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Lobbying and Publicity or Propaganda Guidelines

Distributed by HHS Office of the General Counsel, Ethics Division, 7/2/10

The Anti-Lobbying Act, 18 U.S.C. § 1913

  • The Anti-Lobbying Act prohibits the direct or indirect use of appropriated funds 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."
     
  • Direct executive branch communications to a federal, state, or local legislative body through proper official channels are permitted.
     
  • Federal officers or employees also may make any communication otherwise prohibited by section 1913 if such prohibition would, in the opinion of the Attorney General, violate the Constitution.
     
  • To avoid constitutional concerns, the Attorney General has opined that the Act, despite the breadth of the statutory language, only proscribes large-scale, high-expenditure "grass roots" lobbying efforts--targeted at the general public or special interest groups --that specifically urge citizens or seek to mobilize members of the group to contact their elected representatives in support of Administration positions on legislative matters.
     
  • According to the Department of Justice, the Act does not apply to the constitutionally protected executive branch communications with the public that are personally undertaken by Senate confirmed Presidential appointees in public speeches, appearances, or writings that support or oppose proposed or pending legislation.
     
  • Public or private statements by federal officers or employees to members of the public regarding Administration policies on legislative matters do not violate the Act as long as such communications are not part of a "substantial" grass roots lobbying effort, which has been interpreted, based on the Act's legislative history, to mean campaigns involving an expenditure of appropriated funds in excess of $50,000 in 1989 dollars. The Act seeks to proscribe artificially generated constituent pressure on elected representatives solicited at considerably taxpayer expense.
     
  • Violations of the Anti-Lobbying Act, although a criminal statute, are punishable by civil penalties ranging between $10,000 and $100,000 per expenditure.

Appropriations Acts Riders

Provisions Applicable to HHS Officers and Employees

  • Each year, an appropriations rider is enacted with government-wide applicability that prohibits, "other than for normal and recognized executive legislative relationships," the user of federal funds "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." [1]
     
  • The annual HHS appropriations act restates this language and extends its reach to legislation pending before State legislatures as well. [2]
     
  • The Comptroller General has interpreted such provisions as prohibiting, among other activities: (1) providing administrative support for the lobbying activities of private organizations; (2) preparing editorials or other communications that will be disseminated to the target audience without an accurate disclosure of the federal role in their origin; and (3) making express appeals to members of the public to contact their elected representatives in support of or opposition to legislative proposals. [3]
     
  • Although the appropriations act provisions have been interpreted as precluding "grass roots" lobbying in a manner similar to section 1913, the Comptroller General has not as yet adopted a de minimis exception akin to the $50,000 threshold recognized by the Attorney General or recognized the constitutional implications of restricting public communications by senior executive branch officials.
     
  • Accordingly, the Department of Justice has suggested that agencies should observe a general restriction against expressly urging members of the public to contact Congress or State legislators in support of or opposition to legislation.
     
  • An additional government-wide appropriations rider bars the direct or indirect use of federal funds, including by private contractor, for publicity or propaganda purposes within the United States not authorized by the Congress. [4]
     
  • The government-wise and HHS-specific "publicity or propaganda" riders have been interpreted by the Comptroller General to prohibit federally funded materials that are self-aggrandizing, covert as to their origin, or purely partisan.
     
  • The Government Accountability Office may undertake audits with respect to alleged violations of the appropriations act provisions, and expenditures that are disallowed might, if the executive branch agrees, have to be borne by the Department official who directed or engaged in the prohibited activity.

Provisions Applicable to HHS Contractors and Grantees

  • The HHS appropriations act also provides that no appropriated funds may 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 or any State legislature."
     
  • The Department of Justice has interpreted such provisions as prohibiting the use of federal funds for any type of lobbying by federal grantees and contractors, not merely "grass roots" lobbying that the Department itself is prohibited from performing. [5]
     
  • Grantees and contractors are not prohibited from lobbying with non-federal funds. Care should be exercised that, in communicating with contractors and grantees about this particular restriction, Department officials do not imply any general restriction on lobbying that could lead to an allegation of First Amendment infringement.
     
