B-226449, APR 3, 1987

B-226449, APR 3, 1987

DIGEST: SECRETARY OF AGRICULTURE'S STATEMENTS THAT WHEAT PRODUCERS SHOULD NOT VOTE IN FAVOR OF MANDATORY PRODUCTION LIMITS IN NONBINDING POLL WERE NOT IN VIOLATION OF FEDERAL LAW. "ANTI-LOBBYING" STATUTES, IN GENERAL, PROHIBIT EXPENDITURE OF APPROPRIATED FUNDS IN ORDER TO INFLUENCE THE PASSAGE OR DEFEAT OF FEDERAL LEGISLATION.

LEGALITY OF THE SECRETARY OF AGRICULTUTE'S STATEMENTS CONCERNING THE WHEAT POLL:

IN CONNECTION WITH YOUR REVIEW OF THE DEPARTMENT OF AGRICULTURE'S WHEAT POLL, YOU HAVE ASKED US TO ADDRESS THE FOLLOWING QUESTION POSED BY CONGRESSMAN LANE EVANS:

QUESTION: "WERE SECRETARY OF AGRICULTURE LYNG'S ACTIONS AND PUBLIC COMMENTS ABOUT THE POLL-- PRIOR TO ITS COMPLETION-- CONSISTENT WITH GOVERNING LEGISLATION?"

ANSWER: YES.

A DETAILED ANALYSIS FOLLOWS.

ATTACHMENT OMITTED

ANALYSIS

QUESTION: WERE SECRETARY OF AGRICULTURE LYNG'S ACTIONS AND PUBLIC COMMENTS ABOUT THE DEPARTMENT'S WHEAT POLL, PRIOR TO ITS COMPLETION, CONSISTENT WITH GOVERNING LEGISLATION?

ANSWER: THE FOOD SECURITY ACT OF 1985, PUB.L. 99-198, 99 STAT. 1354 (1985), MANDATED THAT THE SECRETARY OF AGRICULTURE (SECRETARY) CONDUCT A WHEAT POLL. PURSUANT TO SECTION 301(A) OF THAT ACT, THE SECRETARY WAS TO

"NOT LATER THAN JULY 1, 1986 ... CONDUCT A POLL, BY MAIL BALLOT, OF ELIGIBLE PRODUCERS OF WHEAT TO DETERMINE WHETHER SUCH PRODUCERS FAVOR THE IMPOSITION OF MANDATORY LIMITS ON THE PRODUCTION OF WHEAT THAT WILL RESULT IN WHEAT PRICES THAT ARE NOT LOWER THAN 125 PERCENT OF THE COST OF PRODUCTION (EXCLUDING LAND AND RESIDUAL RETURNS TO MANAGEMENT) AS DETERMINED BY THE SECRETARY."

THE SECRETARY, RICHARD LYNG, MADE IT CLEAR THAT HE OPPOSED THE IMPOSITION OF MANDATORY LIMITS ON THE PRODUCTION OF WHEAT. THE FOLLOWING ARE EXCERPTS FROM THE SECRETARY'S COMMENTS ABOUT THE POLL AS REPORTED BY VARIOUS NEWSPAPERS AND NEWS ORGANIZATIONS:

--"THERE ARE SO MANY SOUND REASONS THAT THIS OUGHT TO BE REJECTED THAT I HARDLY KNOW WHERE TO BEGIN. IT'S A PROGRAM THAT JUST PLAIN WON'T WORK. ... SUCH A LOSS OF EXPORTS WOULD CHANGE OUR ENTIRE AGRICULTURE SYSTEM AND, I THINK VERY MUCH FOR THE WORSE." (OMAHA WORLD HERALD, JUNE 12, 1986).

--"THE STRICT MARKETING QUOTAS THAT WOULD BE NEEDED TO ARTIFICIALLY RAISE PRICES WOULD DRY UP COMMERCIAL SALES OF AMERICAN WHEAT IN WORLD MARKETS." (KANSAS CITY TIMES, JUNE 10, 1986).

