assistance to a gov- membership dues, money, or services to any organiza- ernmental body or to a committee or subcommittee in tion having political advocacy as a "substantial orga- response to a written request. nizational purpose," are considered political advocacy This latter category includes certain legislative liai- and thus would be off-limits to those receiving federal son activities presently disallowed under the DOD funds, under the new proposal. lobbying cost policy and in this respect would be more Currently, federal policies on lobbying costs vary favorable to DOD contractors than the current policy, from agency to agency. Under the lobbying cost policy according to DAR Council director James Brannan. issued by DOD last October. the costs of both lobbying At present, there is no specific lobbying cost princi- and legislative liaison activities at all levels of gov- ple governing all federal grants, though there are ernment are unallowable on defense contracts (38 statutory prohibitions governing lobbying in general FCR 721, 741). A month later, the General Services and certain grantmaking departments in particular. Administration issued a lobbying cost principle for all If adopted in final form, the proposed policy would non-defense contracts that disallowed lobbying costs suspersede both the DOD and GSA lobbying policies but not costs for legislative liaison activities (38 FCR and ensure a uniform approach to the issue for all uses 760). of federal funds, grants and contracts alike. Commingling Forbidden Proposed Circular A-122, DAR Changes Under current lobbying guidelines, contractors may The changes as they affect grantees are being pro- separate out the portion of time or other resources posed as a revision to OMB Circular A-122, "Cost devoted to unallowable activities when computing Priniples for Nonprofit Organizations." The proposed their costs on a contract. But that will be virtually revision is scheduled to appear this week in the Fed- impossible to do under the proposed policy, since any eral Register and carries a 45-day comment period. item or activity above a bare minimum that is devot- Parallel changes are likewise being proposed to the ed to political advocacy renders the entire item or Defense Acquisition Regulation, the Federal Procure- activity unallowable. In other words, contractors will ment Regulations, and the NASA Procurement be forced to keep their political advocacy items and Regulation. activities strictly separate from those devoted to per- On Jan. 20, the same day that the proposed revision forming the functions of the contract. to OMB circular A-122 was formally released, DOD For example. salary costs of individuals are totally issued a letter to industry seeking comment within 45 unallowable if "the work of such individuals includes days on the proposed DAR change. DOD, GSA, and activities constituting political advocacy," or if the NASA plan to coordinate their activities in order to individuals' employer has "required or induced" them achieve the desired consistency in policy. in "join or pay dues to an organization other than a The circumstances surrounding the development Libor union that has political advocacy as a substan- and issuance of the proposed lobbying policy are Federal Contracts Report 0014-9063/83/$0050 180 (Vol. 39) FEDERAL CONTRACTS REPORT puzzling. Although OMB has been working with an (3) Attempting to influence governmental decisions interagency group for several weeks on the proposed through an attempt to affect the opinions of the gener- policy, many senior officials at DOD, GSA, and NASA al public or any segment thereof; were not aware that any change was being contem- (4) Attempting to influence governmental decisions plated until the day it was issued. through communication with any member or employ- Officials from those three agencies who were con- ee of a legislative body, or with any government tacted by FCR were not happy with the proposal, and official or employee who may participate in the deci- indicated that it was entirely OMB's initiative. All sionmaking process; indicated that the comments they receive on the pro- (5) Participating in or contributing to the expenses posal will shape the final form of the cost principle, of litigation other than litigation in which the organi- but the general expectation is that some changes to zation is a party with standing to sue or defend on its their current lobbying policies will be made in light of own behalf: or the OMB proposal. (6) Contributing money, services, or any other thing John Lordan, head of OMB's financial management of value, as dues or otherwise, to an organization that branch and the person directly responsible for coordi- has political advocacy as a substantial organization nating the development of the policy, said merely that purpose, or that spends $100,000 or more per year on the initiative stems from the Administration's concern activities constituting political advocacy. that federal dollars not be used in any way to subsi- (c) Political advocacy does not include the following dize political advocacy