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B-206198 L/M, MAY 14, 1982

B-206198 L/M May 14, 1982
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WE WERE INSTRUCTED TO PROVIDE INFORMATION REGARDING: (1) HOW SECTION 18(A)(2) HAS BEEN INTERPRETED. (3) HOW THAT SECTION MIGHT BE IMPROVED UPON IF OBSTRUCTIVE TACTICS ARE FOUND TO HAVE OCCURRED. FN1 WE HAVE REVIEWED THE INTERPRETATION AND IMPLEMENTATION OF SECTION 18(A)(2) AND HAVE REPORTED OUR FINDINGS AND CONCLUSIONS TOGETHER WITH OUR SUGGESTION REGARDING HOW THE STATUTE MAY BE IMPROVED IF AMENDED. THE PRESIDENT SHALL ENSURE THAT THIS PARAGRAPH IS COMPLIED WITH BY SUCH ORDER OR OTHER MEANS AS THE PRESIDENT DEEMS APPROPRIATE.". A SUIT TO ENJOIN WORKFARE OR COMMENTS FILED WITH THE DEPARTMENT VIGOROUSLY VOICING OPPOSITION TO WORKFARE REGULATIONS ARE WITHIN AND. COUNSELLING RECIPIENTS TO HASSLE OR HARASS STATE AND LOCAL OFFICIALS WITH A VIEW TO CHANGING ILLEGALLY WHAT LEGAL MEANS HAVE FAILED TO CHANGE CANNOT BE COUNTENANCED.

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B-206198 L/M, MAY 14, 1982

PRECIS-UNAVAILABLE

JESSE A. HELMS, UNITED STATES SENATE:

THE SENATE-HOUSE CONFERENCE ON THE AGRICULTURE AND FOOD STAMP ACT OF 1981, PUBLIC LAW NO. 97-98, DIRECTED THIS OFFICE TO PREPARE A REPORT TO CONGRESS ON CERTAIN ASPECTS OF SECTION 18(A)(2) OF THE FOOD STAMP ACT OF 1977. WE WERE INSTRUCTED TO PROVIDE INFORMATION REGARDING: (1) HOW SECTION 18(A)(2) HAS BEEN INTERPRETED; (2) HOW THAT SECTION HAS BEEN IMPLEMENTED; AND, (3) HOW THAT SECTION MIGHT BE IMPROVED UPON IF OBSTRUCTIVE TACTICS ARE FOUND TO HAVE OCCURRED. FN1 WE HAVE REVIEWED THE INTERPRETATION AND IMPLEMENTATION OF SECTION 18(A)(2) AND HAVE REPORTED OUR FINDINGS AND CONCLUSIONS TOGETHER WITH OUR SUGGESTION REGARDING HOW THE STATUTE MAY BE IMPROVED IF AMENDED.

SECTION 18(A)(2) OF THE ACT (7 U.S.C. SEC. 2027(A)(2)) PROHIBITS THE USE OF FEDERAL FUNDS TO INTERFERE WITH OR IMPEDE THE IMPLEMENTATION OF THE PROVISIONS OF THE FOOD STAMP ACT OF 1977, AS AMENDED, INCLUDING THE PROVISION CONTAINED IN 7 U.S.C. SEC. 2026 AUTHORIZING WORKFARE PROJECTS. SECTION 18(A)(2) PROVIDES AS FOLLOWS:

"(2) NO FUNDS AUTHORIZED TO BE APPROPRIATED UNDER THIS ACT OR ANY OTHER ACT OF CONGRESS SHALL BE USED BY ANY PERSON, FIRM, CORPORATION, GROUP, OR ORGANIZATION AT ANY TIME, DIRECTLY OR INDIRECTLY, TO INTERFERE WITH OR IMPEDE THE IMPLEMENTATION OF ANY PROVISION OF THIS ACT OR ANY RULE, REGULATION, OR PROJECT THEREUNDER, EXCEPT THAT THIS LIMITATION SHALL NOT APPLY TO THE PROVISION OF LEGAL AND RELATED ASSISTANCE IN CONNECTION WITH ANY PROCEEDING OR ACTION BEFORE ANY STATE OR FEDERAL AGENCY OR COURT. THE PRESIDENT SHALL ENSURE THAT THIS PARAGRAPH IS COMPLIED WITH BY SUCH ORDER OR OTHER MEANS AS THE PRESIDENT DEEMS APPROPRIATE."