--"MAKE NO MISTAKE, EVEN THOUGH USDA IS CONDUCTING THIS POLL, WE ARE NOT ADVOCATING THE CONCEPT OF MANDATORY CONTROLS. ... EVEN THOUGH THE OUTCOME OF THE POLL IS NONBINDING, A MAJORITY VOTE IN FAVOR OF MANDATORY CONTROLS COULD EVENTUALLY TIP THE SCALES IN CONGRESS, OR AT LEAST CAUSE A RETURN TO LAST YEAR'S DEBATE." (THE ASSOCIATED PRESS, JUNE 10, 1986).

THE FOLLOWING QUOTES ARE SUMMARIZATIONS OF THE SECRETARY'S REMARKS CONCERNING THE WHEAT POLL:

--"ALTHOUGH THE POLL RESULTS WILL NOT BE BINDING, LYNG HAS STIRRED CONTROVERSY BY URGING FARMERS TO VOTE AGAINST PRODUCTION CONTROLS AND BY WARNING THAT HE HAS NO INTENTION OF ESTABLISHING CONTROLS EVEN IF FARMERS WANT THEM." (THE WASHINGTON POST, JUNE 20, 1986).

--"SECRETARY OF AGRICULTURE RICHARD LYNG HAS VOWED NOT TO IMPOSE MANDATORY CROP CONTROLS AND BOOST WHEAT PRICE GUARANTEES EVEN IF A MAJORITY OF THE FARMERS SAY THEY WANT THEM." (THE CHICAGO TRIBUNE, JULY 7, 1986).

--"LYNG RAISED THE IRE OF FARM GROUPS WHO ADVOCATE A YES VOTE BY URGING FARMERS TO VOTE NO. HE SAID AN AFFIRMATIVE VOTE COULD ENCOURAGE PRODUCERS OF OTHER CROPS TO SEEK MANDATORY CONTROLS AND HIGH PRICE GUARANTEES, WHICH COULD EXPAND GOVERNMENT BUREAUCRACY AND BE HARMFUL TO THE FARM ECONOMY." (THE CHICAGO TRIBUNE, JULY 7, 1986).

--"LYNG HAS URGED WHEAT FARMERS TO REJECT THE CONCEPT OF MANDATORY CONTROLS, WHICH HE SAID WOULD REQUIRE IDLING AT LEAST HALF OF THE NATION'S WHEAT ACREAGE TO BOOST MARKET PRICES." (THE ASSOCIATED PRESS, JULY 11, 1986).

FOLLOWING THE WHEAT POLL, SECRETARY LYNG WAS REPORTED TO HAVE PROMPTLY DISMISSED THE RESULTS AS INCONCLUSIVE. HE IS QUOTED AS SAYING "BASED ON THE RELATIVELY SMALL RESPONSE TO THE WHEAT POLL, I DON'T THINK A GREAT DEAL OF SIGNIFICANCE CAN BE ATTACHED TO THE RESULTS. ... I THEREFORE CONSIDER THE POLL TO BE INCONCLUSIVE." IN ADDITION, THE SECRETARY NOTED THAT THE POLL "WAS CALLED FOR IN THE LEGISLATION AND THAT, PER THE LAW, THE RESULTS IN NO WAY REPRESENT A BINDING VOTE."

CONGRESSMAN EVANS ASKED WHETHER THE SECRETARY'S ACTIONS AND PUBLIC COMMENTS ABOUT THE POLL, PRIOR TO ITS COMPLETION, WERE CONSISTENT WITH "GOVERNING LEGISLATION." THE "GOVERNING LEGISLATION" REFERRED TO INCLUDES THE VARIOUS LIMITATIONS ON THE USE OF APPROPRIATED FUNDS FOR LOBBYING OR FOR THE DISSEMINATION OF PUBLICITY OR PROPAGANDA.

