B-200250 L/M, NOV 18, 1980

B-200250 L/M: Nov 18, 1980

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NOR ARE WE AWARE OF ANY OTHER LAW WHICH MIGHT APPLY. THE POSITION PAPER WAS CAPTIONED: "CENSUS BUREAU STATEMENT IN OPPOSITION TO THE MCDADE AMENDMENT" AND EXPLAINED THAT THE BUREAU WAS STRONGLY OPPOSED TO THE MCDADE AMENDMENT TO THE HOUSE BILL PROVIDING FISCAL YEAR 1981 APPROPRIATIONS FOR THE BUREAU. THE BUREAU ARGUED THAT THE AMENDMENT WAS UNCONSTITUTIONAL AND COULD NOT BE IMPLEMENTED ON A PRACTICABLE BASIS. WE THEREFORE HAVE COGNIZANCE OVER THE RESTRICTION ON THE USE OF FUNDS FOR LOBBYING PURPOSES CONTAINED IN SECTION 607(A) OF THE TREASURY. SECTION 607(A) IS APPLICABLE TO THE BUREAU SINCE THE SCOPE OF THE SECTION EXTENDS TO "THIS OR ANY OTHER ACT.". WE HAVE CONSISTENTLY RECOGNIZED THAT ANY AGENCY OR DEPARTMENT HAS A LEGITIMATE INTEREST IN COMMUNICATING WITH THE PUBLIC AND WITH LEGISLATORS REGARDING ITS POLICIES.

B-200250 L/M, NOV 18, 1980

PRECIS-UNAVAILABLE

JOSEPH M. MCDADE, HOUSE OF REPRESENTATIVES:

WE REFER TO YOUR RECENT LETTER ASKING WHETHER THE ASSISTANT SECRETARY OF COMMERCE VIOLATED THE LAW BY SENDING A CENSUS BUREAU POSITION PAPER ON PENDING LEGISLATION TO MEMBERS OF CONGRESS. FOR THE REASONS OUTLINED BELOW, WE DO NOT BELIEVE THE ASSISTANT SECRETARY'S ACTIONS VIOLATED THE LAWS PROHIBITING LOBBYING, NOR ARE WE AWARE OF ANY OTHER LAW WHICH MIGHT APPLY.

THE POSITION PAPER WAS CAPTIONED: "CENSUS BUREAU STATEMENT IN OPPOSITION TO THE MCDADE AMENDMENT" AND EXPLAINED THAT THE BUREAU WAS STRONGLY OPPOSED TO THE MCDADE AMENDMENT TO THE HOUSE BILL PROVIDING FISCAL YEAR 1981 APPROPRIATIONS FOR THE BUREAU. YOUR AMENDMENT WOULD IN EFFECT EXCLUDE ILLEGAL ALIENS FROM THE CENSUS COUNT. THE BUREAU ARGUED THAT THE AMENDMENT WAS UNCONSTITUTIONAL AND COULD NOT BE IMPLEMENTED ON A PRACTICABLE BASIS. THE STATEMENT DID NOT APPEAL TO MEMBERS OF THE PUBLIC TO REQUEST THEIR REPRESENTATIVES IN CONGRESS TO DEFEAT THE PROPOSAL.

UNDER AUTHORITY CONTAINED IN 31 U.S.C. CHAPTER 2, THIS OFFICE DECIDES THE LEGALITY OF APPROPRIATED FUND EXPENDITURES BY EXECUTIVE AGENCIES AND DEPARTMENTS. WE THEREFORE HAVE COGNIZANCE OVER THE RESTRICTION ON THE USE OF FUNDS FOR LOBBYING PURPOSES CONTAINED IN SECTION 607(A) OF THE TREASURY, POSTAL SERVICE AND GENERAL GOVERNMENT APPROPRIATION ACT, 1980, PUBLIC LAW NO. 96-74 (SEPTEMBER 29, 1979) 93 STAT. 559, IN EFFECT AT THE TIME, WHICH PROVIDES:

"NO PART OF ANY APPROPRIATION CONTAINED IN THIS OR ANY OTHER ACT, OR OF THE FUNDS AVAILABLE FOR EXPENDITURE BY ANY CORPORATION OR AGENCY, SHALL BE USED FOR PUBLICITY OR PROPAGANDA PURPOSES DESIGNED TO SUPPORT OR DEFEAT LEGISLATION PENDING BEFORE CONGRESS."

ALTHOUGH THE BUREAU DOES NOT RECEIVE ITS APPROPRIATIONS UNDER THIS ACT, SECTION 607(A) IS APPLICABLE TO THE BUREAU SINCE THE SCOPE OF THE SECTION EXTENDS TO "THIS OR ANY OTHER ACT."

IN INTERPRETING "PUBLICITY AND PROPAGANDA" PROVISIONS SUCH AS SECTION 607(A), WE HAVE CONSISTENTLY RECOGNIZED THAT ANY AGENCY OR DEPARTMENT HAS A LEGITIMATE INTEREST IN COMMUNICATING WITH THE PUBLIC AND WITH LEGISLATORS REGARDING ITS POLICIES. IF THE POLICY OF AN AGENCY IS AFFECTED BY PENDING LEGISLATION, DISCUSSION BY OFFICIALS OF THAT POLICY WILL NECESSARILY, EITHER EXPLICITLY OR BY IMPLICATION, REFER TO SUCH LEGISLATION AND WILL PRESUMABLY BE EITHER IN SUPPORT OR IN OPPOSITION TO IT. AN INTERPRETATION OF SECTION 607(A) WHICH STRICTLY PROHIBITED EXPENDITURES OF PUBLIC FUNDS FOR DISSEMINATION OF VIEWS ON PENDING LEGISLATION WOULD CONSEQUENTLY PRECLUDE VIRTUALLY ANY COMMENT BY OFFICIALS ON ADMINISTRATION OR AGENCY POLICY, A RESULT WE DO NOT BELIEVE WAS INTENDED.

