TITLE:  Forest Service Violations of Section 303 of the 1998 Interior Department Appropriations, B-281637, May 14, 1999
BNUMBER:  B-281637
DATE:  May 14, 1999
**********************************************************************
Forest Service Violations of Section 303 of the 1998 Interior Department
Appropriations, B-281637, May 14, 1999

B-281637

May 14, 1999

The Honorable Don Young

Chairman, Committee on Resources

House of Representatives

Subject: Forest Service Violations of Section 303 of the 1998 Interior
Department Appropriations Act

Dear Mr. Chairman:

In your letter dated November 24, 1998 written jointly with the Honorable
Frank H. Murkowski, you requested our opinion on whether the United States
Forest Service engaged in lobbying in violation of federal law. In
particular, you asked whether actions taken by employees of the Forest
Service to implement a Communication Plan for the Forest Service Natural
Resource Agenda violated section 303 of the 1998 Interior Department
Appropriations Act, which prohibited the expenditure of funds for certain
lobbying activities undertaken by covered federal officials. [1] In addition
to your letter, you provided us with approximately 1500 documents you had
received from the Forest Service in response to your request for documents
concerning the Agenda and the Communication Plan.

We have completed our review of those documents and have determined that
activities described in them constitute violations of section 303.
Specifically, these activities included (1) urging members of the public
during a meeting to contact Congress in support of road funding initiatives
in legislation and in the budget, and (2) a campaign to promote public
support for a budget proposal seeking to change the way certain payments to
states from Forest Service revenues are calculated.

Because the documents themselves establish at least two violations, and in
view of the time and resources that would be required to examine each action
of every employee pursuant to the Communication Plan, we have limited our
opinion to these violations. As discussed below, we are recommending that
the Secretary develop guidelines on lobbying under section 303 and educate
his employees concerning them.

SECTION 303 OF THE 1998 Interior Department Appropriations Act

Section 303 of the 1998 Interior Department Appropriations Act is one of a
long line of restrictions on the use of appropriated funds by federal
officials for lobbying, or attempting to influence legislators. [2] These
restrictions began with the enactment of a criminal prohibition in 1919 [3]
and continued with various appropriations restrictions imposed from time to
time from the 1950's to the present on individual federal agencies and on
the government as a whole. [4] Generally speaking, these laws have been
interpreted not to prohibit direct contact with legislators by executive
branch officials, but instead to prohibit a variety of other federal agency
lobbying activities. [5]

Section 303 of the 1998 Interior Department Appropriations Act provided:

No part of any appropriation contained in this Act shall be available for
any activity or the publication or distribution of literature that in any
way tends to promote public support or opposition to any legislative
proposal on which congressional action is not complete.

A nearly identical version of this restriction was first enacted in 1977 [6]
and has been in every Interior Department appropriations law since.

The Senate Appropriations Committee that authored what is now section 303
described the concerns that motivated its inclusion:

The Committee is disturbed to learn of certain public information activities
being conducted by the National Park Service, Fish and Wildlife Service, and
Forest Service that tend to promote pending legislative proposals to set
aside certain areas in Alaska for national parks, wildlife refuges, national
forest and other withdrawals. Colorful brochures printed and actively
distributed by these agencies extol the benefits of such proposals and as a
result, tend to promote certain legislative goals of these agencies. [7]

However, the Committee also noted that the provision "should not be
construed as an impediment on the agencies' ability to respond to public
information inquiries." [8]

At the time that what is now section 303 was enacted, two other
anti-lobbying restrictions applied to actions of federal agency employees
covered by the Interior Department Appropriations Act. These were (1) the
criminal prohibition on the use of appropriated funds to influence members
of Congress to favor or oppose legislation (18 U.S.C. sect. 1913 (1994)), and
(2) a government-wide restriction prohibiting the use of appropriated funds
for publicity or propaganda purposes designed to support or defeat pending
legislation. [9] These restrictions had been interpreted by the Department
of Justice and GAO to prevent government officials from explicitly asking
members of the public to contact their elected representatives in support of
or opposition to pending legislation (so-called "grassroots lobbying"). [10]

Given the existence of these two prohibitions on grassroots lobbying at the
time that what is now section 303 was enacted, and given the clarity of the
Senate Committee's purpose to prohibit certain public information activities
like the brochures promoting agency legislative goals, we concluded in our
first opinion interpreting the provision that it was meant to cover actions
not reached by these other two restrictions. [11] Thus we held that the
statute was designed "to cover particularly egregious examples of
‘lobbying' by Federal agencies," even though the material stops short
of actually soliciting the reader to contact his congressperson in support
of or opposition to pending legislation. [12]

In this first GAO opinion on what is now section 303, we considered a
National Endowment of the Arts (NEA) mass mailing of an information packet
concerning the NEA's "Living Cities Program." The packet did not directly
exhort the public to contact Congress. However, among other things, the
cover letter to the information packet was highly supportive of the program,
describing it as a "unique piece of legislation" and highlighting the fact
that the only obstacle that remained in the way of program implementation
was a favorable house vote on program funding. Moreover, the NEA timed its
mailing to coincide with reconsideration of the program's appropriations
after the conference committee failed to agree on funding. We concluded that
the mailing was designed to promote public support for the funding, thereby
violating the Interior Appropriations Act anti-lobbying provision. [13]

