b'Permissibility of the Administration and Use of the\nFederal Payroll Allocation System by Executive Branch\nEmployees for Contributions to Political Action Committees\nFederal employees who would offer the use of, or administer, the federal salary-allocation system\nfor allotments to political action committees, would not, without more, violate 18 U.S.C. \xc2\xa7\xc2\xa7602\nand 607, or the civil provisions o f the Hatch Act Reform Amendments of 1993.\nThe Hatch Act Reform Amendments of 1993 would prohibit certain high-level and Executive Office\nemployees identified in 5 U.S.C. \xc2\xa7 7324(b), the duties and responsibilities of whose positions con\xc2\xad\ntinue outside normal duty hours and while away from the normal duty post, from using the salaryallocation system to make contributions to political action committees.\nThe Hatch Act Reform Amendments of 1993 would not prohibit the remainder o f federal employees\ncovered by those Amendments from making contributions to political action committees through\nthe salary-allocation system; however, 5 U.S.C. \xc2\xa7 7324(a) would expressly prohibit such employees\nfrom taking steps to use the salary-allocation system to make such contributions while they are\non duty or in a federal building.\nWhile use o f the salary-allocation system for contributions to political action committees would be\nlawful under certain circumstances, the head o f each federal agency has the discretion to decide\nwhether to make the system available for that purpose to employees of the agency.\n\nFebruary 22, 1995\nM e m o r a n d u m O p in io n f o r t h e D ir e c t o r\nO f f ic e o f P e r s o n n e l M a n a g e m e n t\n\nEarly last year, the Office of Personnel Management (\xe2\x80\x9c OPM\xe2\x80\x9d ) advised execu\xc2\xad\ntive branch officials that executive branch employees now are permitted to make\nvoluntary salary allotments to political action committees (\xe2\x80\x9c PACs\xe2\x80\x9d ), using the\nmechanisms otherwise available to federal employees for salary allotments to other\norganizations and institutions.1 Under the salary-allotment system, a federal\nemployee can authorize federal payroll administrators to transmit portions of his\nor her salary, on a regular basis, to certain persons or institutions designated by\nthe assigning employee. See 5 C.F.R. pt. 550, subpart C.\nThe Criminal Division of the Department of Justice has questioned whether\nfederal employees offering or administering the salary-allotment procedure for\nPAC contributions, or the employees who would make such contributions using\nthat procedure, would thereby violate the Hatch Act Reform Amendments of 1993,\nPub. L. No. 103-94, 107 Stat. 1001 (\xe2\x80\x9c HARA\xe2\x80\x9d ), or two related criminal statutes,\n1\nSee Memorandum for Heads o f Executive Departments and Agencies, from James B. King, Director, Office\no f Personnel Management (Feb. 17, 1994); Memorandum for [all Executive Branch] Chiefs o f Staff from M ichael\nCushing, C hief o f Staff, Office o f Personnel Management (Apr. 4, 1994).\n\n47\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\n18 U.S.C. \xc2\xa7\xc2\xa7602 and 607.2 In response, OPM contends that such employees\nwould not violate the HARA or those criminal statutes.3\nWe have reached the following conclusions with respect to the use of the salaryallocation system for contributions to PACs: 4\n1. None of the federal employees who would engage in the practices in ques\xc2\xad\ntion\xe2\x80\x94 offering the use of or administering the salary-allocation system, or making\ncontributions to PACs through that system\xe2\x80\x94 would, without more, violate the\nrelevant criminal provisions, 18 U.S.C. \xc2\xa7\xc2\xa7602 and 607.\n2. Federal employees offering use of or administering the salary-allocation\nsystem for PAC contributions would not, without more, violate the civil provisions\nof the HARA. If, in practice, such employees were to request, urge or coerce\nother employees to make PAC contributions, they could thereby violate the HARA\nand the criminal statutes. But this potential for abuse does not render the proposed\npractice unlawful per se.\n3. Certain high-level and Executive Office employees identified in 5 U.S.C.\n\xc2\xa7 7324(b), the duties and responsibilities of whose positions continue outside\nnormal duty hours and while away from the normal duty post, may not use the\nsalary-allocation system to contribute money to PACs, because to do so would\nviolate the HARA requirement that those employees not engage in political\nactivity using \xe2\x80\x9c money derived from the Treasury of the United States.\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 7324(b)(1).\n4. The remainder of federal employees covered by the HARA may not, while\nthey are on duty or in a federal building, take steps to use the salary-allocation\nsystem to make contributions to PACs, because 5 U.S.C. \xc2\xa7 7324(a) expressly pro\xc2\xad\nhibits those federal employees from engaging in political activity while on duty\nor while in a federal building. Thus, for example, a covered employee may not,\nwhile on duty or in a federal building, fill out direct-deposit forms for salary\nallocations to PACs and deliver such forms to the employees who would process\nor administer those allocations. A more difficult question is whether these contrib\xc2\xad\nuting employees would violate the HARA if they were off duty and off federal\npremises when they take the steps necessary to trigger the use of the salary-alloca2 See M em oranda for W alter Dellinger, A ssistant Attorney General, Office of Legal Counsel, from Jo Ann Harris,\nA ssistant A ttorney General, Criminal Division (Sept. 9, 1994; Oct. 24, 1994).\n3 See Letters for D awn E. Johnsen, D eputy Assistant Attorney General, O ffice of Legal Counsel, from Lorraine\nLewis, General Counsel, O ffice o f Personnel Management (Oct. 27, 1994; Nov. 4, 1994; Nov. 10, 1994; Dec. 13,\n1994).\n4 PACs, or \xe2\x80\x9c political action committees,\xe2\x80\x9d are not defined as such under federal law However, 26 U.S.C. \xc2\xa79002(9)\ndefines \xe2\x80\x9c political com m ittee\xe2\x80\x9d as:\nany com m ittee, association, or organization (whether o r not incorporated) which accepts contributions or\nm akes expenditures for the purpose o f influencing, or attempting to influence, the nomination or election\no f one o r m ore individuals to Federal, State, or local elective public office.\nSee also 2 U.S.C. \xc2\xa7431(4) (similar definition with respect to committees making contributions and expenditures\nfor federal elections). For purposes of this Opinion, \xe2\x80\x9c PA C \xe2\x80\x9d refers only to an organization that comes within this\ndefinition. In theory, there could exist other sorts o f PACs that do not make contributions or expenditures for the\npurpose o f influencing elections for panisan political office. In this Opinion, references to \xe2\x80\x9c PACs\xe2\x80\x9d do not include\nsuch com m ittees, and insofar as federal employees might wish to use the salary-allocation system to make contribu\xc2\xad\ntions to such com m ittees, such a practice w ould be beyond the scope o f the questions we address in this Opinion.\n\n48\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees for Contributions to Political Action Committees\n\ntion system\xe2\x80\x94 e.g., if an employee completes the direct-deposit form at home,\nand sends it from home to the appropriate administrative employees. Although\nthe question is a close one, we conclude that such actions would not violate the\nHARA, because they are not proscribed by the literal terms of the prohibitions\nfound in 5 U.S.C. \xc2\xa7 7324(a).