B-206391 L/M, JUL 2, 1982

B-206391 L/M, JUL 2, 1982

PRECIS-UNAVAILABLE

WILLIAM V. ROTH, JR., UNITED STATES SENATE:

THIS IS IN RESPONSE TO YOUR JANUARY 19, 1982, LETTER REQUESTING THIS OFFICE TO REVIEW AND COMMENT UPON S. 1969, A BILL TO PROHIBIT THE USE OF APPROPRIATIONS FOR THE PAYMENT OF CERTAIN LOBBYING COSTS. WE ENDORSE THE OBJECTIVE OF THE BILL TO ENACT INTO PERMANENT LAW A GENERAL RESTRICTION ON THE USE OF FUNDS BY THE EXECUTIVE BRANCH FOR LOBBYING AT THE FEDERAL, STATE AND LOCAL LEVELS OF GOVERNMENT. WHILE AT PRESENT THERE ARE A NUMBER OF LEGAL PROHIBITIONS AGAINST THE USE OF APPROPRIATED FUNDS BY EXECUTIVE BRANCH AGENCIES AND DEPARTMENTS FOR LOBBYING ACTIVITIES, EACH ONE HAS SHORTCOMINGS THAT REDUCE ITS EFFECTIVENESS.

ONE SUCH MEASURE IS 18 U.S.C. SEC. 1913, WHICH PROHIBITS THE USE OF APPROPRIATED FUNDS BY OFFICERS AND EMPLOYEES OF THE UNITED STATES FOR LOBBYING ACTIVITIES. THIS MEASURE IS A PENAL STATUTE ENACTED IN 1919. BECAUSE THE OFFENSE IS A MISDEMEANOR AND CHARACTERISTICALLY INVOLVES THE IMPROPER EXPENDITURE OF SMALL AMOUNTS OF FUNDS, THE DEPARTMENT OF JUSTICE HAS NEVER OBTAINED A CONVICTION UNDER THIS PROVISION.

ONE OF THE MOST USEFUL ANTI-LOBBYING PROVISIONS IS AN APPROPRIATIONS RESTRICTION CONTAINED IN SECTION 607(A) OF THE ANNUAL TREASURY, POSTAL SERVICE AND GENERAL GOVERNMENT APPROPRIATION ACT. BY ITS TERMS THIS RESTRICTION IS APPLICABLE TO APPROPRIATIONS CONTAINED IN ALL APPROPRIATION ACTS IN A GIVEN YEAR AND NOT JUST TO APPROPIATIONS CONTAINED IN THE TREASURY, POSTAL SERVICE AND GENERAL GOVERNMENT APPROPRIATION ACT. OVER THE YEARS, WE HAVE FOUND A NUMBER OF VIOLATIONS OF THIS RESTRICTION AND EXECUTIVE AGENCIES AND DEPARTMENTS HAVE TAKEN CORRECTIVE ACTION RESPONSE TO OUR FINDINGS. HOWEVER, SECTION 607(A), AS AN APPROPRIATION RESTRICTION IN AN ANNUAL APPROPRIATION ACT, IS NOT PERMANENT LEGISLATION AND MUST BE RE-ENACTED EACH YEAR. CONSEQUENTLY, AGENCIES AND DEPARTMENTS DO NOT PROMULGATE REGULATIONS IMPLEMENTING NON-PERMANENT LEGISLATION SUCH AS THIS SECTION.

ALSO, BECAUSE THIS RESTRICTION IS CONTAINED IN THE ANNUAL TREASURY, POSTAL SERVICE AND GENERAL GOVERNMENT, APPROPRIATION ACT, OFFICIALS OF OTHER AGENCIES AND DEPARTMENTS ARE OFTEN UNAWARE THAT THEIR AGENCIES ARE COVERED BY THAT RESTRICTION BECAUSE THEY WOULD OTHERWISE NOT BE AFFECTED BY AN APPROPRIATION ACT FOR OTHER AGENCIES. DESPITE THESE SHORTCOMINGS, WE HAVE FOUND SECTION 607(A) A VERY USEFUL ANTI-LOBBYING RESTRICTION.