activities. activities: Text of the OMB proposal on lobbying that applies (1) Making available the results of nonpartisan anal- to grantees appears at page 230. ysis, study, or research, the distribution of which is not Text of the DAR letter to industry regarding the primarily designed to influence the outcome of any proposed cost principle on political advocacy follows: Federal, State, or local election, referendum, initia- The Administration is concerned with using Govern- tive, or similar procedure, or any governmental ment funds for political advocacy purposes. In con- decision; junction with proposed changes to OMB Circular A- (2) Providing technical advice or assistance to a 122, "Cost principles for nonprofit organizations," governmental body or to a committee or other subdi- concerning political advocacy, the attached proposed vision thereof in response to a written request by such cost principle is under consideration by DOD, GSA, body or subdivision; and NASA. The proposed changes define political ad- (3) Participating in litigation on behalf of other vocacy and make those costs unallowable. persons, if the organization has received a Federal, The definition of political advocacy used in this State, or local grant, contract, or other agreement for proposal is derived generally from the Internal Rev- the express purpose of doing so; enue Code, 26 U.S.C. 4911, defining attempts to "in- (4) Applying or making a bid in connection with a fluence legislation." with modifications designed to grant, contract, unsolicited proposal, or other agree- comprise direct participation in elections or refer- ment, or providing information in connection with enda, administrative processes, certain judicial pro- such application at the request of the government cesses, and other activity of a political advocacy agency awarding the grant, contract, or other agree- nature. ment; or Your comments (15 copies) are requested within 45 (5) Engaging in activities specifically required by days of the date of this letter. Please address your law. comments to: (d) An organization has political advocacy as a "substantial organizational purpose" if: Mr. James T. Brannan (1) The organization's solicitations for membership Director, Defense Acquisition or contributions acknowledge that the organization Regulatory System, OUSDRE(AM) engages in activities constituting political advocacy; Room 3C257, Pentagon or Washington, D.C. 20301 (2) Twenty percent (20%) or more of the organiza- tion's annual expenditures, other than those incurred Sincerely, in connection with Federal, State or local grants, contracts, or other agreements, are incurred in con- WILLIAM A. LONG nection with political advocacy. Deputy Under Secretary (e) The term, "governmental decisions" includes: (Acquisition Management) (1) The introduction, passage, amendment, defeat, Attachment as stated signing, or veto of legislation, appropriations, resolu- 15.XXX.XX Political Advocacy (CWAS-NA) tions, or constitutional amendments at the Federal, (a) The cost of activities constituting political advo- State, or local level; cacy are unallowable. (2) Any rulemakings, guidelines, policy statements, (b) Political advocacy is any activity that includes: or other administrative decisions of general applica- (1) Attempting to influence the outcome of any bility and future effect; or Federal, State, or local election, referendum, initia- (3) Any licensing, grant, ratemaking, formal adjudi- tive, or similar procedure, through contributions, en- cation, or informal adjudication, other than actions or dorsements, publicity, or similar activity; decisions related to the administration of the specific (2) Establishing, administering, contributing to, or grant, contract, or agreement involved. paying the expenses of a political action committee, (f) Notwithstanding the provisions of other cost prin- either directly or indirectly; ciples in this part: 1-24-83 Copyright © 1983 by The Bureau of National Affairs, Inc. 0014-9063/83/$00.50 NEWS (Voi. 39) 181 (1) Salary costs of individuals are unallowable if: curement decision should generally not be overturned (i) the work of such individuals includes activities unless a disappointed bidder can show that the deci- constituting political advocacy, other than activities sion lacked a rational basis, the court concludes. that are both ministerial and non-material; or (ii) the organization has required or induced such Correct Size Standard Applied individuals to join or pay dues to an organization other Baird maintained that since the night vision devices than a labor union that has political advocacy as a would be installed in military tanks and other ar- substantial organizational purpose, or to engage in mored vehicles, the small business size standard (1,000 political advocacy during non-working hours. employees) applicable to manufacturers of military (2) The following costs are unallowable: vehicles should have been applied. Moreover, the com- (i) building or office space in which more than 5% pany noted, the larger size standard is also used for of the usable space occupied by the