Restrictions on Lobbying Congres with Federal Funds

Restrictions on Lobbying Congres with Federal Funds

Order Code 97-57 A
Restrictions on Lobbying Congress
With Federal Funds
December 23, 1996
Jack Maskell
Legislative Attorney
American Law Division

Restrictions on Lobbying Congress
With Federal Funds
Summary
There are several provisions of federal law, rule and regulation which limit or
restrict the use of funds appropriated by Congress for the purposes of "lobbying"
activities. This report provides a brief discussion of the major federal laws and rules
which limit or restrict the lobbying of Congress with federally appropriated funds,
as those restrictions apply to federal agencies and employees, and to private
contractors and grantees of the federal government.
Officers and employees of the departments and agencies of the executive branch
of the federal government are expected to communicate to Congress their need for
certain legislation or appropriations, and to provide Members of Congress with
Administration opinions, ideas, facts, figures and arguments concerning public policy
issues and the legislation affecting or relevant to such policies. Similarly, the
Administration and its officers and employees may engage in public discourse,
discussion and exposition of Administration policy, and may legitimately provide
public arguments for or against certain public policy issues and legislation. Federal
officers and employees of departments and agencies, however, are generally
restricted by a criminal provision (18 U.S.C. § 1913), as well as several
appropriations riders, from using federal appropriations for certain types of
significant "grass roots" lobbying, or publicity or propaganda campaigns, which urge
or exhort persons to contact their Members of Congress. The Department of Justice
has interpreted § 1913 narrowly, finding that the law bars only large-scale or
significant expenditures of public funds on private communications expressly urging
persons to contact Congress.
Persons who hold federal contracts and federal grants may generally not be
reimbursed from that federal contract or grant, and may not use contract or grant
funds directly, to lobby the United States Congress. In the first instance there are a
few narrow and specific statutory restraints on certain program funds, and on some
recipient agencies and organizations under specific federal programs, on the use of
funds for such lobbying purposes. The restrictions of more general applicability to
all grantees and contractors, however, come from the Federal Acquisition
Regulations, cost principles for government contractors and grantees, and from the
so-called "Byrd Amendment" regarding certain kinds of lobbying with federal monies
by federal grant, contract, or cooperative agreement recipients. Section 18 of the
Lobbying Disclosure Act of 1995 (P.L. 104-65), commonly called the "Simpson
Amendment", although not dealing with limitations on the use of federal funds for
lobbying, prohibits section 501(c)(4) civic leagues and social welfare organizations
from engaging in certain "lobbying activities", with their own private funds, if the
organization receives a federal grant, loan, or award.

Contents
Federal Agencies and Officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Criminal Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Direct Lobbying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Grass Roots", Indirect Lobbying; Legislative History . . . . . . . . . . . . . . . . . 2
Communications to the Public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
De Minimis Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Other Applications of the Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Appropriations Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
De Minimis Use of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Assistance to Outside Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Grantees and Contractors of the Federal Government . . . . . . . . . . . . . . . . . . . . . 10
Appropriations Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Byrd Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Acquisition Regulations and Cost Principles . . . . . . . . . . . . . . . . . . . . . . . . 12
501(c)(4) Organizations Receiving Grants . . . . . . . . . . . . . . . . . . . . . . . . . 13
Tax Implications of Lobbying by Nonprofit Organizations . . . . . . . . . . . . . 14

Restrictions on Lobbying Congress
With Federal Funds
There are several provisions of federal law, rule and regulation which limit or
restrict the use of funds appropriated by Congress for the purposes of "lobbying"
activities. This report provides a brief discussion of the major federal laws and rules
which limit or restrict the lobbying of Congress with federally appropriated funds,
as those restrictions apply to federal agencies and employees, and to private
contractors and grantees of the federal government.
Federal Agencies and Officials
It is generally understood that it is proper for federal executive officials to
communicate directly to Congress the need for legislation or appropriations, as well
as to communicate the Administration's position for or against legislative proposals.
Additionally, it is recognized that an Administration is allowed to engage in public
discourse, discussion and exposition of Administration policy and positions, which
may include public arguments for or against certain legislation and specific programs.
However, statutory provisions and various appropriation riders prohibit such officers
and employees of federal departments and agencies from using federal appropriations
for certain "grass roots" type of lobbying, or publicity or propaganda campaigns,
which urge or exhort the public to write or contact their Members of Congress to
influence legislation.
Criminal Provision
The principal statutory prohibition on lobbying with appropriated funds is a
federal criminal law at 18 U.S.C. § 1913, which prohibits officers and employees of
the federal agencies from using appropriations to lobby or influence a Member of
Congress on legislation. The prohibition is upon federal employees using
appropriations to pay for any "personal services, advertisement, telegram, telephone,
letter, printed or written matter ... intended or designed to influence" Members of
Congress on legislation or appropriations.
Direct Lobbying
Although the payment for such activities with federal funds is barred, § 1913
expressly exempts from the prohibition the activities of officers and employees of the
federal government "communicating to members of Congress on the request of any
member", or to Congress "through the proper official channels, requests for
legislation or appropriations" deemed necessary for the efficient conduct of the public
business. This provision of law has thus been consistently interpreted in the past by