More recently, in a 1995 decision, we held that remarks made by a Fish and
Wildlife Service employee at a press conference called to generate
opposition to a pending amendment to the Clean Water Act tended to promote
public opposition to the legislative proposal and hence violated the
Department of Interior Appropriations Act restriction. [14] The Fish and
Wildlife Service employee did not urge members of the public to contact
their congressional representatives. Instead, he stated that "we cannot
afford to rollback protection" for wetlands, which he believed the
legislation would do. In analyzing the case, we pointed out that the press
conference had been called to coincide with the legislation's active
consideration in committee; attract public attention; criticize the
legislation; and link in the public mind the legislation and its sponsor,
who was the chairman of the committee considering the legislation and
represented the district where the press conference was held. Under these
circumstances, we concluded that the Fish and Wildlife Service employee's
allegation of negative consequences that would result from enactment of the
legislation at issue violated the Interior Department Appropriations Act
restriction by tending to promote public opposition to the legislative
proposal. [15]

On the other hand, in another NEA case, we did not find a violation where an
NEA official met with an arts lobbying organization at the arts group's
request during an arts management conference, and gave a presentation
concerning the agency's budget for the following year. [16] We concluded
that agency officials may meet with groups sharing the agency's interest in
legislation to exchange information and viewpoints without violating the
Interior Department Appropriations Act restriction. In our view, the meeting
was essentially a vehicle for the lobbying group to brief its membership,
the NEA and others on its activities and lobbying efforts, and to hear about
NEA's general policies and plans.

In the same NEA case, we also did not find a violation where an NEA official
responded to a question from the audience concerning what the audience could
do to support the NEA. [17] The official, who had just finished making a
presentation at the arts management conference on the NEA's structure, its
function, and the status of its reauthorization, stated that the audience
could contact their elected representatives. Because the answer was
informational and more in the nature of a civics lesson than an exhortation
to take action, we did not view it as tending to promote public support or
opposition to pending legislation. Instead, we held that the official's
statement constituted a good faith response to a question from a member of
the public, a type of communication not proscribed by the Interior
Department Appropriations Act restriction. [18] As long as such statements
are strictly factual and devoid of positive or negative sentiments about the
pending legislation, they are permissible. [19]

In testimony concerning government-wide legislation modeled on section 303
of the Interior Appropriations Act, we recently summarized the principles we
have utilized in analyzing section 303 cases. [20] We pointed out that while
section 303 prohibits the use of appropriated funds for explicit appeals to
the public to contact their elected representatives, "it also reaches more
broadly to restrict appeals to the public that implicitly tend to promote
support for or opposition to legislative measures." In each case under
section 303, we have had to reach a judgment whether under all the facts and
circumstances present, the activity tended to promote public support or
opposition to a pending legislative proposal. Among the factors we have
considered in analyzing whether a violation has occurred are the timing,
setting, audience, content, the reasonably anticipated effect of the
questioned activity, and whether the communication was intended to promote
support or opposition to a legislative proposal. For example, with respect
to the intent factor, in the NEA "Living Cities Program" case, we concluded
that the NEA mass mailing "was designed to promote public support for
funding the Program." [21] In the case of the NEA official who responded to
an audience inquiry concerning what actions members of the audience could
take to support the NEA, we found that intent was lacking and that her
response was "incidental to her presentation and was not part of any plan to
generate action on the part of her audience." [22]

With these principles in mind, we turn to the facts presented in this case.

FACTUAL BACKGROUND

The Natural Resource Agenda

On October 7, 1997, during testimony before the House Committee on
Agriculture, Secretary of Agriculture Dan Glickman announced that he had
asked Forest Service Chief Mike Dombeck to develop, by the beginning of
1998, a natural resource agenda for the Forest Service. [23] The Forest
Service developed its Natural Resource Agenda in January 1998. [24] The
purpose of the Agenda was to set the future direction of the Agency for the
twenty-first century. [25]

The Agenda contained three legislative goals that were the subjects of the
lobbying alleged here. The first two legislative goals dealt with funding
for Forest Service roads. The third legislative goal was to change the way
payments to states were made from revenue collections.

With respect to road funding, the Agenda stated, "Road budgets will
emphasize road reconstruction, relocation, maintenance and decommissioning
to protect and restore watersheds while improving standards to more safely
serve increased recreation use." It further stated, "We will explore with
other agencies increased funding from the Highway Trust Fund for roads
providing the primary recreation access to federal lands." The two
legislative goals the Agenda was referring to were: (1) enactment of the
fiscal year 1999 Forest Service budget proposal, which included funds for
maintenance and reconstruction of Forest Service roads; [26] and (2)
additional funding for its heavily-traveled arterial and collector roads
from the Highway Trust Fund [27] through amendment of reauthorization
legislation for the Intermodal Surface Transportation Efficiency Act of 1991
(ISTEA), which was then pending in Congress. [28]

This attempt to obtain additional funding from the Highway Trust Fund
through ISTEA was also referred to by Forest Service employees as the
"Access America" initiative. [29] The Access America effort was aimed at
obtaining funds from the Highway Trust Fund to finance road construction,
reconstruction and maintenance on roads that accessed federal lands.
According to Forest Service documents, the addition of amounts from the
Highway Trust Fund would allow the Forest Service to focus its appropriated
dollars on the maintenance and repair of its local road system, and to the
decommissioning of unneeded roads. [30] The Trust Fund would then be used to
repair the backbone arterial and collector road system. [31]