organization or an producers of periscopes and other types of daytime affiliated organization is devoted to activities consti- viewing devices used in military vehicles. tuting political advocacy; However, Judge Lydon points out, all production (ii) items of equipment or other items used in part contracts for this particular night vision device since for political advocacy: the mid-1970s have used the [750-employee] size stan- (iii) meetings and conferences devoted in any part to dard for makers of light and heat detection devices. political advocacy; Furthermore, the SBA Size Appeals Board subsequent- (iv) publication and printing allocable in part to ly ruled against Baird, noting that the night vision political advocacy; and device is not only installed independently of any day- (v) membership in an organization that has political time viewing aids, but also that its two major compo- advocacy as a substantial organizational purpose, or nents (an image intensifier and a magnifier) are prop- that spends $100,000 or more per year in connection erly classifiable as light detection devices. with political advocacy. "The point here is that classification of an item is a discretionary act and reasonable minds may well disagree," the judge explains. Since the Army's use of Judicial Review the lower size standard was reasonable, there is no basis for the court to change it, he concludes. REVIEW OF PRE-AWARD PROTESTS IS Attacking the Set-Aside LIMITED IN SCOPE, CLAIMS COURT SAYS Baird also contended that using a small business The scope of the Claims Court's review of pre- set-aside for the procurment was improper. The Army award protests is limited. the court decides. Only violated a Defense Acquisition Regulation provision when an agency's pre-award decisions are clearly which prohibits a total small business set-aside when irrational or unreasonable should they be overturned, at least one "planned emergency producer" wants to the court rules, adopting the District of Columbia "participate in the acquisition," Baird maintained. Circuit's Steinthal standard. (Baird Corp. V. U.S., Cls. The company argued that it had previously qualified Ct. No. 645-82C, 1/14/83). for PEP status. Last year the Army issued a solicitation for night However, Baird hasn't qualified under the PEP vision devices. The procurement was set aside for program with respect to the particular night vision small businesses, and was limited to firms with less device needed in this procurement, Judge Lydon than 750 employees. Baird maintained that a larger, states. Rather, Baird had attained PEP status for 1,000-employee size standard should have been used, another night viewing device with a different federal and asked the Army to delay the award pending a stock number. "It should not be left to the PEP ruling from the Small Business Administration's Size supplier to determine on its own which item the Appeals Board. government wants, "he states. The contracting officer denied the request, and bids Moreover, the procurement was not a total set-aside were opened as scheduled. Baird was low bidder, but for small business, the judge adds. An Army form was disqualified for noncompliance with the 750-em- which provided information to prospective offerors ployee size standard. The company filed suit in the did indicate that a 100 percent small business set- Claims Court to block the award. aside was contemplated, he concedes. However, in considering pre-award protests, the court must consid- Standard of Review er the totality of the procurement process, he Writing for the court. Judge Thomas J. Lydon points explains. out that judicial review of an agency's pre-award In fact, the Army planned to buy nearly 2,300 of decisions must be limited in scope. "The court should these night vision devices in 1982, and originally con- not substitute its judgment on such matters for that of templated two separate awards, the judge notes. Baird the agency, but should intervene only when it is clear- won the first (unrestricted) contract, but the second ly determined that the agency's determinations were solicitation (a partial set-aside) was the subject of irrational or unreasonable." several bid protests. As a result, the solicitation was Citing M. Steinthal & Co. V. Seamans (400 FCR A-1, split into two smaller procurements. Baird then won D-1). the judge stresses that judicial intrusions into the the first of these smaller contracts. The second pro- procurement process should be infrequent. "In the curement, which is the subject of this litigation, is a absence of overriding public interest considerations, direct descendant of the partial set-aside, he the court should refuse to look favorably on declara- emphasizes. tory or injunctive relief requests in pre-award bid Thus, it is reasonable to conclude that the set-aside protest actions." Thus, an agency's pre-award pro- was part of a larger procurement, the judge declares. Federal Contracts Report 0014-9063/83/$0050 3348 Federal Register / 48. No. 16 / Monday, January 24. 