CRS-2
the Justice Department as permitting direct contacts and communications from
federal executive officials and executive agencies to Members of Congress
concerning pending or proposed federal legislation1, but most likely would prohibit
substantial letter-writing or other types of significant "propaganda" or publicity
campaigns (also called "grass roots" lobbying campaigns) funded with appropriated
monies which are directed at the general public and which specifically urge or exhort
the public or individuals to write or contact their congressman on an issue before the
Congress.2
In 1962, an informal opinion from Assistant Attorney General Henry J. Miller
discussed the right and obligation within our constitutional framework for the
President and the executive agencies, and their officers and employees, to
communicate directly with Members of Congress to express their views and the
Administration's arguments and positions in favor of or opposition to proposed or
pending legislation. Finding that unsolicited contacts with Members of Congress
from Sargent Shriver, then Director of the Peace Corps, urging Members to support
Peace Corps authorization, did not violate the provisions of 18 U.S.C. § 1913, the
Assistant Attorney General explained:
Personal contacts with members of Congress by executive officers are both
sanctioned and required by Article II, section 3 of the Constitution .... The power
to recommend measures to Congress would appear clearly to comprehend and
include the power to urge arguments on individual Members of Congress in
support of such measures.3
Similarly, in 1989, the Office of Legal Counsel of the Department of Justice
found that the prohibitions of the law do not apply to "direct communications"
between agency personnel and Members or staff of Congress. That office of the
Department of Justice explained that "there is no restriction on Department officials
directly lobbying Members of Congress and their staffs in support of Administration
or Department positions."4
"Grass Roots", Indirect Lobbying; Legislative History
The statute thus does not necessarily reach "direct" contacts by officers and
employees of the executive branch of the federal government with Members and staff
of Congress, but rather appears to be intended to reach certain indirect or "grass
roots" lobbying efforts by agencies and their employees entailing publicity or
propaganda campaigns directed at the public which urge, request or are intended to
have persons contact their Congressman. In a 1978 opinion, the Office of Legal
1 See Opinion of Assistant Attorney General of the United States, Henry J. Miller, (1962), printed at 108
Congressional Record 8449-8451, May 15, 1962; Department of Justice letter opinion of July 19, 1973, to
Senators Humphrey and Muskie, from Assistant Attorney General Henry S. Peterson; 5 Op. O.L.C. 180, 185
(1981); 13 Op. O.L.C. 361 (1989).
2 Note legislative history of § 1913, at 58 Congressional Record 404, May 29, 1919; see Department of Justice
letter opinions cited in footnote #1, infra; 2 Op. O.L.C. 30 (1978).
3 See 108 Congressional Record 8449-8451, May 15, 1962.
4 13 Op. O.L.C. supra at 361.

CRS-3
Counsel of the Department of Justice, in discussing the use by federal judges of
resources associated with their official position to communicate with Members of
Congress on pending legislation, noted concerning § 1913:
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.5
This general understanding and interpretation of the provision is consistent with
the apparent legislative intent of the statute. The legislative history of the statute
appears to indicate a congressional purpose to restrict and prohibit so-called "grass
roots" lobbying or propaganda campaigns funded by federal appropriations. In a
colloquy on the floor of the House, the sponsor of the original restriction in 1919,6
Representative James Good of Iowa, responded to the question of Representative
Smith of Idaho as to whether it is "intended by section 5 to prevent the employees or
officers of the government from communicating directly with their representatives
in Congress?", by stating that: "No; that is expressly reserved."7 Explaining the
purpose of the amendment, Representative Good stated:
It is new legislation, but it will prohibit a practice that has been indulged in so
often, without regard to what administration is in power -- the practice of a
bureau chief or a head of a department writing letters throughout the country,
sending telegrams throughout the country, for this organization, for this man, for
that company to write his Congressman, to wire his Congressman, in behalf of
this or that legislation. The gentleman from Kentucky, Mr. Sherley, former
chairman of this committee, during the closing days of the last Congress was
greatly worried because he had on his desk thousands upon thousands of
telegrams that had been started right here in Washington by some official wiring
out for people to write Congressman Sherley for this appropriation and for that.
Now, they use the contingent fund for that purpose, and I have no doubt that the
telegrams sent for that purpose cost the Government more than $7,500. Now, it
was never the intention of Congress to appropriate money for this purpose, and
section 5 of the bill will absolutely put a stop to that sort of thing.8
While the language and the intent of the criminal statutory provision may appear
to cover a broad range of conduct and communications involving public issues, it
should be noted that there has never been any recorded Department of Justice
enforcement action, nor any criminal indictments ever brought under this provision
since it was enacted into law in 1919. The precise conduct that might subject one to
criminal prosecution, therefore, is somewhat a matter of conjecture. The Department
of Justice, however, regardless of the political party of the Administration, has
5 2 Op. O.L.C. 30, 31 (1978). The opinion noted that the "limited legislative history demonstrates that its
enactment was spurred by a single, particularly egregious instance of official abuse - the use of federal funds to
pay telegrams urging selected citizens to contact their congressional representatives in support of legislation of
interest to the instigating agency."
6 Section 6 of the Third Deficiency Appropriation Act, fiscal year 1919, 41 Stat. 68, chapter 6, § 6, July 11, 1919.
7 58 Congressional Record 404, May 29, 1919.
8 58 Congressional Record 403, May 29, 1919.