\nWhile we have concluded that use of the salary-allocation system for PAC con\xc2\xad\ntributions would be lawful under certain circumstances, nevertheless the head of\neach federal agency has the discretion to decide whether to make the system avail\xc2\xad\nable for that purpose to employees of the agency.5\nI. STATUTORY BACKGROUND\nA. The Hatch A ct Before the 1993 Amendments\nIn 1939, Congress passed the original Hatch Act, which declared unlawful cer\xc2\xad\ntain political activity of federal employees. See Act of Aug. 2, 1939, ch. 410,\n53 Stat. 1147. In section 9(a) of the Hatch Act, 53 Stat. at 1148, Congress pro\xc2\xad\nvided in pertinent part:\nNo officer or employee in the executive branch of the Federal\nGovernment, or any agency or department thereof, shall take any\nactive part in political management or in political campaigns. All\nsuch persons shall retain the right to vote as they may choose and\nto express their opinions on all political subjects.6\nThe prohibition in section 9(a) eventually was codified at 5 U.S.C. \xc2\xa7 7324(a)(2)\n(Supp. Ill 1965-1967), which provided that \xe2\x80\x9c [a]n employee in an Executive\nagency . . . may n o t . . . take an active part in political management or in polit\xc2\xad\nical campaigns.\xe2\x80\x9d 7\n5 See 5 U.S.C. \xc2\xa75525 (\xe2\x80\x9c The head o f each agency may establish procedures under which each employee o f the\nagency is permitted to make allotments and assignments o f amounts out o f his pay for such purpose as the head\no f the agency considers appropriate/\xe2\x80\x99); 5 C.F.R. \xc2\xa7550.311(b) (an agency may permit an employee to make an\nallotment \xe2\x80\x9c for any legal purpose deemed appropriate by the head o f the agency\xe2\x80\x99*). Accord Memorandum for Heads\nof Executive Departments and Agencies, from James B. King, Director, Office o f Personnel Management at 1 (Feb.\n17, 1994) (noting that, under O PM \xe2\x80\x99s proposal, the head o f each executive agency would have the option o f allowing\nthat agency\xe2\x80\x99s employees to use salary allotments for distributing portions o f their salaries to PACs).\n6 Section 9(a) further provided that heads and assistant heads o f executive departments, and certain officers\nappointed by the President by and with the advice and consent o f the Senate, were not \xe2\x80\x9c officers\xe2\x80\x9d or \xe2\x80\x9c em ployees\xe2\x80\x9d\nfor purposes o f that section.\n7 This prohibition did not apply to certain federal employees. See 5 U.S.C. \xc2\xa7 \xc2\xa7 7324(d)(I)\xe2\x80\x94(3) (Supp. IE 19651967). W hat is more, by a 1940 amendment to the Hatch Act, Congress exem pted from the scope o f section 9(a)\nany political activity in connection with nonpartisan campaigns, and activity in connection with any question not\nidentified with a political party, such as constitutional amendments and referenda. Act of July 19, 1940, ch. 640,\n\xc2\xa74, 54 Stat. 767, 772 (subsequently codified at 5 U.S.C. \xc2\xa77326 (Supp. Ill 1965-1967)). Thus, under the old Hatch\nAct, \xe2\x80\x9c only partisan political activity [was] interdicted.\xe2\x80\x9d United Pub. Workers v. M itchell, 330 U.S. 75, 100 (1947)\n(emphasis added).\n\n49\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nB. The Hatch A ct Reform Amendments o f 1993\nIn 1993, Congress eliminated many of the restrictions that previously had\ncabined the political activities of federal employees. See Hatch Act Reform\nAmendments of 1993, Pub. L. No. 103-94, 107 Stat. 1001. Most importantly,\nCongress did an about-face on the prohibition at the very heart of the Hatch Act:\nunder a new 5 U.S.C. \xc2\xa7 7323(a), effective February 3, 1994, covered federal\nemployees \xe2\x80\x9cmay take an active part in political management or in political cam\xc2\xad\npaigns,\xe2\x80\x99 \xe2\x80\x99 subject to specific exceptions.8 Thus, the very category of activities that\nwas prohibited under the old Hatch Act is now expressly permitted.\nCongress did, however, specify several important exceptions to the general rule\nof \xc2\xa7 7323(a). See 5 U.S.C. \xc2\xa7\xc2\xa77323(a)(l)-(4), 7323(b), 7324. For present purposes,\nthree of those exceptions are germane:\n1. Under 5 U.S.C. \xc2\xa7 7323(a)(2), a covered employee may not \xe2\x80\x9c knowingly\nsolicit, accept, or receive a political contribution from any person,\xe2\x80\x9d except under\nlimited circumstances not material here (see infra note 11).\n2. Under 5 U.S.C. \xc2\xa7\xc2\xa77323(b)(2)-(4), employees of certain enumerated federal\nagencies, departments and entities\xe2\x80\x94 including, for example, the Criminal Division\nof the Department of Justice \xe2\x80\x94 will continue to be bound by the proscription of\nsection 9(a) of the old Hatch Act (i.e., former 5 U.S.C. \xc2\xa77324(a)(2) (1988)):\nunlike most other federal employees, such \xe2\x80\x9c HARA-exempt\xe2\x80\x9d employees cannot\n\xe2\x80\x9c take an active part in political management or in political campaigns.\xe2\x80\x9d 9\n3. Finally, almost all federal employees, including those who are \xe2\x80\x9c HARAexempt,\xe2\x80\x9d may not engage in \xe2\x80\x9c political activity\xe2\x80\x9d while: (i) on duty; (ii) in any\nroom or building occupied in the discharge of official duties by an individual\nemployed or holding office in the Government of the United States or any agency\nor instrumentality thereof; (iii) wearing a uniform or official insignia identifying\nthe office or position of the employee; or (iv) using any vehicle owned or leased\nby the federal government or any agency or instrumentality thereof. 5 U.S.C.\n\xc2\xa7 7324(a). An exception to this prohibition is made for certain high-level and\nexecutive office employees identified in 5 U.S.C. \xc2\xa7 7324(b), the duties and respon\xc2\xad\n8 This provision in \xc2\xa77323(a) applies to any individual\xe2\x80\x94 other than the President, the Vice President, members\no f the uniformed services, and employees in particular agencies and departments specified in \xc2\xa7 7323(b)\xe2\x80\x94 who is\nemployed o r holding office in (i) an Executive agency other than the General Accounting Office; (ii) a position\nw ithin the com petitive service which is not an Executive agency; o r (iii) the government o f the District of Columbia\n(other than the M ayor, members o f the City C ouncil, and the R ecorder o f D eeds). See 5 U.S.C. \xc2\xa7\xc2\xa77322(1), 7323(b).\nHowever, on Septem ber 20, 1994, this Office opined that Congress should not be understood to have intended that\nthe President be precluded from limiting the political activities o f employees who are political appointees; indeed,\nas we noted, if the HARA were instead interpreted to prevent a President from limiting the political activities of\neven his high-level political appointees, the statute would raise serious constitutional questions. Letter for Lorraine\nP. Lewis, G eneral Counsel, Office of Personnel Management, from W alter Dellinger, Assistant Attorney General,\nO ffice o f Legal Counsel (Sept. 20, 1994). See also 59 Fed. Reg. 48,765, 48,767, 48,771 (1994) (discussing proposed\n5 C.F.R. \xc2\xa77 34.104, w hich reflects the Sept. 20, 1994 OLC letter).\n9 This prohibition does not apply to employees appointed by the President by and with the advice and consent\no f the Senate, even within the specified agencies, departments and entities. 5 U.S.C. \xc2\xa7\xc2\xa7 7323(b)(2)(A), 7323(b)(3).