1983 / Notices OFFICE OF MANAGEMENT AND grantees and contractors with the advocacy in whole or in part. The BUDGET legitimate governmental interests of revision makes unallowable the costs of ensuring that the government does not buildings and office space where 5 [Circular A-122] subsidize. directly or indirectly. the percent or more of the space is devoted political advocacy activities of private to political advocacy. When federal Cost Principles for Nonprofit groups or institutions. These grant or contract recipients use Organizations governmental interests are based on facilities, equipment, or personnel concern for protecting the free and funded in part with federal monies for AGENCY: Office of Management and robust interchange of ideas. political advocacy. they may create the Budget. Americans have the First Amendment appearance of government support for ACTION: Notice. right both to engage freely in speech and their positions. Moreover, if federal political expression, and to refrain from funds are used to defray the overhead SUMMARY: This notice offers interested speaking. without interference or control costs of organizations engaged in parties an opportunity to comment on a on the part of the government or its political advocacy, it frees up the proposed revision to Circular A-122, agents. Wooley V. Maynard, 430 U.S. organization's other funds for use in this "Cost Principles for Nonprofit 705, 714 (1977). The proposed revision is political activity. Organizations." The proposed revision intended to ensure that the use of The principal effect of the revision establishes special provisions for costs Federal grants. contracts and other will be that federal grantees and related to political advocacy. Similar agreements by private organizations contractors that choose to engage in revisions are being simultaneously engaging in political advocacy does not political advocacy must separate their proposed for civilian and defense erode or infringe these constitutional grant or contract activity from their contractors through appropriate actions rights, or distort the political process by political activity. If they mix the two, by the Department of Defense, NASA encouraging or discouraging certain then they will not receive government and GSA. the three agencies with forms of political activity. authority to issue procurement The activities of government in a reimbursement for the jointly allocable regulations. The purpose of these democracy necessarily involve a degree costs. Contractors or grantees will not proposals is to ensure that federal tax of political advocacy, since government be permitted to require or induce dollars are not used. directly or officials are expected to communicate employees paid in part or in whole with indirectly, for the support of political with the people, explain their programs, federal funds to engage in political advocacy. and provide leadership and direction to advocacy activities, either as a formal Over the past 25 years. the volume of the nation. Thus, Members of Congress part of job responsibilites or on their federal activity conducted through and their staffs, the President and his own time. grantees and contractors has political appointees, necessarily The definition of political advocacy dramatically grown. Sound management participate in forms of political used in this proposal is derived of federal grants and contracts has advocacy. However, it is a distortion of generally from the Internal Revenue correspondingly gained in importance. the market place of ideas for the Code, 26 U.S.C. 4911, defining attempts The responsibility of the President government to use its financial power to to "influence legislation," with through OMB to improve the "tip the electoral process," Elrod V. modifications designed to comprise management of the executive branch of Burns, 427 U.S. 353, 356 (1976), by direct participation in elections or government with a view to efficient and subsidizing the political advocacy referenda. administrative processes. economical service. and to fulfill other activities of private organizations and certain judicial processes, and other statutory and constitutional corporations. This proposal will ensure, activity of a political advocacy nature. responsibilities. extends to issues of to the extent consistent with the These proposed revisions will become grant and contract management no less communications function of the effective 30 days after final notice in the than to issues of direct federal activity. government, that taxpayers are not Federal Register. The revisions will In recent years. the problem of the use required, directly or indirectly, "to affect only grants, contracts, and other of federal funds for political advocacy contribute to the support of an agreements entered into after the by grantees and contractors has been ideological cause [they] may oppose." effective date. Existing grants. contracts, identified by members of the public, by Abood V. Detroit Board of Education. and other agreements will not be the Comptroller General. and by 431 U.S. 209, 235-236 (1977). The immediately affected. Agency contracts Members of Congress. As many of these proposal also