Whether Antilobbying Statute Prohibits Federal Judges From Using Official Resources to Communicate With Members of Congress Concerning Proposed Legislation ( 1978 )

January 30, 1978
78-7 MEMORANDUM OPINION FOR THE
ATTORNEY GENERAL
Applicability of Antilobbying Statute
(18 U.S.C. § 1913)— Federal Judges
This responds to your request that we address the issue whether the
antilobbying statute, 18 U .S.C . § 1913, prohibits sitting Federal judges from
using resources associated with their official position (telephone, stationery,
staff, and personal work time) to com m unicate with individual Members of
Congress concerning pending or proposed legislation. We outline below what
we believe to be the pertinent considerations and conclude that the issue is one
that can only be resolved through the independent deliberations o f the judicial
branch.
18 U .S.C . § 1913 reads as follows:
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£Io part o f the money appropriated by an enactment of Congress
shall, in the absence o f 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 M ember of
' Congress, to favor or oppose, by vote or otherwise, any legislation or
appropriation by Congress, whether before or after the introduction
o f any bill or resolution proposing such legislation or appropriation;
but this shall not prevent officers or employees of the United States or
o f its departments or agencies from communicating to Members of
Congress on the request o f any M ember or to Congress, through the
proper official channels, requests for legislation or appropriations
which they deem necessary for the efficient conduct of the public
business.
W hoever, being an officer or em ployee o f the United States or of
any department or agency thereof, violates or attempts to violate this
section, shall be fined not more than $500 or imprisoned not more
than one year, or both; and after notice and hearing by the superior
officer vested with the power o f removing him, shall be removed
from office or em ployment.
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This provision first appeared in 1919 as a rider to an appropriations bill. Act of
July 11, 1919, ch. 6, § 6, 41 Stat. 68. It was one o f a series of measures
designed to check the expanding activities of the Federal bureaucracy not
directly related to any statutory m ission.1
No criminal prosecutions have been undertaken pursuant to this provision.
The only relevant judicial interpretations of this measure provide rather
superficial analyses. See, American Public Gas Association v. Federal Energy
Administration, 408 F. Supp. 640 (D .D .C . 1976); National Association fo r
Community’ Development v. Hodgson, 356 F. Supp. 1399 (D .D .C . 1973). The
limited legislative history demonstrates that its enactment was spurred by a
single, particularly egregious instance of official abuse— the use o f Federal
funds to pay for telegrams urging selected citizens to contact their congres­
sional representatives in support o f legislation of interest to the instigating
agency. See 58 Cong. Rec. 403 (1919). The provision was intended to bar the
use of official funds to underwrite agency public relations campaigns urging
the public to pressure Congress in support of agency views.
This interpretation is bolstered by the inclusion in the measure of the
following savings clause:
. . . but this shall not prevent officers or employees of the United
States or of its departments or agencies from communicating to
Members of Congress on the request of any M ember or to Congress,
through the proper official channels, requests for legislation or
appropriations which they deem necessary for the efficient conduct of
the public business.
The clause provides assurance that, in keeping with well-established traditions
of ongoing communication between the executive and the legislative branches
(see N. Small, Some Presidential Interpretations o f the Presidency, 164-166
(1970)), and the constitutional principle of separation of powers, direct
communications by “ officers or employees of the United States” to Congress
will not be disturbed. The qualification “ to Members of Congress on the
request of any M ember or to Congress” seems designed more to stress the
individual M em ber’s prerogative of addressing communications to non­
legislative branch officials than, by virtue o f the apparent dichotomy between
“ Members of C ongress” and “ C ongress,” to limit communications from such
officials to situations in which they address Congress as a whole, or in which
replies to individual M embers o f Congress have been authorized by a
Representative’s request.
. The clause does indicate that such communication is to take place “ through
the proper official channels.” Statements made in the course of the congres­
sional debate on a proposed, but unsuccessful, amendment to the provision
'S ee, e.g .. Act o f O ctober 22. 1913, ch. 32, § I ; 38 Stat. 212; 5 U .S .C . § 3107 (prohibition of
expenditures for unauthorized “ publicity ex p erts"); Act o f August 2, 1939, ch. 410; 53 Stat. 1148;
5 U .S .C . § 7324 ei al. (Political Activity Act); Act o f August 31, 1951. § 408; 65 Stat. 247(Department o f Agriculture Appropriation A ct, 1952) (prohibition of unauthorized expenditures for
“ publicity or propaganda purposes” ).
