B-129874, AUG 22, 1984

B-129874, AUG 22, 1984

PRECIS UNAVAILABLE

THE HONORABLE WILLIAM V. ROTH, JR.: CHAIRMAN, COMMITTEE ON GOVERNMENTAL AFFAIRS UNITED STATES SENATE

DEAR MR. CHAIRMAN:

THIS IS IN RESPONSE TO YOUR REQUEST FOR OUR COMMENTS ON SEC. 2390, A BILL TO AMEND THE FEDERAL REGULATION OF LOBBYING ACT, 2 U.S.C. SECS. 261 ET SEQ. (HEREINAFTER REFERRED TO AS "THE ACT"). THE PRINCIPAL FEATURE OF THE BILL IS TO REPEAL THE PROVISION IN THE ACT FOR CRIMINAL ENFORCEMENT OF THE ACT'S REGISTRATION AND REPORTING REQUIREMENTS. THE BILL ALSO PROVIDES AN INCREASED ROLE FOR THE SECRETARY OF THE SENATE AND THE CLERK OF THE HOUSE, VESTING THEM JOINTLY WITH EXCLUSIVE AUTHORITY FOR ADMINISTERING AND INTERPRETING THE ACT.

WHEN INTRODUCING THE BILL, ITS SPONSOR SAID THAT, BY REPEALING THE CRIMINAL ENFORCEMENT PROVISION IN THE ACT, THE BILL WILL REMOVE THE BASIS FOR THE INTERPRETATION OF THE ACT'S DISCLOSURE REQUIREMENT ADOPTED BY THE SUPREME COURT IN UNITED STATES V. HARRISS, 347 U.S. 612 (1954). IT IS INTENDED TO AUTHORIZE THE SECRETARY AND THE CLERK TO REQUEST DISCLOSURE OF CERTAIN INFORMATION ON LOBBYING ACTIVITY THAT IS NOT NOW REQUIRED UNDER THE INTERPRETATION OF THE ACT SET OUT IN THE HARRISS CASE. SPECIFICALLY, IT IS EXPECTED THAT UNDER THE BILL, THE SECRETARY AND THE CLERK WILL USE THEIR INCREASED AUTHORITY IN ADMINISTERING AND INTERPRETING THE ACT TO REQUEST DISCLOSURE OF "GRASSROOTS" LOBBYING ACTIVITY AND LOBBYING OF CONGRESSIONAL STAFF MEMBERS. SEE 130 CONG.REC. S2363-S2365 (DAILY ED. MARCH 6, 1984).

IN UNITED STATES V. HARRISS, THE ACT WAS CHALLENGED ON GROUNDS THAT ENFORCEMENT OF ITS REGISTRATION AND REPORTING REQUIREMENTS VIOLATED THE FIRST AMENDMENT AND DUE PROCESS GUARANTEES. OBSERVING THE PRINCIPLE THAT STATUTES SHOULD BE CONSTRUED, WHERE POSSIBLE, SO AS TO MAKE THEM CONSTITUTIONALLY VALID, 347 U.S. AT 618, THE COURT ADOPTED AN INTERPRETATION WHICH SUSTAINED THE ACT AGAINST CONSTITUTIONAL CHALLENGE. /1/

IF THERE WERE NO ENFORCEMENT PROVISIONS IN THE ACT, THE CONSTITUTIONAL ISSUES CONSIDERED IN HARRISS WOULD NOT HAVE ARISEN. HOWEVER, ONE CAN ONLY SPECULATE WHETHER THE COURT'S INTERPRETATION WOULD HAVE BEEN DIFFERENT IF THE ACT HAD NOT BEEN CHALLENGED ON CONSTITUTIONAL GROUNDS. MOREOVER, THE KEY FACTORS IN THE DECISION-- THE LANGUAGE OF THE ACT AND ITS LEGISLATIVE HISTORY-- REMAIN UNCHANGED UNDER SEC. 2390. THUS, IN OUR VIEW, REPEAL OF THE ACT'S ENFORCEMENT PROVISION WOULD NOT NECESSARILY MAKE MOOT THE COURT'S INTERPRETATION OF THE ACT IN HARRISS.

