June 27, 1979

79-45 MEMORANDUM OPINION FOR COUNSEL TO

THE PRESIDENT

Advisory Committees—Application of the Russell

Amendment (31 U.S.C. § 696)

This responds to your request for an informal opinion on a legal question that had arisen in connection with a proposed Executive order 

reconstituting the National Advisory Committee for Women. That order 

redesignated the committee and removed its nonadvisory functions. Your 

question is whether this Office concurred in the general view taken by the 

Office of Management and Budget (OMB) that the so-called “ Russell 

amendment” (31 U.S.C. § 6%) does not limit the use of Government 

funds to pay the expenses of an advisory committee if (1) the funds are 

otherwise available for use in the procurement of advice of the kind that 

the committee provides and (2) the committee has no nonadvisory functions. We advised you informally that we concurred in OMB’s view. This 

memorandum is a brief statement of the reasons for our opinion.

The Russell amendment provides that no funds may be used to pay the 

expenses of any “ agency or instrumentality” if (1) the agency or instrumentality has been in existence for more than 1 year and (2) Congress 

has not appropriated “ any money specifically for such agency or instrumentality or specifically authorized the expenditure of funds by it.” 31 

U.S.C. § 696.

Enacted in 1944 as a rider to an appropriation bill, the Russell amendment had an interesting preenactment history. It represented an attempt to 

use the power of the purse to curtail the activities of certain nonstatutory 

executive “ agencies” that had been created by Executive order. In point of 

fact, it was directed at a particular agency—the Committee on Fair 

Employment Practices. That committee had no clear statutory basis; but it 

exercised a number of substantive powers, and it had taken vigorous action to diminish racially discriminatory practices in employment. These 

actions were obnoxious to Senator Russell and others who opposed the 

early civil rights movement. Moreover, with regard to that committee and 

others, there was doubt in some quarters that substantive actions taken

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by nonstatutory agencies were lawful in the absence of actual statutory 

authority.

As to the present question, there is no clear indication either in the 

language of the statute or in its legislative history that the Congress intended to do anything other than prevent the expenditure of funds for 

agencies such as the Committee on Fair Employment Practices—agencies 

that Senator Russell would later call “ action agencies.” 1 In particular, 

there is no clear indication that the Russell amendment was intended to 

prevent constitutional or statutory officers from using funds to procure 

advice on matters within their jurisdictions, if the funds were otherwise 

available for that purpose. Prior to enactment of the Federal Advisory 

Committee Act, 5 U.S.C. App. § 1 et seq., the Comptroller General and 

representatives of the Bureau of the Budget suggested that the statute 

could be interpreted broadly in this context, but we know of no judicial 

decision that settles the point.

In 1972 Congress enacted comprehensive legislation that addressed 

many of the administrative and legal questions that arise in connection 

with the longstanding practice of procuring advice from ad hoc “ advisory 

committees.” The Federal Advisory Committee Act did a number of important things. First, it expressly sanctioned the creation of advisory committees by Executive order. 5 U.S.C. App. § 2 e( seq. Second, in contemplation that advisory committees would indeed expend agency funds 

from time to time, it created a system of agency reporting and recordkeeping that was designed to subject advisory committees to tighter administrative and legislative control in fiscal matters, 5 U.S.C. App. 

§ 12(a); and it affirmatively required agencies to provide support services 

for advisory committees in certain circumstances. 5 U.S.C. App. § 12(b). 

Third, it provided generally that in the absence of some specific authorization, advisory committees should be purely advisory in nature. 5 U.S.C. 

App. §§ 2(b)(6), 9(b). Fourth, it provided that advisory committees should 

generally have a life of 2 years. 5 U.SC. App. § 14(a). Finally, it gave the 

Office of Management and Budget general responsibility for “ all matters 

relating to advisory committees.” 5 U.S.C. App. § 7. In that connection, 

it required the Director of OMB to review advisory committees annually, 

to make appropriate administrative and legislative recommendations concerning them, and to include in his annual budget recommendations a 

summary of the amounts he “ deems necessary” for the expenses of advisory committees. 5 U.S.C. App. § 7(e).