CRS-4
consistently interpreted the statutory prohibition in a very narrow manner, and has
questioned the constitutionality of the provision if interpreted broadly.9
Communications to the Public
While the focus of the prohibition is upon agency communications to the public,
rather than on direct communications to Congress, not all agency communications
to the public concerning pending legislation violate the anti-lobbying provision.
Interpretations of § 1913 and similar prohibitions recognize that members of the
Administration and other executive branch officers and employees are obviously not
prohibited from all official public expressions of support or opposition, or
expressions for the need for certain legislation or governmental programs. There is
therefore an apparently accepted distinction between prohibited grassroots "lobbying"
with federal funds regarding legislation, as opposed to permissible public "advocacy"
for certain Administration programs, favored legislation, or policy.10 As noted by one
congressional commentator concerning an Administration's public expressions of
opinions on policy: "Certainly, any Administration should be expected to use all legal
means at its disposal to encourage acceptance of its programs."11 A federal court
found that a certain pamphlet published by a federal agency, although admittedly
biased towards the nuclear energy program, did not violate the prohibition at § 1913
because the communication did not urge or request nor was it "likely to induce
persons to contact their Congressmen".12
Similarly, in 1981, the Office of Legal Counsel of the Department of Justice
explained in broad terms the proper, contemplated relationship and interchange
between the executive branch and the Congress as well as between the executive
branch and the public concerning legislation:
The Constitution contemplates that there will be an active interchange
between Congress, the Executive Branch, and the public concerning matters of
legislative interest. For that reason alone, this Department has traditionally
declined to read the criminal statute and the general rider as requiring federal
officers and employees to use their own funds and their own time to frame
necessary communications to Congress and the public. We have taken the view
that the criminal statute and the general rider impose no such requirement. They
9 See, 13 Op. O.L.C. supra at 367-368; and Office of Legal Counsel, Department of Justice, "Guidelines on 18
U.S.C. § 1913", at 1 (April 14, 1995).
10 There is not necessarily any First Amendment "neutrality" requirement for the government in public policy
issues akin to the neutrality required in the Establishment of religion clause. See Buckley v. Valeo, 424 U.S. 1,
92-93 (1976). As noted by a federal court: "What is condemned by the free speech guarantee of the First
Amendment is not advocacy by the government, but rather conduct which limits similar rights guaranteed to
individual members of society." Arrington v. Taylor, 380 F. Supp. 1348, 1364 (D.N.C. 1974), citing Joyner v.
Whiting, 477 F.2d 456, 461 (4th Cir. 1973). As to expenditures, GAO has concluded: "[T]he courts have indicated
that it is not illegal for government agencies to spend money to advocate their positions, even on controversial
issues." General Accounting Office. Principles of Federal Appropriations Law, at 4-163 (1991).
11 Ancher Nelson. "Lobbying by the Administration", in We Propose: A Modern Congress, at 145.
12 American Public Gas Association v. Federal Energy Administration, 408 F. Supp. 640, 642 (D.D.C. 1976).
The court found that under the criminal statute at 18 U.S.C. § 1913 it could not enjoin an executive branch activity
at the behest of a private party, since a criminal remedy is provided for violation of the law; but noted in dicta that
even if a remedy were available under the statute, the production and distribution of such pamphlet by a federal
agency, even though the pamphlet is admittedly biased, would not violate § 1913.

CRS-5
permit a wide range of contact between the Executive and the Congress and the
Executive and the public in the normal and necessary conduct of legislative
business.13
The 1989 opinion of the Office of Legal Counsel of the Department of Justice
asserted also that general public expressions concerning legislation or other public
policy issues by federal executive branch officials and employees, through "public
speeches," appearances or published writings would not violate the anti-lobbying
provisions of 18 U.S.C. § 1913:
Accordingly, we do not believe the statute should be construed to prohibit the
President or Executive Branch agencies from engaging in a general open
dialogue with the public on the Administration's programs and policies. Nor do
we believe the statute should be construed to prohibit public speeches and
writings designed to generate support for the Administration's policies and
legislative proposals.14
Public speeches were deemed to be exempt, even when expressly calling on the
public to contact Congress, because they were seen to lack the requisite use of a
"device" such as a telephone or telegraph or some other written communication, as
expressed in the text of 18 U.S.C. § 1913.15
This opinion was reflected in the 1995 "Guidelines" issued by the Department
of Justice's Office of Legal Counsel that the prohibition would cover only certain
types of "private forms of communications", as opposed to public speeches and
writings. That is, that the prohibition applied only to "substantial `grass roots'
lobbying campaigns of telegrams, letters and other private forms of communication
expressly asking recipients to contact Members of Congress, in support or opposition
to legislation".16
De Minimis Expenditures
The criminal statute has thus been interpreted to apply to certain expenditures
of federal funds for private communications through such devices as letters,
telegrams or telephone calls to members of the public which expressly urge or
request those persons to contact a Member of Congress on legislation. The statutory
restriction at 18 U.S.C. § 1913 has been interpreted narrowly by the Department of
Justice through the Administrations of both parties, however, so as to actually
prohibit, in its view, only what the Department of Justice has described as "gross"
solicitations of public support, or "significant" or "large scale" expenditures of public
funds in these types of "grass roots" lobbying effort.
13 5 Op. O.L.C. 180, 185 (1981).
14 13 Op. O.L.C. supra at 366.
15 13 Op. O.L.C. supra at 363. In the opinion of the Department of Justice, also exempt from the law are
"lobbying activities of Executive Branch officials whose positions typically and historically entail an active effort
to secure public support for the Administration's legislative program ... [including] presidential aides, appointees,
and their delegees...." Id at 363-364.
16 OLC "Guidelines" of April 14, 1995, supra at 2.