AS NOTED ABOVE, ON THE ASSUMPTION THAT THE SECRETARY AND THE CLERK WILL NOT BE CONSTRAINED BY THE HARRISS DECISION IN EXERCISING THEIR AUTHORITY UNDER SEC. 2390 TO INTERPRET THE ACT, THE BILL'S SPONSOR HAS IDENTIFIED TWO SPECIFIC TYPES OF INFORMATION WHICH HE BELIEVES THE SECRETARY AND THE CLERK SHOULD REQUIRE BE DISCLOSED: GRASSROOTS LOBBYING ACTIVITIES AND LOBBYING OF CONGRESSIONAL STAFF MEMBERS. UNDER THE HARRISS INTERPRETATION OF THE ACT, DIRECT LOBBYING OF CONGRESSIONAL STAFF IS NOT REQUIRED TO BE DISCLOSED. THUS, A DECISION BY THE SECRETARY AND THE CLERK, IN THE EXERCISE OF THEIR AUTHORITY UNDER SEC. 2390, TO REQUIRE DISCLOSURE OF DIRECT LOBBYING OF CONGRESSIONAL STAFF, WOULD ADD TO THE POOL OF INFORMATION NOW REPORTED UNDER THE ACT. GRASSROOTS LOBBYING, THE SECOND TYPE OF LOBBYING ACTIVITY REFERRED TO BY THE BILL'S SPONSOR, ALREADY IS REQUIRED TO BE DISCLOSED UNDER THE ACT TO THE EXTENT THAT IT IS DIRECTED TOWARD URGING MEMBERS OF THE PUBLIC TO COMMUNICATE DIRECTLY WITH MEMBERS OF CONGRESS WITH REGARD TO PASSAGE OR DEFEAT OF LEGISLATION, AND IS PERFORMED BY AN INDIVIDUAL OR ORGANIZATION WHICH IS SUBJECT TO THE ACT, I.E., AN INDIVIDUAL OR ORGANIZATION WHOSE PRINCIPAL PURPOSE IS TO LOBBY OR WHICH RECEIVES CONTRIBUTIONS THE PRINCIPAL PURPOSE OF WHICH IS LOBBYING. SEE UNITED STATES V. HARRISS, SUPRA AT 620-621.

THE BILL'S SPONSOR ALSO HAS SAID THAT HE WOULD FAVOR AN INTERPRETATION OF THE ACT BY THE SECRETARY AND THE CLERK WHICH WOULD REQUIRE DISCLOSURE BY ALL ORGANIZATIONS THAT EMPLOY PERSONS WHOSE PRINCIPAL PURPOSE IS TO LOBBY. UNDER THE HARRISS INTERPRETATION, WHILE THE EMPLOYEES WHOSE PRINCIPAL PURPOSE IS TO LOBBY ALREADY ARE SUBJECT TO THE ACT, THE EMPLOYING ORGANIZATION ITSELF IS NOT, UNLESS ITS PRINCIPAL PURPOSE IS LOBBYING OR IT RECEIVES CONTRIBUTIONS THE PRINCIPAL PURPOSE OF WHICH IS LOBBYING. THUS, REQUIRING THE EMPLOYING ORGANIZATION TO COMPLY WITH THE ACT IN ALL CASES ALSO WOULD ADD TO THE POOL OF INFORMATION NOW REPORTED UNDER THE ACT.

YOU REQUESTED THAT WE ASSESS THE PAPERWORK AND REGULATORY BURDENS THAT MIGHT RESULT FROM PASSAGE OF THE BILL. BECAUSE, AS DISCUSSED ABOVE, THE EFFECTS OF THE BILL ON THE SCOPE OF THE ACT ARE UNCERTAIN, WE ARE UNABLE TO ESTIMATE THE IMPACT PASSAGE OF THE BILL WOULD HAVE ON THE PAPERWORK AND REGULATORY BURDEN IMPOSED BY THE ACT. WE CANNOT PREDICT THE DEGREE TO WHICH THE SECRETARY AND THE CLERK WILL USE THE EXPANDED AUTHORITY AVAILABLE TO THEM UNDER THE BILL. IT IS POSSIBLE THAT THEY WILL CHOOSE EITHER TO EXPAND THE ACT'S COVERAGE BEYOND THE INTERPRETATION IN HARRISS, OR TO IMPOSE ADDITIONAL REPORTING REQUIREMENTS ON THOSE ALREADY SUBJECT TO THE ACT UNDER THE HARRISS DECISION. ALTERNATIVELY, IT IS POSSIBLE THAT THEY WILL CHOOSE TO CONTINUE, OR EVEN REDUCE, THE EXISTING REGISTRATION AND REPORTING REQUIREMENTS. IN EITHER CASE, WE COULD NOT ESTIMATE THE PAPERWORK AND REGULATORY BURDEN UNTIL WE KNEW WHAT KIND OF CHANGES, IF ANY, THE SECRETARY AND THE CLERK WOULD MAKE IN THE REPORTING AND REGISTRATION REQUIREMENTS.