seeks to avoid the and regulations will incorporate these parties have observed. the diversion to appearance that, by awarding Federal provisions to the same extent and in the political advocacy of federal funds. and grants, contracts, or other agreements to same manner as they do other of equipment procured with and organizations engaged in politicial provisions of Circular A-122. personnel compensated by federal advocacy on particular sides of public funds. is an abuse of the system and an Violations of these provisions will be issues, the Government has endorsed, a basis for cost disallowance. and in uneconomical. inefficient and fostered, or "prescribe[d] [as] orthodox" instances of serious or willful violations, inappropriate use of the public's a particular view on such issues, West resources. Moreover, the commingling of may be a basis for debarment or Virginia State Board of Education V. federal grant or contract activity with suspension. Barnette, 319 U.S. 624, 645 (1943). private political advocacy creates the The proposed revision would make Comments should be submitted in appearance of federal support for unallowable the cost of political duplicate to the Financial Management particular positions in public debate. advocacy, whether direct or indirect. Division, Office of Management and This appearance can create The revision would also make Budget, Washington, D.C. 20503. All misunderstanding and interfere with the unallowable any costs of comments should be received within 45 neutral. non-ideological administration communications equipment. personnel. days of this notice. of federally funded programs. other equipment, meetings or FOR FURTHER INFORMATION CONTACT: This proposal is designed to balance conferences, or publications. where such John J. Lordan. Chief, Financial the First Amendment rights of federal cost items are used for political Management Branch, Office of Federal Register / Vol. 48, No. 16 / Monday, January 24, 1983 / Notices 3349 Management and Budget. Washington, activities-such as transporting corporate to the organization's own interest) have been D.C. 20503, (202) 395-6823. officials to discussions with Congressmen- included in the proposal's definition. to then under the principles proposed by the ensure that such activities are not conducted Issued in Washington, D.C., January 20. Defense Department. the contractor cannot 1983. at the expense of the public. include the cost of the aircraft or of any use Question: What is the penalty for violating Candice C. Bryant, of the aircraft as part of overhead costs these provisions? Acting Deputy Associate Director for allocated in part to the contract. Answer: Cost recovery, and in instances of Administration. As an example in the non-profit area, take serious or willful violations, suspension or an organization which receives a federal Appendix debarment from federal grants or contracts. grant to promote better health services for Question: How does this proposal affect The following questions and answers have low-income individuals, which decides to been prepared by the Office of Management the First Amendment right of freedom of organize a political rally to promote more and Budget for informational purposes only. federal funding for medical programs. The speech? Question: What is the purpose of these organization could not be reimbursed for any Answer: This proposal will promote the revisions? portion of the salaries of individuals engaged First Amendment value that a person can Answer: The purpose is to ensure that in organizing the political rally or for any freely speak, or refrain from speaking, on federal contracts and grants are not used to portion of other overhead costs (office political matters. The Supreme Court has support political advocacy either directly or machines, printing facilities, etc.) if the same recognized constitutional problems with indirectly. Thousands of contractors and overhead items were used for the rally. The requirements on a person "to contribute to grantees. administering hundreds of billions organization would be free to hold the rally- the support of an ideological cause he may of federal dollars. have had wide latitude to but it would do so at its own expense. and oppose." Abood V. Detroit Board of engage in political advocacy activities, often without using people. facilities or resources Education, 431 U.S. 209, 235-236 (1977). using the same facilities and personnel paid partially funded by the Federal Government. Although government in a democracy for in part by the taxpayers. The current lack Question: How is it possible to define necessarily involves some degree of political of a government-wide policy prohibiting the "political advocacy"? advocacy because of the need to use of federal grant and contract funds for Answer: The concept of political advocacy. communicate with citizens, taxpayers cannot political advocacy has been criticized by the or "influencing legislation." is used in the rightly be required to support the political General Accounting Office. It is unfair to use Internal Revenue Code restrictions on tax- advocacy