USDA GUIDANCE REGARDING ANTI-LOBBYING LAWS

June 17, 1999

SUBJECT:    USDA Guidance Regarding Anti-Lobbying Laws

TO:    All REE Employees

FROM:    Dan Ellerman /s/
        Chief, Employee Relations Branch
         Human Resources Division

By this memorandum, please be advised of statutory constraints on Government Officials in regard to informing the public about legislative proposals. There are three laws that restrict such activities undertaken by Department of Agriculture (USDA) agencies and their officers and employees. One is a criminal statute which makes the use of appropriated funds for some forms of lobbying a crime. The other two laws are found in annual appropriations acts and prohibit the use of appropriated funds for a variety of lobbying activities.

Please review the two enclosures that provide guidance regarding anti-lobbying laws and guidelines on applying the anti-lobbying laws to USDA agencies for use by Department officers and employees.

Keep in mind that these guidelines are in relation to the Congressionally appropriated funds and your “official duties.” This does not prevent you from expressing your opinion as a private citizen, as long as you do not use your official title or other Government- related information or resources in pursuing your private activities.

This information will also be posted on the REE Ethics Home Page at the following web address: www.afm.ars.usda.gov/hrd/ethics/index.htm.

2 Enclosures

• 18 U.S.C. 1913 is a criminal statute applicable to all executive branch agencies. It prohibits the use of appropriated funds for activities that directly or indirectly are "intended or designed to influence in any manner a Member of Congress, to favor or oppose ... any legislation or appropriation by Congress...."
  
• A section of the Treasury and General Government Appropriations Act (section 637 in the 1999 Act) prohibits the use of appropriated funds "other than for normal and recognized executive-legislative relationships, for publicity or propaganda purposes, and for the preparation, distribution or use of any kit, pamphlet, booklet, publication, radio, television or film presentation designed to support or defeat legislation pending before the Congress, except in presentation to the Congress itself." This provision applies to all agencies within the executive branch. This is a civil, not a criminal, statute and any remedies for violations would be civil in nature.
  
• A section of the Department of the Interior and Related Agencies Appropriations Act (section 303 in the 1999 Act) prohibits the use of funds appropriated under the Interior and Related Agencies Appropriations Act "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." This is a civil, not a criminal, statute which applies within USDA only to Forest Service programs and activities, and any remedies for violations would be civil in nature.

Though framed in broad terms, in practice these statutes have not been applied literally.

• None of the statutes has been applied to limit the lobbying activities personally undertaken by the President and his assistants in the Executive Office of the President, Vice President, cabinet members, and other Presidentially-appointed, Senate-confirmed officials (PASs) acting within their areas of responsibility.
  
• All three statutes are interpreted to prohibit government employees from engaging in substantial grass roots lobbying-campaigns using telegrams, letters, or other forms of communication that directly or indirectly encourage the public to contact members of Congress in support of, or in opposition to, legislation.
  
• The Department of Justice, responsible for enforcing 18 U.S.C. 1913, has not prosecuted anyone since the statute was enacted in 1919.
  
• The General Accounting Office (GAO) investigates alleged violations of the Appropriations Acts for Congress. GAO has interpreted the Acts to prohibit government employees from engaging in lobbying campaigns or participating in events designed to support or oppose pending legislation. The GAO has also found that the Acts do not prohibit a government employee from engaging in legitimate public information activities such as responding to requests for information and providing information to people who regularly request information from the Department.
  

Attached are Guidelines on Applying Anti-Lobbying Laws to activities of the Forest Service and other USDA agencies. We encourage you to contact the Office of the General Counsel, if you have any questions, need additional information, or want guidance on whether a specific proposed activity is consistent with these statutes.

/s/
Charles R. Rawls
General Counsel
 

GUIDELINES ON APPLYING ANTI-LOBBYING LAWS

Presidentially-Appointed, Senate-Confirmed (PAS) Officials

The anti-lobbying laws have been interpreted not to apply to activities personally undertaken by PAS employees within their areas of responsibility. Therefore, PASs may encourage the public to contact Congress in speeches and similar public communications or in private communications such as letters, telephone calls, and meetings. PASs may not direct or request other Federal employees to engage in activities that would violate the anti-lobbying laws.