The third legislative goal set by the Agenda was to "[d]ecouple payments to
states from revenue collections to provide a stable, predictable level of
funding for county roads and schools." [32] This statement referred to a
change the Forest Service sought in current law. [33] Under existing law, 25
percent of most Forest Service receipts is paid to the states for
distribution to the counties in which National Forest System lands are
located for financing public roads and schools. Because receipts from sales
of timber have declined in recent years, these payments to states have also
declined. Therefore the Administration proposed in its fiscal year 1999
budget to decouple payments from revenue collections and instead provide a
set level of payments in order to give these counties a predictable source
of income. [34] The figure estimated in the budget for these payments was
$270 million. [35] The budget proposal stated that the Administration would
transmit proposed legislation to Congress later in 1998 intended to
stabilize the payments, [36] which it in fact did on April 2, 1998. [37]

The Communication Plan for the Natural Resource Agenda

During the first week of January 1998, the Forest Service Office of
Communications began developing a Communication Plan for the rollout and
subsequent communication of the Natural Resource Agenda over the ensuing
months. [38] The final version of the Communication Plan stated that the
goal of the Plan was "to have key audiences receive and understand the
Forest Service Natural Resource Agenda, resulting in general support for the
principles and future direction of Forest Service resource management." [39]
(Emphasis in original.) The audiences named in the Communication Plan
included employees, Congress, the media and external groups. The multiple
vehicles to be used to communicate the Agenda included internet and intranet
sites, speeches to interest groups at their functions, roundtables, feature
articles, op-ed pieces, one-on-one briefings, posters, brochures, electronic
newsletters, and press conferences, "to name a few."

According to the Plan, the rollout was to begin with the Chief's speech to
Forest Service employees on March 2, 1998. Over the ensuing months, agency
leadership would "communicate with targeted audiences, aimed at development
of support for the management principles engendered in the Agenda." With
respect to employees, the Plan was to involve an extensive effort to educate
employees concerning the Agenda so that they could disseminate it in the
field. With respect to Congress, an objective of the Plan was that "key
elements of the [Natural Resource Agenda] receive support in Congress." With
respect to the media, among other activities, the Chief was to "meet with
editorial boards on every trip to the field" and "push the Agenda." The
strategy was "to gain internal and constituent support" by providing
information to the media "resulting in balanced or favorable articles,
feature pieces, and editorials." With respect to the external groups, the
Chief was to make "key speeches in influential settings to explain and
expand upon the Agenda." The goal of these communications with external
groups was to have them "receive, understand, and support" the Agenda.

ANALYSIS

As previously stated, section 303 of the 1998 Interior Department
Appropriations Act provides that, "No part of any appropriation contained in
this Act shall be available for [the prohibited activities]." (Emphasis
supplied.) The Forest Service, although part of the Department of
Agriculture, receives its appropriations from the Department of Interior and
Related Agencies Appropriations Acts. Therefore Forest Service employees
were covered by section 303 during fiscal year 1998.

Under section 303, appropriated funds may not be used for activities
promoting public support or opposition "to any legislative proposal on which
congressional action is not complete." (Emphasis supplied.) We look first to
the Forest Service's legislative goals in the Natural Resource Agenda to
determine whether they are "legislative proposals" under section 303. As
previously noted, these goals included: funding for Forest Service roads
through an amendment to ISTEA, funding for Forest Service roads through the
fiscal year 1999 budget request, and funding to stabilize payments to states
through the fiscal year 1999 budget request. The bill to reauthorize ISTEA
was substantive legislation and therefore clearly constitutes a "legislative
proposal" within the meaning of section 303, as our previous section 303
opinions have held. [40] Appropriations legislation is also covered by this
language. [41] We have not previously had the opportunity to consider
whether section 303 applies to proposed presidential budgets.

While neither the language nor the legislative history of section 303
defines the meaning of the phrase "legislative proposal on which
congressional action is not complete," the committee that authored the
provision expressed its concern that activities of certain federal agencies
extolling the benefits of pending legislative proposals tended "to promote
certain legislative goals of these agencies." [42] Thus it was the promotion
of the executive departments' legislative goals contained in "legislative
proposals" under consideration by Congress that motivated enactment of
section 303. Legislative goals of the executive branch are set forth for the
consideration of Congress not only in bills drafted or otherwise supported
by the executive branch, but also in the President's budget, which is his
proposal for how money should be spent in the next fiscal year.

Indeed, presidential legislative proposals to Congress in general and the
budget in particular have a special status in our constitutional and
legislative scheme. The Constitution provides that the President shall from
time to time "recommend to [Congress'] Consideration such Measures as he
shall judge necessary and expedient." [43] The President is required by
statute to submit one such measure, the budget, to Congress by the first
Monday of February each year. [44] Under the statute, the President must
propose appropriations for the next fiscal year and identify any proposed
appropriations attributable to newly-established or expanded government
activities. Moreover, according to a provision of the Congressional Budget
Act of 1974, [45] the President's submission of the budget-the blueprint for
government spending for the following fiscal year-initiates the process for
enactment of the annual appropriations laws, just as congressional bills do
for authorizing legislation.

