BNUMBER:  B-270875
DATE:  July 5, 1996
TITLE:  [Letter]

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B-270875

July 5, 1996

The Honorable William F. Clinger
Chairman
Committee on Government
   Reform and Oversight
House of Representatives

Dear Mr. Chairman:

In your letter of May 22, 1996, you asked that we examine documents 
submitted in connection with hearings before the Committee on H.R. 
3078, "The Federal Agency Anti-Lobbying Act."  You asked that we look 
at these documents to determine whether the agencies involved-the 
Department of Energy, Labor, and Veterans Affairs (DVA), the 
Commodities Futures Trading Commission (FTC), and the Environmental 
Protection Agency (EPA)-expended federal funds lawfully.  We have 
limited our analysis to the documents provided.  We have not engaged 
in any additional investigative work concerning these matters.  Nor 
have we asked for formal reports from any of the agencies involved.  
Accordingly, our conclusions are limited to our analysis of statements 
in the documents provided and applicable law.

BACKGROUND

Over the years, the Congress has imposed two types of restrictions on 
lobbying activities by Executive branch agencies and their officers or 
employees.  First, in 1919, the Congress enacted what is now 18 U.S.C.  sec.  
1913, which makes the use of appropriated funds for some forms of 
lobbying a crime.  Since section 1913 is a criminal provision, its 
enforcement is the responsibility of the Department of Justice and the 
courts.  The General Accounting Office, therefore, does not decide 
whether a given set of facts constitutes a violation of section 1913.  
We may refer possible violations of section 1913 to the Justice 
Department for further investigation where we have reason to believe 
that Justice, in applying its view of the statute, may believe a 
potential violation exists.

The Justice Department has interpreted section 1913[1] to prohibit 
"large-scale publicity campaigns to generate citizen contacts with 
Congress on behalf of an Administration position" with respect to 
pending legislation.  Memorandum for Dick Thornburgh, Attorney 
General, from William P. Barr, Assistant Attorney General, Office of 
Legal Counsel, September 28, 1989.  In the views of the Justice 
Department, the statute prohibits "substantial 'grass roots' lobbying 
campaigns of telegrams, letters and other private forms of 
communication designed to encourage members of the public to pressure 
members of Congress to support Administration or Department 
legislative or appropriations proposals."  Id.

The Justice Department does not believe section 1913 limits lobbying 
activities personally undertaken by the President, aides or assistants 
in the Executive Office of the President, the Vice President, cabinet 
members within their area of responsibility, and other 
Senate-confirmed officials appointed by the President within their 
areas of responsibility.  Memorandum for the Attorney General and 
Deputy Attorney General from Walter Dellinger, Assistant Attorney 
General, Office of Legal Counsel, April 14, 1995.  Nor does the 
Justice Department view section 1913 as prohibiting communications 
with the public through public speeches, appearances, and published 
writings.  Id.  Further, the Justice Department has suggested that a 
"substantial" grass-roots lobbying campaign is one costing about 
$50,000 or more.  Id.

The second type of lobbying restriction, usually appearing in annual 
appropriations acts, prohibits the use of appropriated funds for 
certain lobbying activities.  Over the years, these restrictions have 
applied at different times, to different agencies and have used 
different wordings.  On occasion, the General Accounting Office has 
been asked to determine whether certain agency activity has violated 
annual appropriations act lobbying restrictions.  The most common 
appropriations act restriction involved in our decisions was the 
governmentwide restriction prohibiting the use of appropriated funds 
for "publicity or propaganda purposes designed to support or defeat 
legislation pending before Congress" that until 1984 was contained in 
the annual Treasury, Postal Service, and General Government 
appropriations acts.[2]  We have determined that this type restriction 
prohibits grass-roots lobbying in the form of agency appeals to the 
public to contact their elected officials concerning pending 
legislation.  See 60 Comp. Gen. 423, 428 (1981); 56 Comp. Gen. 889, 
890 (1977).

DISCUSSION

Of the five agencies involved, only the Department of Labor was 
subject to an appropriations act lobbying restriction at the time of 
the agency activities referred to in the materials you provided.  
Therefore, only the criminal statute, 18 U.S.C.  sec.  1913, applied to the 
activities of the other agencies. 
 
