Legal Constraints on Lobbying Efforts in Support of Contra Aid
                and Ratification of the INF Treaty


T h e A d m inistration m ay expend appropriated funds on grass-roots lobbying and assistance to pri­
     vate gro u p s in support o f ratification o f the Interm ediate-R ange N uclear Forces Treaty, but it may
     not co m m u n icate its support of the treaty through the undisclosed use o f third parties.

T h e P resid en t, his aides, and cabinet officials m ay use appropriated funds for grass-roots lobbying
     in su p p o rt o f aid to the Contras until legislation is introduced. A lthough activities having the prin­
     cipal p u rpose o f grass-roots lobbying would be prohibited after legislation is introduced, A dm in­
     istration officials could still engage in a wide variety o f inform ational activities, such as writing
     letters, giving speeches, and briefing opinion leaders, as long as such com m unications on behalf
     o f th e C ontras are not m ade in the g u ise o f third parties.

                                                                                            February 1, 1988

                M e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s i d e n t


                                     Introduction and Summary

   You have requested the opinion of this Office concerning the extent to which
the Anti-Lobbying Act, 18 U.S.C. § 1913, and section 109 of the Foreign Rela­
tions Authorization Act for Fiscal Year 1988, Pub. L. No. 100-204, 101 Stat.
 1331 (1987), impose constraints on the use of appropriated funds for proposed
lobbying efforts in support of continued aid to the Nicaraguan Contras and rati­
fication of the INF Treaty.1These provisions create three separate restrictions on
the use o f appropriated funds for lobbying purposes: 18 U.S.C. § 1913 prohibits
the use of appropriated funds for activities designed to influence members of
Congress concerning any legislation or appropriation; subsection (1) of section
109 o f the Foreign Relations Authorization Act for Fiscal Year 1988 prohibits
expenditures for “publicity or propaganda” designed to influence members of
Congress regarding pending legislation; and subsection (3) of section 109 pro­
hibits the use of appropriated funds for “publicity or propaganda purposes not
authorized by Congress.”
   We understand that the lobbying activities under consideration may include
mass mailings requesting the recipient to contact members of Congress and urge
that they support the Administration’s positions. They may also include briefings

    1     This memorandum addresses as a m atter o f statutory interpretation only the extent to which these provisions
restrict lobbying activities. Should these statutory prohibitions foreclose specific activities you wish to pursue, we
would be pleased to consider in a supplementary memorandum the constitutionality o f these prohibitions as applied
to such activities.


                                                        30
of opinion leaders throughout the country by appropriate Administration offi­
cials, as well as coordinating private lobbying efforts in support of Contra aid
and ratification of the INF Treaty. The Administration is also considering refer­
ring media requests for “op-ed pieces” or interviews to Administration support­
ers in the private sector, soliciting the media to publish articles by or interviews
with private sector supporters of the Administration’s positions, and possibly
preparing “op-ed pieces” for publication over the signature of private sector sup­
porters. In light of the time constraints under which our advice is sought, we have
relied on this Office’s traditional learning concerning the scope of section 1913
and have not reexamined our long-standing interpretation of this provision. More­
over, for the interpretation of section 109 of the Foreign Relations Authorization
Act, we have relied largely on the Comptroller General’s opinions interpreting
previous publicity or propaganda riders. O f course, the opinions of the Comp­
troller General, an agent of Congress, are not as a general matter binding on the
executive branch. Opinions concerning publicity or propaganda riders similar to
section 109, however, are relevant to the construction of that section because they
may well be the best indication of what members of Congress intended to pro­
hibit by enactment of such a rider.2
   Based on these sources, we have concluded that section 1913 and sections
109(1) and (2) are wholly inapplicable to lobbying efforts in support of the INF
Treaty. Accordingly, appropriated funds may be expended on grass-roots lobby­
ing and assistance to private lobbying groups at any time with regard to ratifica­
tion of the INF Treaty. Section 109(3) is applicable to lobbying in support of the
INF Treaty. This section prohibits the Administration from engaging in “covert
propaganda.” Accordingly, the Administration may not communicate its support
of the treaty through the undisclosed use of third parties.
   We also conclude that because (1) section 1913 has been interpreted not to ap­
ply to grass-roots lobbying by the President, his aides, or Cabinet officials within
the scope of their official responsibilities, and (2) section 109(1) has been read
to apply only to lobbying on behalf of pending legislation, the President, his aides,
and Cabinet officials may use appropriated funds for grass-roots lobbying on be­
half of aid to the Contras until the introduction of legislation on that subject. Af­
ter the legislation is introduced, however, section 109(1) would prohibit the Ad­
ministration from engaging in activities which have as their principal purpose
grass-roots lobbying, but would not interfere with a wide variety of informational
activities, such as writing letters, giving speeches, and briefing opinion leaders.
Both before and after legislation is introduced, section 109(3) prohibits commu­
nications on behalf of the Contras that are made in the guise of third parties.