HOW SECTION 18(A)(2) HAS BEEN INTERPRETED

WE HAD OCCASION TO CONSTRUE THIS PROVISION IN CONNECTION WITH OUR DECISION B-201928, MARCH 5, 1981, WHICH WE RENDERED AT THE REQUEST OF REPRESENTATIVE WILLIAM C. WAMPLER. IN THAT DECISION WE REVIEWED THE LEGISLATIVE HISTORY OF THE ABOVE QUOTED PROVISION AND DETERMINED THAT CONGRESS HAD MADE A CLEAR STATEMENT OF ITS INTENT REGARDING THE PURPOSE OF THE MEASURE IN H.REP. 788 96TH CONG., 2D SESS. 143-4 (1980) WHICH ACCOMPANIED THE FOOD STAMP ACT AMENDMENTS OF 1980, (S. 1309). THAT REPORT STATES:

"THIS COMMITTEE HAS NO QUARREL AT ALL - AND COULD NOT UNDER THE FIRST AMENDMENT - WITH ANY ORGANIZATION'S RIGHT, WITH THE AID OF FEDERAL FUNDS, TO MONITOR THE FOOD STAMP PROGRAM THROUGH OVERSIGHT ACTIVITIES, TO REPRESENT PARTICIPANTS AS CLIENTS IN COURT OR BEFORE AN ADMINISTRATIVE AGENCY OR DEPARTMENT, BE IT FEDERAL OR STATE OR LOCAL, OR TO ADVISE RECIPIENTS OF THEIR RIGHTS OR OBLIGATIONS UNDER THE ACT AND CONSULT WITH THEM PRIOR TO ANY LEGAL PROCEEDINGS OR ACTION, OR TO SEEK TO INVOLVE RECIPIENTS IN ANY DECISION-MAKING PROCESS AFFECTING THEIR STATUS. THE COMMITTEE DOES NOT, HOWEVER, WANT FEDERAL FUNDS EMPLOYED TO FINANCE ILLEGAL NON-FIRST AMENDMENT-COVERED ACTIVITIES THAT INTENTIONALLY SEEK TO PREVENT OR BLOCK OR IMPEDE THE IMPLEMENTATION OF LEGISLATION SPONSORED BY THIS COMMITTEE OR OF RULES AND REGULATIONS PROMULGATED BY THE DEPARTMENT PURSUANT TO THIS ACT OR PROJECTS CALLED FOR BY THIS ACT. A SUIT TO ENJOIN WORKFARE OR COMMENTS FILED WITH THE DEPARTMENT VIGOROUSLY VOICING OPPOSITION TO WORKFARE REGULATIONS ARE WITHIN AND, INDEED, THE VERY GENIUS OF OUR DEMOCRATIC SYSTEM. BUT COUNSELLING RECIPIENTS TO HASSLE OR HARASS STATE AND LOCAL OFFICIALS WITH A VIEW TO CHANGING ILLEGALLY WHAT LEGAL MEANS HAVE FAILED TO CHANGE CANNOT BE COUNTENANCED. THERE CAN BE NO FEDERALLY FUNDED RESORT TO COUNSELLED VIOLENCE OR INTIMIDATION OR SIMILAR TACTICS IN CONFRONTING PROBLEMS THAT RECIPIENTS AND THEIR ORGANIZATIONS MAY HAVE WITH THIS PROGRAM. LEGAL AUTHORITIES CAN DEAL WITH THE RESULTING VIOLATIONS OF LAW, BUT THIS COMMITTEE WILL ASSURE THE CUT-OFF OF FEDERAL FUNDS UTILIZED TO FINANCE AND FOMENT THOSE VIOLATIONS."

THE ABOVE REPORT MAKES IT CLEAR THAT CONGRESS IN USING THE WORDS "INTERFERE WITH OR IMPEDE" INTENDED ONLY TO PROHIBIT THE USE OF FEDERAL FUNDS FOR THE SUPPORT OF CERTAIN KINDS OF OBSTRUCTIVE ACTIVITIES. OTHER FEDERALLY SUPPORTED ACTIVITIES WERE TO BE PERMITTED, ALTHOUGH THEY COULD AT TIMES HINDER THE IMPLEMENTATION AND SMOOTH OPERATION OF THE WORKFARE PROGRAM. PERMITTED ACTIVITIES ON THE PART OF RECIPIENT ORGANIZATIONS INCLUDE: (1) COLLECTING DATA ON THE WORKFARE PROGRAM, ANALYZING SUCH INFORMATION AND EVALUATING THE PROGRAM WITH A VIEW TOWARD ITS IMPACT ON THE RECIPIENT'S CLIENTELE; (2) ADVISING AND REPRESENTING CLIENTS, WHOSE INTEREST MAY BE ADVERSE TO THE WORKFARE PROGRAM, IN VARIOUS FORUMS AT ALL LEVELS OF GOVERNMENT; AND (3) ASSISTING CLIENTS TO EXERCISE THEIR FIRST AMENDMENT RIGHTS REGARDING THE PROGRAM. PROHIBITED ACTIVITIES BY A RECIPIENT ORGANIZATION INCLUDE ILLEGAL NON-FIRST AMENDMENT-COVERED ACTIVITIES DESIGNED TO HINDER THE WORKFARE PROGRAM SUCH AS COUNSELLING CLIENTS TO COMMIT OR THREATEN ACTS OF VIOLENCE AGAINST THE PROGRAM, OR TO INTIMIDATE PROGRAM OFFICIALS WITH THE OBJECTIVE OF COERCING THE LOCAL GOVERNMENT BODY INTO TERMINATING A WORKFARE PROJECT.