CRS-6
The Department of Justice found, in an informal opinion in 1973, that the law
was not intended to reach all public expression of views on legislation, but rather was
directed at "gross solicitations of public support". In 1973, the White House
withdrew "information" packets and "speech kits" it had distributed to agency and
department heads concerning suggestions for a publicity campaign over budget
legislation, after complaints from Congress, and a finding by the Comptroller
General, that production of such "Battle of the Budget" kits appeared to violate
appropriations restrictions on lobbying with federal funds.17 In finding, however, that
there was no criminality in such conduct under 18 U.S.C. § 1913, Assistant Attorney
General Henry Peterson stated:
The legislative history reflects the Congress sought to recognize its
responsibility to legislate, and that of the President to exercise his views in an
appropriate manner regarding the merit or deficiencies of legislation. The
apparent intention of Congress in enacting 18 U.S.C. 1913 was to bar gross
solicitations of public support, i.e., conduct that would propagandize and
generate public backing, financed with appropriated funds.18
In 1989, Assistant Attorney General William Barr of the Office of Legal
Counsel (OLC) of the Department of Justice advised Attorney General Dick
Thornburgh that, in addition to the statute at 18 U.S.C. § 1913 not applying to direct
contacts between executive agency officials and Members of Congress and their staff,
the anti-lobbying act would also not apply to "speeches, appearances, or writings" of
Administration officials, nor would the Act prohibit "private communications with
members of the public as long as there is not a significant expenditure of
appropriated funds to solicit pressure on Congress." Examining the legislative
history of the provision, the OLC of the Department of Justice explained:
These remarks [in the law's legislative history] demonstrate that Congress was
concerned about the use of appropriated funds to implement "grass roots"
mailing campaigns at great expense. [Footnote: "Our calculations indicate that
an expenditure of $7500 in 1919 would be roughly equivalent to one of $50,000
today"] Based on this legislative history, this Office has consistently concluded
that the statute was enacted to restrict the use of appropriated funds for large-
scale, high expenditure campaigns specifically urging private recipients to
contact Members of Congress about pending legislative matters on behalf of an
administration position.19
The Department of Justice has thus expressly interpreted the anti-lobbying
criminal statute as having a de minimis threshold as far as the expenditure of federal
funds for conduct which apparently was intended to come within the statutory
restriction, that is, communications such as letters and telephone calls from an
executive official to the public to put pressure on Congress concerning legislation.
The de minimis threshold amount of $50,000 suggested in the 1989 Barr
17 Comptroller General Opinion, B-178448, April 30, 1973; 119 Congressional Record 13471 - 13476, April 30,
1973; 119 Congressional Record 14483 - 14485, May 7, 1973.
18 Letter to Senator Hubert H. Humphrey, from Assistant Attorney General Henry S. Peterson, July 19, 1973; note
Mike Causey, "No Action Planned Over Speech Kits," Washington Post, July 30, 1973, p. D11.
19 13 Op. O.L.C. supra at 365. Emphasis added.

CRS-7
memorandum to Attorney General Thornburgh has been cited and reiterated by the
current Department of Justice in guidelines issued to General Counsels.20
Other Applications of the Statute
A further purpose of the prohibition at 18 U.S.C. § 1913 would appear to be to
prohibit a federal agency from expending any federal funds or resources in assisting
private parties or groups in their lobbying and attempts to influence Congress. In a
federal district court case, the court indicated that the statute would appear to have
as its purpose "to prevent corruption of the legislative processes through government
financial support of an organization" which attempts to influence Members of
Congress, "and thereby precludes the drowning out of the privately financed `voice
of the people' by a publicly funded special interest group."21
The statutory provision at 18 U.S.C. § 1913 applies by its express language only
to federal officials, and thus the criminal provisions would not reach private
contractors or grantees of the Federal Government.22 Furthermore, the restrictions
apply only to the lobbying of Congress, and do not apply to lobbying by one
executive agency of another agency, nor to "lobbying" of state legislatures by federal
officials.23
Appropriations Restrictions
In addition to the criminal statute at 18 U.S.C. § 1913, there is often included
in an appropriations bill for agencies or departments a rider in the form of a general
restriction on the use of such funds appropriated in that act for "publicity or
propaganda" purposes directed at "legislation pending before Congress."24 As an
appropriations measure, this restriction is subject to interpretation and enforcement
by the Comptroller General of the United States General Accounting Office. In
interpreting such anti-lobbying provisions, the Comptroller General has found that
they apply to conduct similar to that covered by the criminal provision, that is,
publicity and propaganda campaigns directed at the public at large which urge the
public to communicate to Members of Congress to influence such Members on a
legislative issue:
In interpreting "publicity and propaganda" provisions ... we have
consistently recognized that any agency has a legitimate interest in
20 Office of Legal Counsel, Department of Justice, "Guidelines on 18 U.S.C. § 1913", p. 2, April 14, 1995.
21 National Association for Community Development v. Hodgson, 356 F. Supp. 1399, 1404 (D.D.C. 1973). (The
holding in Hodgson with regard to private "standing" to sue under § 1913 has been explicitly overruled in National
Treasury Employees Union v. Campbell, 654 F.2d 784 (D.C.Cir. 1981)).
22 Grassley v. Legal Service Corporation, 535 F. Supp. 818, 826 n.6 (S.D. Iowa 1982).
23 See Hall v. Siegel, No. 77-1028, S.D. Illinois, June 8, 1977 (memorandum opinion).
24 A general appropriations rider barring the use of any appropriations for "publicity or propaganda" directed at
legislation pending before Congress used to be included in the annual Post Office, Civil Service and General
Governmental Appropriations Acts. That practice, however, was subject to a successful point of order in 1983 as
legislation on an appropriations measure, and has not been included since that time. See discussion in 64 Comp.
Gen. 281-282 (1985).