THE BILL ALSO REQUIRES THE COMPTROLLER GENERAL TO PROVIDE THE SECRETARY AND THE CLERK WITH "SUCH ADVICE AND ASSISTANCE AS THEY MAY JOINTLY REQUEST." WE UNDERSTAND THE INTENT OF THE BILL TO BE TO MAKE OUR OFFICE AVAILABLE TO PROVIDE ADVICE AND ASSISTANCE ON INFORMATION MANAGEMENT AND RELATED ADMINISTRATIVE MATTERS TO THE SECRETARY AND THE CLERK. THE BILL AS CURRENTLY WORDED, HOWEVER, COULD BE INTERPRETED TO REQUIRE ADVICE BY GAO ON LEGAL INTERPRETATIONS OF THE ACT, WHICH WE DO NOT BELIEVE WOULD BE AN APPROPRIATE ROLE FOR GAO. WE BELIEVE THAT THE BILL'S LEGISLATIVE HISTORY SHOULD MAKE CLEAR THAT GAO'S ROLE IS INTENDED TO BE LIMITED TO PROVIDING ADVICE AND ASSISTANCE ON INFORMATION MANAGEMENT AND RELATED ADMINISTRATIVE MATTERS. TO FURTHER CLARIFY THE INTENT OF THIS PROVISION, WE RECOMMEND THAT SECTION 310(A)(2) OF THE ACT, AS AMENDED BY SECTION 2 OF SEC. 2390, BE CHANGED TO PROVIDE:

"THE COMPTROLLER GENERAL OF THE UNITED STATES (HEREINAFTER IN THIS ACT REFERRED TO AS THE 'COMPTROLLER GENERAL') SHALL PROVIDE THE CLERK AND THE SECRETARY WITH SUCH ADVICE AND ASSISTANCE AS THEY MAY JOINTLY REQUEST ON MATTERS RELATING TO ADMINISTRATION OF THIS ACT BY THE CLERK AND THE SECRETARY, EXCEPT THAT NOTHING IN THIS SECTION SHALL AUTHORIZE THE CLERK OR THE SECRETARY TO COMPEL ANY SUCH ACTION BY ANY PERSON DESCRIBED IN SECTION 307 OF THIS ACT." (UNDERLINED WORDS ADDED.)

WE HOPE YOU FIND THESE COMMENTS USEFUL. WE ARE AVAILABLE TO WORK WITH YOUR STAFF IN FURTHER DEVELOPING ANY STATUTORY LANGUAGE.

/1/ BRIEFLY, THE ACT AS INTERPRETED IN HARRISS APPLIES ONLY WHEN (1) A PERSON SOLICITS, COLLECTS, OR RECEIVES CONTRIBUTIONS; (2) ONE OF THE MAIN PURPOSES OF THE PERSON, OR ONE OF THE MAIN PURPOSES OF THE CONTRIBUTIONS, IS TO INFLUENCE THE PASSAGE OR DEFEAT OF LEGISLATION BY CONGRESS; AND (3) THE INTENDED METHOD OF ACCOMPLISHING THIS PURPOSE IS THROUGH DIRECT COMMUNICATION WITH MEMBERS OF CONGRESS, EXERTED EITHER BY THE LOBBYISTS THEMSELVES OR THROUGH AN ARTIFICIALLY STIMULATED LETTER CAMPAIGN.