Anti-Lobbying
Anti-Lobbying Act
18 U.S.C. 1913 prohibits using appropriated funds, without the express authorization of Congress, to directly or indirectly pay for personal services or communications intended or designed to influence Members of Congress, jurisdictions, or officials of any government with regard to any legislation, law, ratification, policy, or appropriation. The prohibition does not prohibit officers or employees of the United States Federal Government from making such communications to Members or Congress or other officials at their request through the proper channels. The Act does not apply to the President, his aides, and Cabinet officials within the scope of their official responsibilities up until the introduction of legislation on a subject.
The Department of Justice guidance permits Federal employees to do the following in the course of their duties:
- communicate with Members of Congress and their staffs in support of Administration or Departmental positions;
- communicate with the public through public speeches and published writings to promote Administration or Departmental positions;
- communicate privately with individual members of the public, to promote Administration or Departmental positions so long as those communications are not part of a grass roots lobbying campaign; and
- lobby Congress or the public on non-legislative or appropriation matters like nominations and treaties.
To violate the Act there must be:
- Pending legislation; and
- A clear appeal by an agency to the public to contact Members of Congress.
To avoid violating the Act:
- DOE may not tell individuals or outside organizations to contact Congress.
- DOE may not provide support to lobbying campaigns by 3rd parties, such as trade associations or non-profit organizations.
- DOE should be careful when linking to external websites in press releases and social media to ensure there are no lobbying campaigns added.
Special Appropriations Riders
Appropriations Acts may contain provisions often known as "riders," which may place restrictions on the use of funds provided in those Acts. Riders commonly include a prohibition on the use of funds appropriated in an Act to influence congressional action on any legislation or appropriation matters pending before Congress except for authorized communications to Congress. Pending legislation riders apply specifically to pending legislation and any appeal need not specify a piece of legislation. The rider is violated when there is a direct appeal to the public to contact Congress. Additionally, the rider is violated even where the agency does not directly appeal to the public to contact Congress but, instead, provides a hyperlink to a website that allows readers to transmit a message to members of Congress.
A separate rider goes a step further by prohibiting the use of appropriated funds for publicity or propaganda purposes within the United States not authorized by Congress. This publicity and propaganda provision generally precludes funding for agency messages that are (1) self-aggrandizing, (2) purely partisan in nature, or (3) covert propaganda. This rider is less relevant in the lobbying context, but it could still raise problems.
FY 2021 Appropriation restrictions:
SEC. 715. No part of any funds appropriated in this or any other Act shall be used by an agency of the executive branch, other than for normal and recognized executive-legislative relationships, 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.
SEC. 718. No part of any appropriation contained in this or any other Act shall be used directly or indirectly, including by private contractor, for publicity or propaganda purposes within the United States not heretofore authorized by Congress.
SEC. 731. Unless otherwise authorized by existing law, none of the funds provided in this or any other Act may be used by an executive branch agency to produce any prepackaged news story intended for broadcast or distribution in the United States, unless the story includes a clear notification within the text or audio of the prepackaged news story that the prepackaged news story was prepared or funded by that executive branch agency.
Federal Advisory Committee Act (FACA)
The Federal Advisory Committee Act (FACA) of 1972 (Public Law 92-463) was enacted by Congress to formally recognize the merits of seeking the advice and assistance of our nation's citizens.
What is a Federal Advisory Committee?
An advisory committee is any committee, board, commission, council, conference, panel, task force, or other similar group which is -- established by statute or reorganization plan; established by the President; or is established or utilized by one or more agencies of the Federal government pursuant to agency authority. The purpose of such committees is to provide policy advice to the Federal government.
When does the Federal Advisory Committee Act apply?
FACA applies when non-Federal persons participate in an advisory committee established or utilized by the Federal government to provide policy advice. Case law has determined “utilize” to mean actual management or control of the group by the Federal government. FACA involves an inherent group action. Groups, however, do not necessarily have to achieve a consensus when giving advice to be subjected to FACA. FACA applies when a group is asked to render advice or recommendations as a group and not a collection of individuals, regardless of whether the group meets one time or more than once.
Who are the advisory committee members?
Advisory committee members are nominated, selected, and ultimately appointed by the Secretary based on their qualifications to contribute to the committee’s objectives. Further, the membership of the advisory committees must reflect a fair balance of interests and view points. Members may include, among others, individuals affiliated with universities, large corporations, research organizations, and national laboratories. In certain circumstances, Federal employees and employees working for management and operating (M&O) contractors may serve on an advisory committee.