CRS-8
communicating with the public and with legislators regarding its policies. If the
policy of an agency is affected by pending legislation, discussion by officials of
that policy will necessarily, either explicitly or by implication, refer to such
legislation, and will presumably be either in support of or in opposition to it. An
interpretation of [the anti-lobbying restriction] which strictly prohibited
expenditures of public funds for dissemination of views on pending legislation
would consequently preclude virtually any comment by officials on
administration or agency policy, a result we do not believe was intended.
We believe, therefore, that Congress did not intend ... to preclude all
expression by agency officials of views on pending legislation. Rather, the
prohibition of [the anti-lobbying restriction], in our view, applies primarily to
expenditures involving direct appeals addressed to the public suggesting that they
contact their elected representatives and indicate their support of or opposition
to pending legislation, i.e., appeals to members of the public for them in turn to
urge their representatives to vote in a particular manner.25
Since there is no over-all anti-lobbying appropriations rider now applicable to
the funds for all federal agencies and departments, when questions arise about an
expenditure of funds for communications by an agency or department of the federal
government, the particular appropriations legislation for that agency or department
in question must be examined. There are a few different varieties of "publicity and
propaganda" riders. The General Accounting Office has noted that the broader
restriction on "publicity and propaganda not authorized by Congress", which appears
in several appropriations laws, might be broad enough to cover those activities which
are usually more narrowly and expressly restricted under riders aimed at "publicity
and propaganda" campaigns concerning "legislation pending before Congress."26
In applying these restrictions to the particular facts before it, the Comptroller
General has generally looked to determine if communications have expressly urged
"the public to contact Members of Congress", by the use of such words and phrases
as "let Congress know we support it" or "contact your representatives and make sure
they are aware of your feelings concerning this important legislation".27 When
communications were made to the public concerning public policy matters, even if
such communications gave arguments for or against specific legislation, no violation
was found when the material was "essentially expository in nature" and did not urge
or suggest anyone contact their Member of Congress.28 In one example concerning
Department of Transportation expenditures at the time Congress was considering
passive restraint systems (airbags) for cars, the General Accounting Office noted:
25 56 Comp. Gen. 889, 890 (1977); Decisions of the Comptroller General, B-128938, July 12, 1976, at 5; B-
164497(5), August 10, 1977, at 3; B-173648, September 21, 1973, at 3. See also 63 Comp. Gen. 626-627 (1984),
similar language concerning federal judges.
26 Principles of Federal Appropriations Law, supra at 4-172 (1991); but see 66 Comp. Gen. 707, 710-711 (1987).
The broader restriction on "publicity or propaganda not authorized by Congress" has been applied to certain "self-
aggrandizement" campaigns and to unauthorized covert propaganda. Principles of Federal Appropriations Law,
supra at 4-164 to 4-167.
27 Decisions of the Comptroller General, B-116331, May 29, 1961; B-178648, April 30, 1973; B-128938, July
12, 1976; see discussion in Federal Appropriations Law, supra at 4-172 to 4-174.
28 Federal Appropriations Law, supra at 4-176 to 4-177, citing Comptroller General Decisions B-21639, January
22, 1985; B-212252, July 15, 1983; B-178648, December 27, 1973; B-139458, January 26, 1972.

CRS-9
"While, considering the timing and location of the displays, one would have to be
pretty stupid not to see this as an obvious lobbying ploy, that did not make it illegal
since there was no evidence that DOT urged members of the public to contact their
elected representatives. ... The apparent intent alone is not enough; it must be
translated into action."29
De Minimis Use of Funds
The conduct of an executive official calling, writing or wiring private
individuals to expressly urge them to contact Members of Congress on a legislative
issue may run afoul, regardless of any de minimis threshold amount, of appropriations
riders on executive agency funding. The Department of Justice's Office of Legal
Counsel has noted that the Comptroller General may interpret the appropriations
restrictions on grass roots lobbying campaigns in a stricter fashion than the
Department of Justice interprets the criminal counterpart. In a 1995 document, the
Office of Legal Counsel advised that "agencies may wish to observe a more general
restriction with respect to officials other than those listed in Section A [the President,
his aides in the Executive Office of the President, the Vice President, cabinet
members, and Senate-confirmed officials] against expressly urging citizens to contact
Congress in support of or opposition to legislation."30 The OLC guidelines stated:
[T]he Comptroller General, following his understanding of the Department of
Justice's historical interpretation of the Act before the 1989 Barr opinion, has
construed the restriction as being triggered by explicit requests for citizens to
contact their representatives in support of or opposition to legislation. Given the
Comptroller General's interpretation, and given the difficulty of predicting what
may be perceived as a grass roots campaign in a particular context, agencies may
wish to err on the side of caution, by refraining from including in their
communications with private citizens any requests to contact Members of
Congress in support of or opposition to legislation.31
The Comptroller General has not expressly found any specific de minimis
amount or requirement for a finding that funds were used improperly, but has noted
in the past that funds expended may be small, and may be commingled with proper
expenditures, and therefore no further action would be taken to recover the funds.32
The General Accounting Office has noted that the extent to which GAO will
investigate an alleged misuse of funds for lobbying "depends in large measure on the
amount of money involved."33
29 Federal Appropriations Law, supra at 4-177, citing Comptroller General Decision B-139052, April 29, 1980.
30 "Guidelines on 18 U.S.C. § 1913", supra at 2.
31 Id. at 3.
32 Comptroller General Opinion, B-178448, April 30, 1973.
33 Principles of Federal Appropriations Law, supra at 4-171.