\nSee also supra note 8.\n\n50\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees fo r Contributions to Political Action Committees\n\nsibilities of whose positions continue \xe2\x80\x9c outside normal duty hours and while away\nfrom the normal duty post.\xe2\x80\x9d Id. \xc2\xa7 7324(b)(2)(A). These employees may engage\nin on-duty or on-premises political activity, but only \xe2\x80\x9c if the costs associated with\nthat political activity are not paid for by money derived from the Treasury of\nthe United States.\xe2\x80\x9d Id. \xc2\xa7 7324(b)(1).\nIt is the responsibility of the Office of Special Counsel (\xe2\x80\x9c OSC\xe2\x80\x9d ) to investigate\nallegations that federal employees have violated the prohibitions that remain in\nthe HARA. If the OSC believes such a violation has occurred, it can present the\ncase to the Merit Systems Protection Board (\xe2\x80\x9c MSPB\xe2\x80\x9d ); the MSPB would then\nadjudicate the case. See American Fed\xe2\x80\x99n o f Gov\xe2\x80\x99t Employees v. O\xe2\x80\x99Connor, 747\nF.2d 748, 753 (D.C. Cir. 1984), cert, denied, 474 U.S. 909 (1985). If the MSPB\nfinds that an employee has violated a prohibition in \xc2\xa77323 or \xc2\xa77324, the\nemployee is subject to removal from his or her position. 5 U.S.C. \xc2\xa77326. If the\nMSPB finds by unanimous vote that the violation does not warrant removal, a\npenalty of not less than a 30-day suspension without pay shall be imposed by\ndirection of the MSPB. Id.; see also Special Counsel v. Dukes, 8 M.S.P.R. 549\n(MSPB, 1981) (MSPB lacks discretion to impose a penalty less severe than a\n30-day suspension without pay).\nC. OPM\xe2\x80\x99s Regulations under the Hatch Act and under the HARA\nIn 1984, OPM issued regulations that specifically interpreted the old Hatch Act\nto forbid use of the federal salary-allocation system for PAC contributions by\nfederal employees. See 49 Fed. Reg. 17,431-32 (1984).10 As we explain infra\npp. 66-72, these regulations arguably were undermined by subsequent decisions\nof the federal courts and by other authorities. Nonetheless, between 1984 and the\npresent date, the federal salary-allocation system has not been used to facilitate\nfederal employees\xe2\x80\x99 PAC contributions.\nOn February 2, 1994, this Office concluded that, under the HARA, OPM con\xc2\xad\ntinues to have certain responsibility for issuing regulations concerning permitted\nand prohibited activities under the Act. See Authority for Issuing Hatch Act Regu\xc2\xad\nlations, 18 Op. O.L.C. 1 (1994).\nOn February 4, 1994 (the day after the HARA took effect), OPM superseded\nits previous Hatch Act regulations, including the 1984 regulations that had pro\xc2\xad\nscribed the use of the salary-allocation system for PAC contributions. See 59 Fed.\nReg. 5313-15. Thereafter, OPM advised executive branch officials that, in OPM\xe2\x80\x99s\nview, executive branch employees now are permitted to make voluntary salary\nallotments to PACs using the mechanisms otherwise available to federal\nl0 Under the original Hatch Act, the Civil Service Commission ( \xe2\x80\x9c C S C \xe2\x80\x9d ) was delegated limited authority to issue\ninterpretive regulations defining the scope o f permitted and prohibited activities. See infra pp. 63-66. In the Civil\nService Reform Act o f 1978, Pub. L. No. 95-454, 92 Stat. 1111, Congress eliminated the CSC, and OPM became\n\xe2\x80\x9c responsible for promulgating Hatch Act regulations.\xe2\x80\x9d American Fecfn o f G ov\'t Employees, 747 F.2d at 753. See\ninfra p. 67.\n\n51\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume /9\n\nemployees for salary allotments to other organizations and institutions. See supra\nnote 1.\nOn September 23, 1994, OPM published interim regulations, which would\ninform federal employees of the political activities that are permitted and prohib\xc2\xad\nited under the HARA. 59 Fed. Reg. 48,765-77. Those interim regulations do not\naddress directly the issue presented in this Opinion, though they do consider sev\xc2\xad\neral subsidiary issues that are germane here, and that we will consider herein.\nB. Related Criminal Statutes\xe2\x80\x94 18 U.S.C. \xc2\xa7\xc2\xa7 602, 607\nThe Criminal Division also has questioned whether participants in the proposed\npractice would violate either of two criminal statutes, 18 U.S.C. \xc2\xa7\xc2\xa7602 and 607.\nThose statutes prohibit federal employees from soliciting political contributions\nfrom other federal employees (\xc2\xa7602), and prohibit persons from soliciting or\nreceiving political contributions while in a federal building (\xc2\xa7607). See infra pp.\n53, 58.\nII. APPLICATION OF TH E HARA AND RELATED CRIMINAL\nSTATUTES\nFederal employees could be involved in the salary-allocation process in three\ndistinct ways. First, under the procedure envisioned by OPM, certain federal\nemployees \xe2\x80\x94 in particular, the heads of federal agencies \xe2\x80\x94 would offer other fed\xc2\xad\neral employees the opportunity to use the federal salary-allocation system to make\ncontributions to PACs. Second, certain employees\xe2\x80\x94 possibly both within and out\xc2\xad\nside the contributing employees\xe2\x80\x99 agency \xe2\x80\x94 would administer the salary allocations\nto PACs. Such employees would, for instance: collect the direct-deposit forms\non which employees request an allocation to a PAC; perform the ministerial func\xc2\xad\ntions associated with such an allocation (such as recording the allocation, and\nsending the forms on to other federal employees involved in the processing); and\ntransmit a portion of the contributor\xe2\x80\x99s salary to the PAC, or to a PAC bank\naccount. Finally, certain federal employees would actually make contributions to\nPACs by way of the salary-allocation procedure. These employees would fill out\ndirect-deposit forms indicating that they wish part of their salaries to be allocated\nand transmitted to various PACs, and would transmit those forms to the appro\xc2\xad\npriate officials (such as the payroll officer in their agency or department) to begin\nprocessing. Subsequently, as a result of the contributing employees\xe2\x80\x99 allocations,\nother federal employees would transfer money to the designated PACs from the\ncontributing employees\xe2\x80\x99 salaries.\nIn section A, infra, we discuss whether the federal employees who would offer\nother employees the opportunity to use the federal salary-allocation system for\n52\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees fo r Contributions to Political Action Committees\n\nPAC contributions would thereby violate the prohibitions on solicitation found\nin 5 U.S.C. \xc2\xa7 7323(a)(2) and 18 U.S.C. \xc2\xa7\xc2\xa7602 and 607.\nIn section B, infra, we discuss whether the employees who would administer\nthe transmission of PAC contributions would thereby violate the prohibition in\n5 U.S.C. \xc2\xa7 7323(a)(2) on accepting or receiving political contributions, or the\nprohibition in 18 U.S.C. \xc2\xa7607 on receiving political contributions in a federal\nbuilding.\nIn section C, infra, we discuss whether administrative employees in \xe2\x80\x9c HARAexempt\xe2\x80\x9d agencies and components who would handle and transmit other\nemployees\xe2\x80\x99 PAC contributions would thereby violate the prohibition in 5 U.S.C.\n\xc2\xa7 7323(b) on \xe2\x80\x9c tak[ing] an active part in political management or political cam\xc2\xad\npaigns.