CERTAIN OTHER APPROPRIATION ACTS CONTAIN INDIVIDUAL ANTI-LOBBYING APPROPRIATION RESTRICTIONS APPLICABLE ONLY TO APPROPRIATIONS CONTAINED IN THOSE ACTS. FOR EXAMPLE, SUCH MEASURES ARE INCLUDED IN THE ANNUAL APPROPRIATION ACTS OF THE DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES AND EDUCATION AND RELATED AGENCIES AND THE DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES. THE ANNUAL EXPIRATION SHORTCOMING OF SECTION 607(A), DESCRIBED ABOVE, ALSO APPLIES TO THESE INDIVIDUAL RESTRICTIONS. WE ARE OF THE OPINION THAT MOST, IF NOT ALL, OF THE DEFICIENCIES APPLICABLE TO APPROPRIATION ACT RESTRICTIONS WOULD BE CORRECTED BY THE ENACTMENT OF PERMANENT ANTI-LOBBYING LEGISLATION SUCH AS S.1969.

SECTION 2 OF S. 1969 WOULD PROHIBIT THE USE OF APPROPRIATED FUNDS BY AGENCIES AND FEDERAL CONTRACTORS TO DIRECTLY INFLUENCE LEGISLATION BY COMMUNICATIONS WITH CONGRESS, STATE AND LOCAL LEGISLATIVE BODIES SEE SUBPARAGRAPH 1(A)(1)(A)) OR TO ACCOMPLISH THE SAME RESULT (SEE SUBPARAGRAPH 1(A)(1)(A)) OR TO ACCOMPLISH THE SAME RESULT INDIRECTLY BY COMMUNICATING WITH MEMBERS OF THE PUBLIC TO ENCOURAGE THEM TO COMMUNICATE DIRECTLY WITH THEIR LEGISLATORS TO INFLUENCE LEGISLATION (SEE SUBPARAGRAPH (1)(A)(1)(B)). AS CURRENTLY DRAFTED, S. 1969 IS DIRECTED TOWARD THE PROHIBITION OF LETTER-WRITING CAMPAIGNS AND WOULD APPEAR TO PERMIT THE USE OF APPROPRIATED FUNDS FOR ALL AND WOULD APPEAR TO PERMIT THE USE OF APPROPRIATED FUNDS FOR ALL OTHER FORMS OF LOBBYING, SUCH AS URGING LEGISLATIVE CONTACT FOR PURPOSES OF INFLUENCING LEGISLATION BY MEANS OF THE MASS MEDIA, EXCEPT FOR PAID ADVERTISEMENTS, WHICH ARE SPECIFICALLY PROHIBITED (SEE SUBPARAGRAPH 1(A)(2)). WHILE LETTER-WRITING COMPAIGNS ARE FREQUENTLY UTILIZED WHEN AGENCIES LOBBY, THEY HAVE OFTEN USED OTHER MEANS SUCH AS THE ELECTRONIC MEDIA AND PERIODICALS FOR EXAMPLE, AGENCY OFFICIALS DURING THEIR OFFICIAL TIME COULD PREPARE SPEECHES OR ARTICLES FOR PERIODICALS THAT URGE LEGISLATIVE CONTACT BY MEMBERS OF THE PUBLIC. OBVIOUSLY, THIS MEANS OF PUBLIC CONTACT COULD BE JUST AS EFFECTIVE AS LETTER WRITING. ACCORDINGLY, WE BELIEVE THE BILL SHOULD PROHIBIT THESE OTHER LOBBYING MEANS AS WELL AS LETTER-WRITING AND THEREFORE WE RECOMMEND THE FOLLOWING CHANGES TO THE BILL.

IN SUBPARAGRAPH 1(A)(1)(B) WE SUGGEST THAT LINE 18, PAGE 2 BE CHANGED TO READ: "DIRECTED TO ANY PERSON OR PERSONS" IN RECOGNITION THAT THE MASS MEDIA COULD BE UTILIZED BY AN AGENCY FOR LOBBYING ACTIVITIES.