    2     Moreover, we note that the Comptroller General has a statutory role in certifying the expenses the Treasury
may pay from appropriated funds. See 3 1 U.S.C. § 3526. Although we do not address or endorse the constitution­
ality o f this provision, the Comptroller General’s role m the certification process provides him with a means by
which he may attempt to enforce his opinions in this area o f the law.


                                                       31
                                                     Analysis

A. Anti-Lobbying Act

    18 U.S.C. § 1913 provides:
              No part o f the money appropriated by any enactment of Con­
           gress shall, in the absence of express authorization by Congress,
           be used directly or indirectly to pay for any personal service, ad­
           vertisement, telegram, telephone, letter, printed or written matter,
           or other device, intended or designed to influence in any manner
           a Member o f Congress, to favor or oppose, by vote or otherwise,
           any legislation or appropriation by Congress, whether before or
           after the introduction of any bill or resolution proposing such leg­
           islation or appropriation; but this shall not prevent officers or em­
           ployees of the United States or of its departments or agencies from
           communicating to Members of Congress on the request of any
           Member or to Congress, through the proper official channels, re­
           quest for legislation or appropriations which they deem necessary
           for the efficient conduct o f the public business.
   Although section 1913’s broad wording would seem to prohibit virtually any
efforts by the executive branch to influence congressional action in matters of
legislation and appropriation, the Department of Justice has consistently read the
provision more narrowly. Both the Office of Legal Counsel and the Criminal Di­
vision have taken the position that section 1913 does not apply at all to the lob­
bying activities of those officials of the executive branch whose positions typi­
cally and historically entail an active effort to secure public support for the
legislative proposals of their administration.3 This construction is based on the
language of the statute that exempts lobbying activities that are carried on pur­
suant to an “express authorization by Congress.” The Department’s view has been
that, as to those officials whose positions typically and historically entail actively
seeking public support for legislative proposals, continued appropriation of funds
by Congress for such positions constitutes “express authorization by Congress”
for the lobbying activities of these officials, and thus exempts their activities from
section 1913.4 Officials whose activities are covered by this “express authoriza­


    3 M emorandum for A rthur B. Culvahouse, Jr., Counsel to the President, from Charles J. Cooper, Assistant At­
torney G eneral, O ffice o f Legal Counsel, R e ' Applicability o f 18 U.S C. § 1913 to Lobbying Efforts in Support o f
Ratification o f IN F Treaty at 6 n.7 (Dec 31 ,1 9 8 7 ) (“Culvahouse memo”), Memorandum for John R. Bolton, As­
sistant Attorney General, Office o f Legislative Affairs, from Charles J. Cooper, Assistant Attorney General, Office
o f Legal Counsel, R e Applicability o f 18 U S .C . § 1913 to Contracts Between United States Attorneys and M em­
bers o f Congress in Support o f Pending Legislation at 5 -6 (Oct. 27, 1987) (“Bolton memo”); Memorandum for
Paul M ichel, A cting Deputy Attorney General, from John M. Hannon, Assistant Attorney General. Office of Le­
gal Counsel, Re: A lleged Violations o f 18 U .S.C. § 1913 at 2, 3—4 (Feb. 20, 1980) (“ Michel memo”); Memoran­
dum for Philip B. Heymann, Assistant Attorney General, Criminal Division from Thomas H. Henderson, Jr., Chief,
Public Integrity Section, Criminal Division at 8 -1 0 (Oct. 15, 1979) (“Henderson memo”).
    4 Culvahouse memo at 6 n.7; Bolton mem o at 5-6, Henderson memo at 8-10, Michel memo at 2, 3-4.