The Rules of the House of Representatives also reflect the role of proposed
Presidential budgets in initiating the legislative process for annual
appropriations laws. Under the Rules, "estimates of appropriations" from the
executive departments are to be addressed to the Speaker and referred by him
to the appropriate committees, [46] just as bills are referred to standing
committees of jurisdiction. [47] One of these committees, the Appropriations
Committee, is required by the Rules within thirty days of transmittal of the
budget by the President to Congress to hold hearings on the budget, with
particular reference to, among other things, "the basic recommendations and
budgetary policies of the President in the presentation of the Budget." [48]
Similarly, the Budget Committee has the duty under the Rules to hold
hearings on the budget in order to develop the concurrent resolution on the
budget for each fiscal year. [49]

We have also held that another appropriations restriction prohibiting
lobbying activities with respect to "legislation pending before Congress"
applied not just to actual appropriations legislation, but to proposed
presidential budgets as well. [50] Because the phrase "legislative proposal"
is at least as broad if not broader than the phrase "legislation pending
before Congress," and because proposed Presidential budgets have a special
constitutional, statutory and procedural role of setting forth for
consideration by Congress the President's legislative goals for how money
should be spent in the next fiscal year, we conclude that presidential
budgets are also "legislative proposals" within the meaning of section 303.

In this case, as previously noted, the President's fiscal year 1999 budget
contained two relevant initiatives. First, the budget included funds for
maintenance and reconstruction of Forest Service roads. [51] Second, the
budget included funds for the payments to states proposal. [52] While the
actual legislation required to implement the proposal regarding payments to
states was not submitted to Congress along with the proposed budget, the
Forest Service Fiscal Year 1999 Budget Explanatory Notes contained a
description of the need for the legislation it planned to submit later in
the year and a description of the formula the law would use to determine the
payments.

Thus, the Natural Resource Agenda made reference to at least three
"legislative proposals" under section 303: the ISTEA reauthorization
legislation; the fiscal year 1999 budget request for Forest Service road
funding; and the fiscal year 1999 budget request for funding to stabilize
payments to states. Congressional consideration was not complete on these
legislative proposals during the time period in which the lobbying
activities alleged here took place, approximately February through April,
1998. As previously noted, the ISTEA reauthorization bill was introduced as
H.R. 2400 on September 4, 1997 and was not enacted until June 9, 1998. [53]
The President transmitted the budget to Congress on February 2, 1998 [54]
and it was still pending at this time as well. Therefore the only remaining
question is whether Forest Service employees engaged in "any activity or the
publication or distribution of literature that in any way tend[ed] to
promote public support or opposition to" any of these three legislative
proposals during fiscal year 1998.

Efforts to Promote Road Funding

As previously noted, the official "rollout" of the Forest Service Natural
Resource Agenda came with a speech to Forest Service employees by Forest
Service Chief Mike Dombeck on March 2, 1998. [55] Among other things, Chief
Dombeck discussed the need to obtain the road funding proposed in the
Administration's fiscal year 1999 budget, the possibility of obtaining
Highway Trust Funds for the Forest Service's heavily-traveled roads, and the
legislative proposal to stabilize payments to states. [56] In a letter the
same day to all employees, the Chief urged employees to "discuss the agenda
with your colleagues, your friends and your neighbors." [57]

In another letter the same day to regional management officials, the Chief
asked officials to "communicate this speech and the ideas presented by the
agenda to as wide an audience as possible both inside and outside the
agency." [58] He further stated that he was forwarding to them for their
review the Communication Plan for the Natural Resource Agenda. He urged them
to "look for opportunities to implement actions called for in the plan," and
not to wait "for specific requests from Washington before taking action."
Instead, he said they should "use the national plan as a guide for
developing your own Regional, or Station communication effort around the
agenda." According to an electronic mail report on a conference call between
the Chief and regional officials concerning the rollout of the Natural
Resource Agenda, the Chief told the officials "that he wants each of us to
be proactive with the agenda. That includes working aggressively with
employees, interest groups and congressionals to move the full agenda
forward." [59]

Apparently, at least some regional officials took this message to heart. On
March 20, 1998, the Huron-Manistee National Forest held a public "Friends of
the Forest" meeting. [60] In attendance at this meeting were individuals
from the Sierra Club, Georgia Pacific Corporation, and other groups, and
members of the general public. The agenda, printed on Huron-Manistee
National Forests letterhead, indicates that the meeting ran from 9:00 am to
3:30 pm and consisted of presentations by Forest Service personnel. From
1:30 to 2:00, a Forest Planner for the Forest Service discussed the "New
Roads Policy." The detailed minutes of the meeting indicate that the new
roads policy he discussed was the "Access America" ISTEA reauthorization
initiative to fund maintenance of arterial and collector roads through the
Highway Trust Fund. According to the minutes, the Forest Planner stated, in
part:

There are 86,000 miles of Forest Development arterial and collector roads
that aremajor access [sic] to the National Forests but don't make sense to
be under State or County jurisdiction. Historically, these roads were
constructed, reconstructed and maintained through a combination of roads
appropriations and commodity production (timber sales, oil and gas mining,
etc.).

An estimated 80% of the traffic on these arterial/collector roads is
recreation oriented; the demand for recreation opportunities and the
associate access is increasing dramatically and has been steadily since the
1950's. It is time to consider the Forest Service becoming a public road
authority on the arterial collector forest development roads that are, for
all practical purposes, public roads. These roads should then be
reconstructed with highway trust dollars.

The Forest Service estimates a deferred reconstruction backlog of $10.5
billion on existing arterial/collector forest development roads. It would
take $375 million annually to begin working toward eliminating that backlog
and move toward a safe, comfortable transportation system for the National
Forest user.

This initiative is not maintenance needs assessment [sic]; it is a
reconstruction needs issue. Maintenance needs are being addressed through
annual appropriations. The FY 99 President's budget requests a 26% increase
in road maintenance appropriations.