THERE ARE TWO FEDERAL "ANTI-LOBBYING" STATUTES-- 18 U.S.C. SEC. 1913 AND THE FEDERAL REGULATION OF LOBBYING ACT, 2 U.S.C. SECS. 261-270-- BOTH OF WHICH ARE CRIMINAL STATUTES. THAT IS, THEY AUTHORIZE FINES AND PRISON SENTENCES FOR VIOLATION. THEIR ENFORCEMENT IS THEREFORE, AS WITH CRIMINAL STATUTES GENERALLY, THE RESPONSIBILITY OF THE DEPARTMENT OF JUSTICE AND THE COURTS. B-164497(5), MARCH 10, 1977; B-192658, SEPTEMBER 1, 1978. NEVERTHELESS, WE DO NOT BELIEVE THAT THE SECRETARY'S STATEMENTS VIOLATED EITHER OF THESE STATUTES.

BY ITS TERMS, 18 U.S.C. SEC. 1913 PROHIBITS, UNLESS EXPRESSLY AUTHORIZED BY CONGRESS, THE SPENDING OF APPROPRIATED FUNDS TO INFLUENCE THE MEMBERS 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 ..."

THE SECRETARY, IN HIS COMMENTS ABOUT THE WHEAT POLL, WAS NOT TRYING DIRECTLY TO INFLUENCE THE PASSAGE OR DEFEAT OF ANY LEGISLATION. RATHER, AS THE ABOVE QUOTES DEMONSTRATE, HE WAS URGING FARMERS TO VOTE "NO" ON THE QUESTION OF MANDATORY CONTROLS.

FURTHERMORE, AS A GENERAL PROPOSITION, THE JUSTICE DEPARTMENT VIEWS 18 U.S.C. SEC. 1913 AS APPLYING PRIMARILY TO INDIRECT OR "GRASS ROOTS" LOBBYING, AN ESSENTIALLY SIMILAR INTERPRETATION TO THAT GAO HAS GIVEN TO THE APPROPRIATION ACT RESTRICTIONS DISCUSSED IN MORE DETAIL BELOW. SEE B-164497(5), SUPRA; B-192658, SUPRA. WE FOUND NO EVIDENCE OF SUCH ACTIVITY HERE.

THE FEDERAL REGULATION OF LOBBYING ACT REQUIRES THE REGISTRATION, WITH OFFICIALS OF THE CONGRESS, OF THOSE PERSONS WISHING TO INFLUENCE THE PASSAGE OR DEFEAT OF FEDERAL LEGISLATION. 2 U.S.C. SEC. 266. HOWEVER, THE ACT DOES NOT REQUIRE REGISTRATION OF A PUBLIC OFFICIAL ACTING IN HIS OFFICIAL CAPACITY. 2 U.S.C. SEC. 267(A). HENCE, THE ACT DOES NOT COVER THE SECRETARY.

WE ARE AWARE OF NO OTHER STATUTES PROHIBITING THE KIND OF STATEMENTS MADE BY THE SECRETARY. THE LAW CONTAINING THE 1986 APPROPRIATIONS FOR THE FOREST SERVICE, WHICH IS PART OF THE DEPARTMENT OF AGRICULTURE, DOES HAVE AN ANTI-LOBBYING RESTRICTION ON THE USE OF FUNDS:

"NO PART OF ANY APPROPRIATION 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."

1986 APPROPRIATIONS ACT FOR THE DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES, SEC. 301, AS CONTAINED IN PUB.L. 99-190, SEC. 101(D), 99 STAT. 1263 (1985).

IT IS DOUBTFUL WHETHER ANY MONIES SPENT BY THE SECRETARY IN CONNECTION WITH THE WHEAT POLL, E.G., TRIPS HE UNDERTOOK TO SHARE HIS VIEWS OF IT, CAME OUT OF FOREST SERVICE APPROPRIATIONS. IN ANY EVENT, LIKE THE PENAL STATUTES DESCRIBED ABOVE, THIS SECTION DEALS WITH THE PROMOTION OF, OR OPPOSITION TO, PENDING LEGISLATION AND, HENCE, IS INAPPLICABLE TO THE SECRETARY'S COMMENTS.