                                                         32
tion” exception to section 1913 include the President, his aides and assistants
within the Executive Office of the President, and Cabinet members within their
areas of responsibility.5
   As to those officials who are within the coverage of section 1913, the Depart­
ment has consistently interpreted the statute to prohibit only “grass-roots” lob­
bying by executive branch employees, i.e., communication by executive branch
employees directed to members of the public and intended to persuade them to
lobby members of Congress. Even this restriction, however, does not apply to
public speeches or writings in which executive branch officials urge public sup­
port for particular legislation, where such speeches or writings are not part of a
large-scale campaign intended to galvanize the public into lobbying activity of
its own.6
   In sum, the Department has construed section 1913 to proscribe only

           conduct by those to whom no official lobbying responsibilities are
           delegated by the President or the head of an agency or department,
           and to limit lobbying activities outside the subject area of official
           responsibility of those with formal lobbying duties. The nature of
           the activities those subject to the statute may not engage in is lim­
           ited to large-scale grass-roots efforts to generate contacts with
           Members of Congress.

Michel memo at 4 (footnote omitted).

B. Foreign Relations Authorization Act

   The remaining two restrictions on the use of appropriated funds for lobbying
are contained in section 109 of the Foreign Relations Authorization Act for Fis­
cal Year 1988. That section states:

           No funds authorized to be appropriated by this Act or by any other
           Act authorizing funds for any entity engaged in any activity con­
           cerning the foreign affairs of the United States shall be used:

           (1) for publicity or propaganda purposes designed to support or
           defeat legislation pending before Congress;


    5 Although this Department has consistently construed section 1913 as not inhibiting the lobbying activities, in­
cluding grass-roots lobbying, o f the President, his aides and assistants in the Executive Office, and Cabinet m em ­
bers within their areas of responsibility, we suggest that this analysis should not be stretched to justify lobbying ac­
tivities o f unprecedented scope. Accordingly, we caution against grass-roots appeals, even by the President, that
involve substantial expenditures o f appropriated funds for such things as television or radio time, newspaper or
magazine advertisements, or mass, unsolicited distribution of printed materials
    6 Culvahouse memo at 6 n.7; Bolton memo at 5; Memorandum for Robert J. Lipshutz, Counsel to the President,
from John M Harmon, Assistant Attorney General, Office of Legal Counsel, Re - Statutory Restraints on Lobby­
ing Activity by Federal Officials at 10-14 (Nov. 29, 1977) (‘‘Harmon memo”)


                                                          33
           (2) to influence in any way the outcome of a political election in
           the United States; or

           (3) for any publicity or propaganda purposes not authorized by
           Congress.

Pub. L. No. 100-204, tit. I, § 109, 101 Stat. 1331, 1339 (1987). O f these three
provisions only subsections (1) and (3) are immediately relevant to the activities
you have under consideration.7
   Section 109(1) originally appeared as section 503(1) of S. 1394, the Senate
version of the authorization bill. There is no legislative history directly bearing
on the reasons for its introduction or the scope of the activities it was meant to
prohibit.8
   The Comptroller General has construed previous publicity or propaganda rid­
ers regarding pending legislation as prohibiting grass-roots lobbying. As a recent
Comptroller General opinion put it:

           The Comptroller General has construed this kind of lobbying
           statute as applying to indirect or “grass-roots” lobbying. In other
           words, the statute prohibits appeals to members of the public sug­
           gesting that they, in turn, contact their elected representatives to
           indicate support of, or opposition to, pending legislation, thereby
           expressly or implicitly urging the legislators to vote in a particu­
           lar manner.

