B-231210, Jun 7, 1988

B-231210, Jun 7, 1988

MISCELLANEOUS TOPICS - Federal Administrative/Legislative Matters - Government corporations - Legal services - Lobbying - Congress DIGEST: Section 42 U.S.C. Sec. 2996e(c)(2) prohibits the Legal Services Corporation from attempting to influence legislation or appropriations under consideration by the Congress. The provision contains an exception that permits personnel of the Corporation to testify and make appropriate communications to the Congress on legislation affecting the Corporation. This exception should not be interpreted as permitting the Corporation to retain private law firms as agents to lobby on behalf of the Corporation.

Honorable Ernest F. Hollings

Chairman, Subcommittee on Commerce, Justice, State,

the Judiciary and Related Agencies

Committee on Appropriations

United States Senate:

This is in response to your letter dated April 29, 1988, requesting our opinion on whether the Legal Services Corporation (LSC) has authority to retain private law firms for the purpose of lobbying the Congress in support of a proposed reduction in funding for LSC during fiscal year 1989. You have provided us with a copy of an LSC letter dated April 26, 1988, responding to a letter which you and other Members of Congress had sent to LSC which concluded that use of law firms for lobbying the Congress would be unlawful. The LSC letter asserts that the retention of private law firms for this purpose is authorized by the Legal Services Corporation Art of 1974 (42 U.S.C. Sec. 2996).

We have reviewed the Act and LSC's position and agree with you that the retention of law firms for the purpose of lobbying the Congress is inconsistent with restrictions on lobbying contained in 42 U.S.C. Sec. 2996e(c)(2).

In the spring of 1988, LSC retained private law firms for the purpose of influencing the Congress to reduce LSC's appropriations for fiscal year 1989. It has since terminated this arrangement, but asserts it has authority to retain such firms under 42 U.S.C. Sec. 2996e(c)(2), which says:

"The Corporation shall not itself--

"(2) undertake to influence the passage or defeat of any legislation by the Congress of the United States or by any State or local legislative bodies, except that personnel of the Corporation may testify or make other appropriate communication (A) when formally requested to do so by a legislative body, a committee, or a member thereof, or (B) in connection with legislation or appropriations directly affecting the activities of the Corporation."

LSC contends that authorization for lobbying by outside- law firms is contained in the phrase "... except that personnel of the Corporation may testify or make other appropriate communication ... in connection with legislation or appropriations directly affecting the activities of the Corporation." It is argued that the word "personnel, is broader than the term "employee" used in the Act and therefore contemplates persons other than LSC employees, including outside counsel. In support of this position, LSC refers to section 1005(b)(2) of the Act, 42 U.S.C. Sec. 2996(d)(b)(2) which "includes "agents" within the scope of those affected by "personnel actions".

We are not persuaded by LSC's interpretation of the statutory provision. The purpose of 42 U.S.C. Sec. 2996e(c)(2) is to prohibit LSC from attempting to influence the passage or defeat of legislation by the Congress. Like other statutes that prohibit lobbying by federal agencies and their employees /1/ this subsection, through exception language, distinguishes between prohibited and appropriate communications. Thus, an exception is provided for personnel of the Corporation to testify and make other appropriate communications to the Congress about legislation or appropriations affecting LSC's operations. The legislative history of this provision contained in the Senate Conference Report on the Legal Services Corporation Act of 1974, S. Rep. No. 845, 93rd Cong., 2d Sess. 22 (1974) sheds some light on the meaning of the exception, and says:

"Both the House bill and the Senate amendment prohibit the Corporation from undertaking to influence the passage or defeat of any legislation by the Congress or by any State or local legislative body. The Senate amendment allowed the Corporation to testify and make appropriate comment in connection with legislation or appropriations directly affecting the activity of the Corporation. The House bill contained no comparable provision. The House recedes."

We note that while the Corporation is prohibited from attempting to influence any legislation under consideration by the Congress, an exception in the provision permits it to testify and make other appropriate comment on legislation directly affecting the Corporation. Accordingly, this exception permits official LSC spokespersons to express the views of the Corporation, in writing or in person, to the Congress. Through this exception, the Congress indicated that it did not intend to entirely silence the Corporation in connection with legislation impacting on its operations. However, it is equally clear that the Congress did not intend the exception to negate or seriously compromise the prohibition on Corporation lobbying, that is, attempts to influence and not mere expressions of Corporation views and positions.

We think the way the subsection is written makes it clear that "personnel of the Corporation" is not as broad as the term "Corporation" itself. The subsection starts by saying what the "Corporation" shall not do and later provides an exception for what "personnel of the Corporation" may do. We think that this provision should be interpreted to give meaning to this clear statutory distinction.

Also, the use of the words "personnel of the Corporation" rather than "employees of the Corporation" should not be interpreted as expanding the authority for LSC to engage outside counsel to provide information to the Congress on legislation affecting LSC. While the words "personnel of the Corporation" are broader in scope than "employees of the Corporation," the only reasonable interpretation of the term "personnel" as used in 42 U.S.C. Sec. 2996(c)(2), in our view, is that it extends to members of the Corporation's Board of Directors, its officers and its employees, but not to entities not affiliated with the Corporation which are retained on a fee for service basis. If agents or contractors were included, there would be no limits on the type and number of persons the Corporation could retain to assist it in providing information to the Congress. This reading of the statute would render the use of the word "personnel" in the statute meaningless. In this regard, we note that when the drafters of the Act desired to include the word "agent" in the coverage of provisions of the Act, they did so specifically as in 42 U.S.C. Sec. 2996d(b)(2). keeping with the purpose of the exception, we believe "personnel of the Corporation" should be interpreted as including only members of the Corporation's Board of Directors, officers, and authorized employees of the Corporation.

Accordingly, we agree that section 2996e(c)(2) does not authorize the Corporation to retain private law firms to influence the Congress to reduce LSC's appropriations.

Unless you publicly announce its contents earlier, we plan no further distribution until 30 days from the date of opinion. At that time, we will send copies to interest parties and make copies available to others on request.

/1/ See for example 18 U.S.C. Sec. 1913.