of private organizations and federal tax money to support political causes. exempt organizations. The Internal Revenue corporations through federal grants and Nor is it an efficient or economical use of Code definition of "influencing legislation" is contracts. public resources to allow funds to be diverted employed in this proposal. with several Moreover. the freedom of First Amendment from statutory purposes to political modifications to take account of changes in political advocacy is jeopardized when the advocacy. political practices (e.g., development of views of particular groups are financed by A particularly important abuse is that political action committees), Supreme Court the government. The use of federal grants or many contractors and grantees have been developments (e.g., decisions declaring contracts for the support of one side in a able to defray the overhead costs of their certain forms of litigation to be political political debate. like the use of political political advocacy. at public expense. by expression). and shifts in the decisionmaking patronage for the support of apolitical party. allocating some part of the cost to the process (e.g., the growth of administrative can injure the "free functioning of the administration of the contract or grant. Not agencies and referenda as means of political electoral process." Elrod V. Burns, 427 U.S. only does this free up the organization's own decisionmaking). 353, 356 (1976). In the marketplace of ideas. resources for further political activity: it also In particular, the scope of the Code where differing political opinions compete for creates the appearance that the government definition ("influencing legislation") has been public acceptance, the government should not is supporting one or another side in a political expanded to cover "governmental decisions" be in the position of subsidizing the controversy. in general. Thus. for example, the Internal expression of views of particular Question: How will the proposals work? Revenue Code defines the term "influencing organizations or corporations. as to defense Answer: The proposals will revise cost legislation" as including "any attempt to or domestic policy. Nor should the principles applicable to federal grants. influence any legislation through an attempt contracts (other than competitive. firm fixed government create the appearance of official to affect the opinions of the general public or price contracts). and other agreements. support for the political advocacy of its any segment thereof." The proposed revision Recipients of federal grants. contracts, or to Circular A-122. correspondingly. defines grantees or contractors. other agreements will be barred from "political advocacy" as including "attempting Question: Does this proposal infringe the receiving government reimbursement for any to influence governmental decisions through First Amendment rights of recipient activities connected with political advocacy an attempt to affect the opinions of the organizations? at the national. state, or local levels. This general public or any segment thereof." The Answer: No. Recipients remain free to includes membership or dues in trade body of experience in interpreting the engage in political advocacy on any side of associations or other organizations that have Internal Revenue Code provision, as any issue. The proposals merely ensure that political advocacy as H substantial appropriately modified, is expected to aid in organizations engage in political advocacy at organizational purpose. In addition, salary the interpretation of the proposed revisions. their own expense-not the public's. If an costs will be unallowable to recipients who The proposals thus include as "political organization chooses to exercise its First either require their employees to pay dues to advocacy" direct participation in elections or Amendment rights, it is only fair that it keep political advocacy organizations or require referenda by means of contributions, those political activities separate from its them to engage in political advocacy on the endorsement, publicity, administration of work at the expense of the public. It should job or during non-working hours. Finally, political action committees, or similar not expect to have its political advocacy suvernment funds will not be permitted to activity; contributions to political advocacy subsidized. or to be able to put facilities pay for facilities in which significant political organizations: attempting to influence purchased in part by tax dollars to political advocacy activities are conducted. thus government policy made through the use. Like federal agencies and employees. requiring physical separation of such regulatory process as well as the legislative federal grantees and contractors are activities from those involved in the process; and attempts to influence "expected to execute the programs of the performance of grants and contracts. government policy through litigation as an Government without bias or favoritism for or Question: What is an example of how this amicus curioe, on behalf of the members of against any political party or group or the will work? the organization. or on behalf of another members thereof." CSC V. National Answer Take the example of a defense party. In addition, several categories of Association of Letter Carriers. 