Application of 18 U.S.C. § 1913 to "Grass Roots" Lobbying by Union Representatives ( 2005 )

Application of 18 U.S.C. § 1913 to “Grass Roots”
Lobbying by Union Representatives
Under 18 U.S.C. § 1913, federal employees who are union representatives may not use official time to
engage in “grass roots” lobbying in which, on behalf of their unions, they ask members of the public
to communicate with government officials in support of, or opposition to, legislation or other
measures.
November 23, 2005
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
DEPARTMENT OF COMMERCE
Your office has asked whether federal employees who are union representatives
may use their official time to engage in “grass roots” lobbying in which, on behalf
of their unions, they ask members of the public to communicate with government
officials in support of, or opposition to, legislation or other measures. 1 We
conclude that federal employees are barred from doing so by 18 U.S.C. § 1913. As
discussed below, whether any particular activity would violate section 1913 will
depend on the specific facts.
Central to our analysis is the distinction between direct and “grass roots” lobby-
ing. This distinction has been extensively applied in decisions of our Office and
the Government Accountability Office (“GAO”) dealing with lobbying by
government officials. For example, we have stated that 18 U.S.C. § 1913 “does not
apply to direct communications between Department of Justice officials and
Members of Congress and their staffs . . . in support of Administration or Depart-
ment positions,” but that the statute “may prohibit substantial ‘grass roots’
lobbying campaigns . . . designed to encourage members of the public to pressure
Members of Congress to support Administration or Department legislative or
appropriations proposals.” Constraints Imposed by 18 U.S.C. § 1913 on Lobbying
Efforts, 13 Op. O.L.C. 300, 301 (1989) (“1989 Opinion”). The essence of a “grass
roots” campaign is the use of “telegrams, letters, and other private forms of
communication expressly asking recipients to contact Members of Congress.”
Office of Legal Counsel, Guidelines on 18 U.S.C. § 1913 at 2 (Apr. 14, 1995)
(“1995 Guidelines”) (attachment to Memorandum for the Heads of All Executive
Departments and Agencies, from the Attorney General, Re: Anti-Lobbying Act
Guidelines (Apr. 18, 1995)). Similarly, GAO has noted that appropriations riders
imposing restrictions similar to those in section 1913 “apply primarily to indirect
or grass-roots lobbying, and not to direct contact with or appeals to Members of
Congress,” Lobbying Activity in Support of China Permanent Normal Trade
1
See Letter for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal
Counsel, from Jane Dana, Acting General Counsel, Department of Commerce (June 20, 2005)
(“Commerce Letter”).
179
Opinions of the Office of Legal Counsel in Volume 29
Relations, B-285,298, 2000 WL 675585, at *3 (Comp. Gen.) (citations omitted),
and that “grass roots” lobbying involves “a clear appeal by the agency to the
public to contact congressional members in support of the agency’s position,”
Social Security Administration—Grassroots Lobbying Allegation, B-304,715,
2005 WL 991729, at *1 (Comp. Gen.). 2 As explained below, this same distinction
is critical to identifying the limits of permissible lobbying by union representatives
while they are on official time.
I.
Section 1913 of title 18 currently provides:
No part of the money appropriated by 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 Con-
gress, a jurisdiction, or an official of any government, to favor,
adopt, or oppose, by vote or otherwise, any legislation, law, ratifica-
tion, policy or appropriation, whether before or after the introduction
of any bill, measure, or resolution proposing such legislation, law,
ratification, policy or appropriation; but this shall not prevent offi-
cers or employees of the United States or of its departments or agen-
cies from communicating to any such Member or official, at his re-
quest, or to Congress or such official, through the proper official
channels, requests for any legislation, law, ratification, policy or ap-
propriations which they deem necessary for the efficient conduct of
the public business, or from making any communication whose pro-
hibition by this section might, in the opinion of the Attorney Gen-
eral, violate the Constitution or interfere with the conduct of foreign
policy, counter-intelligence, intelligence, or national security activi-
ties. Violations of this section shall constitute violations of section
1352(a) of title 31.
18 U.S.C. § 1913 (Supp. IV 2005). Funds “appropriated by . . . enactment[s] of
Congress” within the meaning of section 1913 include funds used to pay the
salaries of representatives of federal employees’ unions insofar as they devote
official time to their representational activities. See 5 U.S.C. § 7131(d) (2000).