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suggest that this limitation was meant to assure that communications to
Congress from nonlegislative officials be cleared through “ their superiors, or
whoever it might b e ,” 58 Cong. Rec. 425 (1919). In effect, this would screen
out communications that did not represent the views o f the agency. At the
same time, the right o f officers and em ployees to petition Congress in their
individual capacities, codified in the Act o f August 24, 1912, ch. 389, § 6 (37
Stat. 555; 5 U .S.C . § 7102) was preserved.
The thrust o f this language is to recognize the danger of ultra vires
expressions o f individual views in the guise o f official statements. Congress did
not define the scope o f the term “ official channels” ; rather, it recognized the
need for monitoring the opinions expressed under color o f office in order to
insure a consistent agency position. This difficulty is not removed by a direct
solicitation of an individual official’s views by a M ember of Congress.
In light o f the context in which the language was adopted, it is particularly
inappropriate to engage in legalistic arguments as to whether a Federal judge,
who lacks any direct superior, speaks “ through proper official channels”
whenever the judge takes a position with respect to matters of judicial concern.
Instead, it must be recognized that C ongress’ intent was to leave to the other
branches o f government the determ ination o f what internal checks and methods
o f clearance would be appropriate.
A num ber o f constraints peculiar to the judicial branch may bear on that
determination. Canon 4 of the American Bar Association’s Code of Judicial
Conduct provides, in pertinent part:
A judge, subject to the proper performance of his judicial duties,
may engage in the following quasi-judicial activities, if in doing so he
does not cast doubt on his capacity to decide impartially any issue
that may come before him:
B. He may appear at a public hearing before an executive or
legislative body or official on matters concerning the law, the legal
system , and the administration o f justice, and he may otherwise
consult with an executive or legislative body or official, but only on
matters concerning the adm inistration of justice.
While Canon 4 appears to authorize certain activities, it does so only as to
“ matters concerning the administration o f ju stic e,” and only if the judge “ does
not cast doubt on his capacity to decide impartially any issue that may come
before him .”
Constitutional constraints also need to be taken into account. The Framers
considered, and rejected, several proposals that members of the judiciary serve
as advisers on a “ council o f revision” designed, in effect, to veto improper
laws, reasoning that “ the Judges ought to be able to expound the law as it
should come before them free from the bias o f having participated in its
formation. ” See 1 M. Farrand, The Records o f the Federal Convention o f 1787
(rev. ed ., 1966), at 98; see also 1 id. 108-110, 138-140; 2 id. 73-80, 298. Early
in the N ation’s history, the Supreme Court refused a request by President
W ashington for advice concerning certain legal issues growing out of American
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neutrality during the war in Europe. See 1 C. W arren, The Supreme Court in
United States H istory (Boston rev. ed., 1937), 108-111. A related concern, that
the constitutional principle o f separation of powers be preserved, arises in
connection with the facts posed by this inquiry. M oreover, the judiciary
traditionally refuses to render advisory opinions or opinions that are not final
but subject to revision by the executive or legislative branches. See, e .g .,
Hayburn's Case 2 D ali., 409 (1792).
Thus, even if a judge is not acting as a judge in rendering informal advice to
Members o f Congress, his insistence on doing so in his official capacity may be
ill-advised in light of other, more practical considerations. Just as with an
executive agency, there is a need that the judiciary not be divided into a number
of camps based on their varying advice to various Members of Congress.
Judges must be especially careful not to be drawn into political disputes; they
must remain impartial. Appearances at hearings may present different problems
from those that arise in giving advice to individual Members of Congress. The
result of such joint consideration of particular issues is in most instances a
merger o f ideas into a single, public product. A provision for more informal
advice may give a judge a vested interest in the way that a particular statute is
formulated, but provide no obvious identification of his connection with the
provision sufficient to allow a litigating party, including the United States, to
ask that he recuse himself.
Congress recognizes that only limited access to the judiciary for purposes of
advice on legislation is appropriate. The statute creating the Judicial Confer­
ence of the United States, 28 U .S.C . § 331, which established a procedure for
making budget estimates, 28 U .S.C. § 605, and the statute establishing a
mechanism for raising problems concerning the operation o f the Speedy Trial
Act, 18 U .S.C . § 3165(c), all contemplate the funneling of ideas relating to
legislation through that single forum. In light o f Congress’ own reluctance to
intrude in this realm, it is particularly ill-advised for an executive agency, such
as the Department o f Justice, to do more than suggest that the question
presented here raises issues that must of necessity be resolved internally within
the judicial branch.
Jo h n M. H arm on
Assistant Attorney General
Office o f Legal Counsel
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