PARAGRAPH 1(A)(2) OF THE BILL EXCLUDES CERTAIN AGENCY ACTIVITIES FROM THE DEFINITIONS OF LOBBYING. IN SOME AREAS WE BELIEVE THESE EXCLUSIONS ARE TOO BROAD AND IN OTHERS WE BELIEVE THEY ARE TOO NARROW. WE BELIEVE THAT HEADS OF AGENCIES AND DEPARTMENTS SHOULD BE BE PERMITTED TO COMMUNICATE WITH CONGRESS ON THEIR OWN INITIATIVE AND WITHOUT INVITATION CONCERNING PROPOSED LEGISLATION THAT WOULD IMPACT ON THEIR MISSIONS AND FUNCTIONS. WE HAVE ALWAYS CONSTRUED THE VARIOUS ANTI-LOBBYING APPROPRIATION RESTRICTIONS AS PERMITTING AGENCIES AND DEPARTMENTS TO INITIATE COMMUNICATION DIRECTLY WITH THE CONGRESS ON LEGISLATION AFFECTING THEIR ACTIVITIES. SEE OUR DECISIONS 60 COMP.GEN. 427(1981) AND 56 COMP.GEN. 889 (1977). ACCORDINGLY, WE RECOMMEND THAT SUBPARAGRAPH 1(A)(2)(A) BE AMENDED AS FOLLOWS:

"(A) A COMMUNICATION MADE EITHER IN RESPONSE TO A REQUEST FROM ANY INDIVIDUAL OR COMMITTEE REFERRED TO IN PARAGRAPH (1)(A) OR AT THE INITIATIVE OF AN AGENCY OR DEPARTMENT HEAD OR SOMEONE DESIGNATED BY HIM OR HER CONCERNING PROPOSED LEGISLATION THAT WOULD HAVE AN IMPACT ON THE AGENCY'S OR DEPARTMENT'S MISSION OR FUNCTIONS."

SUBPARAGRAPH 1(A)(2)(C) AS CURRENTLY DRAFTED WOULD PERMIT EXECUTIVE BRANCH OFFICIALS WHILE ON DUTY IN A PAY STATUS TO MAKE SPEECHES, APPEAR ON TELEVISION AND RADIO NEWS AND TALK SHOWS, AND WRITE ARTICLES FOR NEWSPAPERS, MAGAZINES AND PERIODICALS URGING MEMBERS OF THE PUBLIC TO CONTACT THEIR CONGRESSIONAL REPRESENTATIVES IN SUPPORT OF, OR IN OPPOSITION TO, PENDING LEGISLATIVE MEASURES. THIS METHOD OF LOBBYING CAN BE AS EFFECTIVE AS LETTER WRITING CAMPAIGNS WHICH S. 1969 PROHIBITS. FOR EXAMPLE, IN 1973 EIGHTEEN AGENCIES AND DEPARTMENTS BEGAN PROVIDING PRERECORDED NEWS REPORTS TO RADIO STATIONS AS PART OF THEIR PUBLIC INFORMATION PROGRAM. RADIO STATIONS OBTAINED THE PRERECORDED NEWS REPORTS ON A DAILY OR PERIODIC BASIS BY CALLING A DESIGNATED AGENCY TELEPHONE NUMBER. THESE REPORTS CONTAINED A DISCUSSION OF AGENCY PROGRAMS AND ACTIVITIES AND OFTEN INCLUDED EXCERPTS FROM SPEECHES OR COMMENTARIES BY HIGH RANKING AGENCY OFFICIALS. WHEN WE REVIEWED A SAMPLE OF THESE PRERECORDED NEWS REPORTS IN RESPONSE TO A CONGRESSIONAL REQUEST, WE FOUND THAT A NUMBER OF THEM VIOLATED APPLICABLE ANTI-LOBBYING APPROPRIATION RESTRICTIONS BECAUSE THEY WERE PATENTLY DESIGNED TO ENCOURAGE THE GENERAL PUBLIC TO CONTACT MEMBERS OF CONGRESS IN ORDER TO INFLUENCE PENDING LEGISLATION. SEE OUR DECISION B-178648, SEPTEMBER 21, 1973.