This expenditure of appropriated funds raises a question under 18 U.S.C. § 1913,
2
We note that “the Comptroller General, as the agent of Congress, cannot issue interpretations of
the law that are binding on the executive branch,” Comptroller General’s Authority to Relieve
Disbursing and Certifying Officials from Liability, 15 Op. O.L.C. 80, 82 (1991), and here we do not
endorse the holding of any particular opinion of the Comptroller General or the Government
Accountability Office.
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Application of 18 U.S.C. § 1913 to “Grass Roots” Lobbying
to the extent that such funds are thus “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 appropria-
tion.”
By its terms, section 1913 applies only “in the absence of express authorization
by Congress,” and Congress has elsewhere given express authorization for union
representatives to use official time for direct lobbying on representational issues.
Under 5 U.S.C. § 7102(1) (2000), each federal employee has the right
to act for a labor organization in the capacity of a representative and
the right, in that capacity, to present the views of the labor organiza-
tion to heads of agencies and other officials of the executive branch
of the Government, the Congress, or other appropriate authorities.
Section 7131(d) of title 5 states that
[e]xcept as provided in the preceding subsections of this section
[prohibiting the use of official time for activities relating to the inter-
nal business of a labor organization] . . . in connection with any other
matter covered by this chapter [which includes section 7102], any
employee in an appropriate unit represented by an exclusive repre-
sentative, shall be granted official time in any amount the agency and
the exclusive representative involved agree to be reasonable, neces-
sary, and in the public interest.
We previously concluded that sections 7102 and 7131(d) together give “express
authorization” under 18 U.S.C. § 1913 for union representatives “to lobby
members of Congress on representational issues.” Memorandum for Charlotte
Hardnett, Acting General Counsel, Social Security Administration, from Daniel L.
Koffsky, Acting Assistant Attorney General, Office of Legal Counsel, Re:
Applicability of 18 U.S.C. § 1913 to the Provision of Official Time to Employee
Union Representatives to Lobby Congress on Representational Issues at 1, 3 (Mar.
23, 2001) (“2001 Opinion”). The Federal Labor Relations Authority (“FLRA”) has
reached the same conclusion about the application of section 1913. United States
Department of the Army Corps of Engineers, Memphis District, Memphis,
Tennessee and National Federation of Federal Employees Local 259, 52 F.L.R.A.
920 (1997) (“Army Corps of Engineers”). 3 The First Circuit, moreover, has
3
See also Soc. Sec. Admin., Balt., Md. & Am. Fed’n of Gov’t Emps., 54 F.L.R.A. 600 (1998); Ass’n
of Civilian Technicians, Old Hickory Chapter, & U.S. Dep’t of Defense, N.C. Nat’l Guard Bureau,
Raleigh, N.C., 55 F.L.R.A. 811 (1999); Ass’n of Civilian Technicians, Razorback Chapter 117, & U.S.
Dep’t of Defense, Nat’l Guard Bureau, Ark. Nat’l Guard, Camp Robinson, N. Little Rock, Ark., 56
F.L.R.A. 427 (2000) (“Ark. Nat’l Guard”); cf. Dep’t of Health & Human Servs., Soc. Sec. Admin., &
181
Opinions of the Office of Legal Counsel in Volume 29
strongly suggested the same view about application of the statute. In Granite State
Chapter, Association of Civilian Technicians v. FLRA, 173 F.3d 25 (1st Cir.
1999), although the court held that an appropriations rider applicable to the
Department of Defense barred any use of funds for lobbying, the court assumed
that, absent the rider, union representatives could have lobbied Congress on
official time. The court noted that the FLRA had found the use of funds for
lobbying was consistent with section 1913 but was contrary to the rider. In
affirming the FLRA’s decision, the court wrote that the rider “repealed the
Union’s right to lobby Congress on official time as otherwise guaranteed by 5
U.S.C. § 7102.” Id. at 28. See also Ass’n of Civilian Technicians, Silver Barons
Chapter v. FLRA, 200 F.3d 590, 592 (9th Cir. 2000) (the rider “repeal[s] sections
7131 and 7102 . . . as they are read to allow [Department of Defense] employees to
use official time to lobby Congress”); Ass’n of Civilian Technicians, Tony
Kempenich Mem’l Chapter 21 v. FLRA, 269 F.3d 1119, 1122 (D.C. Cir. 2001)
(agreeing with the First Circuit’s decision but not referring to sections 7102 and
7131, except in reciting what the FLRA had decided).
These decisions—whether of this Office, the FLRA, or the courts—concern
only direct lobbying. You have requested that we clarify the application of 18
U.S.C. § 1913 in the context of “grass roots” lobbying by union representatives.
