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Authority to Solicit Gifts

The express statutory authority to accept gifts, contained in section 403(b)(1) of the Office of 

Government Ethics Authorization Act of 1996, includes the implied authority to solicit gifts.

January 19, 2001

MEMORANDUM OPINION FOR THE DIRECTOR 

OFFICE OF GOVERNMENT ETHICS

This memorandum responds to your request for our opinion whether section 403(b)(1) of the Office of Government Ethics Authorization Act of 1996 

authorizes the Office of Government Ethics (“OGE”) to solicit gifts. We conclude 

that the express statutory authority contained in section 403(b)(1) to accept gifts 

includes the implied authority to solicit gifts.

Section 403(b)(1) provides that “[t]he Director is authorized to accept and 

utilize on behalf of the United States, any gift, donation, bequest, or devise of 

money, use of facilities, personal property, or services for the purpose of aiding or 

facilitating the work of the Office of Government Ethics.” Pub. L. No. 104-179, 

110 Stat. 1566 (1996) (codified as amended at 5 U.S.C. app. § 403(b) (Supp. IV 

1998)). You have asked “whether this express authority to ‘accept and utilize’ a

gift implies the authority to solicit a gift.” Letter for Randolph D. Moss, Acting 

Assistant Attorney General, Office of Legal Counsel, from Stephen D. Potts, 

Director, Office of Government Ethics at 1 (July 30, 1999). 

I.

We have previously considered this basic question in connection with our 

issuance of two written opinions. The opinions did not resolve the question, 

however. Although we concluded in each opinion that the relevant agency had the 

authority to solicit gifts, we based our conclusions on the language and structure of 

the particular statutes in question, which contained specific additional language—

beyond the general gift acceptance language of a provision like section 

403(b)(1)—supporting the existence of solicitation authority. See Memorandum 

for Bernard N. Nussbaum, Counsel to the President, from Walter Dellinger, 

Assistant Attorney General, Office of Legal Counsel, Re: Authority to Solicit Gifts

(Dec. 9, 1993) (“Nussbaum Opinion”) (solicitations by National Endowment for 

the Arts and National Endowment for the Humanities); Establishment of the 

President’s Council for International Youth Exchange, 6 Op. O.L.C. 541 (1982) 

(solicitation by United States Information Agency). 1

1 You cited the Nussbaum Opinion in your letter. In that opinion, we concluded that the gift 

acceptance provision in the National Foundation on the Arts and the Humanities Act of 1964, which 

The General Accounting

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Office has viewed this implied solicitation authority question as unsettled. See

General Accounting Office, 2 Principles of Federal Appropriations Law 6-147 (2d

ed. 1992) (“[a] question which appears to have received little attention is whether 

an agency with statutory authority to accept gifts may use either appropriated 

funds or donated funds to solicit the gifts”).

Although no written opinion of this Office has resolved the question whether 

express statutory authority to accept gifts includes the implied authority to solicit 

gifts, we did provide oral advice on this question in 1997 in connection with gift 

acceptance language in 28 U.S.C.A. § 524(d)(1) (West Supp. 1997) that was very 

similar to section 403(b)(1). Section 524(d)(1) provided that “[t]he Attorney 

General may accept, hold, administer, and use gifts, devises, and bequests of any

property for the purpose of aiding or facilitating the work of the Department of 

Justice.” We determined in 1997 that, as of 1996, when Congress enacted the 

Justice Department provision, a number of other federal agencies had been 

operating for many years under substantially the same general statutory language 

and had interpreted the language to contain an implicit grant of authority to solicit 

gifts. We confirmed this longstanding administrative construction by discussing 

the subject with attorneys in the general counsel offices of the Departments of 

State, Treasury, and Commerce—agencies that had all engaged in the solicitation 

of gifts on the basis of general gift acceptance provisions that say no more than 

that the agency “may accept gifts,” and that in the case of Treasury and Commerce 

were virtually identical to the Justice provision.2 We also learned that these 

provisions were all enacted well before the Justice Department provision. 3

The State Department’s interpretation that its gift acceptance authority includes 

the authority to solicit gifts is reflected in Department regulations, see 2 FAM 960 

(“Official Gifts to the Department of State”); 2 FAM 965 (“Solicitation”), and 

did not explicitly authorize solicitation, nonetheless authorized the National Endowment for the Arts 

and the National Endowment for the Humanities to solicit gifts. In reaching that conclusion, we relied 

on two rationales: (1) the solicitation authority might be inferred from the need for coordination of 

public and private support for the Endowments that was made clear by the text and structure of the 

statute; and (2) the longstanding administrative construction of the statute by the Endowments had been 

that it included solicitation authority. In the circumstances, we did not need to consider whether a 

broader rationale was available.

