Executive Lobbying: Statutory Controls

Executive Lobbying: Statutory Controls
Walter J. Oleszek
Senior Specialist in Legislative Process
Government and Finance Division
Summary
Federal agency employees use appropriated funds to foster public support and
opposition to legislation pending before Congress. Congress has enacted limitations and
prohibitions on executive lobbying, but these statutory restrictions have been difficult
to enforce. To the extent that prosecution is required, Congress must rely on the Justice
Department. Non-criminal prohibitions have been enacted to limit the expenditure of
appropriated funds for certain types of lobbying activities. Congressional oversight can
help curb executive lobbying efforts that are found objectionable. For further analysis,
see CRS Report RL32750, Public Relations and Propaganda: Restrictions on Executive
Agency Activities, by Kevin Kosar; CRS Report 97-57, Restrictions on Lobbying
Congress With Federal Funds, by Jack Maskell; and CRS Report RL33065, Lobbying
Reform: Background and Legislative Proposals, 109th Congress, by R. Eric Petersen.
This report will be updated as necessary.
Enforcement of Statutory Restrictions.¹ Studies occasionally use the term
“legal fiction” to describe statutory restrictions on executive lobbying.² This reputation
comes from some ambiguity and ambivalence in congressional policy as well as
enforcement decisions by the Department of Justice. Even those who advocate selective
restrictions on departmental lobbying understand that the legislative process depends on
a free flow of information from the executive branch to Congress. Nevertheless, certain
types of executive branch lobbying have been found offensive to lawmakers and have
prompted statutory limitations.
A principal statutory restriction, 18 U.S.C. § 1913, recognizes both the need for
executive lobbying and the need for limitations. After prohibiting certain executive
practices, the statute provides that it “shall not prevent officers or employees of the United
States or of its departments or agencies from communicating to any such Member [of

¹ This report was originally authored by Louis Fisher, formerly Senior Specialist in Separation
of Powers. The listed author updated the report and is available to answer questions concerning
its contents.
² Richard L. Engstrom and Thomas G. Walker, “Statutory Restraints on Administrative Lobbying
— ‘Legal Fiction,’” 19 J. Public L. 89 (1970).

Congress] or official, at his request, or to Congress or such official, through the proper
official channels, requests for legislation, law, ratification, policy, or appropriations which
they deem necessary for the efficient conduct of the public business, . . . .” Critics of
executive lobbying realize that agencies need some latitude in promoting their own
programs. As one legislator remarked: “Certainly, any Administration should be expected
to use all legal means at its disposal to encourage acceptance of its programs.”³
Statutory sanctions against executive lobbying have had limited effect because of
uncertainty about the law and Justice Department interpretations. Because of conflicting
statutes and interpretations, it is sometimes difficult to find a violation of agency activity.
On February 17, 2005, Comptroller General David M. Walker objected to agencies using
appropriated funds “to produce or distribute prepackaged news stories intended to be
viewed by television audiences that conceal or do not clearly identify for the television
viewing audience that the agency was the source of those materials.” A month later
Joshua B. Bolten, Director of the Office of Management and Budget, issued a
memorandum stating that the Government Accountability Office (GAO) opinion
conflicted with the view of the Justice Department, and it is the Justice Department, “and
not the GAO, that provides the controlling interpretations of law for the Executive
Branch.”⁴
Under Article II, Section 3, of the Constitution, Presidents have a right to give
Congress information on the State of the Union and to “recommend to their Consideration
such Measures as he shall judge necessary and expedient.” Vice Presidents and members
of the President’s Cabinet enjoy a broad discretion to speak out on public issues. The
Justice Department has taken the position that agency heads may use the facilities of their
institutions to address unsolicited letters to Members of Congress with respect to pending
legislation.⁵ Executive department officials “are free to publicly advance Administration
and Department positions, even to the extent of calling on the public to encourage
Members of Congress to support Administration positions.”⁶ The Comptroller General
stated in 1977: “we have consistently recognized that any agency has a legitimate interest
in communicating with the public and with legislators regarding its policies and
activities.”⁷ Even with regard to the President, however, the Justice Department has
cautioned “against grass-roots appeals, even by the President, that involve substantial
expenditures of appropriated funds for such things as television or radio time, newspaper
or magazine advertisements, or mass, unsolicited distribution of printed materials.”⁸