\xe2\x80\x9d\nFinally, in section D, infra, we discuss whether any of the participants in the\nproposed procedure would violate the \xe2\x80\x9c on-duty,\xe2\x80\x9d \xe2\x80\x9c on-site,\xe2\x80\x9d and related prohibi\xc2\xad\ntions found in 5 U.S.C. \xc2\xa77324.\nA. Solicitation \xe2\x80\x94 5 U.S.C. \xc2\xa7 7323(a)(2) an d 18 U.S.C. \xc2\xa7\xc2\xa7 602 and 607\nThe Criminal Division has asked whether the act of offering employees use\nof the salary-allocation system to make PAC contributions would be \xe2\x80\x9c solicita\xc2\xad\ntion\xe2\x80\x9d of political contributions in violation of any or all of the following three\nstatutes:\n* 5 U.S.C. \xc2\xa7 7323(a)(2), which prohibits covered employees from\nsoliciting \xe2\x80\x9c political contributions,\xe2\x80\x9d except that one union member\nmay solicit another union member to contribute to the union\xe2\x80\x99s PAC\nunder certain circumscribed circum stances;11\n* 18 U.S.C. \xc2\xa7 602(a), which makes it a felony for a federal officer\nor employee \xe2\x80\x9c to knowingly solicit any contribution within the\nmeaning of section 301(8) of the Federal Election Campaign Act\nof 1971,\xe2\x80\x9d from any other federal officer or employee; and\n* 18 U.S.C. \xc2\xa7 607(a), which makes it a felony \xe2\x80\x9c for any person\nto so licit. . . any contribution within the meaning of section 301(8)\nof the Federal Election Campaign Act of 1971 in any room or\nbuilding occupied in the discharge of official duties by [any officer\nor employee of the United States].\xe2\x80\x9d\n11 Specifically, an employee can solicit o r receive political contributions if (i) the person being solicited or making\nthe contribution is a m ember o f the same federal labor organization or federal employee organization as the covered\nemployee; (ii) the person being solicited or making the contribution is not a subordinate employee of the covered\nemployee; and (iii) the solicitation is for a contribution to a multicandidate PAC o f the labor organization or employee\norganization o f the employees, and that PAC was established prior to October 6, 1993 5 U.S.C. \xc2\xa7 7323(a)(2)(A )(C).\n\n53\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nW e conclude that federal employees, including the heads of agencies, would\nnot violate the prohibition on \xe2\x80\x9c solicitation\xe2\x80\x9d in any of these three statutes merely\nby offering employees use of the salary-allocation system to make voluntary PAC\ncontributions.\nAll three statutes ultimately are derived from the prohibitions on solicitation\nin sections 11 and 12 of the Civil Service Act o f 1883, ch. 27, 22 Stat. 403\n(\xe2\x80\x9c the Pendleton A ct\xe2\x80\x9d ) ; 12 and we see no reason why \xe2\x80\x9c solicit\xe2\x80\x9d should not have\nthe same meaning in all three statutes.13 However, Congress has not provided\na definition of the term \xe2\x80\x9c solicit\xe2\x80\x9d in any o f the three provisions. Therefore, we\nmust give that term its ordinary meaning. See, e.g., A sgrow Seed Co. v.\nW interboer, 513 U.S. 179,187 (1995).\nIn two recent opinion letters, the Office of Special Counsel \xe2\x80\x94 which has the\nauthority under 5 U.S.C. \xc2\xa7 1212(f) to issue advisory opinions on the Hatch\nA c t14\xe2\x80\x94 offered this definition of \xe2\x80\x9c solicit\xe2\x80\x9d : \xe2\x80\x9c to try to obtain by entreaty, persua\xc2\xad\nsion or formal application.\xe2\x80\x9d 15 Under this definition, asking, requesting, or urging\nanother federal employee to make a political contribution would be prohibited\n(putting aside the exception described in 5 U.S.C. \xc2\xa7 7323(a)(2), which is not rel\xc2\xad\nevant here). See also People v. Murray, 307 111. 349, 365, 138 N.E. 649, 655\n(111. 1923) (to solicit a contribution is \xe2\x80\x9c to try to obtain by asking; to ask for\nthe purpose o f receiving\xe2\x80\x9d ).\nWe think the Special Counsel\xe2\x80\x99s definition of \xe2\x80\x9c solicit\xe2\x80\x9d is an appropriate o n e .16\nUnder the Special Counsel\xe2\x80\x99s definition\xe2\x80\x94 indeed, under any ordinary under\xc2\xad\n12 Section 602(a), for exam ple, is derived from section 11 o f the Pendleton Act, which provided in pertinent\npart that no congressional, judicial or executive branch officer o r em ployee \xe2\x80\x9c shall, directly or indirectly, solicit\nor receive, o r be in any m anner concerned in soliciting or receiving, any assessment, subscription, or contribution\nfor any political purpose whatever, from any officer, clerk, o r employee o f the United States, . . . or from any\nperson receiving any salary o r compensation from moneys derived from the Treasury o f the United States." 22\nSlat, at 406. In 1980, section 11 of the Pendleton Act was amended to elim inate the provision prohibiting receipt\no f contributions by federal employees. Pub. L. No. 96-187, tit. IT, \xc2\xa7 2 0 1(a)(3), 93 Stat. 1339, 1367. See H.R. Rep.\nNo. 96-4 2 2 , at 25 (1979), reprinted in 1979 U.S.C.C.A.N. 2860, 2885.\nSim ilarly, the prohibition currently found in \xc2\xa7607 is a descendent o f section 12 of the Pendleton Act, which\nprovided in pertinent part that \xe2\x80\x9c no person shall, in any room o r building occupied in the discharge of official duties\nby any officer o r em ployee o f the United States . . ., solicit in any m anner whatever, or receive any contribution\no f m oney or any other thing o f value for any political purpose whatever.\xe2\x80\x9d 22 Stat. at 407.\n,3 In enacting the HARA, Congress added \xc2\xa7602(b), which states that an activity cannot be a violation o f \xc2\xa7602(a)\n\xe2\x80\x9c unless that activity is prohibited by section 7323 or 7324\xe2\x80\x9d o f the HARA. See Pub. L. No. 103-94, \xc2\xa74(b), 107\nStat. at 1005. Thus, a person\xe2\x80\x99s conduct cannot violate \xc2\xa7602(a) unless it is also a civil violation of the HARA.\nCongress did not impose a sim ilar restriction on \xc2\xa7607. Thus, in theory, \xe2\x80\x9c solicit\xe2\x80\x9d could have a meaning in \xc2\xa7607\ndistinct from its meaning in the other two statutes. But we see no reason not to treat the term identically in all\nthree statutes.\n[*See American Fed.\'n o f Gov\xe2\x80\x99t Employees, 747 F.2d at 752-55 (explaining the nature and effect of \xe2\x80\x9c the advice\nthe Special Counsel is perm itted to give\xe2\x80\x9d ).\n15 See Letter for C heryl D. Mills, Associate Counsel to the President, from William E. Reukauf, Associate Special\nCounsel for Prosecution, O ffice o f Special Counsel at 2 (Feb. 4, 1994); Letter for Dennis I. Foreman, Deputy General\nCounsel, Department o f the Treasury, from William E. Reukauf, Associate Special Counsel for Prosecution, Office\no f Special Counsel at 2 (Feb. 4, 1994).\n16This definition is, for example, consistent with pertinent dictionary definitions o f \xe2\x80\x9c solicit.\xe2\x80\x9d As we have\nexplained, the solicitation prohibitions derive from the Pendleton Act. Shortly after enactment of that Act, Black\xe2\x80\x99s\nLaw Dictionary defined \xe2\x80\x9c solicitation\xe2\x80\x9d as \xe2\x80\x9c Asking; enticing; urgent request.\xe2\x80\x9d Black\xe2\x80\x99s Law Dictionary 1105 (1st\ned. 1891); see also Black\'s Law Dictionary 1392 (6th ed. 1990) (\xe2\x80\x9c Asking; enticing, urgent request. . . . Any action\nwhich the relation o f the parties justifies in construing into a serious request.\xe2\x80\x9d ); Webster\xe2\x80\x99s Third New Int\xe2\x80\x99l Dictionary\n\n54\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees fo r Contributions to Political Action Committees\n\nstanding of the term \xe2\x80\x94 it is hard to see how the conduct in question here would\nrise to the level of \xe2\x80\x9c solicitation.