B-226449, 1987 WL 102278, at *3 (C.G. Apr. 3,1987). See also 56 Comp. Gen.
889, 890-91 (1977).
    Appeals to members of the public to “let the Congress know how they feel on
this critical issue” or to contact your representatives and make sure they are aware
o f your feelings concerning this important legislation are considered violations
o f the publicity or propaganda prohibition when the context of the appeal makes
clear what views the public is being urged to communicate. B -178648,1973 WL
21832, at *4 (C.G. Sept. 21, 1973); B-128.938 (July 12, 1976); General Ac­


    7 To conform to the restrictions of section 109(2), any lobbying efforts should, of course, eschew any sugges­
tion that legislators should be supported or defeated in any election because o f their position on Contra aid or the
INF Treaty.
    8 Publicity o r propaganda nders date back at least to the early 1950s. See, e g., Labor-Federal Security Appro­
priation Act, 1952, ch. 373, § 702, 65 Stat 223 (1951). The sparse legislative history available on this provision in­
dicates that it was intended by its sponsor “ to prevent as far as possible the spending of unreasonable amounts for
propaganda and publicity purposes.” 97 Cong. Rec. 4098 (1 9 5 1) (remarks of Representative Smith of Wisconsin).
The section’s sponsor also expressed the belief, not entirely justified by experience, that “ [w]e can well distinguish
between what is propaganda and what is educational matter.” Id. W e do not find these comments particularly help­
ful in construing section 702 o f the 1951 Act, much less so in construing section 109. We consider it likely that the
Congress that enacted the Foreign Relations A uthorization Act w as more influenced by the recent Comptroller Gen­
eral decisions interpreting publicity or propaganda riders than by the relatively opaque remarks of a single con­
gressman thirty-six years earlier.


                                                          34
counting Office, Principles of Federal Appropriations Law 3-136 to 3-137 (1982)
(“GAO Manual”). An appeal to the public to contact members of Congress in re­
gard to a particular issue is not legitimized by including a disclaimer that the ap­
peal is made “regardless of whether those who contact their Congressman hap­
pen to be in agreement with me.” B-178648, 1973 WL 21832, at *5 (C.G. Sept.
21, 1973).
   On the other hand, the Comptroller General has not interpreted provisions iden­
tical to section 109(1) to prohibit communication to the public concerning legis­
lation. In construing these riders, the Comptroller General has recognized that
“[e]very agency has a legitimate interest in communicating with the public and
with the Congress regarding its functions, policies, and activities.” GAO Man­
ual at 3-133. In decision B-178528, 1978 WL 10850, at *2 (July 27, 1973), the
Comptroller General noted: “The President, his Cabinet, and other high officials
have a duty to inform the public on government policies and, traditionally, high-
ranking officials have utilized government resources to disseminate information
in explanation and defense of those policies.” Clearly the Comptroller General
does not interpret the publicity or propaganda riders as prohibiting the use of ap­
propriated funds for all communications concerning legislation. 56 Comp. Gen.
889, 890 (1977); B-178528, 1978 WL 10850 (C.G. July 27, 1973).9 In other
words, the Comptroller General essentially prohibits communications whose rai­
son d'etre is generating public pressure to influence Congress. Communications