IN ORDER TO PROHIBIT THIS FORM OF LOBBYING, WE RECOMMEND THAT SUBPARAGRAPH 1(A)(2)(C) BE AMENDED TO READ AS FOLLOWS:

"(C) A COMMUNICATION WHICH DOES NOT URGE MEMBERS OF THE PUBLIC TO ENGAGE IN ANY ACTIVITY OR COMMUNICATION DESCRIBED IN SUBPARAGRAPH (A) MADE THROUGH - ***"

THE DEFINITIONS SET FORTH IN PARAGRAPH 1(B) OF THE BILL DO NOT INCLUDE A DEFINITION FOR A FEDERAL GRANT OR COOPERATIVE AGREEMENT SUCH AS IS INCLUDED IN SUBPARAGRAPH (B)(3) FOR THE TERM "CONTRACT". ALSO, SECTION 2 OF THE BILL DOES NOT PROHIBIT FEDERAL GRANT FUNDS FOR LOBBYING ACTIVITIES ALTHOUGH IT DOES PROHIBIT CONTRACTOR LOBBYING. FINALLY, SECTION 3 OF THE BILL DOES NOT PROVIDE FOR GRANT AND COOPERATIVE AGREEMENT RECIPIENTS TO MAINTAIN AND MAKE AVAILABLE RECORDS OF EXPENDITURES IN THIS AREA AS IT DOES FOR CONTRACTORS. BASED ON OUR EXPERIENCE IN DECIDING QUESTIONS INVOLVING ANTI-LOBBYING APPROPRIATION RESTRICTIONS, WE BELIEVE FEDERAL GRANT AND COOPERATIVE AGREEMENT RECIPIENTS ARE JUST AS LIKELY TO LOBBY WITH APPROPRIATED FUNDS AS ARE CONTRACTORS. ACCORDINGLY, WE BELIEVE S. 1969 SHOULD ALSO PROHIBIT FEDERAL GRANT AND COOPERATIVE AGREEMENT RECIPIENTS FROM EXPENDING APPROPRIATED FUNDS FOR LOBBYING. HENCE WE RECOMMEND THAT S. 1969 BE AMENDED TO INCLUDE A DEFINITION OF "GRANT OR COOPERATIVE AGREEMENT RECIPIENTS FROM EXPENDING APPROPRIATED FUNDS FOR LOBBYING. HENCE WE RECOMMEND THAT S. 1969 BE AMENDED TO INCLUDE A DEFINITION OF "GRANT OR COOPERATIVE AGREEMENT" UNDER SUBPARAGRAPH 1(B) AND THAT THE PROHIBITION IN SECTION 2 BE EXPANDED TO INCLUDE GRANTS OR COOPERATIVE AGREEMENTS. ALSO WE RECOMMEND THAT THE RECORDKEEPING PROVISION IN SECTION 3 BE EXPANDED TO INCLUDE GRANT AND COOPERATIVE AGREEMENTS. WE SUGGEST THE FOLLOWING CHANGES. REDESIGNATE THE CURRENT SUBPARAGRAPH 1(B)(4) AS 1(B)(5). THE NEW SUBPARAGRAPH 1(B)(4) SHOULD READ AS FOLLOWS:

"(4) THE TERM 'GRANT OR COOPERATIVE AGREEMENT' MEANS A WRITTEN AGREEMENT, INCLUDING AMENDMENTS AND MODIFICATIONS THERETO, BETWEEN AN AGENCY AND ANY PERSON WHENEVER THE PRINCIPAL PURPOSE OF THE RELATIONSHIP IS THE TRANSFER OF MONEY, PROPERTY, SERVICES, OR ANYTHING OF VALUE TO A PERSON IN ORDER TO ACCOMPLISH A PUBLIC PURPOSE OF SUPPORT OR STIMULATION AUTHORIZED BY FEDERAL STATUTE, RATHER THAN ACQUISITION, BY PURCHASE, LEASE, OR BARTER, OF PROPERTY OR SERVICES FOR THE DIRECT BENEFIT OR USE OF THE FEDERAL GOVERNMENT."