See Commerce Letter at 1. 4
II.
In our 2001 Opinion finding that the federal labor laws create an “express
authorization” under 18 U.S.C. § 1913 for direct lobbying, we did not decide
whether the prohibition in section 1913 is necessarily limited to lobbying by
agency officials acting on behalf of their agencies’ positions. There, because we
concluded that there was “express authorization” for the lobbying at issue, we did
not “need [to] decide whether the lobbying activities engaged in by such repre-
sentatives are exempt from the prohibition of 18 U.S.C. § 1913 on any other
ground.” Id. at 4 n.3. Here, we must first resolve the question whether the
Am. Fed’n of Gov’t Emps., Local 3231, 11 F.L.R.A. 7, 8 (1983) (in a case of direct lobbying, the FLRA
finds that no violation of 18 U.S.C. § 1913 has been shown). In some other cases, without considering
18 U.S.C. § 1913, the FLRA has upheld union rights to engage in direct lobbying under some
circumstances. See, e.g., Overseas Fed’n of Teachers, & Dep’t of Def. Dependent Schs., Mediterranean
Region, 21 F.L.R.A. 757 (1986); Nat’l Fed’n of Fed. Emps. Local 122 & U.S. Dep’t of Veterans
Affairs, Reg’l Office, Atlanta, Ga., 47 F.L.R.A. 1118 (1993).
4
The FLRA declined our invitation to present its views on the question here. The Office of Person-
nel Management expressed the view that “section 7102 as written does not presently contemplate the
use of official time for lobbying that does not meet the direct lobbying standard as stated in Section
7102” and that “any request by a union representative for official time to engage in grass roots lobbying
would not be authorized under section 7131 and therefore would be in contravention of the Anti-
Lobbying Act, section 1913.” Letter for Steven G. Bradbury, Acting Assistant Attorney General, Office
of Legal Counsel, from Mark A. Robbins, General Counsel, Office of Personnel Management, Re:
Anti-Lobbying Act at 2 (Aug. 22, 2005).
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Application of 18 U.S.C. § 1913 to “Grass Roots” Lobbying
prohibition in section 1913 extends beyond agency officials’ lobbying on behalf of
their agencies. We conclude that section 1913 reaches the use of appropriations for
“grass roots” lobbying even if not on behalf of an agency’s position. We further
conclude that Congress has not expressly authorized an exception for such
lobbying by union representatives.
A.
A statement in an FLRA opinion suggests an argument for why the prohibition
in section 1913 might not apply to “grass roots” lobbying by union representatives.
In Army Corps of Engineers, the FLRA wrote that
when Congress enacted 18 U.S.C. § 1913, it intended to protect its
members from indirect lobbying by agency officials. There is no ev-
idence or assertion that the Union representatives in this case were
lobbying indirectly on behalf of agency officials.
52 F.L.R.A. at 930 (citation omitted). Although the FLRA did not so hold, its
statement that section 1913 was aimed at “agency officials” suggests a possible
argument that 18 U.S.C. § 1913 would not apply at all to lobbying by union
representatives on behalf of their unions, but only to lobbying on behalf of a
federal agency.
We do not believe that section 1913 is limited to lobbying by agency officials
as such. The prohibitory portion of section 1913—“[n]o part of the money
appropriated by any enactment of Congress shall, in the absence of express
authorization by Congress, be used directly or indirectly” for prohibited purpos-
es—is not limited to the communication of agency positions. Rather, its language
on its face applies to the use of appropriated funds for any communications
designed to influence members of Congress or other officials with respect to any
legislation, law, ratification, policy, or appropriation. As noted, relevant appropria-
tions include funds used to pay the salaries of federal employees who are repre-
sentatives of federal employees’ unions, insofar as those employees devote official
time to their representational activities. Moreover, amendments to section 1913
enacted in 2002 removed language that had limited the penalties under that section
to “an officer or employee of the United States or of any department or agency
thereof,” Pub. L. No. 107-273, div. A, § 205(b), 116 Stat. 1778 (2002), and thus
undermined any argument that only lobbying by persons acting for an agency in an
official capacity would be covered.
The only portion of section 1913 that refers to “officers or employees of the
United States or of its departments or agencies” who are communicating an
agency position is not the prohibition but the exception to the prohibition. There is
no reason to read that clause as implying that the prohibition itself is limited to
such communications; rather, it is naturally read to do just what it says it does: to
create an exception for communications whose prohibition this Office has long
183
Opinions of the Office of Legal Counsel in Volume 29
believed would raise constitutional concerns. See, e.g., 1989 Opinion, 13 Op.
