Constraints Imposed by 18 U.S.C. § 1913 on Lobbying Efforts

• Decision Date: 28 September 1989
• Docket Number: 89-37
• Citation: 13 Op. O.L.C. 300
• Parties: Constraints Imposed by 18 U.S.C. § 1913 on Lobbying Efforts
• Court: Opinions of the Office of Legal Counsel of the Department of Justice

13 Op. O.L.C. 300

Constraints Imposed by 18 U.S.C. § 1913 on Lobbying Efforts

No. 89-37

United States Department of Justice

September 28, 1989

WILLIAM P. BARR Assistant Attorney General Office of Legal Counsel

Constraints Imposed by 18 U.S.C. § 1913 on Lobbying Efforts

The Anti-Lobbying Act 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.

The Anti-Lobbying Act does not prohibit (1) direct communications between Department of Justice officials and Members of Congress and their staffs; (2) public speeches, appearances and writings; (3) private communications designed to inform the public about Administration positions or to promote those positions, as long as there is no significant expenditure of appropriated funds; (4) the traditional activities of Department components whose duties historically have included communicating the Department's views to Congress, the media, or the public; or (5) communications or activities unrelated to legislation or appropriations, such as lobbying Congress or the public to support Administration nominees.

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

I. Introduction

You have requested our guidance concerning the extent to which the Anti-Lobbying Act, 18 U.S.C. § 1913 (the "Act"), imposes constraints on activities by executive branch employees that relate to legislative matters. Section 1913, which has not been the basis of a single prosecution since its enactment in 1919, prohibits the use of appropriated funds for activities designed to influence Members of Congress concerning any legislation or appropriation.

To summarize our analysis of this statute, we offer the following guidelines for you and the Department as to what lobbying activities are permitted and prohibited.

Permitted activities:

1. The Act does not apply to direct communications between Department of Justice officials and Members of Congress and their staffs. Consequently, there is no restriction on Department officials directly lobbying Members of Congress and their staffs in support of Administration or Department positions. [ 301]

2. The Act does not apply to public speeches, appearances and writings. Consequently, Department officials are free to publicly advance Administration and Department positions even to the extent of calling on the public to encourage Members of Congress to support Administration positions.

3. The Act does not apply to private communications designed to inform the public of Administration positions or to promote those positions. Thus, there is no restriction on private communications with members of the public as long as there is not a significant expenditure of appropriated funds to solicit pressure on Congress.

4. The Act does not circumscribe the traditional activities of Department components whose duties historically have included responsibility for communicating the Department's views to Members of Congress, the media, or the public.

5. By its terms, the Act is inapplicable to communications or activities unrelated to legislation or appropriations. Consequently, there is no restriction on Department officials lobbying Congress or the public to support Administration nominees.

Prohibited activities:

The Act may prohibit 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.

If a question should arise with respect to any activity not listed here, we would be happy to analyze whether the statute applies to it.

II. Discussion

Section 1913 of title 18 provides:

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 [ 302] the request of any Member or to Congress, through the proper official channels, requests for legislation or appropriations which they deem necessary for the efficient conduct of the public business.

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 not more than $500 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.

Several limitations on the otherwise expansive scope of this provision appear from the statute's face.

First, the statute applies only to activities "intended or designed to influence ... legislation or appropriations." Thus, lobbying activities related to other matters, such as nominations and treaties, are not subject to the statute.

Second, the statute prohibits only lobbying that is conducted in the form of the provision of a personal service or advertisement, that is presented in written form, or that is communicated by telephone or "other device." Read in context, the prohibition on other "device[s]" does not appear to prohibit speeches or other verbal communications that are not relayed by telephone. Thus, we do not believe that the statute prohibits public speeches by executive branch employees aimed at generating public support for Administration policies and legislative proposals.

Third, the statute makes clear that it does not prohibit government officials from communicating "to Members of Congress on the request of any Member or to Congress, through the proper official channels" on matters those officials "deem necessary for the efficient conduct of the public business."^[1] Thus, the statute does not bar contacts between Administration officials and Congress that are initiated by Members of Congress or that relate to requests for legislation or appropriations that the executive branch employee in the fulfillment of his official duties deems necessary to conduct the public business. Consistent with this provision, this Office and the Criminal Division previously have concluded that section 1913 does not apply to the lobbying activities of executive branch officials whose positions typically and historically entail an active effort to secure public support for the Administration's [ 303] legislative program.^[2] Such officials include presidential aides, appointees, and their delegees in areas within their official responsibility.^[3]

This construction of section 1913 is strongly supported by the statute's exemption of lobbying activities that are conducted pursuant to an "express authorization by Congress." We believe that Congress' continued appropriation of funds for positions held by executive branch officials whose duties historically have included seeking support for the Administration's legislative program constitutes "express authorization by Congress" for the lobbying activities of these officials, and thus, that their activities are exempt from section 1913.^[4] Officials whose activities are covered by this "express authorization" exception to section 1913 include the President, his aides and assistants within the Executive Office of the President, Cabinet members within their areas of responsibility, and persons to whom the Cabinet official traditionally has assigned such responsibilities.^[5]

The legislative history to section 1913 sheds additional light on the type of activities that Congress intended to bar. Representative Good, who introduced the bill, described the statute's purpose as follows:

[I]t will prohibit a practice that has been indulged in so often, without regard to what administration is in power -” the practice of a bureau chief or the head of a department writing letters throughout the country, sending telegrams throughout the country, for this organization, for this man, for that company to write his Congressman, to wire his Congressman, in behalf of this or that legislation. The gentleman from Kentucky, Mr. Sherley, former chairman of this committee, during the closing days of the last Congress was greatly worried because he had on his desk thousands upon thousands of telegrams that had been started right here in Washington by some official wiring out for people to write Congressman Sherley for this appropriation and for that. [ 304] Now, they use the contingent fund for that purpose, and I have no doubt that the telegrams sent for that purpose cost the Government more than $7, 500. Now, it was never the intention of Congress to appropriate money for this purpose, and section 5 of the bill will absolutely put a stop to that sort of thing.

58 Cong. Rec. 403 (1919). These remarks demonstrate that Congress was concerned about the use of appropriated funds to implement "grass roots"^[6] mass mailing campaigns at great expense.^[7] Based on this legislative history, this Office consistently has concluded that the statute was enacted to restrict the use of appropriated funds for large-scale, high-expenditure campaigns specifically urging private recipients to contact Members of Congress about pending...