    9     We do not believe that either section 1913 or the publicity or propaganda nders impose any requirement of
neutrality or balance in the presentation o f the Administration’s views. The Comptroller General has recognized
that whenever an agency’s policies or activities are affected by pending or proposed legislation, “discussion by of­
ficials o f that policy or activity will necessarily, either explicitly or by implication, refer to such legislation and will
presumably be either in support o f or opposition to it ” 56 Comp. Gen 889, 890 (1977) The Administration may
advocate one side or the other on issues o f public policy without violating statutory limits on the use of appropri­
ated funds.
        It is true that in two instances GAO considered government publications to constitute propaganda because
they were “oversimplified” and “misleading.” The first case involved a pamphlet distributed by the former Energy
Research and Development Administration ("ERDA”) entitled “Shedding Light on Facts About Nuclear Energy ”
The pamphlet, which had a strong pro-nuclear bias, purportedly had been created as part of an employee motiva­
tional program, but GAO found that ERDA had “printed copies of the pamphlet far in excess o f any legitimate pro­
gram needs and inundated the State o f California with them in the months preceding a nuclear safeguards initiative
vote m that State.” GAO Manual at 3-140. GAO determined that the pamphlet constituted “propaganda” because
it was “oversimplified and misleading,” and recommended that distribution be halted and remaining copies de­
stroyed Id GAO did not find, however, that publication o f the pamphlet constituted an illegal use o f appropriated
funds because it was directed at state rather than federal legislation Id
        The other instance in which GAO objected to publications because they were “oversimplified” also involved
an issue concerning nuclear energy, the Clinch River Breeder Reactor Project. Upon review, GAO found that sev­
eral of the publications were “oversimplified and distorted propaganda and as such questionable for distribution to
the public ” Id Because the publications had been funded with pnvate money, however, the GAO found no viola­
tion of federal law.
        We do not believe that these two cases impose any substantial limits on executive branch speech As already
indicated, the Comptroller General has recognized in a published opinion that executive branch officials are not
neutral on questions of public policy and that they must be free to express their views. The Comptroller G eneral’s
unpublished opinions in the nuclear energy cases must be narrowly construed as limited to false or misleading fac­
tual information and not as imposing any general requirement o f neutrality or objectivity Any other approach would
raise very senous constitutional concerns.


                                                          35
setting forth an agency’s position on legislation are permissible, however, even
if their natural consequence is to increase the support for this position.10
    A corollary to the Comptroller General’s prohibition on grass roots lobbying
is a prohibition on the provision of assistance to private groups engaged in lob­
bying on pending legislation. This is “an outgrowth of the concept that an agency
should not be able to do indirectly that which it cannot do directly.” GAO Man­
ual at 3—141.
   There are very few Comptroller General decisions in this area. The GAO Man­
ual, however, states that the publicity or propaganda riders bar

           the use of appropriated funds to develop propaganda material to
           be given to private lobbying organizations to be used in their ef­
           forts to lobby Congress. An important distinction must be made.
           There would be nothing wrong with servicing requests for infor­
           mation from outside groups, lobbists [sic] included, by providing
           such items as stock education materials or position papers from
           agency files, since this material would presumably be available in
           any event under the Freedom of Information Act. The improper
           use of appropriated funds arises when an agency assigns person­
           nel or otherwise provides administrative support to prepare ma­
           terial not otherwise in existence to be given to a private lobbying
           organization.

GAO Manual at 3-141.
   This aspect of the Comptroller General’s jurisprudence may be best charac­
terized as a prohibition on active assistance to groups or individuals seeking to
influence legislation. Administration officials may provide such groups only as­
sistance that does not require the expenditure of additional appropriated funds.
In short, the Comptroller General interprets the publicity or propaganda rider con­
cerning pending legislation in much the same way that this office and the Crim­
inal Division have interpreted 18 U.S.C. § 1913.” There are, however, two sig­