\xe2\x80\x9d Pursuant to OPM \xe2\x80\x99s proposal, the head of each\nagency would send a memorandum to all employees informing them that \xe2\x80\x9c there\nis now no legal ban to voluntary allotments by Federal employees directed to\npolitical action committees.\xe2\x80\x9d See Memorandum for [all Executive Branch] Chiefs\nof Staff, from Michael Cushing, Chief of Staff, Office of Personnel Management\n(Apr. 4, 1994), Attachment 2. The proposed memorandum further would \xe2\x80\x9c empha\xc2\xad\nsize\xe2\x80\x9d to employees that \xe2\x80\x9c this program is entirely voluntary on your part, a service\nwe have added for our employees.\xe2\x80\x9d Id. Such a memorandum would not urge\nemployees to make contributions, and would not request or encourage such action.\nWe conclude that such an offer of use of the salary-allocation system for voluntary\nPAC contributions would not thereby be a \xe2\x80\x9c solicitation\xe2\x80\x9d of such contributions.\nCf., e.g., In re D odds, 2 Political Action Reporter 253 (Civil Service Comm\xe2\x80\x99n,\n1945) (announcing to employees under one\xe2\x80\x99s supervision that they had the legal\nright to make voluntary contributions to political campaign funds if they so desired\nis not, without more, \xe2\x80\x9c solicitation\xe2\x80\x9d ).\nMoreover, the statutory context of the solicitation ban in \xc2\xa77323 supports this\nconclusion. In \xc2\xa7 7323(a), Congress has prohibited only those solicitations that can\nbe said to constitute \xe2\x80\x9c tak[ing] an active part in political management or in political\ncampaigns.\xe2\x80\x9d 17 The \xe2\x80\x9c tak[ing] an active part\xe2\x80\x9d standard was derived from the\nprohibition in section 9(a) of the old Hatch Act. See supra p. 49. Under the old\nAct, two courts o f appeals held that a covered federal employee could violate\nthe \xe2\x80\x9c tak[ing] an active part in political management or in political campaigns\xe2\x80\x9d\n2169 (1986) (defining \xe2\x80\x9c solicit\xe2\x80\x9d as, inter alia, \xe2\x80\x9c to make petition to: entreat, importune . .\nesp: to approach with\na request or plea (as in selling or begging)"; \xe2\x80\x9c to move to action: serve as an urge or incentive to. incite\xe2\x80\x9d ; \xe2\x80\x9c to\nstrongly urge (as one\xe2\x80\x99s cause o r point): insist upon"; \xe2\x80\x9c to endeavor to obtain by asking or pleading: plead for . . .;\nalso : to seek eagerly or actively"; \xe2\x80\x9c to demand as a requisite: call fo r require"). Also notable is 47 U.S.C.\n\xc2\xa7227(a)(3), which defines \xe2\x80\x9c telephone solicitation" as \xe2\x80\x9c the initiation of a telephone call or message for the purpose\no f encouraging the purchase or rental of, or investment in, property, goods, or services." This definition would\nrequire some encouragement or urging, at the very least.\nOPM, in its interim regulations, has proposed that \xe2\x80\x9c solicit\xe2\x80\x9d should mean \xe2\x80\x9c to request expressly o f another person\nthat he or she contribute something to a candidate, a campaign, a political party, or partisan political group." 59\nFed. Reg. 48,771 (1994) (proposed 5 C .F R . \xc2\xa7734.101) (emphasis added). We believe OPM is correct that a\n\xe2\x80\x9c request" (or an \xe2\x80\x9c u rg in g ") is required, but we have no occasion to decide whether such a request necessarily\nmust be \xe2\x80\x9c express!] \xe2\x80\x9d A strong argument could be made that even an \xe2\x80\x9c im plicit," or veiled, request is a solicitation.\nFor example, the Special Counsel has concluded that it would be a solicitation for an official to \xe2\x80\x9c suggest" that\nan individual work for a political campaign. See Letter for Dennis I. Foreman, Deputy General Counsel, Department\no f the Treasury, from W illiam E. Reukauf, Associate Special Counsel for Prosecution, Office o f Special Counsel\nat 3 (Feb. 4, 1994); see also People v. Murray, 307 III. at 365, 138 N.E. at 655 (\xe2\x80\x9c Solicitation [of political contribu\xc2\xad\ntions] is not necessarily by word o f mouth or writing.\xe2\x80\x9d ); Civil-Service Law \xe2\x80\x94 Political Contributions\xe2\x80\x94 Solicitation\no f by Federal Officer, 24 Op. A tt\'y Gen. 133, 134-35 (1902) (dissemination to federal employees of a circular\nstating that financial assistance is \xe2\x80\x9c needed" for Republican state committee, and that supervisory officials \xe2\x80\x9c will\nbe greatly obliged" if the recipients \xe2\x80\x9c will aid to the extent of [their] ability and inclination,\xe2\x80\x9d even though not\na \xe2\x80\x9c dem and," was a \xe2\x80\x9c req u est" constituting an impermissible solicitation under section 11 o f the Pendleton Act);\nSpecial Counsel v. Rivera , 61 M.S.P.R. 440, 443\xe2\x80\x9444 (MSPB, 1994) (letter stating that \xe2\x80\x9c [w]e hope you can . . .\ncontribute to this worthy cause [viz., a partisan candidacy]" was a solicitation o f contributions).\nl7That section permits employees to \xe2\x80\x9c take an active part in political management or in political cam paigns."\nThe prohibition o f solicitation is enumerated as one o f the few exceptions to this rule; thus, it is fair to read the\nstatute as prohibiting only those solicitations that in fact constitute \xe2\x80\x9c tak[ing] an active part in political management\nor in political cam paigns.\xe2\x80\x9d\n\n55\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nprohibition only if that employee acted \xe2\x80\x9c m concert with a partisan political cam\xc2\xad\npaign or organization.\xe2\x80\x9d B iller v. MSPB, 863 F.2d 1079, 1090 (2d Cir. 1988)\n(emphasis added); accord Blaylock v. MSPB, 851 F.2d 1348, 1356 (11th Cir.\n1988) (\xe2\x80\x9c the Hatch Act is violated only by actions taken in concerted effort with\npartisan activity or formal, organized, political groups\xe2\x80\x9d ). Were an employee, such\nas the head of an agency, merely to inform other employees of their legal rights,\nand in a neutral manner make available to them a means of exercising those rights,\nthat employee would not thereby be acting \xe2\x80\x9c in concert with a partisan political\ncampaign or organization.\xe2\x80\x9d Therefore, such an offering employee would not have\ntaken an \xe2\x80\x9c active part in political management or in political campaigns,\xe2\x80\x9d and,\naccordingly, would not have engaged in improper solicitation under \xc2\xa7 7323(a).18\nNotwithstanding the foregoing, the Criminal Division has suggested that the act\no f offering access to the salary-allocation system for PAC contributions may vio\xc2\xad\nlate the law because, in practice, such an offer may be perceived as soliciting\nsuch contributions. The Criminal Division\xe2\x80\x99s argument is that, as a result of the\npaperwork associated with the salary-allocation system, an employee\xe2\x80\x99s \xe2\x80\x9c giving\nhistory\xe2\x80\x9d can be \xe2\x80\x9c accessed and examined by management.\xe2\x80\x9d Moreover, the Federal\nElection Campaign Act (\xe2\x80\x9c FEC A \xe2\x80\x9d ) requires that political committees, such as the\nPACs in question here, publicly identify all persons who have contributed more\nthan $200 in a calendar year. 2 U.S.C. \xc2\xa7 434(b)(3)(A); see also id. \xc2\xa7 438(a)(4)\n(names of such contributors available for public inspection). The fact that manage\xc2\xad\nment can thereby discover an em ployee\xe2\x80\x99s political contributions \xe2\x80\x9c provides fertile\nground for the proposed payroll withholding program to assume a most sinister\ncast.