2 See 22 U.S.C. § 2697(a) (1994) (“The Secretary of State may accept on behalf of the United States 

gifts made . . . for the benefit of the Department of State . . . or for the carrying out of any of its 

functions.”); 31 U.S.C.A. § 321(d)(1) (West Supp. 1997) (“The Secretary of the Treasury may accept, 

hold, administer, and use gifts and bequests of property, both real and personal, for the purpose of 

aiding or facilitating the work of the Department of the Treasury.”); 15 U.S.C. § 1522 (1994) (“The 

Secretary of Commerce is hereby authorized to accept, hold, administer, and utilize gifts and bequests 

of property, both real and personal, for the purpose of aiding or facilitating the work of the Department 

of Commerce.”).

3 See Foreign Service Act of 1980, Pub. L. No. 96-465, § 2201, 94 Stat. 2071, 2153 (most recent 

enactment); Deficit Reduction Act of 1984, Pub. L. No. 98-369, div. A, § 445, 98 Stat. 494, 816; 

Commerce Dept. Gift Acceptance Act, Pub. L. No. 88-611, § 1, 78 Stat. 991, 991 (1964).

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State informed us that it has long engaged in solicitation, including an active 

fundraising campaign in the 1980s by its Fine Arts Committee to raise funds to 

renovate State’s diplomatic reception rooms. We learned from the Treasury 

Department that under gift acceptance authority conferred by statute in 1984, its

Committee for the Preservation of the Treasury Building engaged in a fundraising 

campaign in 1986-1987. Treasury provided us with Treasury memoranda from 

1986 that outline its solicitation plans and record its consultations with State about 

its solicitation practices over the years. Finally, we learned from the Commerce 

Department that it had an unwritten policy of soliciting gifts. Commerce once 

solicited funds for a particular program through a Federal Register notice, and 

Congress responded by enacting an appropriations rider prohibiting solicitation for 

that program where there would be a conflict of interest. That rider did not

challenge the basic proposition that Commerce had the general authority to solicit 

gifts.

In summary, we determined in the course of our 1997 review of this issue that 

the Departments of State, Treasury, and Commerce had long understood their 

general statutory authority for gift acceptance to include the authority to solicit 

gifts. We concluded as a legal matter that Congress’s enactment of the Justice 

Department’s gift acceptance provision in 1996 should be interpreted against the 

background of this longstanding and publicly available administrative construction 

of substantially the same statutory language. We therefore concluded that the 

Justice Department’s express authority to accept gifts also included the implicit 

authority to solicit gifts. 4

II.

We reach the same conclusion with respect to the OGE statutory provision.

Like the Justice Department provision, it was enacted in 1996 and should be 

interpreted against the background of the longstanding administrative construction 

of similar gift acceptance statutory language. Cf. Lorillard v. Pons, 434 U.S. 575, 

580-81 (1978) (“Congress is presumed to be aware of an administrative or judicial 

interpretation of a statute and to adopt that interpretation when it re-enacts a statute 

without change . . . . So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had 

knowledge of the interpretation given to the incorporated law, at least insofar as it 

affects the new statute.”) (citations omitted). The statutory provision authorizing 

the OGE Director to “accept and utilize” gifts is substantially the same as the 

Justice Department provision authorizing the Attorney General to “accept . . . and 

use” gifts, as well as the provisions concerning the Departments of State, Treasury,

4 This interpretation is reflected in a Department of Justice order. See DOJ Order 2400.2, Solicitation and Acceptance of Gifts to the Department (Sept. 2, 1997).

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and Commerce that are discussed above. The legislative history of the OGE 

provision does not discuss the question of soliciting gifts, and we have found 

nothing in that legislative history that suggests a basis for not following the 

longstanding Executive Branch administrative construction of gift acceptance 

legislation.

When Congress passed OGE’s gift provision in 1996, the Executive Branch’s 

consideration of similar provisions had been, as explained above, the basis for 

quite public solicitation efforts by federal agencies. Congress’s enactment of 

OGE’s provision should be interpreted in light of those public efforts.

Accordingly, for the foregoing reasons, we conclude that OGE’s statutory 

authority to accept and utilize gifts includes the implied authority to solicit gifts.

RANDOLPH D. MOSS

Assistant Attorney General

Office of Legal Counsel

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