    10 M oreover, the Comptroller General has recognized that the publicity or propaganda nders provide little clear
guidance in distinguishing permissible from prohibited expenditures He has stated:
        G A O will rely heavily on the agency’s administrative justification. In other words, the agency gets the
        benefit o f any legitimate doubt. GAO will override the agency’s determination only where it is clear
        that the action was designed to influence Congress in certain precise ways
GAO Manual at 3-134. The Comptroller General does not “override administrative determinations and justifica­
tion o f propriety, except where they are so palpably erroneous as to be unreasonable in the face of the prohibiting
statute." B-178528, 1978 W L 10850, at *2 (C G. July 27, 1973).
    11 A lthough publicity or propaganda riders have received little attention from this office, our conclusions have
not been inconsistent with those o f the Comptroller General. In a 1977 opinion we interpreted the nders as speak­
ing to “ m ass distribution, the use o f federal funds to underwrite a dissemination of some magnitude.” Harmon memo
at 5. The conduct that Congress sought to avoid was not routine executive branch lobbying of Congress or of par­
ticular citizen interest groups, but was rather “ the unchecked growth o f a government public relations arm used to
disseminate agency appeals to the public at large.” Id at 6
        In keeping with this understanding, the Harmon memo concluded that the publicity or propaganda rider im­
posed no limitation on “the initial expression o f an official’s opinion,” but only upon the “subsequent dissemina-


                                                         36
nificant differences. The Department of Justice has opined that section 1913 does
not apply at all to the lobbying activities of those officials of the executive branch
whose positions typically and historically entail an active effort to secure public
support for the legislative proposals of their administration, at least to the extent
that those officials engage in the kinds of activities typically and historically en­
gaged in by the occupants of those offices. We have held that this exception to
section 1913 includes the President, his aides and assistants within the Executive
Office of the President, and Cabinet members within their areas of responsibil­
ity. Under our interpretation, these officials would be permitted to use appropri­
ated funds to engage in grass-roots lobbying to the extent that such lobbying has
typically and historically been engaged in by their predecessors. Nothing in the
Comptroller General’s opinions, however, suggests that the GAO recognizes a
comparable exception under the publicity or propaganda rider.
   The second major difference is that the publicity or propaganda rider applies
only when legislation is “pending.” The Comptroller General recognizes that this
is a threshold requirement in determining the applicability of the publicity or pro­
paganda rider. GAO Manual at 3-134. This interpretation is supported by a com ­
parison of section 109(1), which refers to “pending legislation,” with 18 U.S.C.
§ 1913, which specifically prohibits certain lobbying activities “whether before
or after the introduction of any bill or resolution.”
   The final restriction discussed in this memorandum is the prohibition of sec­
tion 109(3) on the use of appropriated funds for “publicity or propaganda pur­
poses not authorized by Congress.” This subsection was added in an amendment
offered by Senator Kerry, who explained that his amendment was motivated by
a particular abuse:

              During the Iran hearings, we learned o f money that was being
           illegally spent by the State Department on propaganda efforts with
           respect to the whole issue of Central America. It was agreed by
           the members of the Foreign Relations Committee that there should
           be some criminal penalties attached to that and not merely a pro­
           hibition as to that activity.12


   11 (.. . continued)

tion by the Government o f those views when they no longer qualify as a news event, e.g., the mass mailing o f un­
solicited copies of an official’s speech urging support o f particular legislation.” Id The memo cautioned, however,
that the circumstances of a particular dissemination may bring otherwise inoffensive speech within the prohibition
of the publicity or propaganda rider. As the memo noted: “ [ejxtensive campaigns in support of administration pro­
posals m a y . . . become so excessive as to amount to forbidden overreaching by the Executive Branch Under some
circumstances, therefore, expression that is ordinarily outside the scope of the nd er may well n se to the level of
propaganda.” Id. at n.14.
       The same opinion noted two further limitations derived from the publicity or propaganda rider. First, the nder
prohibits grass-roots lobbying. “An explicit or implicit call for citizens to contact their Congressional representa­
tives with their views involves a clearly forbidden effort in the nature o f propaganda to influence legislation ” Id
at 7. Finally, the memo suggested that “partisan expressions” were also “suspect,” although it recognized that the
rider did not prohibit taking a stand on a controversial issue
Id