SECTION 2 OF THE BILL SHOULD BE AMENDED TO READ AS FOLLOWS:

"SEC. 2. NO FUNDS APPROPRIATED TO ANY AGENCY SHALL BE USED TO PAY, DIRECTLY OR UNDER ANY CONTRACT, GRANT OR COOPERATIVE AGREEMENT WITH THE FEDERAL GOVERNMENT ***"

YOU ALSO ASKED US FOR OUR ASSESSMENT OF THE POSSIBLE PAPERWORK AND REGULATORY BURDENS THAT WOULD RESULT FROM THE PASSAGE OF S. 1969. IN OUR VIEW WE DO NOT BELIEVE THESE BURDENS WOULD BE SIGNIFICANTLY INCREASED BY THE REQUIREMENTS OF THE BILL. A NUMBER OF EXECUTIVE AGENCIES, DEPARTMENTS AND GOVERNMENT CORPORATIONS ALREADY HAVE SOME REGULATIONS THAT RESTRICT LOBBYING IN CERTAIN SITUATIONS. ORGANIZATIONS THAT HAVE NOT AS YET PROMULGATED SUCH REGULATIONS HAVE RESPONSIBILITY TO DO SO IN ORDER TO IMPLEMENT THE VARIOUS ANTI-LOBBYING APPROPRIATION RESTRICTIONS CONTAINED IN ANNUAL APPROPRIATION ACTS AND IN 18 U.S.C. SEC. 1913. OTHER AGENCIES HAVE PROMULGATED REGULATIONS APPLICABLE TO GRANTEES THAT COVER COST PRINCIPLES TO BE USED IN DETERMINING ALLOWABLE COSTS. UNDER SUCH REGULATIONS, LOBBYING COSTS MAY NOT BE ALLOWED. IN THIS CONNECTION, WE BELIEVE RECORDKEEPING REQUIREMENTS ON NON-FEDERAL ORGANIZATIONS COULD BE MINIMIZED IF THE OFFICE OF MANAGEMENT AND BUDGET WERE REQUIRED TO PROMULGATE GOVERNMENT WIDE REGULATIONS ESTABLISHING UNIFORM RECORDKEEPING GOVERNMENT-WIDE REGULATIONS ESTABLISHING UNIFORM RECORDKEEPING REQUIREMENTS. TO IMPLEMENT THIS RECOMMENDATION, SECTION 3 OF THE BILL SHOULD BE AMENDED AS FOLLOWS:

"SEC. 3. EACH PERSON WHO ENTERS INTO A CONTRACT, GRANT OR COOPERATIVE AGREEMENT WITH AN AGENCY SHALL MAINTAIN AND MAKE AVAILABLE TO THE HEAD OF SUCH AGENCY SUCH RECORDS AS THE HEAD OF SUCH AGENCY SHALL REQUIRE AND WHICH ARE PRESCRIBED BY GOVERNMENT-WIDE REGULATIONS PROMULGATED BY THE OFFICE OF MANAGEMENT AND BUDGET. SUCH RECORDS ARE TO BE MAINTAINED FOR THE PURPOSE OF CLEARLY ESTABLISHING THE NATURE AND PURPOSE OF ANY ACTIVITY OR COMMUNICATION FOR WHICH SUCH PERSON IS CLAIMING REIMBURSEMENT FOR COSTS UNDER SUCH CONTRACT, GRANT OR COOPERATIVE AGREEMENT. THE DIRECTOR, OFFICE OF MANGEMENT AND BUDGET SHALL PROMULGATE SUCH UNIFORM RECORDKEEPING REGULATIONS NOT LATER THAN SIX MONTHS AFTER THE EFFECTIVE DATE OF THIS LAW."

WE APPRECIATE THE OPPORTUNITY YOU HAVE AFFORDED US TO COMMENT ON THIS LEGISLATION. PLEASE LET US KNOW IF WE CAN BE OF FURTHER ASSISTANCE WITH REGARD TO THIS MATTER.