CRS-10
Assistance to Outside Groups
Similar to the application of the statutory restriction, the Comptroller General
has found that the anti-lobbying appropriations riders would apply to an agency's
attempt to provide assistance to private lobbying groups, that is, that "an agency
should not be able to do indirectly that which it can not do directly." While the
Comptroller General has thus found that appropriated funds may not be used to
"develop propaganda material to be given to private lobbying organizations to be
used in their efforts to lobby Congress", the distinction was expressly made between
the use of such funds and personnel to prepare material "not otherwise in existence
to be given to a private lobbying organization", as opposed to the permissible use of
stock information, position papers or educational material to service requests from
outside groups.34
Grantees and Contractors of the Federal
Government
Persons who hold federal contracts and federal grants may generally not be
reimbursed from that federal contract or grant, and may not use contract or grant
funds directly, to lobby the United States Congress unless there is clear congressional
authorization to engage in such activities with federal funds. There are a few narrow
and specific statutory restraints on certain program funds, and on some recipient
agencies and organizations under specific federal programs, on the use of grant or
program funds for such lobbying purposes.35 The restrictions of more general
applicability to all grantees and contractors, however, come from the Federal
Acquisition Regulations, cost principles for government contractors and grantees, and
from what is known as the "Byrd Amendment" regarding lobbying on certain
specified matters by federal grant, contract, or cooperative agreement recipients.
Appropriations Restrictions
Provisions of some yearly appropriations laws provide an express limitation on
the use of federal grant or contract funds from a federal agency to pay for lobbying
activities. For example, the appropriations restriction at Section 504(b) of the
Department of Labor, Health and Human Services, and Education and Related
Agencies Appropriations Act, 1995, provided that no part of "any appropriation
contained in this Act shall be used to pay the salary or expenses of any grant or
contract recipient, or agent acting for such recipient, relating to any activity designed
to influence legislation or appropriations pending before the Congress."36
The precise wording of this particular appropriations restriction was interpreted
by the Comptroller General to have been violated, for example, "when a local
34 Federal Appropriations Law, supra at 4-167 to 4-169, citing Comptroller General Decision B-129874,
September 11, 1978; 66 Comp. Gen. 707 (1987).
35 See, e.g., 42 U.S.C. § 2996f(a)(5), re Legal Services Corporation.
36 See P.L. 103-333, 108 Stat. 2572.

CRS-11
community action agency used grant funds for a mass mailing of a letter to members
of the public urging them to write their Congressmen to oppose abolition of the
agency."37 The Comptroller General similarly found that the provision was "violated
when a university, using grant funds received from the Department of Education,
encouraged students to write to Members of Congress to urge their opposition to
proposed cuts in student financial aid programs."38
While the Comptroller General has interpreted this appropriation rider on
grantees and contractors in a similar manner as the "publicity and propaganda" riders
on federal agencies, that is, to apply to "grassroots" lobbying campaigns where the
public is urged to contact their Member of Congress, the Office of Legal Counsel of
the Department of Justice has offered an opinion that the particular rider on grantees
and contractors in the Labor, Education, and HHS Appropriations laws is broader
than the general "publicity and propaganda" riders, and applies even to funding
communications from contractors and grantees receiving funds under that particular
Act directly to Members of Congress on pending legislation or appropriations.39
Byrd Amendment
There is an additional permanent federal restriction on grantees and contractors
of the Federal Government, known as the "Byrd Amendment", which prohibits the
use of grant or contract funds to lobby Congress or agencies concerning certain
specified federal actions, that is, the awarding of federal contracts, the making of
federal grants or loans, the entering into cooperative agreements, or the extension,
modification, renewal, continuation or amendment of any such contract, grant, loan
or agreement. The so-called "Byrd Amendment" is currently codified at 31 U.S.C §
1352, and government-wide "guidance" on regulations to be promulgated
implimenting the new lobbying restrictions was issued by the Office of Management
and Budget at 54 F.R. 52306, December 20, 1989, and clarified in final form at 55
F.R. 6736, February 26, 1990.
The "Byrd Amendment" applies to a "recipient of a Federal contract, grant, or
cooperative agreement" (31 U.S.C. § 1352(a)(1)) and to the subcontractors and
subgrantees of that contract or grant (31 U.S.C. § 1352(h)(1)(A)). The statutory
restrictions prohibit the use of federal funds to "pay any person for influencing or
attempting to influence an officer or employee of any agency, a Member of Congress,
an officer or employee of Congress ... in connection with" governmental decisions
regarding the awarding of a federal contract, the making of a federal grant, loan, or
cooperative agreement. When covered under the provisions of the Byrd Amendment,
federal contractors or grantees have to disclose when they use their own funds to
lobby on such specific matters.
37 Principles of Federal Appropriations Law, supra at 4-182 to 4-183, citing B-202787(1), May 1, 1981.
38 Principles of Federal Appropriations Law, supra at 4-183, citing Improper Use of Federal Student Aid Funds
for Lobbying Activities, GAO/HRD-82-108 (August 13, 1982).
39 5 Op. O.L.C. 180 (1981).