EVEN IF LEGISLATION MANDATING THE POLL HAD BEEN PENDING, THE SECRETARY'S COMMENTS WOULD NOT HAVE VIOLATED THIS SECTION. THE COMPTROLLER GENERAL HAS CONSTRUED THIS KIND OF LOBBYING STATUTE AS APPLYING TO INDIRECT OR "GRASS ROOTS" LOBBYING. IN OTHER WORDS, THE STATUTE PROHIBITS APPEALS TO MEMBERS OF THE PUBLIC SUGGESTING THAT THEY, IN TURN, CONTACT THEIR ELECTED REPRESENTATIVES TO INDICATE SUPPORT OF, OR OPPOSITION TO, PENDING LEGISLATION, THEREBY EXPRESSLY OR IMPLICITLY URGING THE LEGISLATORS TO VOTE IN A PARTICULAR MANNER. ON THE OTHER HAND, 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. B-118638, AUGUST 2, 1974. SECRETARY LYNG'S STATEMENTS WERE EXPRESSIONS OF HIS, AND PRESUMABLY, THE ADMINISTRATION'S, POSITION ON THE WHEAT POLL AND, THUS, WERE ENTIRELY PROPER.

IN ADDITION, THE COURTS HAVE INDICATED THAT IT IS NOT ILLEGAL FOR GOVERNMENT AGENCIES TO SPEND MONEY TO ADVOCATE THEIR POSITIONS, EVEN ON CONTROVERSIAL ISSUES. SEE JOYNER V. WHITING' 477 F.2D 456, 461 (4TH CIR. 1973); ARRINGTON V. TAYLOR, 380 F.SUPP. 1348, 1364 (M.D.N.C. 1974). THE SECRETARY'S COMMENTS MAY VERY WELL HAVE INFLUENCED THE OUTCOME OF THE VOTE BY CONVINCING SOME TO VOTE AGAINST MANDATORY CONTROLS AND TO DISCOURAGE OTHERS WHO WERE IN FAVOR OF THE CONTROLS FROM VOTING SINCE HE MADE IT CLEAR HE WOULD NOT IMPOSE CONTROLS REGARDLESS OF THE VOTING TOTALS. NEVERTHELESS, HIS STATEMENTS WERE WITHIN HIS AUTHORITY TO MAKE.

FINALLY, APART FROM VIOLATIONS OF THE LAW, GAO HAS TAKEN THE POSITION THAT THE GOVERNMENT SHOULD NOT DISSEMINATE MISLEADING INFORMATION. THE COMPTROLLER GENERAL HAS IN CERTAIN CIRCUMSTANCES CHARACTERIZED CERTAIN STATEMENTS, ALTHOUGH LEGALLY MADE, AS "PROPAGANDA," AND ATTACKED THEM FROM AN AUDIT PERSPECTIVE. SEE GAO REPORTS ENTITLED "EVALUATION OF THE PUBLICATION AND DISTRIBUTION OF 'SHEDDING LIGHT ON FACTS ABOUT NUCLEAR ENERGY,'" EMD-76-12, SEPTEMBER 30, 1976, AND "PROBLEMS WITH PUBLICATIONS RELATED TO THE CLINCH RIVER BREEDER REACTOR PROJECT, "EMD-77-74, JANUARY 6, 1978. WE FIND NOTHING IN THE SECRETARY'S STATEMENTS, HOWEVER, THAT WE WOULD CALL MISLEADING OR WOULD LABEL "PROPAGANDA." THE SECRETARY BELIEVED THAT MANDATORY CONTROLS WOULD CAUSE COMMERCIAL SALES OF WHEAT TO DROP IN WORLD MARKETS, EXPAND GOVERNMENT BUREAUCRACY, AND, IN GENERAL, BE HARMFUL TO THE FARM ECONOMY. WHILE THE SECRETARY'S VIEWS MAY BE CONTROVERSIAL, HE IS NOT ALONE IN HOLDING THEM. SEE CONGRESSIONAL RESEARCH SERVICE'S "THE 1986 WHEAT POLL," 86-751 ENR (1986).