Committee members can serve either one of two ways – as an expert in a particular field or discipline or as a representative of a certain organization, industry, or group. Members who are appointed because of their expertise are required to become special Government employees (SGEs). SGEs are considered Federal employees and are subjected to the criminal conflict of interest statutes and the Standards of Ethical Conduct for Executive Branch Employees. In addition, SGEs are required to complete a confidential financial disclosure report in which they list assets and relationships they believe may cause a conflict of interest.
What groups or committees are not covered by FACA?
Examples of these groups include: committees not actually managed or controlled by the executive branch; groups assembled to provide individual advice; and groups assembled to exchange facts or information. Individuals requesting appointments with DOE officials for purposes of relating information to the Department do not generally trigger the FACA requirements.
Can DOE officials meet with state, local or tribal government officials to discuss certain issues or obtain advice on a particular matter?
DOE officials can meet with any committee or group composed exclusively of Federal officials and elected officials of state or local government (or their designated employees with authority to act on their behalf). Further, DOE officials may also meet exclusively with representatives of Federally recognized tribal governments. The purpose of such meetings, however, must be to exchange views, information, or advice relating to the management or implementation of an already established Federal program that shares jurisdiction with the state, tribal, or local governments.
Can DOE officials meet with industry representatives with the purpose of seeking advice on certain programs or initiatives?
Yes and no. It is permissible for DOE officials to meet with a group, including at a public meeting, where the advice is sought from those in attendance on an individual basis and not from the group as a whole. Further, DOE officials may meet with groups of industry representatives so long as the meeting is for the purpose of exchanging facts or information.
DOE officials must be careful in such meetings to avoid the appearance that the purpose of these meetings is to obtain advice as an industry group. When this occurs, the meeting begins to look more like a meeting of a group and that the advice is that of a group. To avoid allegations that the object is to receive collective advice, individuals participating should not comment on others’ presentations, question others, or question the group’s process.
DOE officials must also be careful to avoid the appearance that a group has fixed membership. To avoid allegations that DOE has formed a group that regularly meets, DOE should ensure that there is diversity in attendees and that no one entity or person is regularly participating in the group.
Can DOE officials create a subcommittee of an existing DOE Federal advisory committee for the purpose of seeking advice from a group?
Yes and no. It is permissible for DOE officials to create a subcommittee of an existing DOE Federal advisory committee, in accordance with the law and DOE policy, provided that the group’s purpose falls within the mission and scope of the committee. The subcommittee cannot report directly to DOE officials; it can only provide its advice to the parent committee for full consideration. The parent committee is not permitted to “rubber stamp” the recommendation of the parent committee.
Is it permissible for DOE officials to accept unsolicited advice from industry or other non- Federal organizations?
Yes. Often non-Federal organizations provide departments and agencies with unsolicited advice regarding its programs. DOE can accept this advice without fear of violating FACA because the group that provided the unsolicited advice was created by a non-Federal entity (such as a contractor or private entity) and was not actually managed and controlled by DOE (or the Federal government).
Can DOE officials request advice from a contractor?
FACA is not triggered when requesting advice from a contractor when such advice is required by contract or when the contractor is providing individual advice to DOE. There is also a special exemption for employees of M&O contractors of DOE. When these employees are serving as members of a group reviewing or advising on matters related to any one or more DOE M&O contracts, the employees should be treated as officers or employees of DOE for purposes of determining whether the group is an advisory committee.
What happens if a contractor establishes a committee or group for the purpose of providing advice?
So long as the committee or group was not created by DOE or the Federal government and the committee or group is not managed or controlled by DOE, the contractor committee or group may provide unsolicited advice to DOE. Management and control typically involves, but is not limited to, issuing charges to the committee, setting the agenda for the committee, determining membership of the committee, and providing structure to committee meetings.
Can a DOE employee attend a series of meetings held by an energy industry association and a public interest group to discuss the collection of data?
In general, a DOE employee can attend a series of meetings organized by an energy industry association and a public interest group, so long as the DOE employee does not manage and control the group, because the group was not created by DOE or another Federal agency and
Can DOE solicit specific information from the public, including those groups affected by Department programs?
Yes, DOE may hold public meetings at which it may pose specific questions for input. DOE may make presentations and receive both written and verbal testimony in response to those presentations. DOE may not limit who is permitted to present information; however, DOE can establish reasonable time limits for comment on a first come first serve basis.