\xe2\x80\x9d Memorandum for Walter Dellinger, Assistant Attorney General, Office of\nLegal Counsel, from Jo Ann Harris, Assistant Attorney General, Criminal Division\nat 6 -7 (Oct. 24, 1994). According to the Criminal Division,\nonce employees realize that their political giving patterns can be\nindividually accessed and traced through payroll records or through\nFECA reports, offers o f payroll withholding made by management\nare susceptible of being understood by employees as suggestions\nthat an affirmative response is expected. Once that occurs, it seems\nto us that the offer o f payroll withholding for PAC donations\nbecomes a \xe2\x80\x9c solicitation\xe2\x80\x99 on the part o f those in management that\ncirculate it.\n\n18 The case w ould be very different, o f course, if the offer were not neutral, such as where contributions were\nperm itted only to certain PACs deemed acceptable to the agency head. In that case, the Biller/Blaylock standard\nm ight be m et, and the action m ight fairly be considered \xe2\x80\x9c taking an active part in political management or in political\ncam paig n s"; such differential treatment in favor o f some PACs to the exclusion of others might, therefore, amount\nto an improper \xe2\x80\x9c solicitation,\xe2\x80\x9d depending on the circumstances. But that is not the scenario OPM proposes.\n\n56\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees fo r Contributions to Political Action Committees\n\nId. at 7. This argument is similar to that used by OPM itself in 1984 to justify\n\nits prohibition on salary allotments to P A C s.19\nThis argument has two principal problems. First, the hypothesized danger\xe2\x80\x94\nthat management may be able to discover employees\xe2\x80\x99 contribution practices \xe2\x80\x94\nis not unique to the making of PAC contributions through the salary-allotment\nprocedure. The public has access, by virtue of the FECA, to significant informa\xc2\xad\ntion about contributors to PACs, and this will be the case whether or not those\ncontributions are made through the salary-allocation system. The risk of access\nto contribution information should not be significantly greater as a result of use\nof the salary-allocation system: federal officials should not have any additional\naccess to contribution practices of their subordinates through payroll records.\nRecords of employees\xe2\x80\x99 financial contributions retained in personnel files within\nthe employees\xe2\x80\x99 agency are protected by the Privacy Act, see 5 U.S.C.\n\xc2\xa7 552a(a)(4)-(5), and may not be revealed to the officers and employees of the\nagency, id. \xc2\xa7 552a(b).20\nSecond, and more important, it is not legally dispositive that some subordinate\nemployees might perceive that they are expected to contribute to PACs. The mere\npossibility that an offer of access to a salary-allocation system may be susceptible\nof being misunderstood by some employees as a solicitation does not automati\xc2\xad\ncally transform all offers into solicitations. Section 7323(a) of the HARA and\n18 U.S.C. \xc2\xa7\xc2\xa7602 and 607 do not prohibit a \xe2\x80\x9c sinister cast\xe2\x80\x9d ; they prohibit conduct\nthat is, in fact, solicitation.\nWhat is more, even if the proposed practice might be susceptible to a risk of\nactual (rather than merely perceived) solicitation, that risk does not render the\npractice unlawful per se. Whether any particular \xe2\x80\x9c offer\xe2\x80\x9d of access to the salaryallocation system for PAC contributions would be an impermissible solicitation\n19 OPM explained that such a prohibition was required for prophylactic reasons:\nUse o f the Federal payroll system as a vehicle for collecting political contributions, as well as the conven\xc2\xad\nience o f making these contributions through payroll deductions, would increase the opportunities for coer\xc2\xad\ncion o f employees. Introducing the political contribution process into Government would make it possible\nfor supervisors, administrative officers, and others in a position to affect careers or working conditions\nto discover the identity o f political contributors and other information concerning their contributions.\nBecause allotments or payroll deduction authorizations pass through many hands during processing, there\nexists the risk o f either intentional or inadvertent disclosure o f sensitive data. Although such a disclosure\ncould be cause for discipline, tracing the disclosure to its source in the processing chain would not be\npossible in every case. The authority to discipline thus would not be a complete deterrent and where exer\xc2\xad\ncised would not forestall potential misuse o f the information already disclosed. Even if the integrity of\npayroll data is not compromised, individual employees could be directly approached by colleagues or\nsuperiors seeking to identify contributors. Even i f not so intended, this could create among employees\n\na perception o f pressure to contribute to a particular political action fund.\n49 Fed. Reg. at 17,432 (emphasis added).\n20There is an exception to this prohibition where those officers or employees \xe2\x80\x9c have a need for the record in\nthe performance o f their duties.\xe2\x80\x9d Id. \xc2\xa7552a(b)(l). It is difficult, however, to imagine a situation in which supervisors\nwould have a legitimate \xe2\x80\x9c need . . . in the regular performance o f their duties\xe2\x80\x9d for information concerning their\nsubordinates\xe2\x80\x99 political contributions. See Parks v. IRS, 618 F.2d 677, 680-81 (10th Cir. 1980).\n\n57\n\n\x0cOpinions o f the Office o f L egal Counsel in Volume 19\n\nwould depend on the particular facts of each case.21 In those cases where osten\xc2\xad\nsible offers do cross the line to become actual solicitations, the makers of such\nsolicitations will be subject to penalty under 5 U.S.C. \xc2\xa7\xc2\xa7 7323(a)(2) and 7324(a),\nand may be subject to criminal sanctions under 18 U.S.C. \xc2\xa7\xc2\xa7602 and 607, as\nwell. In addition, if a supervisor does tell (or suggest to) subordinate employees\nthat their contribution practices will be \xe2\x80\x9c accessed and examined by management,\xe2\x80\x9d\nor if a supervisor (or other employee) otherwise pressures an employee to con\xc2\xad\ntribute to PACs, such action could constitute impermissible \xe2\x80\x9c coercion\xe2\x80\x9d under 18\nU.S.C. \xc2\xa7 6 1 0 .22 But the fact that there m ay be such instances of abuse does not\nmean that every offer of access to the system automatically becomes a solicitation.\n\nB. R e c e ip t\xe2\x80\x94 5 U.S.C. \xc2\xa7 7323(a)(2) a n d 1 8 U.S.C. \xc2\xa7 6 0 7\nThe Criminal Division has questioned whether the federal employees who would\nimplement and administer other employees\xe2\x80\x99 salary allocations to PACs would vio\xc2\xad\nlate 5 U.S.C. \xc2\xa7 7323(a)(2) or 18 U.S.C. \xc2\xa7607, which prohibit some forms of\n\xe2\x80\x9c receiving\xe2\x80\x9d or \xe2\x80\x9c accepting\xe2\x80\x9d political contributions:\n* Under \xc2\xa7 7323(a)(2), a covered federal employee may not\n\xe2\x80\x9c accept, or receive a political contribution from any person,\xe2\x80\x9d\nexcept that one union member may receive another union member\xe2\x80\x99s\ncontribution to the union\xe2\x80\x99s PAC, as long as the contributing\nemployee is not a subordinate o f the receiving employee.\n* Under \xc2\xa7607, it is a felony \xe2\x80\x9c for any person to . . . receive any\ncontribution within the meaning o f section 301(8) of the Federal\nElection Campaign Act o f 1971 in any room or building occupied\nin the discharge of official duties by [any officer or employee of\nthe United States].