WE BELIEVE, THEREFORE, THAT CONGRESS DID NOT INTEND, BY THE ENACTMENT OF SECTION 607(A) AND LIKE MEASURES, TO PRECLUDE ALL EXPRESSION BY AGENCY OFFICIALS OF VIEWS ON PENDING LEGISLATION. RATHER, THE PROHIBITION OF SECTION 607(A), IN OUR VIEW, APPLIES PRIMARILY TO EXPENDITURES INVOLVING DIRECT APPEALS ADDRESSED TO THE PUBLIC SUGGESTING THAT THEY CONTACT THEIR ELECTED REPRESENTATIVES AND INDICATE THEIR SUPPORT OF OR OPPOSITION TO PENDING LEGISLATION, I.E., APPEALS TO MEMBERS OF THE PUBLIC FOR THEM IN TURN TO URGE THEIR REPRESENTATIVES TO VOTE IN A PARTICULAR MANNER. THE FOREGOING GENERAL CONSIDERATIONS FORM THE BASIS FOR OUR DETERMINATION IN ANY GIVEN INSTANCE OF WHETHER THERE HAS BEEN A VIOLATION OF SECTION 607(A). 56 COMP.GEN. 889 (1977).

WE HAVE REVIEWED THE POSITION PAPER IN LIGHT OF THE ABOVE CRITERIA. OUR REVIEW REVEALS THAT THE ASSISTANT SECRETARY OF COMMERCE DID NOT VIOLATE SECTION 607(A) WHEN HE INFORMED MEMBERS OF CONGRESS THAT THE CENSUS BUREAU WAS OPPOSED TO YOUR AMENDMENT AND EXPLAINED WHY. THE ASSISTANT SECRETARY COMMUNICATED DIRECTLY WITH THE MEMBERS OF CONGRESS WHICH, UNDER OUR DECISIONS, IS PERMISSIBLE. HE DID NOT APPEAL TO MEMBERS OF THE PUBLIC TO HAVE THEM URGE MEMBERS OF CONGRESS TO DEFEAT YOUR AMENDMENT, WHICH WOULD HAVE BEEN IMPERMISSIBLE UNDER THE PROVISIONS OF SECTION 607(A).

THERE ARE TWO OTHER STATUTES DESIGNED TO RESTRICT LOBBYING ACTIVITIES. THESE ARE 18 U.S.C. SEC. 1913, SIMILAR IN SCOPE TO SECTION 607(A), AND THE FEDERAL REGULATION OF LOBBYING ACT, 2 U.S.C. SECS. 261 270, WHICH REQUIRES REGISTRATION OF LOBBYISTS WITH OFFICIALS OF THE CONGRESS. BOTH OF THESE ARE PENAL STATUTES.

SINCE ENFORCEMENT OF PENAL STATUTES IS A MATTER FOR THE DEPARTMENT OF JUSTICE AND THE COURTS, WE HAVE NO AUTHORITY TO MAKE BINDING DETERMINATIONS IN THIS AREA. HOWEVER, WE DO NOT BELIEVE THE ACTION DESCRIBED ABOVE VIOLATED EITHER OF THESE STATUTES. WE UNDERSTAND THAT THE DEPARTMENT INTERPRETS 18 U.S.C. SEC. 1913 AS WE DO SECTION 607(A), THAT IS, AS NOT PROHIBITING DIRECT CONTACT WITH MEMBERS OF CONGRESS TO EXPRESS A POSITION ON PENDING LEGISLATION. THE FEDERAL REGULATION OF LOBBYING ACT, MOREOVER, BY ITS TERMS DOES NOT REQUIRE REGISTRATION BY A PUBLIC OFFICIAL ACTING IN HIS OFFICIAL CAPACITY. 2 U.S.C. SEC. 267(A).

WE TRUST THAT THE ABOVE INFORMATION IS RESPONSIVE TO YOUR REQUEST.

DIGEST

ASSISTANT SECRETARY OF COMMERCE SENT MEMBERS OF CONGRESS A POSITION PAPER ON BEHALF OF THE CENSUS BUREAU IN OPPOSITION TO AN AMENDMENT OFFERED BY REP. MCDADE TO THE COMMERCE APPROPRIATION BILL, 1981, THAT WOULD CAUSE THE BUREAU TO EXCLUDE ILLEGAL ALIENS FROM THE CENSUS COUNT. SUCH ACTIVITY DOES NOT VIOLATE APPROPRIATION ACT RESTRICTIONS AGAINST LOBBYING AS CONTAINED IN SECTION 607(A) OF THE TREASURY AND GENERAL GOVERNMENT APPROPRIATION ACT INASMUCH AS AGENCY OFFICIALS HAVE AUTHORITY TO MAKE THEIR VIEWS KNOWN TO BOTH CONGRESS AND THE PUBLIC ON PENDING LEGISLATION.

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