413 U.S. 548. contractor whit 5 uses a corporate aircraft for activity excluded from the Code definition of 565 (1973). Federal grant and contract activity oversight and management of a federal "influencing legislation" (e.g., will be more efficiently and fairly performed contract. If the contractor chooses to use the communications with organization members if it is not mixed with advocacy activities on aircraft also for lobbying or other political on political topics and lobbying with respect one or the other side of political debate. 3350 Federal Register / Vol. 48. No. 16 / Monday. January 24. 1983 / Notices Question: Will these proposals prevent defend their interests in court? contributing to, or paying the expenses corporations or other organizations from Answer: No. So long as an organization of a political action committee, either lobbying in Congress or the agencies for appears in court on its own behalf. litigation directly or indirectly; grants or contracts? is not defined as political advocacy. Answers: No-but they will do it at their (3) Attempting to influence However, when an organization goes into own expense. not the public's. court to represent others, or to support the governmental decisions through an Question: Will organizations engaged in claim of others. such attempts to influence attempt to affect the opinions of the political advocacy be eligible to receive policy through the judicial process are a form general public or any segment thereof: federal grants and contracts? of political advocacy, as the Supreme Court (4) Attempting to influence Answer: Absolutely. In a memorandum has held. NAACP V. Button. 371 U.S. 415, 429 governmental decisions through dated April 26, 1982. the Director of OMB (1963); In re Primus, 436 U.S. 412. 428 (1978). communications with any member or made clear that: Such activities should not be supported by employee of a legislative body, or with "The Administration will continue to federal grant or contract money, unless the award grants and contracts to those parties any government official or employee grant or contract was made expressly for that who are most effective in fulfilling statutory purpose. Attorneys fee award statutes are not who may participate in the purposes [and that] political advocacy groups affected by these proposals. decisionmaking process; may continue to receive grant and contract Question: Will these proposals make it (5) Participating in or contributing to awards." more difficult for the federal government to the expenses of litigation other than This policy will continue in effect, and just reward its political supporters? litigation in which the organization is a as agencies will be forbidden to award grants Answer: Yes. Currently, the federal party with standing to sue or defend on and contracts because of the political views government may be able to reward its its own behalf; or of applicant groups. they will also be supporters, and punish its opponents, by forbidden from discriminating against (6) Contributing money, services, or granting or denying federal grants to "parties most effective in fulfilling statutory any other thing of value, as dues or organizations engaged in political advocacy. purposes." By making such awards to a friendly otherwise, to an organization that has Question: What will be the practical effect organization the government assumes a political advocacy as a substantial on organizations that engage in political portion of that organization's overhead costs, organizational purpose, or that spends advocacy? and thus supports the organizations political $100,000 or more per year on activities Answer: Federal grantees and contractors activities. In this way, the govenment can constituting political advocacy. that choose to engage in political advocacy influence the political process by inducing C. Political advocacy does not include will need to separate their grant or contract recipients of federal funds to conform their activity from their political activity. If they the following activities: behavior to the governments desires. This mix the two, then they will not receive (1) Making available the results of was one of the dangers of the political spoils government reimbursement for the joint system recognized by the Supreme Court in nonpartisan analysis, study, or research, costs. Elrod V. Burns. 