The lobbying activities of federal agencies are governed by the Anti-Lobbying Act (18 USC Section 1913, originally enacted in 1919). The purpose of the Act is to prevent agencies, acting through their employees or SGEs, from using appropriated funds, or resources secured with appropriated funds, to lobby any federal, state, or local government official with respect to any pending or proposed legislation, resolution, appropriation, or measure. The Office of Legal Counsel within the Department of Justice has interpreted the statute based on its underlying purpose, which is to restrict the use of appropriated funds for large-scale, high-expenditure campaigns to solicit pressure on government officials in relation to pending or proposed legislative matters on behalf of an Administration position. It is important to understand that there is a distinction between the Anti-Lobbying Act and the Hatch Act which governs the partisan political activities of employees, such as participation in the political process as candidate or a campaign staff member. See the Lobbying and Publicity or Propaganda Guidelines provided by the HHS Office of the General Counsel Ethics Division (OGC/ED, July 2010).
The publicity and propaganda rider to the Department’s appropriations bill also prohibits the use of appropriated funds to attempt to influence Congress or any State legislature in relation to any pending legislation. A second provision of the rider prohibits the use of grant or contract funds to support such activities. The publicity and propaganda rider carries with it the potential for a GAO audit of expenditures.
It is important to note that these provisions are not intended to inhibit the necessary flow of information and communication between the Executive and Legislative Branches of government; they are intended to prevent any inappropriate or undue influence on the legislative process.
The Anti-Lobbying Act does not prohibit government employees from participating in lobbying activities while they are on personal time. Federal employees retain a constitutional right (as recognized by 5 USC Section 7211) to petition Congress, provided they act in a personal capacity or in a representative capacity on behalf of outside persons or organizations.* The so-called anti-representation statutes (18 USC Sections 203 and 205) do not apply in relation to these personal capacity communications directed to legislative officials.** Employees communicating with Congress on behalf of themselves or some other group or cause should, however, provide a disclaimer which indicates that the views expressed are those of the employee or others and do not necessarily reflect the position of the individual's employing agency. In addition, though NIH has a "personal use policy" to permit the minimal use of government resources, employees may not use their government computer, phone, fax or other supplies to conduct personal lobbying activities, even when on personal time, as that would constitute use of resources secured with appropriated funds for lobbying activities. See the NIH policy on personal use of equipment, policy manual chapter 2806, available via the NIH web site at (NIH access only):
https://policymanual.nih.gov/2806
Under the Anti-Lobbying Act, government employees as part of their official work MAY NOT
- engage in substantial 'grass roots' lobbying campaigns of telegrams, letters, and other private forms of communication expressly urging individuals to contact government officials in support of or opposition to legislation. "Substantial" is not defined in the Act, but the 1919 legislative history cites an expenditure of $7500 as the limit, which is considered to approximate $50,000 now. Grass roots lobbying means encouraging or helping send letters, telegrams, and other communications to government officials to support or oppose pending or proposed legislation. Despite the $50,000 limit, the Department of Justice recommends that agencies avoid even an appearance of lobbying by refraining from including in their communications with private citizens any requests to contact government officials in support of or opposition to legislation.
- provide administrative support for the lobbying activities of private organizations,
- prepare editorials or other communications that will be disseminated without an accurate disclosure of the government's role in their origin (providing copies of existing information is permitted), or
- appeal to members of the public to contact their elected representatives in support of or opposition to legislative matters or proposals.
Under the Anti-Lobbying Act, government employees as part of their official work MAY
- communicate through normal channels with Members of Congress and State and local officials and their staffs in support of Administration or Department positions. The Act does not apply to such direct communications.
- communicate with the public through public speeches, appearances and published writings to support Administration positions. Although the Department of Justice has interpreted the statute as not applying to speeches, it nevertheless recommends against using such public fora to call on the public to contact legislators or other government officials in support of or opposition to legislation because it is unclear what will be perceived as a grass roots campaign in any given context.
- communicate privately with members of the public to inform them of Administration positions and to promote those positions -- but only to the extent that such communications do not involve the prohibited activities listed above.
- lobby Congress or the public to support Administration positions on nominations. Keep in mind that though you may be permitted to do so under this Act, under other statutes, you may not engage in any official action without appropriate permission.
Non-Government Employees
Many individuals who are not government employees are invited by the NIH to participate in special meetings or functions for the NIH, including peer review activities, advisory committee meetings, grant making and/or contracting. These individuals may engage in lobbying activities on their own time (other than during the scheduled meeting times) if:
- there is no additional expense to the government; and
- their lobbying activities in no way interfere with the purposes for which or the schedule on which they are brought to the NIH (i.e., government duties and responsibilities).
Examples
- You are giving an official speech at a professional conference. During your presentation, you may promote the Administration's position, but should not encourage attendees to contact their legislative or other government officials or representatives to support or oppose legislation.
- You receive a call from a professional society which asks for assistance in preparing materials they want to distribute to encourage their members to contact members of Congress about a particular legislative issue. You may give the society copies of any existing and publicly available information. You may not write or assemble a new document intended solely for their use in their campaign. You may not give the society mailing lists or labels to assist them in their distribution of the materials.
- You receive a call from an individual asking for specific information which the individual wishes to use to contact Congress about a particular political nominee currently being considered. You may provide the requested information to the individual, as long as it is publicly available information. (The Act does not cover lobbying for nominations.)
- A professional society of which you are a member and officer asks you to represent them before Congress regarding some legislative and nomination issues. You may represent that society in your personal capacity, being careful to indicate that you are there in your personal capacity as a representative of the society.
- You are a Special Government Employee and want to meet with your Senator to discuss next year's budget while you're in town for a meeting at the NIH. You may meet with your Senator as long as it is either before the meeting begins or after it ends, and the meeting with your Senator does not cause additional expense to the government, such as an extra night's lodging or increased airfare. You may not miss part of the scheduled meeting activities for the meeting.
* Prior approval may be required. Please consult your IC ethics officials.
** 18 USC Sections 203 and 205 prohibit federal employees from acting as agent or attorney for a third party before any department, agency, court, officer or commission in relation to certain covered matters, and from being compensated for representational services provided in relation to such matters.
[OGC/ED review 3/06]
Updated: 2/19/13