O.L.C. at 305–06.
Furthermore, although the language of section 1913 has been read narrowly to
avoid constitutional concerns that would arise from its application to government
officials, no such concerns would justify a narrowing construction of the language
so as not to apply it to “grass roots” lobbying by federal employees who are union
representatives. A broad interpretation of the law, as applied to those speaking for
the Executive Branch, could “interfere with the President’s constitutionally
mandated role in the legislative process,” “infringe upon his constitutional
obligation to ‘take Care that the Laws be faithfully executed,’” and “weaken the
constitutional framework established in Article II, which in general imposes on the
President the duty to communicate with the American people.” 1989 Opinion, 13
Op. O.L.C. at 305. These separation of powers concerns do not apply to lobbying
on behalf of unions. See Office of the Adjutant Gen., N.H. Nat’l Guard, Concord,
N.H. & Granite State Chapter, Ass’n of Civilian Technicians, 54 F.L.R.A. 301,
312 (1998), aff’d, Granite State Chapter, 173 F.3d 25. Nor does such lobbying
raise First Amendment issues that might call for a narrowing construction, because
nothing in 18 U.S.C. § 1913 affects what private persons may say while on their
own time. See Tony Kempenich Mem’l Chapter 21, 269 F.3d at 1122 (addressing
First Amendment argument under an appropriations rider). Accordingly, we find
no reason to give 18 U.S.C. § 1913, in this context, an interpretation that is
narrower than its words would otherwise indicate. 5
B.
We therefore turn to the question whether the federal laws, which give “express
authorization” for direct lobbying of Congress by federal employees who are
union representatives, also offer “express authorization” for “grass roots” lobbying
by such employees. We believe that they do not provide such authorization.
Section 7102 of title 5 guarantees that union representatives may “present the
views of the labor organization to heads of agencies and other officials of the
executive branch of the Government, the Congress, or other appropriate authori-
ties.” By its terms, this guarantee is confined to direct lobbying and does not
mention the presentation of views to members of the public, let alone a request
5
In an analogous situation, an appropriations rider that deals with lobbying and is couched in
general language not referring specifically to agencies or their officials—“[n]one of the funds made
available by this Act shall be used in any way, directly or indirectly to influence congressional action
on any legislation or appropriations matters pending before the Congress”—has been construed to
reach expenditures for the salaries of union representatives engaged in lobbying. See Granite State
Chapter, 173 F.3d at 27–28 (quoting Pub. L. No. 104-61, § 8015, 109 Stat. 636, 654 (1996)). See also
Headquarters, Nat’l Guard Bureau, Washington, D.C., Nev. Air Nat’l Guard, Reno, Nev., & Ass’n of
Civilian Technicians, Silver Barons Chapter, Reno, Nev., 54 F.L.R.A. 316 (1998), reaff’d, 54 F.L.R.A.
595 (1998); Office of the Adjutant Gen., N.H. Nat’l Guard, Concord, N.H. & Granite State Chapter,
Ass’n of Civilian Technicians, 54 F.L.R.A. 301, aff’d, Granite State Chapter, 173 F.3d 25.
184
Application of 18 U.S.C. § 1913 to “Grass Roots” Lobbying
that the public contact government officials. It therefore does not amount to the
“express authorization” that would create an exception to 18 U.S.C. § 1913 for
“grass roots” lobbying. And, as noted, section 7131(d) of title 5 is derivative of
section 7102.
There is some precedent in this area for finding an “express” authorization even
in the absence of clear words, but it does not apply here. See 1989 Opinion, 13 Op.
O.L.C. at 303 (“We believe that Congress’ continued appropriation of funds for
positions held by executive branch officials whose duties historically have
included seeking support for the Administration’s legislative program constitutes
‘express authorization by Congress’ for the lobbying activities of these offi-
cials . . . .”). 6 “Grass roots” lobbying is the core of the statutory prohibition. See
1995 Guidelines at 2. The conduct now in question is within that core, and there
are no constitutional considerations that would demand a flexible understanding of
“express authorization” here. Cf. id. at 1 (in the context of communications by the
Executive Branch, 18 U.S.C. § 1913, “[i]f applied according to its literal terms,”
would raise concerns about separation of powers and “if so applied, might be
unconstitutional”).
There would seem to be two additional potential arguments against our reading
of section 7102. We do not believe that either argument would be persuasive.