Non-PAS Federal employees, including SES, Schedule C, and General Schedule employees, may properly engage in activities which provide information about pending legislation. However, these activities are limited by the anti-lobbying statutes. In general, non-PAS employees may not participate in activities or campaigns which are designed to generate support for or opposition to pending legislation. Both the content of what is said and the context of the activity are important in determining whether the activity violates the anti-lobbying statutes. Appeals to the public to support or oppose pending legislative proposals do not have to be explicit to violate the anti-lobbying statutes. Where an appeal for public support or opposition can be readily inferred from the context of the activity, even though words like "write your congressional representative to express outrage about this" are not used, the activity may be a violation. This is the most difficult area to apply these limitations. Factors that may be taken into account in determining whether an activity violates these laws include the type of activity, the audience, the timing relative to the status of legislation, and the nature of the forum. Improper expenditure of any amount of appropriated funds in any form -- salary, equipment, supplies, etc. -- constitutes a violation of the anti-lobbying statutes.

Non-PAS Employees MAY discuss legislative issues with outside organizations and deliver speeches and make public remarks explaining proposed legislation and the Administration's position on proposed legislation. This includes participating in conferences or symposia to promote public awareness of legislative proposals, so long as they are not organized or designed for the purpose of advocating support for or opposition to such proposals.

Non-PAS Employees MAY NOT participate in events or programs specifically designed to promote public support for or opposition to pending legislation. For example it has been held that participation by a non-PAS Departmental official in a press conference organized by non-governmental advocacy groups in a congressional sponsor's district called to criticize a legislative proposal under active consideration by Congress violated the Interior Appropriations Act.

Non-PAS Employees MAY send information about proposed legislation to individuals or groups that have asked for this information, or that regularly receive information from the Department. This material may be sent by mail, facsimile, or Internet. This material may include information about the status of legislation and the Administration's position on proposed legislation but may not, directly or indirectly, encourage the public to contact Members of Congress;

Non-PAS Employees MAY NOT engage in a grass roots lobbying campaign involving expenditures for telegrams, letters, and other forms of communications that directly or indirectly encourage the public to contact Congress in support of or opposition to pending legislation;

Non-PAS Employees MAY NOT prepare or distribute letters, pamphlets, kits, booklets, publications, or television, radio, or film presentations that expressly ask that anyone contact Congress to support or oppose pending legislation;

Non-PAS Employees SHOULD NOT, regardless of cost, undertake "mass-mailings" or "mass faxes" on proposed legislation to individuals or groups that do not normally receive information on educational programs or legislation from the Department, and who have not asked for such information.

Non-PAS Employees MAY, through proper channels, initiate meetings or communicate directly with members of Congress and Congressional staffs regarding pending legislation or transmit unsolicited constituent views to Congress;

Non-PAS Employees MAY NOT initiate or coordinate meetings between members of the public and members of Congress or Congressional staff to discuss proposed legislation;

Non-PAS Employees MAY NOT provide members of the public with target lists of Members of Congress for the purpose of seeking to influence their position on pending legislation.

Non - PAS Employees MAY write letters to the editor, "op-ed" articles, press releases, or other materials addressing (within the parameters of these Guidelines) proposed legislation and the Administration's position on proposed legislation so long as the materials identify the official's Federal Government title and position. They may also supply copies of remarks made by the Secretary or other PAS officials, press releases, or other relevant materials.

Non-PAS Employees MAY NOT "ghostwrite" letters to the editor, speeches, or other materials dealing with proposed legislation for anyone in a non-Federal position.

Non-PAS Employees MAY tell the public how they may obtain additional information regarding proposed legislation.

Non-PAS Employees MAY NOT request or recommend that a recipient further distribute materials regarding proposed legislation, or provide a large number of copies of such material for redistribution.

Non-PAS Employees MAY coordinate speeches and activities with other Federal officials.

Non-PAS Employees MAY NOT provide lists of, or correspondence from, persons who favor or oppose certain legislation to groups that lobby Congress, except where the material is requested and properly made available under the Freedom of Information Act.

File Reference: 9 LEG 105-1