                                                        37
 133 Cong. Rec. 26,496 (1987).
   Although Senator Kerry did not specify what he meant by “money that was be­
ing illegally spent by the State Department on propaganda efforts with respect to
the whole issue of Central America,” it appears that he was referring to the self-de-
scribed “white propaganda” operation conducted by the State Department’s Of­
fice of Public Diplomacy for Latin America and the Caribbean (“S/LPD”). The Re­
port of the Congressional Committees Investigating the Iran-Contra Affair
describes the “public diplomacy” efforts of S/LPD as “public relations-lobbying,
all at taxpayers’ expense.” H.R. Rep. No. 433 (S. Rep. No. 216), 100th Cong., 1st
Sess. 34 (1987). The report also quotes with apparent approval the Comptroller
General’s conclusion that the “white propaganda” efforts violated the restriction
prohibiting the use of federal funds for publicity or propaganda purposes not au­
thorized by Congress. Id. (quoting 66 Comp. Gen. 707 (1987)).
   In his report the Comptroller General evaluated the legality of certain activi­
ties of the Office for Public Diplomacy. These activities included “arrang[ing]
for the publication of articles which purportedly had been prepared by, and re­
flected the views of, persons not associated with the government but which, in
fact, had been prepared at the request of government officials and partially or
wholly paid for with government funds.” 66 Comp. Gen. at 708. S/LPD also used
a “cut-out” to arrange visits to various news media by a Nicaraguan opposition
leader. Id. at 709. The Comptroller General found that these activities were “be­
yond the range of acceptable agency public information activities because the ar­
ticles prepared in whole or part by S/LPD staff as the ostensible position of per­
sons not associated with the government and the media visits arranged by S/LPD
were misleading as to their origin and reasonably constituted ‘propaganda’ within
the common understanding of that term.” Id. Such activities therefore violated
the rider of the Department of State appropriation act in effect at that time that
prohibited “publicity or propaganda. . . not authorized by Congress.”13
   The prohibition in subsection (3) on the use of appropriated funds for “pub­
licity or propaganda purposes not authorized by Congress” would thus appear to


     12 In addition to adding the prohibition on use of appropriated funds for publicity or propaganda purposes not
authorized by Congress, Senator Kerry’s amendment also provided criminal penalties of up to one year’s impris­
onment and/or a fine o f up to $ 1000, as well as removal from office. 133 Cong. Rec. 26,496 (1987). The House bill
did not contain a publicity o r propaganda provision. At the conference, the tw o houses agreed to Senator Kerry’s
version, but without the cnm inal and employment penalties. 133 Cong. Rec. 35,491 (1987).
    13 The application o f such publicity or propaganda nders to covert propaganda activities apparently originated
in an opinion in O ctober 1986 regarding the Sm all Busmess Administration. At that time the Administration was
proposing to transfer the SBA to the Department o f Commerce and to eliminate SBA’s finance and investment pro­
grams and some managem ent assistance activities. SBA prepared a substantial amount o f public information ma­
terial explaining and generally supporting the proposed changes. These included a pamphlet entitled "The Future
o f SBA ,” suggested editorials, and suggested “ letters to the editor.” The Comptroller General found no problem
w ith most o f the material, but noted he had “senous difficulties with SBA’s distnbution o f ‘suggested editorials’
supporting the Administration’s reorganization plan. The editonals, prepared by SBA for publication as the osten­
sible editonal position o f the recipient newspapers, are misleading as to their origin and reasonably constitute 'pro­
paganda* within the common understanding o f that term." B -223098.2,1986 W L 64325, at *6 (C.G. Oct. 10,1986).
The Comptroller General concluded that [t]he SB A ‘suggested editorials’ are beyond the range of acceptable agency
public information activities and, accordingly, violate the ‘publicity and propaganda’ prohibition of section 601.”
Id
                                                          38
embody the view expressed in the Comptroller General’s September 30, 1987,
opinion that “covert propaganda activities of an agency” are an illegal use of ap­
propriated funds.14

  C. Application o f 18 U.S.C. § 1913 and Section 109 o f the Foreign Relations
   Authorization Act to Lobbying Activities on Behalf o f the INF Treaty and
                                   Contra Aid