³ Ancher Nelsen, “Lobbying by the Administration,” in We Propose: A Modern Congress 145
(New York: McGraw-Hill, 1966).
⁴ GAO memorandum, B-304272, Feb. 17, 2005, “Prepackaged News Stories”; OMB
memorandum, M-05-10, March 11, 2005, “Use of Government Funds for Video News Releases.”
⁵ Letter from Assistant Attorney General Herbert J. Miller, Jr. to Rep. Glenard P. Lipscomb, May

10, 1962, reprinted at 108 Cong. Rec. 8451 (1962).

⁶ 13 Op. O.L.C. 300, 301 (1989).
⁷ 56 Comp. Gen. 890 (1977).
⁸ 12 Op. O.L.C. 30, 33 n.5 (1988).

Lobbying With Appropriated Funds. Congress has opposed agency use of
appropriated funds to drum up public support or opposition to pending legislation.
Members of Congress do not want to be on the receiving end of constituent pressures
artificially manufactured by agency telephone calls, telegrams, departmental threats and
coercion, and other stimuli originating from within an administration. The GAO and the
former Bureau of the Budget have objected to agency publications that are proselytizing⁹
in tone and propagandistic in substance. The Justice Department has pointed out that the
right of citizens to lobby Congress does not mean a right to use federal funds for that
purpose: “Although private persons and organizations have a right to petition Congress
and to disseminate their views freely, they can be expected, within the framework
established by the Constitution, to do their lobbying at their own expense. They have no
inherent or implicit right to use federal funds for that purpose unless Congress has given¹⁰
them that right.”
Statutory Limit on Publicity Experts. With bipartisan backing, Congress in
1913 stipulated in an appropriations bill: “No money appropriated by this or any other Act
shall be used for the compensation of any publicity expert unless specifically appropriated
for that purpose.”¹¹ This statutory restriction responded to what legislators from both
parties considered a pattern of agency abuse. Representative Frederick Gillett sponsored
this provision after learning that the Civil Service Commission had advertised for a
“publicity expert” in the Department of Agriculture. The CSC circular explained that the
publicity expert would prepare news matter and secure the publication of such items in
various periodicals and newspapers. To Representative Gillette it did not seem “proper
for any department of the Government to employ a person simply as a press agent to
advertise the work and doings of that department, and it is to prevent that in any
department that this amendment is offered.” To clarify his amendment, he agreed that
nothing in it would prevent an employee of the Department of Agriculture from “giving
to the country information as to the work of the department.”¹² In that sense, the
amendment was aimed not at informative bulletins but rather at press releases intended
to promote the agency and its mission.
Agencies were able to circumvent this statutory restriction in part by avoiding the
position of “publicity expert” while permitting positions for director of information, chief
educational officer, supervisor of information research, director of publications, and other
imaginative titles.¹³ Although the 1913 legislation remains part of permanent law (5
U.S.C. § 3107), it has been substantially diluted by other statutes that specifically
authorize and fund experts who publicize agency programs. Today it is commonplace for
Congress to supply funds to agencies and departments for public information officers.
The issue becomes whether those officers supply basic information to the public or step
over the line and function as a “publicity expert.” GAO does not view Section 3107 as
prohibiting an agency’s legitimate promotional functions where authorized by law. For

⁹ “Legislative Activities of Executive Agencies” (Part 10), hearings before the House Select
Committee on Lobbying Activities, 81^st Cong., 2^nd sess. 24-25, 31-32 (1950).
¹⁰ 5 Op. O.L.C. 180, 185 (1981).
¹¹ 38 Stat. 212 (1913).
¹² 50 Cong. Rec. 4409 — 4411 (1913).
¹³ James L. McCamy, Government Publicity: Its Practices in Federal Administration 7(1939).