First, the FLRA has stated that “[c]ommunicating with the public to encourage
others to make common cause with the employees’ collective bargaining repre-
sentative . . . is merely a logical extension of a Union’s Section 7102 rights and
accordingly . . . such conduct is protected by the Statute.” Dep’t of the Air Force,
3d Combat Support Group, Clark Air Base, Republic of the Philippines &
Overseas Educ. Ass’n, Pacific Region, 29 F.L.R.A. 1044, 1062–63 (1987) (“Clark
Air Base”) (conclusion of Administrative Law Judge, which the FLRA adopted)
(emphasis added). 7 The FLRA has also indicated that in certain circumstances,
section 7102 may protect “the right to publicize matters affecting unit employees’
terms and conditions of employment.” Dep’t of the Air Force, Scott Air Force
Base, Ill. & Nat’l Ass’n of Gov’t Emps. Local R7-23, SEIU, AFL-CIO, 34 F.L.R.A.
1129, 1135 (1990). But, to the extent that these statements might be read to find an
express authorization for “grass roots” lobbying, they would go astray from the
statutory text. We do not see how the federal labor laws, in guaranteeing a right
6
Even while finding express authorization in congressional appropriations for certain positions
whose official duties included well-established lobbying activities, we “caution[ed] . . . against these
officials engaging in ‘grass-roots’ campaigns of the type mentioned in the legislative history to section
1913.” 1989 Opinion, 13 Op. O.L.C. at 303 n.5 (citation omitted).
7
Accord U.S. Marine Corps Base Camp Smedley D. Butler, Okinawa, Japan, & Overseas Educ.
Ass’n, Pacific Region, 29 F.L.R.A. 1068, 1080 (1987) (“Camp Smedley T. Butler”) (same); Dep’t of the
Air Force, 18th Combat Support Wing, Kadena Air Base, Okinawa, Japan, & Overseas Educ. Ass’n,
Pacific Region, 29 F.L.R.A. 1085, 1097 (1987) (“Kadena Air Base”) (same). See generally Bureau of
Prisons, Fed. Corr. Inst. (Danbury, Ct.) & Am. Fed’n of Gov’t Emps., Council of Prison Locals C-33,
Local 1661, AFL-CIO, 17 F.L.R.A. 696, 696–97 (1985) (“Bureau of Prisons”).
185
Opinions of the Office of Legal Counsel in Volume 29
“to present the views of [a] labor organization to heads of agencies and other
officials of the executive branch of the Government, the Congress, or other
appropriate authorities” can reasonably be said to give an “express authorization”
for urging the public to communicate with government officials.
In its decision in Army Corps of Engineers, which concerned direct lobbying,
the FLRA stated that, in enacting 18 U.S.C. § 1913, Congress “intended to protect
its Members from indirect lobbying by agency officials” and that “there are
significant questions whether the Union’s lobbying activities are within the
definition of items that Congress prohibited in 18 U.S.C. § 1913.” 52 F.L.R.A. at
930–31 (emphasis added). It went on to find that it was unnecessary to determine
whether section 1913 would otherwise reach the lobbying by the union because 5
U.S.C. §§ 7102 and 7131 gave “express authorization” to the direct lobbying
activities at issue there. 52 F.L.R.A. at 930–31. This decision could be read to
suggest that, whether union lobbying involves direct communications or indirect
“grass roots” efforts, it is within the express authorization of the federal labor
laws. 8 But the decision can as easily be read only to preserve the argument, similar
to the one that we rejected above, that an appropriations rider applies only to
agency officials acting in an official capacity on behalf of their agencies. See Ark.
Nat’l Guard, 56 F.L.R.A. at 430 (relying on Army Corps of Engineers and
apparently preserving the argument about application solely to agency officials).
Moreover, the FLRA’s holding in the case was limited to direct lobbying: “[T]he
Statute [enacting the federal labor laws] constitutes ‘an express authorization by
Congress’ for using Federal funds to grant official time to employees to lobby
Congress on representational matters.” Army Corps of Engineers, 52 F.L.R.A. at
933 (emphasis added).
Second, it might be argued that section 7102 authorizes “grass roots” lobbying
on the ground that such lobbying may enable the public to serve as the conduit by
which union representatives present their views to government officials. But any
such argument would require a strained and unnatural reading of the phrase “to
present the views of the labor organization to heads of agencies and other officials
of the executive branch of the Government, the Congress, or other appropriate
authorities.” In the communications that are intended to result from “grass roots”
lobbying, members of the public, not the union representatives, would be making
the presentation, and the views that government officials receive would be
presented as the public’s views, rather than “the views of the labor organization.”