\xe2\x80\x9d\nUnder the proposed practice, some administrative employees would process the\ndirect-deposit forms, and would transmit to PACs a portion of contributing\nem ployees\xe2\x80\x99 salaries. Even if it could be argued that these administering employees\nwould (in some sense) handle the money from the contributing employees\xe2\x80\x99 salaries\nprior to transmitting the contributions to the PACs, we conclude that this cannot\n21 See The President\xe2\x80\x94 Interpretation o f 18 U.S.C. \xc2\xa7603 Inow \xc2\xa7607] as Applicable to Activities in the White\nHouse, 3 Op. O.L.C. 31, 32 n.3 (1979) (\xe2\x80\x9c W e have not considered a . . . critical question, which turns primarily\non matters o f fact, i.e., whether a solicitation w ithin the terms o f the statute has occurred.\xe2\x80\x9d ).\n22 Section 610, which was enacted as part o f section 4 o f the HARA, 107 Stat. at 1005, provides:\nIt shall be unlawful for any person to intimidate, threaten, command, or coerce, or attempt to intimidate,\nthreaten, com m and, o r coerce, any em ployee o f the Federal G overnment as defined in [HARA] section\n7322(1) . . . to engage in, o r not to engage in, any political activity, including, but not limited to, voting\nor refusing to vote, for any candidate o r measure in any election, making or refusing to make any political\ncontribution, o r working or refusing to work on behalf o f any candidate. Any person who violates this\nsection shall be fm ed not more than $5,000 or imprisoned not more than three years, or both.\n\n58\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees fo r Contributions to Political Action Committees\n\nbe considered \xe2\x80\x9c receipt\xe2\x80\x9d or \xe2\x80\x9c acceptance\xe2\x80\x9d of the contributions in the sense\nintended under the two pertinent statutes.\nThe Attorney General addressed this issue in the early years of the Pendleton\nAct. Section 11 of the Pendleton Act, which was the direct predecessor of the\nstatutes at issue here, provided in pertinent part that no congressional, judicial\nor executive branch officer or employee \xe2\x80\x9c shall, directly or indirectly, . . . receive,\nor be in any manner concerned in . . . receiving, any assessment, subscription,\nor contribution for any political purpose whatever, from any officer, clerk, or\nemployee of the United States, . . . or from any person receiving any salary or\ncompensation from moneys derived from the Treasury of the United States.\xe2\x80\x9d 22\nStat. at 406.\nIn 1896, Attorney General Harmon opined that section 11 should not be strictly\nconstrued to make criminal the \xe2\x80\x9c purely mechanical\xe2\x80\x9d handling of a political con\xc2\xad\ntribution by a federal employee. Contributions fo r Political Purposes, 21 Op. A tt\xe2\x80\x99y\nGen. 298 (1896). In the case the Attorney General considered, one Bellman, an\nagent of the Postmaster General, was detailed to be the conduit for payments\nby the government to secret agents. Under the \xe2\x80\x9c established practice,\xe2\x80\x9d secret\nagents sent orders to Bellman to make payments out of their government remit\xc2\xad\ntance directly to the agents\xe2\x80\x99 families, creditors, etc. Id. at 299. One agent asked\nBellman to pay $50 to another person, in aid of a political campaign. Bellman \xe2\x80\x94\nwho had nothing whatever to do with soliciting or inducing such a diversion of\nfunds\xe2\x80\x94 did as the agent asked him. Despite the fact that Bellman knew the diver\xc2\xad\nsion of funds was in aid of a political campaign, id., and the fact that Congress\nin section 11 \xe2\x80\x9c absolutely prohibited the . . . receipt of political contributions by\nall persons in the Government service in any place or in any way,\xe2\x80\x9d id. at 300,\nthe Attorney General concluded that \xe2\x80\x9c I can not see how it can fairly be said\nthat [Bellman\xe2\x80\x99s action] was a violation of the provisions of [section 11].\xe2\x80\x9d Id.\nThe Attorney General reasoned:\nIt is admitted that [Bellman] did not solicit the contribution. Nor\ncan it be said, in any proper sense o f the term, that he received\nit. He physically took the money from the package, but he did so\nmerely as the agent of the owner, and so long as it remained in\nhis possession he held it as the agent o f the owner, who had a\nright at any time to revoke his order and reclaim the money. This\nright continued until Bellman actually handed the money over to\nthe third person, who alone can be said to have received it. When\nhe received it it was from the secret agent in Chicago by the hand\nof Bellman and not from Bellman. He was accountable to the agent\nin Chicago and not to Bellman for its use or misuse. Bellman had\nno more to do with the transaction than a mere messenger would\nhave had to whom the owner had handed it for delivery. The receipt\n\n59\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nof money, etc., intended by [section 11] is acceptance of possession\nwhich confers a right of disposal, not possession which simply con\xc2\xad\nstitutes the taker a mere custodian without right on his own behalf\nor that of others.\nId. at 300-01.23\n\nW e agree with Attorney General H annon\xe2\x80\x99s reasoning, and think it directly\napplicable h ere.24 \xe2\x80\x9c The receipt of money . . . intended by [\xc2\xa7 7323(a)(2) and by\n\xc2\xa7607] is acceptance of possession which confers a right of disposal, not possession\nwhich simply constitutes the taker a mere custodian without right on his own\nbehalf or that of others.\xe2\x80\x9d Indeed, the ministerial employees under the proposed\npractice would not even have the option to decline to handle the contributions\nin question: as a part of their assigned duties, they would be required to treat\nallocations to PACs as they do all other allocations. We therefore conclude that,\nbecause the administering employees \xe2\x80\x94 like postal employees who pick up and\ndeliver mail containing PAC contributions \xe2\x80\x94 would be \xe2\x80\x9c mere custodians,\xe2\x80\x9d or\nconduits, of the contributions, they would not be recipients thereof.\nM oreover, the employees administering the allocated contributions to PACs\nwould not be acting \xe2\x80\x9c in concert with a partisan political campaign or organiza\xc2\xad\ntion.\xe2\x80\x9d B iller, 863 F.2d at 1090 (emphasis added). Therefore, like the employees\nwho \xe2\x80\x9c offer\xe2\x80\x9d the use of the allocation system, see supra pp. 55-56, they would\nnot be \xe2\x80\x9c tak[ing] an active part in political management or in political campaigns,\xe2\x80\x9d\nand, accordingly, could not be in violation of \xc2\xa7 7323(a)(2).25\n23 See also In re Harper, reported in Thirty-fifth Annual Report o f the Civil Service Commission 178 (1919)\n(the Justice Departm ent, citing the \xe2\x80\x9c pettiness o f the o ffe n s e /\xe2\x80\x99 refused to prosecute a federal employee who had\nacted as a conduit, o r \xe2\x80\x9c temporary custodian,\xe2\x80\x9d o f political contributions).\n24The Civil Service Commission subsequently disagreed with the Attorney G eneral\xe2\x80\x99s interpretation o f section\n11; the CSC reasoned instead that \xe2\x80\x9c even if [a federal employee] acts as the agent or messenger of another officer\no r em ployee for the purpose o f delivering a contribution, voluntary or otherw ise, to a political committee, the receipt\nby the agent o f money from his principal, knowing it to be for the purpose mentioned, and both being officers\no r employees o f the United States, is prohibited by the statute.