example, GAO did not regard an agency mass media campaign to educate the public on
energy conservation as a violation of Section 3107.¹⁴
Lobbying With Appropriated Moneys Act. More troublesome to Congress
was the practice of agencies using appropriated funds to stimulate public support or
opposition to pending legislation. In 1919, Congress passed language to prohibit that
practice, and this statutory restriction (known as the Lobbying With Appropriated Moneys
Act) remains part of permanent law (18 U.S.C. § 1913). Debate in the House of
Representatives in 1919 reveals that Members were offended by bureau chiefs and
departmental heads “writing letters throughout the country, sending telegrams throughout
the country, for this organization, for this man, for that company to write his
Congressman, to wire his Congressman, in behalf of this or that legislation.”¹⁵
The statute currently provides: No part of the money appropriated for 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 in any manner
a Member of Congress, a jurisdiction, or an official of any government, to favor, adopt,
or oppose, by vote or otherwise, any legislation, law, ratification, policy, or appropriation,
whether before or after the introduction of any bill, measure, or resolution proposing such
legislation, law, ratification, policy, or appropriation. The restriction was not intended to
prevent agency employees from communicating to Members of Congress, at their request,
through proper official channels, requests for legislation or appropriations “which they
deem necessary for the efficient conduct of the public business.¹⁶
Violations of Section 1913 originally carried a criminal penalty of a fine,
imprisonment for not more than one year, or both. The employee, after being given notice
and hearing “by the superior officer vested with the power of removing him, shall be
removed from office or employment.” The Justice Department never prosecuted anyone
for violating this provision. Amendments in 2002 removed the criminal penalties and
substituted civil penalties included in the title of the U.S. Code that covers contractors and
grantees (31 U.S.C. § 1352).
Authorization Bills. Congress has found it necessary at times to enact specific
constraints to prohibit executive agencies from lobbying on particular public issues. For
example, after the Civil Rights Commission decided to press its views on the abortion
controversy, Congress enacted this language: “Nothing in this chapter or any other Act

¹⁴ General Accounting Office, “Principles of Federal Appropriations Law,” 3d ed., vol. I, January

2004, at 4-232 to 4-233.

¹⁵ 58 Cong. Rec. 403 (1919) (statement by Rep. James Good).
¹⁶ Executive branch lobbying restrictions are typically reiterated in some of the annual
appropriations measures Congress considers. Section 8012 of the Department of Defense,
Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and
Pandemic Influenza Act, 2006 requires that none of the funds appropriated under the measure be
used in any way, directly or indirectly, to influence congressional action on any legislation or
appropriation matters pending before the Congress (P.L. 109-148, 119 Stat. 2700). Similar
provisions regarding funds appropriated for nuclear waste disposal were enacted in the Energy
and Water Development Appropriations Act, 2006, P.L. 109-103, 119Stat. 2272-2273.