The purpose of a “grass roots” campaign is to bring public pressure to bear on
government officials, not to provide an indirect route for views that are attributed
8
But see Office of the Adjutant Gen., Ga. Dep’t of Def., Atlanta, Ga., & Ga. State Chapter Ass’n of
Civilian Technicians, 54 F.L.R.A. 654, 666 n.9 (1988) (with regard to an appropriations rider, the
FLRA found it “unnecessary to address the Respondent’s assertion that the activities for which official
time was sought in this case are a form of ‘grass roots’ lobbying, as defined by the GAO, for which the
use of appropriated funds is prohibited”); see also Ark. Nat’l Guard, 56 F.L.R.A. at 430 (reporting view
of Chairman Wasserman).
186
Application of 18 U.S.C. § 1913 to “Grass Roots” Lobbying
to the union. Thus, when a union representative engages in “grass roots” lobbying
of the sort that 18 U.S.C. § 1913 may bar—an appeal to the public to communicate
with government officials—the federal labor laws offer no protection. 9
C.
Whether any specific activity amounts to “grass roots” lobbying within the
prohibition of section 1913 depends, of course, on the facts of the case, and we
cannot determine such issues in the abstract. There may be uncertainty, for
example, whether a particular communication urges recipients to communicate
with government officials. We address here only your question whether the federal
labor laws categorically exclude union representatives’ “grass roots” lobbying
from the reach of 18 U.S.C. § 1913. We conclude that they do not.
STEVEN G. BRADBURY
Acting Assistant Attorney General
Office of Legal Counsel
9
In Clark Air Base, Kadena Air Base, and Camp Smedley T. Butler, the FLRA held, outside the
context of section 1913, that section 7102 protected union requests for members of the public to write
to their Senators and Representatives. Camp Smedley T. Butler, 29 F.L.R.A. at 1076. The FLRA,
however, did not consider the application of 18 U.S.C. § 1913 to this “grass roots” lobbying. Indeed, at
least the version of 18 U.S.C. § 1913 in effect in 1986, when the events at issue in those cases took
place, apparently would not have applied in any event to the lobbying there. At the time, 18 U.S.C.
§ 1913 reached only activities “intended or designed to influence in any manner a Member of
Congress, to favor or oppose, by vote or otherwise, any legislation or appropriation by Congress,” 18
U.S.C. § 1913 (1982), but the communications to Congress at issue sought action with regard to how
the Department of Defense was allocating cuts in spending, including those already mandated by the
Gramm-Rudman-Hollings Act, Pub. L. No. 99-177, 99 Stat. 1037 (1985), rather than action on any
“legislation or appropriation by Congress.” See Camp Smedley T. Butler, 29 F.L.R.A. at 1073–74,
1078. In our view, these decisions do not even implicitly suggest that section 7102 gives an “express
authorization” for “grass roots” lobbying that 18 U.S.C. § 1913 would otherwise forbid. Cf. Dep’t of
the Air Force, Scott Air Force Base, Ill., and Nat’l Ass’n of Gov’t Emps., Local R7-23, SIEU, AFL-
CIO, 34 F.L.R.A. 1129 (1990) (agency lawfully refused, on grounds other than restrictions on lobby-
ing, to allow union to place advertisement in base newspaper, urging readers to communicate with
Congress on a non-legislative matter). In addition, in these decisions, the FLRA did not mention an
earlier case in which it had stated that section 7102 did not apply where a letter drafted by a union “was
intended to be adopted and sent by individual employees as a statement of their own individual views
and not as their presentation to the Congress of the views of the Union.” U.S. Air Force, Lowry Air
Force Base, Denver, Colo., & Am. Fed’n of Gov’t Emps., AFL-CIO, Local 974, 16 F.L.R.A. 952, 964
(1984). The FLRA declared that “[s]ection 7102 protects representatives of labor organizations in their
presentation of the views of the labor organization to Congress,” id., and therefore did not cover the
presentation of individual views that the union was trying to generate. The FLRA did find that
communications by employees could be covered by 5 U.S.C. § 7211 (1982), which forbids interference
with the “[t]he right of employees, individually or collectively, to petition Congress or a Member of
Congress.” A grant of official time under 5 U.S.C. § 7131(d), however, appears limited to matters
“covered by . . . chapter [71 of title 5],” and section 7211 is in chapter 72. The guarantee of non-
interference, therefore, does not convey a right to use official time.
187