  • The Department of Justice has stated that any lobbying activities undertaken by grantees and contractors must be conducted at their own expense, and that federal funds must be segregated from other sources to demonstrate compliance with that requirement.
     
  • Uniform cost principles for no-profit organizations issued by the Office of Management and Budget (OMB in OMB Circular A-122 and Federal Acquisition Regulations (FAR), 48 C.F.R. §§ 31.205-22; 31.701 et seq., also prohibit reimbursement from federal funds for lobbying or political activities conducted by grantees and contractors. These restrictions generally apply to attempts to influence any federal or state legislation through direct or "grass roots" lobbying campaigns, or political campaign contributions or expenditures, but exempt any activity authorized by Congress, or when providing technical and/or factual information related to the performance of a grant or contract when in response to a documented request.

Recommended Actions to Avoid Lobbying or Publicity or Propaganda Allegations

  • Department officials may speak to individuals and groups to inform them of Administration positions on a legislative matter.  While communicating with the public, Department officials may say, “We need your support on this matter,” but should not say, “Contact your Congressional representatives in support of the Administration’s position,” or “Urge the members of your organization to contact Congress.”
     
  • Substantial caution should be exercised before accepting speaking invitations where it is expected that other speakers will urge lobbying contacts.  Before accepting a speaking invitation to such an event, it is advisable that Department officials notify the sponsor that they will not attend events where “grass roots” lobbying will be urged.  Thus, where such lobbying may take place without the Department’s prior knowledge or control, the speaker has demonstrated an effort not to participate in such lobbying.
     
  • Department officials may distribute written materials that inform the public about the Administration’s position on a legislative matter, provided that such materials are not self-aggrandizing, covert as their origin, or purely partisan.  Such materials should avoid expressly urging members of the public to contact Congress or state or local officials about legislative matters.
     
  • Department officials should not prepare written materials for distribution by outside organizations that urge lobbying, and should not advise outside organizations regarding the content of any materials that the organizations plan to distribute to their members or the public that encourage contacts to Congress or other government officials about legislative matters.
     
  • Department officials may respond to requests for information or educational materials about subjects within the Department’s purview, but the Department should not supply any outside organization with mailing or other contact lists that will be used for the organization’s lobbying efforts.
     
  • Department officials may communicate directly, either verbally or in writing, with Members of Congress and Congressional staff about legislative matters. Communications with Congress should be coordinated with and conducted under the direction of the Assistant Secretary for Legislation.

Footnotes:

  1. Division C, Title VII, § 717, Financial Services and General Government Appropriations Act, 2010, as enacted by § 4, Consolidated Appropriations Act, 2010, Pub. L. 111-117, 123 Stat. 3034, 3210 (December 16, 2009). Back
     
  2. Division D, Title V, § 503, Departments of Labor, HHS, and Education Appropriations Act, 2010, as enacted by § 4, Consolidated Appropriations Act, 2010, Pub L. 111-117, 123 Stat. 3034, 3279 (December 16, 2009). Back
     
  3. Although useful sources on appropriations matters, the opinions and legal interpretations of the Comptroller General and the Government Accountability Office (formerly General Accounting Office) are not binding upon departments or agencies of the executive branch. See Bowsher v. Synar, 478 U.S. 714, 727-32 (1986); Implementation of the Bid Protest Provisions of the Competition in Contracting Act, 8 Op. O.L.C. 236 (1984). Back
     
  4. Division C, Title VII, § 720, Financial Services and General Government Appropriations Act, 2010, as enacted by § 4, Consolidated Appropriations Act, 2010, Pub. L. 111-117, 123 Stat. 3034, 3210 (December 16, 2009). Back
     
  5. The recipients of federal contracts, grants, or loans or the funded parties to cooperative agreements are also prohibited from using such funds to lobby in connection with the award, extension, continuation, renewal, amendment, or modification of the funding mechanism under which monetary assistance was received. 31 U.S.C. § 1352(a) (known as the Byrd Amendment). Back

 

Updated: 2/19/13