             1) INF Treaty

   For the reasons set forth in our December 31, 1987, memorandum, we do not
believe that the Senate’s advice and consent to the ratification of a treaty consti­
tutes “legislation.” Although that memorandum discussed legislation within the
context of 18 U.S.C. § 1913, we believe that it has the same meaning when used
in the rider prohibiting the use of appropriated funds to influence pending legis­
lation. Because we do not believe that the advice and consent of the Senate con­
stitutes legislation, the publicity or propaganda rider of section 109(1) would be
inapplicable to lobbying efforts in support of the INF Treaty. Accordingly, we
conclude that neither the grass-roots lobbying restriction nor the prohibition on
assistance to private lobbying groups would apply to your efforts in support of
the INF Treaty.
   It is clear, however, that the rider prohibiting covert propaganda activities
would apply to ratification of the INF Treaty. The legislative history of section
 109(3) implies Congressional approval of the Comptroller General’s view, enun­
ciated in his September 30,1987, opinion, that the “not authorized by Congress”
version of the publicity or propaganda rider prohibits covert propaganda activi­
ties. Accordingly, the Administration may not covertly communicate its support
of the INF Treaty in the guise of a private group or individual.

            2) Contra Aid

   According to the Comptroller General, the legal restrictions of section 109(1)
on lobbying in support of aid to the Contras depend on whether the lobbying oc­
curs before or after legislation reflecting the Administration’s position is intro­
duced in Congress. In the absence of such pending legislation, section 109(1) is
simply inapplicable to lobbying efforts. Moreover, under the Department’s long­
standing interpretation of section 1913, that provision would not restrict grass­
roots activities of the President, his aides within the Executive Office of the Pres­
ident, or Cabinet members within their areas of responsibility. Accordingly, the


    14    B-229069, 1987 WL 95776, at *3 (C.G. Sept. 30, 1987). The Comptroller General has also consistently in­
terpreted earlier riders prohibiting “publicity or propaganda. . . not authorized by Congress” as prohibiting agency
“self-aggrandizement” or “ puffery,” i.e., “publicity o f a nature tending to emphasize the importance of the agency
or activity in question.” 31 Comp. Gen. 311,313 (1952). It seems clear that this prohibition would not be applica­
ble to any o f your contemplated activities.


                                                      39
only restriction on Administration lobbying activities in the period preceding in­
troduction of an Administration-backed bill derives from section 109(3), which
prohibits covert attempts to mold opinion through the undisclosed use of third
parties.
   After an Administration-backed bill is introduced, however, section 109(1)
would be applicable. Under the Comptroller General’s interpretation, this provi­
sion would restrict Administration officials, including those in the Executive Of­
fice o f the President, from engaging in grass-roots lobbying. It would not, how­
ever, restrict Administration officials from engaging in public informational
activities such as writing speeches or letters in the areas of their official respon­
sibility or briefing opinion leaders, even if the natural consequence of such ac­
tivities is to increase public support for the President’s position on legislation aid­
ing the Contras.
   According to the decisions o f the Comptroller General in this area, the legal­
ity of providing assistance to private groups that support Contra aid will depend
on whether the assistance requires the use of appropriated funds in excess of what
would otherwise be expended. Accordingly, the Administration can make avail­
able to private groups, upon request, printed materials that explain and justify the
Administration’s position on Contra aid. These materials must be items that were
created in the normal course of business and not specifically produced for use by
these private groups.
   We also believe that the Administration may respond to media requests for
“op-ed pieces” or interviews by referring the media to supporters in the private
sector, because such responses would not involve additional use of appropriated
funds. It would be unwise, however, for the Administration to solicit the media
to print articles by or interviews with anyone not serving in the government. And,
of course, the Administration cannot assist in the preparation of any articles or
statements by private sector supporters, other than through the provision of in­
formational materials as described in the preceding paragraph.

                                                     C h a r l e s J. C o o p e r
                                                  Assistant Attorney General
                                                   Office o f Legal Counsel




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