IN VIEW OF THE CLEAR AND DEFINITIVE STATEMENT OF CONGRESSIONAL INTENT WITH REFERENCE TO THE WORDS "INTERFERE WITH OR IMPEDE" CONTAINED IN THE LEGISLATIVE HISTORY OF THE PROVISION, WE HAVE NARROWLY CONSTRUED THAT STATUTE AS PRECLUDING ONLY FEDERALLY-SUPPORTED RECIPIENT OBSTRUCTIVE ACTIVITIES AGAINST THE WORKFARE PROGRAM THAT INVOLVE ILLEGAL, VIOLENT OR COERCIVE CONDUCT. IN OUR OPINION, ALL OTHER ACTIVITIES ARE NOT PRECLUDED BY THE PROVISION. ACCORDINGLY, IN OUR DECISION B-201928, SUPRA, WE DID NOT FIND THAT THE ACTIVITIES OF A STAFF ATTORNEY OF A LEGAL SERVICES CORPORATION RECIPIENT IN WRITING A LETTER TO THE CITY OF NASHUA, NEW HAMPSHIRE, BOARD OF ALDERMEN IN OPPOSITION TO WORKFARE IMPEDED OR INTERFERED WITH THE PROGRAM. HOWEVER, WE DID FIND THAT THE ACTIVITIES OF THE STAFF ATTORNEY CONSTITUTED LOBBYING IN VIOLATION OF THE ANTI-LOBBYING PROVISIONS OF THE LEGAL SERVICES CORPORATION ACT OF 1974, (42 U.S.C. SEC. 2996FA)(5))). THESE PROVISIONS GENERALLY PROHIBIT THE USE OF APPROPRIATED FUNDS TO ATTEMPT TO INFLUENCE PENDING LEGISLATION.

WE HAD ANOTHER OCCASION TO CONSTRUE THE PROVISIONS OF SECTION 18(A)(2) (7 U.S.C. SEC. 2027) IN CONNECTION WITH OUR REPORT B-199777, JANUARY 28, 1982, WHICH WE ALSO RENDERED AT THE REQUEST OF REPRESENTATIVE WILLIAM C. WAMPLER. IN THAT REPORT WE EXAMINED THE ACTIVITIES OF THE NATIONAL SOCIAL SCIENCE AND LAW CENTER (NSSLC), THE CLIENT CENTERED LEGAL SERVICES (CCLS) OF SOUTHWEST VIRGINIA, INC., AND THE VIRGINIA POVERTY LAW CENTER - ALL FUNDED AT LEAST IN PART BY THE LEGAL SERVICES CORPORATION (LSC) - TO ASCERTAIN WHETHER THESE ORGANIZATIONS INTERFERED WITH OR IMPEDED THE IMPLEMENTATION OF THE TAZEWELL COUNTY, VIRGINIA WORKFARE DEMONSTRATION PROJECT. NSSLC DECIDED TO CONDUCT A STUDY OF THE TAZEWELL COUNTY WORKFARE PROJECT SHORTLY AFTER THAT PROJECT WAS INITIATED AROUND THE BEGINNING OF 1981. IT SENT SOCIAL SCIENCE RESEARCHERS INTO THE COUNTY DURING THE WEEK OF JUNE 15, 1981, EQUIPPED WITH LENGTHY QUESTIONNAIRE FORMS WHICH WERE USED TO INTERVIEW INDIVIDUALS ASSOCIATED WITH THE PROJECT. NSSLC DID NOT COORDINATE ITS EFFORTS WITH THE FEDERAL AGENCIES ADMINISTERING THE WORKFARE PROGRAM OR WITH THE COUNTY OFFICIALS ADMINISTERING THE LOCAL PROJECT. RATHER, THE NSSLC REPRESENTATIVES VISITED THE WORKSITES WHERE THE PARTICIPANTS WERE EMPLOYED AND INTERVIEWED SOME OF THEM DURING THEIR HOURS OF WORK. THESE UNSCHEDULED AND UNANNOUNCED VISITS CAUSED SOME DISRUPTIONS AT THE PROJECT WORK SITES AND RESULTED IN COMPLAINTS BY LOCAL PROJECT OFFICIALS. THE DIVERSIONS OF LOCAL OFFICIALS FROM THEIR WORKFARE ADMINISTRATIVE DUTIES HAD AN ADVERSE IMPACT ON THE PROJECT.