Also according to the minutes, a Forest Supervisor delivered the closing
remarks. He stated, in part, "We need to communicate these issues not only
locally but included [sic] Detroit, Grand Rapids and other downstate cities
and keep the dialogue openLet Congress know what our problems and solutions
are. They need to know what is important to you. We will try to have more
public forums." (Emphasis supplied.) The road funding initiatives were the
only legislative proposals that were discussed in the meeting, according to
the minutes, and therefore this exhortation to contact Congress must have
referred to them.

This "Friends of the Forest" meeting was clearly an activity that would tend
to promote public support for these road funding legislative proposals, as
proscribed by section 303. Forest Service employees used appropriated funds,
at the very least in terms of their salaries, to urge members of the public
to inform Congress of Forest Service problems concerning road funding and
the solutions proposed by the Forest Service--enactment of the Forest
Service budget and amendment of the ISTEA reauthorization legislation to
provide Highway Trust Funds for Forest Service roads.

Unlike the NEA case in which the NEA met with an interest group and
discussed its general plans and policies, [61] the Forest Service went
beyond merely providing information to encouraging participants to let
"Congress know what our problems and solutions are." Also unlike the same
NEA case in which an NEA official, as an incidental part of her
presentation, responded in good faith to a question about what people could
do to support the NEA, [62] the Friends of the Forest meeting was part of
the overall effort set forth in the Communication Plan to gain support for
the Forest Service Natural Resource Agenda, which included the road funding
legislative proposals. As we have recently pointed out in testimony, section
303 not only prohibits grassroots lobbying of the sort engaged in here, but
it reaches more broadly to restrict even implicit appeals. [63] Therefore,
this explicit appeal to the public is certainly encompassed within the ambit
of section 303 and therefore is a violation of that provision.

Efforts to Promote Payments to States Proposal

In addition to the Communication Plan prepared for the overall Natural
Resource Agenda, a "Communication Plan for Reforming Forest Service Payments
to States" was also prepared by the Forest Service Office of Communications
on March 6, 1998. [64] This communication effort was to be part of and
consistent with the overall Communication Plan. The goal of the Payments to
States Communication Plan was to "have key audiences receive and understand
the Forest Services' payment to states proposal, resulting in general
support for the proposal." (Emphasis in original.) Objectives of the Plan
included, among others:

  1. Have each Forest Supervisor visit with their Commissioners/Supervisors
     and explain the effects this proposal will have upon that county.
  2. Have interested Members of Congress, and their staffs, briefed and kept
     abreast of the status of the proposal.
  3. Have key media outlets support the proposal, as indicated by supportive
     editorials.
  4. Have key groups support the proposal.
  5. With respect to its general approach, the Plan stated, "Although we
     will provide informational material for all interested parties, we will
     take extra steps to inform and involve key groups such as industry,
     elected county/state officials, and environmental groups." In this
     regard, the Plan stated that appropriate professional associations and
     interest groups such as the National Governors Association and the
     International Association of Fish and Wildlife Agencies would be
     identified and provided information on the proposal. Personal contacts,
     rather than fax or electronic mail, were to be used by Forest Service
     leaders who had relationships with the identified groups. Forest
     Service leaders were to "take every opportunity to meet with media,
     local elected officials, employees, and interest groups to explain [the
     Natural Resource Agenda]. As appropriate, the payments proposal will be
     emphasized."

     Finally, specifically with respect to the involvement of field
     personnel, the Plan noted that the Natural Resource Agenda contained a
     legislative proposal concerning stabilizing payments to states and that
     all employees had received a copy of the Chief's speech, which
     referenced the proposal. The Plan stated that regional leaders would
     also receive a briefing packet containing information on the payments
     to states proposal and a directive from Chief Dombeck detailing his
     expectations concerning sharing information on the proposal. Regional
     leaders, according to the Plan, would be expected to share payments to
     states information from the packet with their County Supervisors and
     then report to the Washington office on their contacts as well as
     concerns and support for the proposal. A Washington office employee
     would be designated "to continually assess support for the proposal."

     On March 13, 1998, Chief Mike Dombeck sent the directive to regional
     leaders referred to in the Communication Plan concerning stabilizing
     payments to states. [65] It stated,

     On March 2, in the Forest Service Natural Resource Agenda, I stressed
     the need to work with Congress and local communities to provide stable
     and predictable payments to StatesAs many of you know, the
     Administration is proposing legislation to stabilize payments to
     States. I support this proposal and request you and your employees to
     assist me in sharing information with your internal and external
     customers.

     The memorandum then listed a number of expectations the Chief had for
     the regional leaders, including:
       1. Hold informational sessions with all employees by March 30.
       2. Forest Supervisors or District Rangers must meet with and brief
          county commissioners or supervisors and school administrators to
          explain the proposal and get their concerns and key items of
          support by March 30.
       3. Field units should seek opportunities to brief the media on the
          proposal.
       4. Whoever you determine is the most effective contact should meet
          with and brief the governors' offices, State education
          associations, and State associations of counties by March 30.
       5. Report back to Kevin Elliott (kelliott/wo) using the enclosure for
          summarizing your briefings by March 30.

The enclosure referred to in the Chief's directive consisted of a form for
regional personnel to list individuals contacted and whether they were
supportive or opposed to the payments to states legislative proposal.