Commodity Futures Trading Commission (CFTC)

On March 23, 1995, CFTC Commissioner (and Chair of the CFTC 
Agricultural Advisory Committee) Joseph B. Dial wrote a memo to 
members and representatives of the Agricultural Advisory Committee 
expressing his opposition to pending legislation that would merge the 
CFTC with the Securities and Exchange Commission (SEC).  Attached to 
the memo was a document entitled "Points of View on the Merger of the 
SEC and the CFTC," which argued against the proposed merger.  The 
Commissioner's memo contained the following statement:  "I urge you 
and/or your organization to make your position known to the 
co-sponsors of this Bill and to the following: [list of committee and 
subcommittee chairs and members]."

Although the memo does not specifically tell recipients what position 
they should make known to members of Congress, clearly Commissioner 
Dial intended and expected that they would argue in opposition to the 
pending legislation.  This constituted grass-roots lobbying covered by 
section 1913.  However, as interpreted by the Justice Department, the 
restrictions of section 1913 do not apply to Commissioner Dial's memo 
for two reasons.  As discussed previously, the Justice Department 
believes that the criminal statute cannot constitutionally apply to 
Senate-confirmed Presidential appointees.  Commissioner Dial is a 
presidential appointee confirmed by the Senate.  Second, Justice 
believes that section 1913 is violated only by substantial lobbying 
campaigns (costing $50,000 or more).  Although we have no information 
on exactly how much Commissioner Dial's memo may have cost, it is 
doubtful it cost anywhere near $50,000.

Department of Energy

On June 12, 1995, then-Deputy Secretary of Energy William H. White 
sent a letter to thousands of individuals and organizations.  In the 
letter Deputy Secretary White set out his views on the condition of 
the energy industry.  He indicated what he thought was the good news, 
the bad news, the role of the federal government, the Administration's 
policies, and "[t]he threat to a balanced energy policy."  In the 
latter section of his letter, Deputy Secretary White pointed out that 
President Clinton (as did President Reagan) saw imports as the 
greatest danger to national security.  He then stated:

     "Now, however, some in Congress want to eliminate over 80 percent 
     of the federal funding for energy R&D of all types, sell the oil 
     stockpiled in the Strategic Petroleum Reserve in competition with 
     the private sector, and eliminate all tax incentives by labeling 
     them 'corporate welfare.'  We are fighting back."

Deputy Secretary White ended his letter by asking recipients to write 
him with their views on the direction the Administration was heading.  
Energy spent about $34,000 to prepare and send Deputy Secretary 
White's letter.

This communication does not constitute "grass-roots lobbying" as the 
Department of Justice has used that term in applying the criminal 
statute.  Nowhere in the letter does the author encourage recipients 
to contact their elected representatives; he only invites them to 
write to him personally.  Further, even if Deputy Secretary White's 
letter had constituted grass-roots lobbying, since he is a 
Senate-confirmed presidential appointee, Justice would not consider 
his activities to be covered by section 1913.
  
Environmental Protection Agency (EPA)  

In early 1995, EPA created a "Contract With America" working group.  
The working group was designed to formulate and communicate the 
agency's position on pending legislation to implement the "Contract 
With America".  The group was     (1) to develop talking points about 
the impacts on the environment of specific legislative provisions as 
they came up before the House and Senate; (2) to respond as issues 
come up as part of the budget process; and (3) to be a conduit to 
"their offices" (presumably within EPA) for information, review, etc.  
Minutes of January 5, 1995 meeting of EPA Contract with America group.  
The group was also to "[e]nsure that EPA's message about the impact of 
this gets out to the Hill, industry groups, editorial writers, other 
outside groups."  Id.  After the group's initial meeting, next steps 
included a coordinated outreach strategy-"pull together list of 
contacts or potential contacts . . . as part of developing a strategy 
for who to reach out to beyond EPA, particularly in the private 
sector."  Id.

EPA engaged in various activities in opposition to legislation 
introduced to implement the "Contract With America".  It compiled 
lists of members of the Congress considered political "moderates" and 
thus potential supporters of EPA's position.  It distributed EPA fact 
sheets to various organizations setting forth the adverse effects that 
pending legislation would have on the environment.  EPA officials 
directly lobbied the Congress.  An EPA regional administrator wrote a 
strong anti-Contract op-ed article.  However, in none of the materials 
we have received is there evidence of grass-roots lobbying, i.e., any 
direct appeal for people to contact members of Congress.  Nor is there 
any clear indication in the materials provided that EPA provided 
direct support to lobbying organizations that supported its views, 
which would constitute a violation.

Although the EPA activities would probably meet the Justice threshold 
for "substantial" campaigns (involving expenditures of over $50,000), 
they do not constitute grass-roots lobbying which the Justice 
Department believes is covered by 18 U.S.C.  sec.  1913.   Although EPA 
engaged in a concerted effort to defeat legislation implementing the 
Contract with America, EPA's direct lobbying of Congress and informing 
the public of its position on legislation are permissible activities 
under Justice's interpretation of the statute.