CRS-12
As far as lobbying on legislation before Congress is concerned, the provisions
of the Byrd Amendment would apply fairly narrowly, if at all, to such activities, since
the Amendment is directed at lobbying only on specified federal actions concerning
the making of grants, loans, contracts and agreements, and the extensions or
modifications or such agreements, loans, contracts, or grants. While the provision
would appear to bar the use of federal funds to lobby a Member of Congress to
intervene with an agency concerning the making, extension, or modification of a
grant, loan, contract or agreement, the "Byrd Amendment" does not appear to apply
generally to the lobbying of the Congress concerning the consideration of federal
legislation generally. In "further information" and guidance to "clarify OMB's
interim final guidance", the Office of Management and Budget explained:
The prohibition on use of Federal appropriated funds does not apply to
influencing activities not in connection with a specific covered Federal action.
These activities include those related to legislation and regulations for a program
versus a specific covered Federal action.40
The Byrd Amendment prohibitions also do not prohibit grantees or contractors
from using their own funds to lobby the government on any matter. If the entity has
any monies or resources other than federal appropriated funds sufficient to cover
lobbying activities, it is expressly to be assumed that non-federal monies were used
in any lobbying effort.41 Furthermore, any monies made available in a contract which
are considered the "profit or fees earned" are not considered federal appropriated
funds and may be used for lobbying activities.42
Acquisition Regulations and Cost Principles
In addition to these statutory restrictions are regulations and guidelines
concerning government contractors and grantees, which implement cost and
accounting principles attempting to insure that government contractors and grantees
not be reimbursed from federal contract or grant money for the cost of lobbying and
public advocacy activities which are not authorized by law. Provisions in the Federal
Acquisitions Regulations apply to certain government contracts with businesses,43
and principles and guidelines for non-profit grantees of the federal government are
expressed in OMB Circular A-122, paragraph B21,44 and incorporated by reference
in the Federal Acquisition Regulations at 48 C.F.R. §31.701 et seq.
40 55 F.R. 24542, June 15, 1990. Although OMB proposed to modify this explanation to cover certain "program
lobbying" before Congress when the legislation or report expressly "would direct" the funding of a specific covered
action, that "proposed change" was not, as of this writing, acted on in final form. See 57 F.R. 1772, January 15,
1992. Certain "clarifications" made on January 15, 1992, were effective as of that date, see 57 F.R. 1773, but the
"proposed changes" to earlier clarifications on "program lobbying" were only proposed and were not finalized.
41 55 F.R. 24542, June 15, 1990. But note "Simpson Amendment" on (26 U.S.C.) § 501(c)(4) non-profit grantee
organizations, discussed below.
42 Id.
43 48 C.F.R. § 31.205-22, see 49 F.R. 18278, April 27, 1984.
44 As added at 49 F.R. 18276, April 27, 1984.

CRS-13
The relevant limitations on funding lobbying activities with federal grant or
certain contract funds in the Federal Acquisition Regulations provide that costs for
certain activities by contractors and grantees are not allowable and may not be
charged to a federal contract or grant. These activities include "attempts to influence
the outcome of any Federal, State, or local election, referendum, initiative, or similar
procedure"; any attempt "to influence the introduction of Federal or State legislation
or the enactment or modification of any pending Federal or state legislation" through
direct communications with any public officials, or through "grass roots" publicity
or propaganda campaigns; and any legislative liaison activities which are in support
of efforts to engage in restricted lobbying activities.45
The prohibitions and limitations within the appropriations laws, statutory
provisions and regulatory restrictions discussed above go to, follow, and regulate
only the use of federal appropriated funds by the recipients, but do not necessarily
restrict such recipients themselves from using their own or other non-federal monies,
funds and revenues to engage in public advocacy or other lobbying activities.
501(c)(4) Organizations Receiving Grants
Restrictions on "lobbying activities" by certain non-profit groups, as a condition
to receiving federal grants and loans, were enacted into law in 1995. This provision
does not expressly address limitations on the use of federal funds for lobbying, the
use of which is already restricted by the limitations discussed above, but rather
applies to the use of an organization's own resources. Section 18 of the Lobbying
Disclosure Act of 1995 (P.L. 104-65), commonly called the "Simpson Amendment",
prohibits section 501(c)(4) civic leagues and social welfare organizations from
engaging in certain "lobbying activities", with their own private funds, if the
organization receives a federal grant, loan, or award.46
The legislative history of the provision clearly indicates that a 501(c)(4)
organization may, however, separately incorporate an affiliated 501(c)(4), which
would not receive any federal funds, and which could engage in unlimited lobbying.47
The method of separately incorporating an affiliate to lobby, which was described by
the amendment's sponsor as "splitting", was apparently intended to place a degree of
separation between federal grant money and private lobbying, while permitting an
organization to have a voice through which to exercise its First Amendment rights
of speech and petition.48
45 48 C.F.R. § 31.205-22, "Legislative lobbying costs". See also 48 C.F.R. § 31.701 and OMB Circular A-122,
¶B21, as added at 49 F.R. 18276, April 27, 1984.
46 2 U.S.C. § 1611, as amended by P.L. 104-99, Section 129, removing government "contractors" from the
original prohibition.
47 H.R. Rpt. No. 104-339, 104th Congress, 1st Session, at 24 (1995). As stated by Senator Simpson: "If they
decided to split into two separate 501(c)(4)'s, they could have one organization which could both receive funds and
lobby without limits." 141 Congressional Record, S10555, July 24, 1995 (daily ed.).
48 See comments by the sponsors of provision, Senator Simpson and Senator Craig, at 141 Congressional Record,
at S10547, S10556, July 24, 1995 (daily ed.).