On the same day that Dombeck sent his directive to regional leaders
concerning the payments to states proposal, the Washington official
designated as the contact for the regional managers on the issue gave a
speech in which he explained the reason regional officials were being urged
to have this "dialogue" with county officials: "[without] the support of the
local communities this proposal has limited success on Capital [sic] Hill."
[66]

The documents produced by the Forest Service demonstrate that the Chief's
directive was thoroughly implemented by field personnel. Literally hundreds
of contacts were made by field staff and reported on the contact forms
supplied to the field along with the Chief's directive, or otherwise
documented. [67] Among the individuals and groups contacted were county
commissioners and other county officials, school board officials, mayors and
other city officials, governors, state legislators and other state
officials, judges, Chambers of Commerce, education associations, the
National Association of Counties and the Western Governors Association. [68]

The briefing packet sent to regional officials along with the Chief's
directive listed the benefits of reforming Forest Service payments to
states. [69] According to the briefing packet, these benefits included an
overall funding increase for the payments and a stabilization of the funding
levels so that payments used for public schools and roads would not be
reduced as a result of declining revenue collections. The packet also
pointed out that under the proposal counties would receive at least what
they received in 1997 and that many counties would receive higher amounts.

The documents demonstrate that regional officials used this packet
extensively to brief individuals contacted. [70] At least one region used
this material to prepare individualized briefing information to show the
benefits to that region of the reform the Forest Service was advocating.
[71] The region-specific briefing material and material listing the overall
benefits of the proposal were used by the regional officials in their
contacts with eleven mayors in the region. [72]

In at least some cases, this effort appears to have had its intended effect
of promoting support for the payments to states proposal. Regional staff for
a Forest Service region encompassing several western states reported, among
other things, that "many" of the individuals contacted "indicated they may
contact their congressional delegation with their comments." [73] Similarly,
a superintendent of the Baker County Schools in Florida who was contacted
was reported to be "very excited; will make calls to local members of
Congress to support." [74] In addition, a school superintendent in Mullan,
Idaho wrote a letter to a Forest Supervisor in Idaho stating that he was
very pleased to see the proposed legislation to stabilize payments to states
and asking the Forest Supervisor to let him know if he could be of
assistance "in promoting this legislation." [75] Further, an electronic mail
message authored by a Department of Agriculture Assistant to the Under
Secretary for Natural Resources and the Environment stated that the Alpine
County Board of Supervisors in California had adopted a resolution
supporting the payments to states proposal. [76] Another electronic mail
message authored by the same individual concerning the payments to states
issue noted that, "The field has been meeting with school boards and county
officials to explain the provisions. Grassroots people are starting to get
this issue into the media." [77]

We believe that this campaign to promote the payments to states legislative
proposal violated section 303 of the Interior Department Appropriations Act.
[78] The briefing packet used in the contacts was highly supportive of the
payments to states proposal, as was the case in the NEA mass mailing
decision. [79] The audience selected-public officials likely to be concerned
about funds for schools-was one that would be particularly responsive to
such a proposal. Moreover, as articulated repeatedly in the Communication
Plan for the payments to states proposal, the goal of the campaign was to
promote public support for the proposal, thus satisfying the intent factor
we have often found significant in these cases. Indeed, this Forest Service
effort was comprised of just the sort of "particularly egregious instances
of agency lobbying through public information campaigns" that we have held
violate the Interior Department Appropriations restriction. [80]

It is impossible to tell from the documents produced by the Forest Service
how fully the overall Communication Plan for the Natural Resource Agenda was
implemented. Concerns expressed by members of Congress about possible
illegal lobbying activities by Forest Service employees may have discouraged
some further planned activities. Handwritten notes of conference calls
between the Washington office and the regions during the time period after
members of Congress began expressing these concerns, on and after March 13,
1998, [81] indicate that the regions were being cautioned about lobbying.
[82]

We believe that further implementation of the Communication Plan would
likely have resulted in a number of violations of section 303 of the 1998
Interior Appropriations Act. As repeatedly stated in the Communication Plan,
the wide range of activities planned to communicate the Agenda had the
objective of obtaining public support for the Agenda, which of course
included the three legislative proposals discussed above. Moreover, these
three legislative proposals were not minor aspects of the Agenda; the
majority of the documents produced by the Forest Service concerning
implementation of the Agenda focused on one or all of these proposals. [83]
Given the magnitude of the effort that was to be undertaken to satisfy the
Communication Plan, it is highly likely that in addition to the violations
described above, some of these other planned activities would have in fact
tended to garner such support, in violation of section 303.

Indeed, in light of the large number of activities planned to implement the
Agenda and the time and resources that would be required to investigate each
action of every Forest Service employee pursuant to this plan, we have
limited our analysis to the documents provided. [84] We believe that the
documents themselves establish at least the two specific violations
discussed above.

NEED FOR LOBBYING GUIDELINES

We have found no evidence that Forest Service employees were aware that they
were violating the law and continued to take actions that they knew were
wrong. Indeed, the evidence appears to us to be to the contrary. As far as
we can determine, the topic of lobbying is not mentioned in any of the
documents dated prior to the time that members of Congress first raised
concerns regarding Forest Service communication plans or lobbying by Forest
Service employees. [85] However, documents subsequent to that time suggest
that employees should be careful not to lobby. [86] Unfortunately, several
of these documents indicate a misunderstanding of what was (and still is)
prohibited by the Interior Department Appropriations Act restriction. [87]

We have contacted USDA's Office of General Counsel, which has informed us
that it had no guidelines concerning lobbying under section 303 during the
events at issue here. Moreover, despite an April 9, 1998 letter from Chief
Dombeck to Chairwoman Helen Chenoweth stating that the Forest Service was
working with USDA's Office of General Counsel to develop such guidelines,
[88] the Office of General Counsel informed us that it still has none.

