Effect of 18 U.S.C. § 600 on

Proposal for Hiring Census Enumerators

Proposal to give p reference for hiring as census en u m erato rs to persons recom m ended by 

D em o cratic P arty leaders does not violate 18 U .S.C. §600, w hich punishes those w ho 

prom ise federal em ploym ent o r benefits as an enticem ent to o r rew ard for future 

political activity, but does not prohibit rew ard s for past political activity.

E ven if § 600 w ere read to prohibit a prom ise o f em ploym ent o r benefits as a rew ard for 

past political activity, und er th e proposed pro g ram neither D em ocratic P arty leaders 

no r any potential census en u m erato rs are being m ade such a prom ise.

February 28, 1980

MEMORANDUM OPINION FOR TH E ASSISTANT ATTORNEY 

GENERAL, CRIM INAL DIVISION

The White House Counsel’s Office has forwarded for our approval 

two memoranda to be distributed respectively to Census Bureau officials responsible for hiring enumerators and to Democratic Party officials whose recommendations will be sought. These memoranda provide that Democratic Party leaders will be one of several sources that 

the Census Bureau will use in compiling lists of names from which to 

hire enumerators. The candidates nominated by party leaders will receive a preference; in this way the memoranda continue the program of 

selecting census enumerators in its traditional, historically established 

form. We believe that distributing these memoranda will not violate 18 

U.S.C. § 600, and that no one will violate 18 U.S.C. § 600 by following 

the instructions given in these memoranda.

I. Analysis

18 U.S.C. § 600 provides:

Whoever, directly or indirectly, promises any employment, position, compensation, contract, appointment, or 

other benefit, provided for or made possible in whole or 

in part by any Act of Congress, or any special consideration in obtaining any such benefit, to any person as 

consideration, favor, or reward for any political activity 

or for the support of or opposition to any candidate or 

any political party in connection with any general or 

special election to any political office, or in connection

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with any primary election or political convention or 

caucus held to select candidates for any political office, 

shall be fined not more than $10,000 or imprisoned not 

more than one year, or both.

It is our view that § 600, a criminal statute, does not flatly prohibit 

government decisionmakers from considering the political consequences 

of their actions in deciding how to administer federal programs. In our 

opinion, the only way § 600 might be violated in the program at hand is 

if people were promised employment or special consideration for employment as census enumerators as an enticement or reward for future 

political activity or support of a party or candidate; § 600 cannot be 

read to prohibit rewards for past political activity.1 We believe this 

interpretation of the statute is correct for several reasons.

Section 600 punishes only a person who promises a benefit in return 

for political support or activity; it conspicuously does not make it 

illegal simply to grant a benefit. While it is possible to read § 600 to 

apply to a promise given as a reward for political activity done in the 

past, such a reading is illogical. There is no reason for Congress to have 

distinguished between promising a benefit in return for past political 

support or activity and actually conferring that benefit; indeed, the two 

acts may often be indistinguishable in practice. Since granting benefits 

in return for past support was a widespread, well-established practice, 

and since the language of § 600 clearly stops short of prohibiting that 

act, we think Congress could not have intended to prohibit the indistinguishable—both as a matter of policy and, often, as a matter of fact— 

act of giving a promise in return for past political activity. Instead, we 

believe it only logical to conclude that Congress was concerned with 

eliminating the use of federal funds as an enticement for future political 

support.

If § 600 is interpreted in this way, the program outlined in the 

proposed memoranda is clearly consistent with it. The people whom 

Democratic leaders nominate or refer are, of course, being given “special consideration in obtaining [a] benefit” provided for by an Act of 

Congress. But those people are not being promised such special consideration to induce political activity or support. By telling Democratic 

leaders not to link referrals to political activity, the Bureau is attempting to ensure as best it can that these leaders will not use their power to 

obtain special consideration as a way to reward party workers for their 

activity. Telling Census Bureau workers to give party leaders this 

instruction also makes it clear that the Bureau’s policy is not itself an

1 T he legislative history o f the companion statute, IS U.S.C. §601, prohibiting the deprivation of 

employment for political contribution, supports this limited interpretation o f the statutes. F or example, 

the Senate report on §601 states that it is designed to "prohibit actual, attem pted, or threatened 

deprivation of public employm ent or benefit as a means of extorting a political contribution o f a thing 

o f value . . ." S. Rep. No. 1245, 94th Cong., 2d Sess. 4 (1976) (emphasis added).

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indirect way of promising employment or special consideration in 

return for political activity. Of course, if a party official does promise 

employment as a census enumerator, or special consideration in 

obtaining such employment, in return for future political activity or 

support by the promisee, that official will be subject to possible criminal liability. Such an official would not, however, be acting in accordance with the Administration’s program.

Even if § 600 were read to prohibit promises made in return for past 

political activity, we believe that the program outlined in the proposed 

memoranda still would not violate that provision. The policy expressed 

in the memoranda, undoubtedly, does give Democratic Party leaders 

some privilege; but it does not give those leaders “any employment, 

position, compensation, contract, appointment, or other benefit, provided for or made possible in whole or in part by any Act of Congress, 

or any special consideration in obtaining any such benefit”—the benefits 

to which § 600 applies. Democratic Party leaders are being given only 

the opportunity to nominate preferred candidates for positions as enumerators. This opportunity is not among those benefits that, under 

§ 600, cannot be distributed in return for support of a political party. 

That is, the party leaders are not themselves receiving a covered 

benefit. There is a clear distinction between receiving employment or 

special consideration for employment oneself, and receiving the power 

to award special consideration for employment to others. Because both 

sorts of privileges were historically involved in political patronage, we 

believe that Congress would have specified both if it had intended such 

a sweeping restriction. Instead, the statute lists benefits of a specific 

nature; because § 600 is a criminal statute, we believe that list must be 

literally construed and is exclusive.

Finally, we believe that, even if § 600 were read to prohibit a promise of employment or special consideration as a reward for past political 

support, the potential enumerators are not being made such a promise 

in violation of § 600. The proposed memoranda would instruct party 

leaders not to make their recommendations as a reward for political 

activity or support, but rather to recommend qualified individuals.

L a r r y A. H a m m o n d 

Deputy Assistant Attorney General

Office o f Legal Counsel

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