Because of OMB’s unique statutory responsibilities for “ all matters 

relating to advisory committees,” OMB’s opinion on questions arising in 

the administration of the relevant statutes is entitled to substantial weight. 

We should defer to it unless there are compelling indications that it is 

wrong. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969); see,

' See 90 C o n g r e s s io n a l R e c o r d 6022-21 (1944).

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Zemel v. Rusk, 381 U.S. 1, 11-12 (1965); Udall v. Tollman, 380 U.S. 1, 

16-18 (1965). We have reviewed all of the relevant materials and find no 

compelling reason to question OMB’s conclusion that the Russell amendment does not limit the availability of Government funds for payment of 

the expenses of purely advisory committees.

There are two views of this question that are consistent with the view 

taken by OMB. The first gives controlling weight to the.original legislative 

intention. The Russell amendment was intended to prevent nonstatutory 

agencies or instrumentalities from exercising actual governmental power 

without statutory authority. It was never intended to prevent statutory or 

constitutional officers from using Government money to obtain advice 

concerning their own duties, provided they are otherwise authorized to do 

so. Mere advisers are not “ agencies” or “ instrumentalities” of Government for purposes of the Russell amendment. They do not become “ agencies” or “ instrumentalities” merely because they meet and advise collectively. They become “ agencies” or “ instrumentalities” for Russell 

amendment purposes only if the officer to whom they report seeks to invest them with actual authority to take substantive action on his or the 

Government’s behalf.

This interpretation of the Russell amendment is entirely consistent with 

the views that Senator Russell expressed when he first proposed the 

measure. We take the liberty of quoting his remarks at length:

Mr. President, the purpose of the committee amendment, which 

is apparent from a reading thereof, is to retain in the Congress 

the power of legislating and creating bureaus and departments of 

the Government, and of giving to Congress the right to know 

what the bureaus and departments of the Government which 

have been created by Executive order are doing.

* * * I realize, Mr. President, that in time of war, emergencies 

may arise which might dictate that the executive branch of the 

Government should immediately create some agency to deal with 

an immediate difficulty, but certainly there is no excuse for the 

continuance of an agency which has been in existence for longer 

than 12 months for which the Congress has not appropriated, or 

for which the Congress has not had any opportunity to appropriate.

Secondly, Mr. President, no agency which has power to issue

orders affecting the lives and business o f the American people

should stay in existence for more than 12 months unless the Congress has passed upon an appropriation for such agency. I have 

made an effort to ascertain the number of agencies which would 

be affected by this provision. According to a report which was 

filed by the Bureau of the Budget in response to a request which I 

made of the director of that agency, about 13 agencies would be 

affected.

*******

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I do not believe, Mr. President, that any lengthy discussion of 

this amendment is necessary. Its purpose is clear. Certainly those 

who have been complaining about bureaucrats and bureaucracy 

in this country, and who have heretofore complained because the 

Congress had not created or passed upon such agencies, should 

support this amendment and thereby give Congress the right at 

least to keep advised as to what all the different agencies of the 

Government are doing.

*******

Of course, everyone has his pet agencies, everyone has departments which he wants preserved, and if we start action like that 

proposed, if we are to say that the President of the United States 

can legislate by Executive order when we favor the objective 

which he is seeking, we should say that we favor the President of 

the United States taking to himself the power that is vested by the 

Constitution in the Congress of the United States, and legislating 

and creating departments of government which issue orders that 

bring the people of the United States before them, and pass 

orders which direct people how they shall proceed in their daily 

business. [90 Co n g r e ssio n a l Re c o r d 3059-3061 (1944) (emphasis added.)]

Turning from the legislative history to the statutory text itself, we note 

that the language Senator Russell chose to adopt in framing his proposal is 

peculiarly apt if we accept the view that he had “ action agencies” in mind. 

The language is less appropriate if we assume that there was a larger purpose behind it. In common legal parlance an “ agency” or “ instrumentality” is an entity or means through which a principal acts or exerts power. 