CONCLUSION AND RECOMMENDATION

We have concluded that the expenditure of funds by the Forest Service for
certain activities undertaken to implement a Communication Plan for the
Forest Service Natural Resource Agenda violated section 303 of the 1998
Interior Department Appropriations Act. Specifically, these activities
included (1) urging members of the public during a meeting to contact
Congress in support of road funding initiatives in legislation and in the
budget, and (2) a campaign to promote public support for a budget proposal
seeking to change the way certain payments to states from Forest Service
revenues are calculated.

We are sending a copy of our opinion to the Secretary of the Department of
Agriculture, and we recommend that the Secretary develop guidelines on
lobbying under section 303 and educate his employees concerning them so that
future violations do not occur. We shared a draft of this opinion with the
USDA's Office of General Counsel and made some changes to the opinion in
response to their comments. An official from the USDA Office of General
Counsel stated that the Office of General Counsel intended to follow our
recommendation concerning the development and dissemination of guidelines.

Sincerely yours,

Robert P. Murphy

General Counsel

B-281637

DIGEST

Expenditure of funds by the Forest Service for certain activities undertaken
to implement a Forest Service Natural Resource Agenda Communication Plan
violated section 303 of the 1998 Interior Department Appropriations Act.
Activities included (1) urging members of the public during a meeting to
contact Congress in support of road funding initiatives in legislation and
in the budget, and (2) a campaign to promote public support for a budget
proposal seeking to change the way certain payments to states from Forest
Service revenues are calculated.

Notes

1. Department of the Interior and Related Agencies Appropriations Act, 1998,
Pub. L. No. 105-83, sect. 303, 111 Stat. 1543, 1589 (1997). The Forest Service
is funded by the Department of Interior Appropriations Act. Your letter also
requested an opinion as to whether other relevant statutes had been
violated, but we agreed with your staff to limit our analysis to violations
of section 303.

2. See generally United States General Accounting Office, Principles of
Federal Appropriations Law, 4-156 to 4-179 (2d ed. 1991).

3. Third Deficiency Appropriation Act, fiscal year 1919, ch. 6, sect. 6, 41
Stat. 68 (1919) (codified on June 25, 1948 at 18 U.S.C. sect. 1913).

4. United States General Accounting Office, supra note 2, at 4-156 to 4-179.

5. Id.

6. Department of the Interior and Related Agencies Appropriations Act, 1978,
Pub. L. No. 95-74, sect. 304, 91 Stat. 285, 307 (1977). This provision appended
at the end of the phrase, "in accordance with the Act of June 25, 1948 (18
U.S.C. 1913) [the criminal anti-lobbying statute]." Without explanation,
Congress eliminated the reference to the criminal provision in 1982 and
years thereafter; we have previously held that this deletion did not change
the reach of the statute. B-262234, December 21, 1995.

7. S. Rep. No. 95-276, at 4-5 (1977).

8. Id. at 5.

9. Treasury, Postal Service and General Government Appropriations Act, 1979,
Pub. L. No. 95-429, sect. 607(a), 92 Stat. 1001, 1016 (1978).

10. See B-262234, December 21, 1995; 59 Comp. Gen. 115, 117-18 (1979). The
Department of Justice continues to maintain this view of 18 U.S.C. sect. 1913.
Memorandum for the Attorney General and Deputy Attorney General from Walter
Dellinger, Assistant Attorney General, Office of Legal Counsel, April 14,
1995.

11. 59 Comp. Gen. 115, 118-19 (1979).

12. Id. at 120.

13. Id. at 120-21.

14. B-262234, December 21, 1995.

15. Id. In our 1995 opinion, we noted that the Department of Justice has
historically expressed the view that the President's constitutional role in
the legislative process includes the duty to communicate with the citizens
of the United States on matters that relate to legislation. E.g., Memorandum
from William P. Barr, Assistant Attorney General, Office of Legal Counsel,
to Attorney General Dick Thornburg, September 28, 1989 ("Constraints Imposed
by 18 U.S.C. sect. 1913 on Lobbying Efforts"). Most recently, "Anti-Lobbying Act
Guidelines" issued on April 17, 1995, by the Office of Legal Counsel
Department of Justice, stated that lobbying activities may not be limited
when: ". . . personally undertaken by the President, his aides and
assistants within the Executive Office of the President, the Vice President,
cabinet members within their areas of responsibility, and other
Senate-confirmed officials appointed by the President within their areas of
responsibility." In this connection, we note that none of the Forest Service
employees involved in the activities complained of here are in the
categories of executive branch employees whose lobbying activities are
constitutionally protected under the Justice Department's view.

16. B-239856, April 29, 1991.

17. Id.

18. Id.

19. 59 Comp. Gen. at 119.

20. H.R. 3078, The Federal Agency Anti-Lobbying Act (GAO/T-OGC-96-18, May
15, 1996).

21. 59 Comp. Gen. at 121.

22. B-239856, April 29, 1991.

23. OC-DJ-1. This and similar citations refer to numbers assigned by the
Forest Service to the documents it provided to you in response to your
request. Some of the Forest Service documents consist of several unrelated
attached pages with a document number on the first page. When referring to
material within such documents, we have cited the number assigned to the
first page of the multi-page document in which the material appears.