CRS-14
It may also be noted that while § 501(c)(4)'s which receive certain federal funds
may not engage in "lobbying activities", the term "lobbying activities" as used in the
"Simpson Amendment" is defined in Section 3 of the legislation to include only
direct "lobbying contacts", and "efforts in support of such contacts", such as
preparation, planning, research and other background work intended for use in such
direct contacts.49 Organizations which use their own private resources to engage only
in "grass roots" lobbying and public advocacy (including all communications "made
in a speech, article, publication or other material that is distributed and made
available to the public, or through radio, television, cable television, or other medium
of mass communication")50 would, therefore, not be engaging in any prohibited
"lobbying activities" under this provision. The Lobbying Disclosure Act definitions
expressly exclude and do not independently apply to activities which consist only of
"grass roots" lobbying and public advocacy. Similarly, since the term "lobbying
activities" relates only to the direct lobbying of covered federal officials, the
"Simpson Amendment" would not appear to limit in any way an organization's use
of its own private resources to lobby state or local legislators or other state of local
governmental bodies or units. While direct lobbying of the Congress, or of certain
high level executive branch officials, is covered under the Lobbying Disclosure Act
as a "lobbying contact", and thus by definition a "lobbying activity", the acts of
testifying before a congressional committee, subcommittee, or task force, or of
submitting written testimony for inclusion in the public record of any such body, or
of responding to notices in the Federal Register or other such publication soliciting
communications from the public to an agency, are expressly exempt from the
definition of a "lobbying contact", and thus in themselves cannot qualify as a
"lobbying activity."51
Tax Implications of Lobbying by Nonprofit Organizations
Although private groups may generally use their own resources and monies to
engage in public advocacy activities protected by the First Amendment, non-profit
charitable organizations which engage in "substantial" lobbying activities may
encounter tax ramifications concerning their tax exempt status. Entities receiving a
tax exempt status under § 501(c)(3) of the Internal Revenue Code (which allows
them to receive contributions which are tax deductible to the donor under § 170) may
not expend a "substantial" part of their resources on lobbying activities. 26 U.S.C.
§ 501(c)(3). Groups may generally elect to come within specific guidelines on the
amount to be expended on lobbying, or to stay in the general "substantial part" test.
See 26 U.S.C. §§ 501(h), 4911. The express limitations state that an organization
may expend 20% of the first $500,000 of its exempt purpose expenditures, 15% of
the next $500,000, 10% of the next $500,000, and 5% of any amount over $1.5
49 2 U.S.C. § 1602(7), P.L. 104-65, Section 3(7).
50 Note this express exception to the term "lobbying contact", at 2 U.S.C. § 1602(8)(B)(iii), P.L. 104-65, Section
3(8)(B)(iii).
51 See 2 U.S.C. 1602(8)(B), P.L. 104-65, Section 3(8)(B) for list of 18 express exceptions to the term "lobbying
contacts". Broader limitations on public "advocacy" and lobbying by certain non-profit organizations receiving
federal grant money, and on entities wishing to do business with federal grantees, which had passed the House as
appropriations riders (commonly known as the "Istook Amendment", e.g., H.R. 2127, 104th Congress, H.J. Res.
114, 104th Congress), were not enacted into law in the 104th Congress.

CRS-15
million, up to $1 million a year on overall lobbying, with an additional limit for grass
roots lobbying of 25% of the lobbying limit.52 Other groups which have their tax-
exempt status under different provisions of the tax code, such as trade associations,
labor organizations, or civic leagues and social welfare organizations, are not
specifically restricted by the tax code in the amount of lobbying activities in which
they may engage (but contributions to such organization are not tax deductible for the
donor).53
52 26 U.S.C. § 501(h), 4911(c); note generally, "Guiding Lobbying Charities Into a Safe Harbor: Final Section
501(h) and 4911 Regulations Set Limits For Tax-Exempt Organizations", 61 Mississippi Law Journal 157 (Spring
1991).
53 See discussion in Regan v. Taxation With Representation of Washington, 461 U.S. 540, 545 (1983), also 461
U.S. at 552-553 (Blackman, J. concurring) (1983).