Department of Veterans Affairs (DVA)

Secretary of Veterans Affairs Jesse Brown sends e-mail messages to DVA 
employees on a regular basis.  At various times in 1995, these 
messages communicated that pending legislation would have an adverse 
effect on DVA programs and staffing, or supported the President's 
budget.  On August 29, 1995, DVA printed a statement from Secretary 
Brown on the back of DVA employees' earning and leave statements 
advising them that the President's budget was much better for 
veteran's programs than the congressional budgets.

Secretary Brown's communications to DVA employees do not constitute 
grass-roots lobbying as the Department of Justice interprets section 
1913.  They are not communications to the public, and they do not urge 
anyone to contact his or her elected representatives about pending 
legislation.  The Secretary is within the group of federal officials 
that the Justice Department contends cannot be constitutionally 
constrained by section 1913, and the costs of Secretary Brown's 
communications are significantly less than the Justice Department's 
"substantial" threshold of $50,000. 
 
Department of Labor (Labor)

Between February and August 1994, the Department of Labor prepared and 
distributed (by fax) a series of publications entitled "America's Job 
Fax."  Labor faxed the publication to "key" congressional members and 
staff and to a wide variety of private sector organizations.  Most of 
the publications strongly supported the Administration's "Reemployment 
Act of 1994."  The series began before the legislation was introduced 
and continued while the Congress was considering it.  In February 
1995, the Department also prepared and distributed two issues of "The 
FAX on Better Jobs & Higher Incomes," which argued for the President's 
"Middle Class Bill of Rights" (Issue 1) and an increased minimum wage 
(Issue 2).

The faxes prepared and distributed by Labor do not constitute 
grass-roots lobbying 
under Justice's interpretation of section 1913.  Although the 
Department of Labor clearly expressed its support for pending 
legislation, it did not urge members of the public to contact their 
elected representatives.  

Unlike the other four agencies, the Department of Labor was subject to 
an appropriations act restriction during the period covered by the 
documents provided.  Section 504(a) of both the fiscal year 1994 and 
1995 appropriations acts for the Department of Labor provided as 
follows:

     "No part of any appropriation contained in this Act shall be 
     used, other than for normal and recognized executive-legislative 
     relationships, for publicity or propaganda purposes, for the 
     preparation, distribution or use of any kit, pamphlet, booklet, 
     publication, radio, television, or film presentation designed to 
     support or defeat legislation pending before the Congress, except 
     in presentation to the Congress itself."

Pub. L. No. 103-112, 107 Stat. 1082, 1112; Pub. L. No. 103-333, 108 
Stat 2539, 2572
(emphasis added).

As discussed previously, we and the Justice Department have 
interpreted the traditional prohibition on the use of appropriated 
funds ("publicity or propaganda purposes designed to support or defeat 
pending legislation") to require an overt appeal to the public to 
contact Members of Congress.  The Labor-HHS restriction differs from 
this traditional language by the presence of the three clauses 
highlighted in the above quotation.  Of these three clauses, the first 
and the last only make it clear that the prohibition does not apply to 
communications directly to the Congress.  The middle clause-"for the 
preparation, distribution or use of any kit, pamphlet, booklet, 
publication, radio, television, or film presentation"-explains what 
the Congress means by publicity or propaganda purposes.  There is 
nothing in the language and legislative history of the prohibition 
indicating that the Congress intended this clause to have any other 
significance.  Although section 504(a) is more detailed than the 
governmentwide publicity and propaganda restriction previously 
contained in the annual Treasury, Postal Service, and General 
Government appropriations acts (see fn. 3 on page 3), it appears to 
have the same legal effect.[3]

The Congress added what is now section 504(a) to the then Labor-HEW 
appropriations act for fiscal year 1974.  The Joint Explanatory 
Statement accompanying the conference report on H.R. 8877 explained:  
"Inserts Section 410 proposed by the Senate to prohibit the use of 
funds for publicity or propaganda to influence legislation pending 
before Congress, except in presentation to Congress itself."  H.R. 
Rept. 682, 93d Cong., 1st Sess. 30 (1973).  In explaining its 
amendment to the bill, the Senate Committee on Appropriations said:

     "The committee has learned that information specialists and other 
     Federal workers have been directed by their respective agencies 
     to  prepare documents solely for propaganda purposes.  These 
     documents serve as the basis for speeches, editorial pieces, and 
     media broadcasts, aimed at lobbying for or against legislation 
     pending before the Congress.  In some cases, this material goes 
     so far as to attack specific members of Congress.  The committee 
     is adamantly opposed to such activities, and has included general 
     provision language to prohibit the use of funds for publicity or 
     propaganda purposes."