24. NRE-BP-122.

25. OC-DC-4.

26. USDA Forest Service FY 1999 Budget Explanatory Notes for the Committee
on Appropriations, 2-3, 150-54, 202-08, reprinted in Department of Interior
and Related Agencies Appropriations for 1999 : Hearings Before the Subcomm.
on Department of the Interior and Related Agencies of the House Comm. on
Appropriations, 105th Cong. 6-7, 154-58, 206-12 (1998) [hereinafter
Hearings].

27. The Highway Trust Fund finances most federal highway programs from taxes
on motor fuels and tires, among other things. See 26 U.S.C. sect. 9503 (1994).

28. The ISTEA reauthorization bill, H.R. 2400, was introduced on September
4, 1997. 143 Cong. Rec. H6917 (daily ed. Sept. 4, 1997). It was enacted on
June 9, 1998. Transportation Equity Act for the 21st Century, Pub. L. No.
105-178, 112 Stat. 107 (1998).

29. Forest Service "Access America" Briefing Book, sect. 1.

30. See, e.g., id.

31. Id.

32. NRE-BP-122.

33. 16 U.S.C. sect. 500.

34. USDA Forest Service FY 1999 Budget Explanatory Notes, supra note 26 at
247-48; Hearings, at 251-52.

35. Id.

36. Id.

37. NRE-BP-116.

38. See OC-CH-20.

39. NRE-BP-123.

40. See, e.g., B-262234, December 21, 1995.

41. See, e.g., 59 Comp. Gen. 115, 119 (1979).

42. S. Rep. No. 95-276, at 4-5 (1977).

43. U.S. Const. Art. II, sect. 3.

44. 31 U.S.C. sect. 1105 (Supp. III 1997).

45. 2 U.S.C. sect. 631 (1994).

46. Rules of the House of Representatives, Rule XL, sect. 936; Rule XXIV, cl. 2,
sect. 882 (1997).

47. Id., Rule X, cl. 5 (a), sect. 700; Rule X, cl. 1, sect. 669.

48. Id., Rule X, cl. 4(a)(1)(A), sect. 694a.

49. Id., Rule X, cl. 4(b), sect. 695.

50. See, e.g., B-178648, September 21, 1973 (government news broadcasts
exhorting people to contact Congress in support of the President's budget
violated appropriations provision prohibiting publicity or propaganda
designed to support or defeat legislation pending before Congress).

51. See supra note 26.

52. See supra note 34.

53. See supra note 28.

54. Budget of the United States Government, Fiscal Year 1999, Feb. 2, 1998.

55. NRE-BP-123; see also PSW-02.

56. PSW-02.

57. RMS-DB-03.

58. PSW-02.

59. RO9-A-04.

60. R9-HM-2.

61. B-239856, April 29, 1991.

62. Id.

63. H.R. 3078, The Federal Agency Anti-Lobbying Act , supra note 20; see
also

B-239856, April 29, 1991.

64. WO-PA-KE-05.

65. WO-P+L-RS-13.

66. WO-PA-KE-86.

67. See, e.g., WO-PA-KE-2--WO-PA-KE-81; WO-PA-KE-84.

68. Id.

69. See WO-PA-KE-13; WO-PA-KE-14.

70. See, e.g., R4-8.

71. R10-20.

72. See R10-01; R10-10; R10-20.

73. WO-PA-KE-54.

74. WO-PA-KE-71.

75. WO-PA-KE-81.

76. NRE-BP-99

77. NRE-BP-104.

78. The campaign not only tended to promote public support for a legislative
proposal, but it in fact did so, as demonstrated by the responses to the
campaign noted above. While the fact that members of the public stated that
they planned to contact Congress does not itself prove that violations
occurred, it does demonstrate that the Forest Service was successful in its
campaign.

79. 59 Comp. Gen. at 120.

80. B-239856, April 29, 1991 (citing 59 Comp. Gen. 115 (1979)).

81. See infra note 85 and accompanying text.

82. See, e.g., E-VS-247 ("Appearance of Lobbying /Don't/Provide
information"); E-VS-245 ("Field Don't initiate any more contacts @ this
time/Respond to inquiries & requests"). (Emphasis in original.)

83. In one of the documents, the Deputy Chief of Programs and Legislation
was quoted as saying that "stabilizing payments is a key building block of
the Chief's agenda." RO9-S+C-18. Moreover, an indication of the significance
of these legislative proposals to the Forest Service is that draft
legislation was submitted to Congress by it or by the USDA on both the road
funding and payments to states proposals. As previously noted, the
Department of Agriculture submitted draft legislation to Congress to
stabilize payments to states on April 2, 1998. See supra note 37. The Forest
Service also drafted and sent to Representative Peter DeFazio, in response
to his March 11, 1998 request, an amendment to the ISTEA reauthorization
legislation to achieve its goal with respect to that legislation. See
E-VS-205; E-VS-376; E-VS-377.

84. Thus, for example, we did not go beyond the documents to inquire into
whether the Forest Service in fact engaged in planned activities that
violated section 303 with respect to the media and interest groups.

85. A March 13, 1998 letter from Chairman Don Young and Chairwoman Helen
Chenoweth to Chief Dombeck appears to be the first letter to the Forest
Service raising concerns about communication plans or lobbying. See E-VS-51.

86. See supra note 82.

87. See, e.g., RO9-30 (handwritten notes on March 20, 1998 conference call
with regions concerning payments to states "in Pres. Budget therefore we
aren't really lobbying").

88. WO-PA-KE-82.