GUIDELINES ON PROHIBITED LOBBYING ACTIVITIES
There are two statutes that prohibit the use of Interior appropriated funds for lobbying activities. They are:
1. 18 U.S.C. Section 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."
2. Recent Interior Appropriations Acts prohibit the use of appropriated funds "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. Remedies for violations may include reducing an agency's appropriations or, in extreme cases, requiring the offending official personally to reimburse the Treasury for appropriations spent in violation.
Though framed in broad terms, in practice these statutes have not been applied literally.
Neither statute has been applied to limit lobbying activities personally undertaken by the President and his assistants in the Executive Office of the President, the Vice President, cabinet members, and other Presidentially-appointed, Senate-confirmed officials (PASs) acting within their areas of responsibility.
Both 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. Most cases of uncertainty about application of the Appropriation Acts will involve locating the often blurry line between these two poles.
GUIDANCE 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 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's and May Not's
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.
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;
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
May tell the public how they may obtain additional information regarding proposed legislation.
May coordinate speeches and activities with other Federal officials.
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;
May Not participate in events or programs specifically designed to promote public support for or opposition to pending legislation. For example, GAO recently 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 Appropriations Act.
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;
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;
May Not use Departmental resources, including the e-mail system, directly or indirectly, to encourage other employees to contact Members of Congress about proposed legislation.
Should Not, without advance Solicitor's Office clearance, 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.
May Not initiate or coordinate meetings between members of the public and members of Congress or Congressional staff to discuss proposed legislation;
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.
May Not "ghost-write" letters to the editor, speeches, or other materials dealing with proposed legislation for anyone in a non-Federal position.
May Not request or recommend that a recipient further distribute materials regarding proposed legislation (unless the official customarily provides materials to a liaison for further distribution), or provide a large number of copies of such materials for redistribution.
May Not provide members of the public with 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 request.