shall be construed as authorizing the Commission, its advisory committees, or any other
person under its supervision or control to study and collect, make appraisals of, or serve
as a clearinghouse for any information about laws and policies of the Federal Government
or any other governmental authority in the United States, with respect to abortion.”¹⁷
From the very start, the Legal Services Corporation has been prohibited from
undertaking to influence the passage or defeat of any legislation by Congress or by a state
or local legislative body, but agency personnel “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.”¹⁸
In 1987, Congress responded to executive branch lobbying in support of the Contra
military forces in Nicaragua by adding several sections to the Foreign Relations
Authorization Act. One section prohibited the “use of funds for political purposes.” No
funds authorized to be appropriated by the statute, or by any other statute authorizing
funds “for any entity engaged in any activity concerning the foreign affairs of the United
States,” shall be used for these purposes: “(1) for publicity or propaganda purposes
designed to support or defeat legislation pending before Congress; (2) to influence in any
way the outcome of a political election in the United States; or (3) for any publicity or
propaganda purposes not authorized by Congress.”¹⁹
The Justice Department interpreted paragraph (3) to prohibit “covert attempts to
mold opinion through the use of third parties.” It also ruled that the administration was
entitled to respond to media requests for “op-ed pieces” or interviews by referring the
media to supporters of the Contras in the private sector, but it “would be unwise . . . for
the Administration to solicit the media to print articles by or interviews with anyone not
serving in the government. And, of course, the Administration cannot assist in the
preparation of any articles or statements by private sector supporters, other than through
the provision of informational materials....”²⁰
Private Contractors. Another section of the 1987 Foreign Relations
Authorization Act restricted the use of contract funds for “public diplomacy efforts” by
the State Department (§ 141). The objective was to restrict States’s ability to contract
with outside groups for the purpose of boosting the Contras. Over a two-year period, the
International Business Communications (IBC) had received $420,000 from the State
Department to draft op-ed pieces for placement in U.S. newspapers, arrange meetings
between members of the Contra movement and legislators, and promote other public²¹

relations activities.
¹⁷ 42 U.S.C. § 1975a(f) (2000). This limitation first appeared in an authorization for the
Commission in 1978 (92 Stat. 1067) and later in 1983 (97 Stat. 1305, § 5(e)).
¹⁸ 88 Stat. 382, § 1066(c) (1974); 42 U.S.C. § 2996e(c) (2000).
¹⁹ 101 Stat. 1339, § 109 (1987).
²⁰ 12 Op. O.L.C. 30, 40 (1988).
²¹ S.Rept. 100-75, 100^th Cong., 1^st sess. 26 (1987).

Restrictions on lobbying activities by private contractors appear in other statutes.
Language in the Labor-HHS appropriations bill has provided: “No part of any
appropriation contained in this act shall be used to pay the salary or expenses of any grant
or contract recipient, or agent acting for such recipient, related to any activity designed
to influence legislation or appropriations pending before the Congress.”²²
Provisions relating to grant and contract recipients are treated more comprehensively
in what is called the “Byrd Amendment,” added in 1989 to the Interior appropriations bill
and codified at 31 U.S.C. § 1352. Senator Robert C. Byrd was concerned about recipients
of federal contracts, grants, or loans who used federal money to lobby the federal
government for additional financial assistance. His amendment states that no funds
appropriated by any act may be expended by the recipient of a federal contract, loan, or
cooperative agreement “to pay any person for influencing or attempting to influence an
officer or employee of any agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress” in connection with these actions:
the awarding of any federal contract, the making of any federal grant, the making of any
federal loan, the entering into any cooperative agreement, and the extension, continuation,
renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative
agreement.
On June 30, 2005, an amendment was added to the Department of Transportation
appropriations bill for fiscal 2006. To the existing Section 921, which prohibited the use
of appropriated funds for publicity or propaganda purposes, or 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, language was added to extend the prohibition to the
use for funds “directly or indirectly, including by private contractor.”
The sponsor of the amendment pointed to recent reported examples of administrative
propaganda: the National Resource Conservation Service paid a freelance writer at least
$7,500 to write articles “touting so-called Federal conservation programs and placed them
in outdoors magazines”; the commentator Armstrong Williams was paid $241,000 by the
Education Department to promote the administration’s education policy; and columnist
Maggie Gallagher received $21,500 from the Department of Health and Human Services
to work on the administration’s marriage initiative.²³ The amendment was agreed to by
the House without opposition.
Conclusion. To be effective, statutory restrictions on executive lobbying must be
accompanied by persistent and determined congressional oversight, fortified, if necessary,
by sanctions in the form of reducing agency funds or withdrawing discretionary authority
that agencies value and do not want to lose. Congressional hearings, GAO investigations,
and media coverage are effective in limiting agency abuse.

²² 108 Stat. 2572, § 504 (1994).
²³ 151 Cong. Rec. H5485 (daily ed. June 30, 2005).