CCLS, THE LEGAL SERVICES RECIPIENT THAT PROVIDES LEGAL REPRESENTATION TO ELIGIBLE CLIENTS IN THE TAZEWELL COUNTY AREA, ORGANIZED A PUBLIC MEETING CONCERNING THE WORKFARE PROJECT AND ITS EFFECT ON ITS CLIENTELE IN TAZEWELL COUNTY ON FEBRUARY 20, 1981. THE STATED PURPOSE OF THE MEETING WAS TO DISCOVER PROBLEMS WORKFARE PARTICIPANTS WERE HAVING AND ALSO TO GATHER INFORMATION ON THE PROGRAM. THE INFORMATION GATHERED WOULD THEN BE MADE AVAILABLE TO LSC ADVOCATES ON A NATIONWIDE BASIS SO THAT THEY COULD INFLUENCE THE FUTURE FORM OF WORKFARE. ABOUT 20 WORKFARE PARTICIPANTS ATTENDED THE MEETING ALONG WITH A NUMBER OF LOCAL WELFARE OFFICIALS. CCLS "AFTER-ACTION REPORT" ON THE RESULTS OF THE MEETING INDICATED THAT THE DISCUSSION AT THE MEETING DEMONSTRATED TO THE WORKFARE PARTICIPANTS THAT NOT ALL WASHINGTON, D. C. BASED FEDERALLY-SUPPORTED ORGANIZATIONS WERE IN FAVOR OF THE WORKFARE PROGRAM AND CONSEQUENTLY ENCOURAGED LOCAL PARTICIPANTS TO EXPRESS THEIR DISSENTING VIEWPOINTS.

ANOTHER MEETING CONCERNING THE TAZEWELL WORKFARE PROJECT WAS HELD ON AUGUST 13, 1981, IN TAZEWELL COUNTY. THIS ONE WAS SPONSORED BY THE VIRGINIA POVERTY LAW CENTER, AN LSC AND COMMUNITY SERVICES ADMINISTRATION (CSA) GRANTEE AT THAT TIME. POOR PEOPLE AND THEIR ADVOCATES FROM ALL OVER THE STATE OF VIRGINIA WERE INVITED TO ATTEND AND MANY WERE GIVEN FUNDS TO COVER THEIR TRAVEL EXPENSES. A NUMBER OF THE SPEAKERS AT THE MEETING SPOKE AGAINST THE WORKFARE PROJECT AND URGED THE AUDIENCE TO TAKE INFORMATION GATHERED AT THE MEETING BACK HOME AND USE IT TO PERSUADE THEIR LOCAL GOVERNING BODIES NOT TO APPROVE WORKFARE. THERE WAS NO EVIDENCE THAT ANY OF THESE SPEAKERS WERE SUPPORTED BY FEDERAL FUNDS SO AS TO VIOLATE APPLICABLE ANTI-LOBBYING APPROPRIATIONS RESTRICTIONS.

WE DETERMINED THAT WHILE THE ABOVE-DESCRIBED ACTIVITIES BY FEDERALLY FUNDED RECIPIENT ORGANIZATIONS WERE SOMEWHAT DISRUPTIVE OF THE TAZEWELL WORKFARE PROJECT, THEY DID NOT APPEAR TO BE THE TYPE THAT CONGRESS INTENDED TO PROHIBIT BY THE PROVISIONS OF SECTION 18(A)(2) (7 U.S.C. SEC. 2027) INASMUCH AS THE ACTIVITIES WERE NOT VIOLENT, COERCIVE OR ILLEGAL BUT FOR THE MOST PART INVOLVED AGGRESSIVE ADVOCACY BY RECIPIENTS ON THE PART OF THEIR RESPECTIVE CLIENTELE.