S. Rept. 414, 93d Cong., 1st Sess. 101 (1973)(emphasis added).  

The type of agency activities that caused the appropriations committee 
to include the restriction in the Labor-HEW appropriations act are 
revealed in an excerpt from the testimony of the Secretary of Health, 
Education and Welfare:

     "Senator Magnuson . . . . But we keep hearing how the White House 
     has gone full circle on this issue [propaganda].  A few weeks 
     ago, a group of writers at NIH were told to start working up 
     press releases that could be used in editorials, magazines and 
     smalltown newspapers. And some of the writers apparently were 
     told to include certain derogatory statements about the Congress; 
     and people in social security have been reprimanded for not 
     complying with the orders.

     "Now, if there's one agency that shouldn't be involved in this 
     sort of thing, I think you will agree with me, it's social 
     security.

     "Secretary Weinberger.  I certainly agree Senator.  The problem 
     there is a misunderstanding halfway or three-quarters of the way 
     down the line as to what is desired in public information.  There 
     are a lot of complicated things being done in the health field by 
     the National Institutes, and it is desirable that we advise the 
     public of what progress is being made and what is being done.

     "There is no suggestion and anyone who told anyone there was any 
     suggestion that we should put out material that was useful simply 
     for propaganda, or for attacking the Congress, is following 
     totally incorrect instructions. 
                    .    .    .    .   

     ".  .  . But the simple fact of the matter is we don't want any 
     propaganda.  We do feel there is a legitimate field for advising 
     the public on what we are doing, particularly in rapidly changing 
     fields."

Hearings on H.R. 8877 before a Subcommittee of the Committee on 
Appropriations, United States Senate, 93d Cong., 1st Sess. 196-200 
(1973).[4]

As we indicated above, on numerous occasions we have interpreted this 
type of prohibition as applying only to agency grass-roots lobbying 
campaigns.  We set forth our reasoning in a 1973 letter to the 
Chairman, Subcommittee on Communications and Power, House Committee on 
Interstate and Foreign Commerce:

     "We consider that in general section 608(a) [of the Treasury, 
     Postal Service, and General Appropriation Act, 1973] is not 
     violated by the dissemination by an agency of general comment on, 
     or discussion of, pending legislation.  This view is, we believe, 
     necessarily implied by consideration of the nature of those 
     public information functions of an agency which are legitimate 
     and lawful.  Thus, public officials may with propriety report on 
     the activities of their agencies, may expound to the public the 
     policies of those agencies, and of the administration of which 
     they are members, and may likewise offer rebuttal to attacks on 
     those policies.  Expenditure of appropriated funds for 
     dissemination of information in those categories is hence lawful.  
     But it must be recognized that, to the extent to which the policy 
     of an agency or administration is embodied in pending 
     legislation, discussion by officials of that policy will 
     necessarily, either implicitly or by implication, refer to such 
     legislation, and will presumably be either in support of that 
     legislation or in opposition to other non-administration 
     legislation, or both.  An interpretation of section 608 (a) which 
     strictly prohibited expenditures of appropriated funds for 
     dissemination of views on pending legislation would consequently 
     preclude any comment by officials on administration or agency 
     policy, a result which, as noted above, we do not believe was 
     intended.

     "We conclude, therefore, that the Congress did not intend, by the 
     enactment of section 608(a) and like measures, to preclude all 
     expression by agency officials of views on pending legislation.  
     Rather, the prohibition of section 608(a) in our view applies 
     only to expenditures involving direct appeals addressed to the 
     public suggesting that they contact Members of Congress and 
     indicate their support or opposition to pending legislation, 
     i.e., appeals to members of the public for them in turn to urge 
     their representatives to vote in a particular manner. . . "

B-178648, September 21, 1973.  

We have examined the Labor Department faxes in light of section 504(a) 
of the Labor-HHS appropriations acts.  The series of publications 
entitled "America's Job Fax" contains excerpts from speeches by the 
President and Secretary Reich, schedules of public appearances by 
Secretary Reich, facts about conditions affecting employment in the 
United States, descriptions of the President's Reemployment Act of 
1994, information about the progress of the Act through the Congress, 
statements of individuals and organizations supporting the Act, and 
Department of Labor statements arguing both generally and specifically 
that passage of the Act would benefit American workers.  None of the 
faxes, however, contain any suggestion that members of the public 
contact their congressional representatives to urge them to support 
the Reemployment Act.

