B-93353 September 28, 1962

B-93353: Sep 28, 1962

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You request our opinion as to whether the telegram was sent for the purpose of influencing Members of Congress and whether sending the telegram violated and Federal statute. We have ascertained that the telegram was sent to 426 persons. The telegram was filed with Western Union about 7:00 p.m. It will be billed as a night letter. We were advised by the Deputy Comptroller of the Department of Health. The following statutes are for consideration with respect to the questions you raise: 18 U.S.C. 1913 "No part of the money appropriated by any enactment of Congress shall. This statute contains fine and imprisonment provisions which are criminal in nature and which may be enforced only through judicial action.

B-93353 September 28, 1962

Honorable John Bell Williams House of Representatives

Dear Mr. Williams:

By letter of September 20, 1962, you enclosed a telegram relating to H.R. 8900 now pending in the Congress which you received and which you believed other Members of Congress received from the Secretary of Health, Education, and Welfare. You request our opinion as to whether the telegram was sent for the purpose of influencing Members of Congress and whether sending the telegram violated and Federal statute. In addition, you requested to be advised concerning the amount of appropriated funds used in sending the telegram.

We have ascertained that the telegram was sent to 426 persons, all Members of the House of Representatives and the Resident Commissioner for Puerto Rico. The telegram was filed with Western Union about 7:00 p.m. September 19, and delivered the following morning. It will be billed as a night letter. The total cost involved amounted to approximately $3,562, as confirmed by Western Union. While payment of the expenses incurred has not yet been made, we were advised by the Deputy Comptroller of the Department of Health, Education, and Welfare that the cost would be charged to the appropriation for Salaries and Expenses, Office of the Secretary.

In view of the contemplated use of appropriated funds in the matter, the following statutes are for consideration with respect to the questions you raise:

18 U.S.C. 1913

"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 an 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, 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."

This statute contains fine and imprisonment provisions which are criminal in nature and which may be enforced only through judicial action. It is not within our authority to enforce the penal provisions of such statutes. Because the questions involved as they relate to section 1913 are properly for consideration by the Department of Justice, we do not believe it would be appropriate for us to render an opinion as to whether the telegrams in question violate this statute.

We will, if you desire, refer this matter to the Department of Justice for its consideration. In this connection, however, we invite your attention to the Congressional Record for May 15, 1962 (daily), pages 7807 and 7809, which contains the views of the Department of Justice concerning the applicability of section 1913 in the case of a letter sent to Members of the Congress by the Director of the Peace Corps urging support for Peace Corps legislation.

Section 509 of the General Government Matters, Department of Commerce and Related Agencies Appropriation Act, 1962, Public Law 87-125, approved August 3, 1961, 75 Stat. 283 provides:

"No part of any appropriation contained in this or any other Act, or of the funds available for expenditure by an individual, corporation, or agency included in this or any other Act, shall be used for publicity or propaganda purposes designed to support or defeat legislation pending before the Congress."

There is some doubt as to whether this prohibition, appearing in an appropriation act for fiscal year 1962, is applicable to the telegrams in question. At the time the telegrams were sent a similar restriction had not been passed with regard to fiscal year 1963 appropriations generally nor was there any specific prohibition in the Departments of Labor and Health, Education, and Welfare Appropriation Act, 1963, Public Law 87-582, approved August 14, 1962, 76 Stat. 361, from which the cost of the telegrams is to be paid. But without deciding whether the restriction contained in the quoted section should be construed as permanent legislation, we do not consider that the sending of the telegrams here involved constitutes an act proscribed by its provisions.

Similar provisions relating specifically to the funds provided by the various appropriation acts in which they were included have been enacted since 1951. The legislative histories of the acts in which the prohibition against the use of appropriated funds for publicity or propaganda purposes first appeared disclose that the Congress was concerned with the expenditure of public funds for personal services and publications intended to affect the course of legislation by molding public opinion. The prohibition was enacted in the context of stemming the flow to the public of great volumes of Government publications being produced by a growing number of public relations personnel employed in Government agencies. See the debate on the floor of the House of Representatives in connection with the introduction of the prohibition as section 408 of the Department of Agriculture Appropriation Act, 1952, 97 Cong. Rec. 5474-75, May 17, 1951, and on the floor of the Senate in connection with the prohibition as section 603 of the Independent Offices Appropriation Act, 1952, 97 Cong. Rec. 6733-39, June 19, 1951.

It would not appear that a telegram directed to each Member of Congress soliciting his support for legislation that is pending could be construed as publicity or propaganda in the ordinary sense in which these words are used. Where communications are directed by the head of a department solely to Members of Congress without attempt to influence them by inciting pressures by a Government-molded public opinion, the publicity or propaganda effect would seem to be of minimal proportions. But, in any event, it is clear that such communications are not within the purview of the practice which the Congress sought to curtail by the language used in the statutory provision cited. The instant telegrams sent by the Secretary of Health, Education, and Welfare were not, in our view, designed or intended to affect the course of legislation through the molding of public opinion. Therefore, we would not be warranted in holding on the basis of this statute that appropriated funds are not available to pay the cost of the night letters. There is not question, of course, but that the sending of telegrams, under the circumstances, constitutes an unnecessarily extravagant use of appropriated funds. Indeed, the Secretary of Health, Education, and Welfare himself has recognized the wastefulness incurred and has issued instructions to preclude similar occurrences in the future. However, wasteful and extravagant uses of appropriated funds do not in themselves afford us a basis upon which to take legal exception to the expenditures involved.

I trust that the foregoing will serve to answer the purpose of your inquiry.

Sincerely yours,

Joseph Cambell Comptroller General of the United States

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