HOW SECTION 18(A)(2) HAS BEEN IMPLEMENTED

WE NOTE THAT THE LAST SENTENCE OF THE SECTION PROVIDES FOR EXECUTIVE BRANCH IMPLEMENTATION AS FOLLOWS: "THE PRESIDENT SHALL ENSURE THAT THIS PARAGRAPH IS COMPLIED WITH BY SUCH ORDER OR OTHER MEANS AS THE PRESIDENT DEEMS APPROPRIATE." WE INFORMALLY CONTACTED OFFICIALS AT THE OFFICE OF MANAGEMENT AND BUDGET AND AT THE DEPARTMENT OF AGRICULTURE CONCERNING WHETHER ANY IMPLEMENTATION ACTION HAS BEEN TAKEN OR IS BEING PLANNED. THOSE OFFICIALS ADVISED US THAT SECTION 18(A)(2) HAS NOT BEEN MADE THE SUBJECT OF IMPLEMENTING REGULATIONS. THEY CONTINUE TO MONITOR THE WORKFARE PROGRAM WITH A VIEW TOWARDS INTERFERENCE BY FEDERAL FUND RECIPIENTS AND CURRENTLY SEE NO NEED FOR IMPLEMENTING REGULATIONS. ALTHOUGH SECTION 18(A)(2) LEAVES TO PRESIDENTIAL DISCRETION WHAT STEPS SHOULD BE TAKEN TO ASSURE THAT IT IS COMPLIED WITH, IT IS OUR OPINION THAT COMPLIANCE COULD BE BETTER ASSURED IF IMPLEMENTING REGULATIONS SPECIFIED THE LIMITS ON PERMITTED ACTIVITIES. HAD EFFECTIVE IMPLEMENTING REGULATIONS BEEN PROMULGATED IN A TIMELY MANNER, IT IS LIKELY THAT CERTAIN OF THE ABOVE-DESCRIBED ACTIVITIES BY FEDERAL FUND RECIPIENT ORGANIZATIONS, WHICH WERE REGARDED AS DISRUPTIVE TO WORKFARE, EITHER WOULD HAVE BEEN ACCOMPLISHED IN A NON-DISRUPTIVE MANNER OR WOULD NOT HAVE BEEN UNDERTAKEN AT ALL.

HOW SECTION 18(A)(2) MIGHT BE IMPROVED UPON

THERE IS NO SIMPLE SOLUTION TO THIS ISSUE, BECAUSE COMPETING INTERESTS OF VARIOUS GOVERNMENT PROGRAMS MUST BE BALANCED. CERTAIN SOCIAL PROGRAMS ESTABLISHED BY STATUTORY AUTHORITY HAVE A MISSION TO REPRESENT A CLIENTELE CONSISTING OF MANY WELFARE RECIPIENTS THAT MAY BE ADVERSELY AFFECTED BY THE WORKFARE PROGRAM. THEREFORE IT IS NECESSARY TO STRIKE A BALANCE BETWEEN THE RIGHTS OF THE CLIENTELE TO BE REPRESENTED AND THE NEED FOR THE WORKFARE PROGRAM. SUCH A BALANCE SHOULD BE DECIDED IN THE LEGISLATIVE PROCESS WHERE THE MERITS OF THE COMPETING INTERESTS CAN BE APPROPRIATELY CONSIDERED. ALSO, WE RECOMMEND THAT CONGRESS DECIDE WHETHER OR NOT THE EXECUTIVE BRANCH IS TO BE REQUIRED TO PROMULGATE IMPLEMENTING REGULATIONS COVERING THE NON INTERFERENCE PROVISION. IF THE DECISION IS IN THE AFFIRMATIVE, THE STATUTE SHOULD BE AMENDED TO EXPLICITLY REQUIRE SUCH REGULATIONS. FINALLY, IF THE NON-INTERFERENCE PROVISION IS AMENDED, WE RECOMMEND THAT ACTIVITIES THE CONGRESS DECIDES TO PROHIBIT BE EXPLICITLY LISTED IN THE STATUTE.

WE STAND READY UPON YOUR REQUEST TO ASSIST YOUR COMMITTEE IN DRAFTING LEGISLATIVE LANGUAGE TO AMEND THE STATUTORY PROVISION TO REFLECT ANY CHANGE YOU MAY DESIRE TO MAKE IN THE STATUTE.

FN1 CONFERENCE REPORTS ARE CONTAINED IN S.REP.NO. 290 97TH CONG. 1ST. SESS. 228, 229 (1981) AND H.R.REP. NO. 377 97TH CONG. 1ST SESS. 228, 229 (1981).

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