Similarly, we find nothing in either of the issues of "The FAX On 
Better Jobs & Higher Incomes" that appeals to the public to contact 
members of Congress to support any pending legislation.

We note, however, that the bill you recently introduced, H.R. 3078, 
"The Federal Agency Anti-Lobbying Act," does not use the restrictive 
language ("for publicity and propaganda purposes") found over the 
years in many appropriations acts.  Instead, it would prohibit the use 
of Labor (and other agency) funds "for any activity . . . that is 
intended to promote public support or opposition to any legislative 
proposal."  (Emphasis added.)  As we previously testified, H.R. 3078 
is modeled on a lobbying restriction included since fiscal year 1979 
in the Interior Appropriation Act.  See "H.R. 3078, The Federal Agency 
Anti-Lobbying Act," Statement of Robert P. Murphy, General Counsel, 
United States General Accounting Office.  The threshold test contained 
in H.R. 3078 and the Interior appropriation act reaches a variety of 
situations not reached by section 504(a) of the current Labor-HHS 
appropriations act.  See B-262234, December 21, 1995.  Accordingly, if 
Congress enacts H.R. 3078, the Labor Department's activities would be 
subject to a much broader prohibition than currently provided by 
section 504(a).

We trust that this letter is responsive to your request.

/s/James F. Hinchman
for Comptroller General
of the United States

B-270875

July 5, 1996

DIGEST
                                
1.  Activities of five agencies did not violated 18 U.S.C.  sec.  1913, as 
that criminal statute has been interpreted by the Department of 
Justice.  Justice has determined that section 1913 prohibits only 
substantial (costing $50,000 or more) agency grass-roots lobbying 
campaigns, i.e., campaigns in which appeals are made to members of the 
public to contact their elected representatives in favor of or 
opposition to legislation pending before the Congress.  Further, 
Justice has determined that section 1913 does not apply to the 
activities of presidentially appointed officials whose appointment was 
confirmed by the Senate.

2.  The series of publications entitled "America's Job Fax," prepared 
and distributed by the Department of Labor in 1994, did not violate 
section 504(a) of the annual Labor-HHS appropriations act.  Section 
504(a) prohibits using appropriated funds for grass-roots lobbying 
campaigns and is violated only by agency appeals to members of the 
public to contact their elected officials to support or oppose pending 
legislation.

1. Section 1913 reads,

            "No part of the money appropriated by any enactment of 
            Congress shall, in the absence of express authorization by 
            Congress, be used directly or indirectly to pay for any 
            personal service, advertisement, telegram, telephone, 
            letter, printed or written matter, or other device, 
            intended or designed to influence in any manner a Member 
            of Congress, to favor or oppose, by vote or otherwise, any 
            legislation or appropriation by Congress, whether before 
            or after the introduction of any bill or resolution 
            proposing such legislation or appropriation; but this 
            shall not prevent officers or employees of the United 
            States or of its departments or agencies from 
            communicating to Members of Congress on the request of any 
            Member or to Congress, through the proper channels, 
            requests for legislation or appropriations which they deem 
            necessary for the efficient conduct of the public 
            business.

            "Whoever, being an officer or employee of the United 
            States, or of any department or agency thereof, violates 
            or attempts to violate this section, shall be fined under 
            this title or imprisoned not more than one year, or both; 
            and after notice and hearing by the superior officer 
            vested with the power of removing him, shall be removed 
            from office or employment."

2. The restriction in the annual Treasury, Postal Service and General 
Government appropriations act as it existed through fiscal year 1983 
read as follows:

            "No part of any appropriation contained in this or any 
            other Act . . . shall by used for publicity or propaganda 
            purposes designed to support or defeat legislation pending 
            before Congress."

E.g. Section 607(a), Pub. L. No. 96-74, 93 Stat. 559, 575 (1979)

3. The Justice Department has interpreted the Labor-HHS appropriations 
act restriction similarly.  See Memorandum Opinion for the Counsel to 
the Director, Office of Management and Budget from Assistant Attorney 
General, Office of Legal Counsel, Theodore B. Olson, June 17, 1981.

4. Senator Magnuson included in the hearing record three articles from 
the Washington Post describing Administration publicity campaigns.  
The campaigns involved government officials and employees producing 
large numbers of speeches and speech kits, "canned" editorials, and 
magazine articles to be used in supporting President Nixon's budget 
and opposing appropriations bills pending before the Congress.