427 U.S. 347, 355-356 (1976). the distribution of which is not primarily Question: What will be the effect on the These proposals will help make the process designed to influence the outcome of employees of contractors and grantees? neutral again. by eliminating the "political any Federal, State, or local election. Answer: Employees whose salary is paid in spoils" aspect of the government funding referendum. initiative, or similar part with federal funds may not be required process. procedure, or any governmental or induced to engage in political advocacy, Question: Will these proposals solve the decision: either as a part of the job or on their own whole problem of federal tax money being time. Nor may they be required to join or pay (2) Providing technical advice or used to support political advocacy? dues to an organization involved in Answer: No. but they make a major step in assistance to a governmental body or to substantial political advocacy. This will the right direction. Congress and the agencies a committee or other subdivision thereof ensure that federal funds are not used to hire must continue to be vigilant to ensure that in response to a written request by such political armies or to generate political grants and contracts are not awarded for body or subdivision; membership support-practices analogous to purposes that involve political advocacy. (3) Participating in litigation on behalf these held unconstitutional in Elrod V. Burns. of other persons, if the organization has 427 U.S. 347 (1976). Of course. individual employees remain free to engage in political Circular A-122-Cost Principles for received a Federal, State, or local grant. advocacy on their own it they wish to do so. Nonprofit Organizations contract, or other agreement for the Question: To what organizations do the express purpose of doing so; Circular A-122 is revised by proposals apply? (4) Applying or making a bid in Answer: The proposed revision to OMB modifying Attachment B as follows: connection with a grant, contract, Circular A-122 will apply to all non-profit 1. Insert a new paragraph "B 33 unsolicited proposal. or other organizations receiving federal grants. Political Advocacy." agreement. or providing information in contracts. or other agreements. Similar a. The cost of activities constituting proposals are being applied by the political advocacy are unallowable. connection with such application at the Department of Defense. NASA. and the b. Political advocacy is any activity request of the government agency General Services Administration to civilian that includes: awarding the grant, contract, or other and defense contractors. The proposed agreement; or (1) Attempting to influence the revisions will apply to grants. contracts. and (5) Engaging in activities specifically outcome of any Federal, State, or local other agreements entered into after the required by law. election, referendum. initiative, or effective date of the revisions. Existing d. An organization has political grants. contracts. and other agreements will similar procedure, through contributions. advocacy as a "substantial not be affected. endorsements, publicity. or similar organizational purpose" if: Question: Will these proposals interfere activity: (1) The organization's solicitations for with organizations due process rights to (2) Establishing, administering. membership or contributions Federal Register / Vol. 48, No. 16 / Monday, January 24. 1983 / Notices 3351 acknowledge that the organization (3) Any licensing. grant, ratemaking. (2) The following costs are engages in activities constituting formal adjudication or informal unallowable: political advocacy: or adjudication. other than actions or (a) Building or office space in which (2) Twenty percent (20%) or more of decisions related to the administration more than 5% of the usable space the organization's annual expenditures. of the specific grant, contract. or occupied by the organization or an other than those incurred in connection agreement involved. affiliated organization is devoted to with Federal. State or local grants. f. Notwithstanding the provisions of activities constituting political contracts. or other agreements, or other cost principles in this circular: advocacy: incurred in connection with political (b) Items of equipment or other items (1) Salary costs of individuals are advocacy. unallowable if: used in part for political advocacy; (c) Meetings and conferences devoted e. The term. "governmental decisions" (a) The work of such individuals in any part to political advocacy; includes: includes activities constituting political (d) Publication and printing allocable (1) The introduction. passage advocacy, other than activities that are in part to political advocacy; and amendment. defeat, signing, or veto of both ministerial and non-material; or (e) Membership in an organization legislation. appropriations, resolutions. (b) The organization has required or that has political advocacy as a or constitutional amendments at the induced such individuals to join or pay substantial organizational purpose. or Federal, State, or local level; dues to an organization, other than a that spends $100.000 or more per year in (2) Any rulemakings. guidelines. labor union. that has political advocacy connection with political advocacy. policy statements or other as a substantial organizational purpose, 2. Renumber subsequent paragraphs. administrative decisions of general or to engage in political advocacy during [FR Doc. 80-2031 Filed 1-21-83: 1:28 pm) applicability and future effect: or non-working hours. BILLING CODE 3110-01-M