An individual or group that advises the Government but does not act on 

the Government’s behalf or exert governmental power is not an “ agency” 

or “ instrumentality” of Government in that limited sense. To be sure, 

these words can be read more expansively. The text could be construed to 

refer to any entity established by the Government for a governmental 

purpose—any “ establishment” or division within the Government, 

whether or not it acts on behalf of the Government or exerts any governmental power. But when a statutory text is open to more than one construction, we should consult other materials to determine what was intended; and, as we have said, when one consults the legislative history of 

the Russell amendment, one finds a very substantial basis for the conclusion that Senator Russell was concerned, not with advisory dr other ancillary processes, but with the unauthorized exercise of actual governmental power by agencies not created or authorized by Congress. That history 

supports a technical and limited construction of the critical language.

This brings us to the second argument that supports the position taken 

by OMB. Whether or not one assumes that the Russell amendment was 

originally intended to apply to nonstatutory advisers or advisory groups, 

the Federal Advisory Committee Act has intervened. It has specifically

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authorized the creation of purely advisory committees; it has provided 

that they may have a 2-year life; and it has contemplated, and made provision for, the practice of using agency funds to support advisory committees. Accordingly, if indeed agency funds may otherwise be lawfully expended for such a purpose, there is no longer any reason, under the 

Russell amendment, to bar an expenditure of funds in support of an advisory committee merely because the committee has been in existence for 

more than 1 year. To that extent, either the Federal Advisory Committee 

Act has superseded the Russell amendment in its application to purely advisory committees, or the Act has brought advisory committees within that 

class of entities to which Senator Russell had no objection: entities that exist by virtue of statutory authority.

It would be possible to construe these statutes in another way. Implied 

repeals are disfavored. Standing alone and strictly construed, the Russell 

amendment applies to any agency or instrumentality, whether or not the 

existence of the agency or instrumentality is authorized by statute; and so 

construed, the Russell amendment could be interpreted as imposing an 

across-the-board requirement for additional, “ specific” authorization for 

any expenditure of money by or for any agency or instrumentality 

whenever the agency or instrumentality has been in existence for 1 year. 

We doubt, however, that such a broad construction would be true to the 

underlying legislative purpose. Given that purpose, if (1) an agency or instrumentality performs functions that are indeed authorized by statute and

(2) a law or appropriation makes funds available for the support of such 

functions, the Russell amendment should not be interpreted as imposing 

additional, “ specific” authorization requirements merely because the 

agency or instrumentality has been in existence for 1 year. If the function 

is authorized, the only real question is the one that is always present, no 

matter how old or young the agency may be: are the funds in question actually available for support of that function?

This appears to be the approach that the Comptroller General has taken 

in matters involving issues of this kind,2 and it is a reasonable one. If

2 For example, in his opinion on agency funding o f the National Commission on the 

Observance of International W omen’s Year (B-182398, January 13, 1977), the Comptroller 

General attributed no significance whatever to the fact that some of the funds were used to 

support activities conducted during the first year o f the Commission’s existence, while others 

were used for activities in the second year. The legal question was the same in either case: 

whether the agency in question was authorized to expend funds to support functions o f the 

kind that the commission performed. Thus, in the case o f the Department of State, the 

Comptroller General found sufficient authority for an expenditure in support o f the commission in the Department of State’s general statutory duty to “ provide for the participation by 

the United States in international activities * • * for which provision has not been made by 

the terms o f any treaty, convention, or Special Act o f Congress * * • [and] * * * pay the 

expenses of participation in [such] activities * • 22 U.S.C. § 2672. Nothing more 

“ specific” was required. In the case of other agencies, the Comptroller General found insufficient authority under the statutes the agencies administered.

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function is authorized by statute, and there is authorization for the 

expenditure of funds to support such a function, the Russell amendment 

does not require a more “ specific” authorization merely because the 

agency or instrumentality may be more than 1 year old.

M a r y C . L a w t o n

Deputy Assistant Attorney General

Office o f Legal Counsel

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