\xe2\x80\x9d In re LeRoy, reported in Thirtieth Annual Report\no f the C ivil Service C om m ission 149, 151 (1914). And, in the LeRoy case and in another case occurring at approxi\xc2\xad\nm ately the same time, certain United States Attorneys and tw o district judges apparently agreed with the CSC\xe2\x80\x99s\ninterpretation, rather than with that of A ttorney General Harmon. See id. at 152 (reporting successful prosecution\no f LeRoy); In re Dutro, reported in Thirtieth Annual Report o f the Civil Service Commission 158 (1914) (quoting\nju d g e\xe2\x80\x99s ruling rejecting 1896 Attorney G eneral Opinion, and reporting eventual conviction for violation o f section\n11). The CSC subsequently cited the Dutro case as having \xe2\x80\x9c definitively established) the principle that an employee\no f the G overnm ent who receives a political contribution from another such employee as a mere agent or messenger\nfor the purpose o f turning it over to a political organization commits a violation o f [section 11].\xe2\x80\x9d CSC Form 1236,\n\xe2\x80\x9c Political A ctivity and Political Assessments o f Federal Officeholders and Em ployees,\xe2\x80\x9d \xc2\xa739, at 20 (1939). We\nare, however, m ore persuaded by the 1896 A ttorney General Opinion.\n^ U n d e r the proposed definitions of \xe2\x80\x9c accept\xe2\x80\x9d and \xe2\x80\x9c receive\xe2\x80\x9d in the interim OPM regulations, the ministerial\nhandling o f contributions could not constitute \xe2\x80\x9c acceptance\xe2\x80\x9d o r \xe2\x80\x9c receipt\xe2\x80\x9d o f those contributions, because the\nem ployees in question would not be acting \xe2\x80\x9c officially on behalf o r \xe2\x80\x99 the PACs to w hich the contributions were\nmade. See 59 Fed. Reg. at 48,770-71 (proposed 5 C.F.R. \xc2\xa7734.101). This interpretation is consistent with the holdings\nin Biller and Blaylock. See id. at 48,768-69 (discussing Biller and Blaylock).\n\n60\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees fo r Contributions to Political Action Committees\n\nC. Handling o f Contributions by Em ployees in \xe2\x80\x9c H A R A -E xem pt\xe2\x80\x9d A gencies an d\nC om ponents\xe2\x80\x94 5 U.S.C. \xc2\xa7 7323(b)\nUnder 5 U.S.C. \xc2\xa7\xc2\xa77323(b)(2)-(4), employees of certain enumerated federal\nagencies, departments and components \xe2\x80\x94 including, for example, the Criminal\nDivision of the Department of Justice\xe2\x80\x94 cannot \xe2\x80\x9c take an active part in political\nmanagement or political campaigns.\xe2\x80\x9d See supra p. 50. The statutory definition\nof this \xe2\x80\x9c take an active part\xe2\x80\x9d standard is, moreover, the same under the HARA\nas it was under the pre-HARA Hatch A ct.26 Congress\xe2\x80\x99s intent was that the\nemployees in question would be \xe2\x80\x9c exempt from coverage under the [HARA] and\nmaintained under the current [i.e., pre-HARA] law.\xe2\x80\x9d 139 Cong. Rec. 15,789\n(1993) (statement o f Sen. R oth).27\nUnder the old Hatch Act, OPM had interpreted the \xe2\x80\x9c take an active part\xe2\x80\x9d\nstandard to prohibit federal employees from handling or accounting for other fed\xc2\xad\neral employees\xe2\x80\x99 PAC contributions,28 and OPM had, in fact, specifically deter\xc2\xad\nmined that the persons administering the federal salary-allocation system would\nviolate the law if the system were used for PAC contributions.29 See supra p.\n51; infra pp. 68-70. The Criminal Division has argued that \xe2\x80\x9c HARA-exempt\xe2\x80\x9d\nemployees should still be subject to these regulatory prohibitions:\n[I]t appears to us that under 5 U.S.C. \xc2\xa7 7323(b)(4), employees of\n. . . excluded components remain bound by the prohibitions con\xc2\xad\ncerning political activity by federal employees that were in effect\nprior to 1940 which contain prohibitions on \xe2\x80\x9c handling\xe2\x80\x9d or\n\xe2\x80\x9c accounting for\xe2\x80\x9d political funds, as well as the \xe2\x80\x9c solicitation,\xe2\x80\x9d\n\xe2\x80\x9c acceptance,\xe2\x80\x9d or \xe2\x80\x9c receipt\xe2\x80\x9d of political contributions. 5 C.F.R.\n\xc2\xa7 7 3 3 .122(b)(3). The terms \xe2\x80\x9c handling\xe2\x80\x9d and \xe2\x80\x9c accounting for\xe2\x80\x9d seem\nto us broader than the terms \xe2\x80\x9c solicit,\xe2\x80\x9d \xe2\x80\x9c accept,\xe2\x80\x9d or \xe2\x80\x9c receive\xe2\x80\x9d that\napply to employees in the remainder of the government. If we are\ncorrect in that conclusion, and if we are correct in assuming that\nemployees of the Criminal Division continue to be governed by\nthe broader terms of 5 C.F.R. \xc2\xa7 733.122(b)(3), one might reasonably\nargue the mere administrative processing of payroll withholding\nforms concerning PAC donations by the Division support staff\nplaces them at risk of inadvertently violating the Act.\n\xe2\x80\x9c Compare 5 U.S.C. \xc2\xa77324<a)(2) (1988) with the current 5 U.S.C. \xc2\xa77323(b)(4).\n527 See also, e.g., 139 Cong. Rec. at 15,743 (statement o f Sen. Roth) (exempt employees \xe2\x80\x9c should continue to\nbe Hatched\xe2\x80\x9d ), id. at 15,789 (statement o f Sen. Roth) (certain employees would be \xe2\x80\x98\xe2\x80\x98exempted from the relaxation\nof the Hatch rule\xe2\x80\x9d ); id. at 16,043 (statement of Sen. Roth) (employees o f the DOJ Criminal Division would be\n\xe2\x80\x9c exempt from the changes in the Hatch A ct\xe2\x80\x9d ); id. at 21,810 (statement o f Rep. Myere) (exempt employees \xe2\x80\x9c will\n. . . continue to be covered under the (old) Hatch Act\xe2\x80\x9d ); id. at 21,811 (statement o f Rep. Byrne) (exempt employees\nare \xe2\x80\x9c exclude[d]. . . from the reforms\xe2\x80\x9d ).\n28 See 5 C.F.R. \xc2\xa7 7 3 3 .122(b)(3) (1994), superseded, 59 Fed. Reg. 5313-15 (1994).\n29 See 49 Fed. Reg. 17,431, 17,431-33 (1984) (establishing new regulations at 5 C.F.R. \xc2\xa7\xc2\xa7 733.101(g)\xe2\x80\x94(h).\n733.122(b)(14H 16)).\n\n61\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nMemorandum for Walter Dellinger, Assistant Attorney General, Office of Legal\nCounsel, from Jo Ann Harris, Assistant Attorney General, Criminal Division at\n8 (Oct. 24, 1994).\nWe conclude, however, that the HARA-exempt employees do not necessarily\n\xe2\x80\x9c remain bound by the prohibitions\xe2\x80\x9d contained in the pre-HARA OPM regulations.\nIn the sections that follow, w e demonstrate: first, that OPM\xe2\x80\x99s pre-HARA regula\xc2\xad\ntions may not have interpreted the Hatch Act accurately; and second, that, in any\nevent, OPM has the authority to amend those pre-HARA regulations in the manner\nreflected in its new regulations. In order to demonstrate why this is so, it is nec\xc2\xad\nessary to describe in some detail the historical treatment of the \xe2\x80\x9c take an active\npart\xe2\x80\x9d legal standard.\n1. Before the Hatch Act: 1 8 8 3 -1 9 3 9\nThe Civil Service Act of 1883, ch. 27, 22 Stat. 403, better known as the Pen\xc2\xad\ndleton Act, declared that \xe2\x80\x9c no person in the public service is for that reason under\nany obligations to contribute to any political fund, or to render any political\nservice,\xe2\x80\x9d 22 Stat. at 404 and that \xe2\x80\x9c no person in said service has any right to\nuse his official authority or influence to coerce the political action of any person\nor body,\xe2\x80\x9d id. The Act authorized the President to promulgate rules to carry out\nthe provisions of the Act, and created the Civil Service Commission (\xe2\x80\x9c CSC\xe2\x80\x9d )\nto administer the Act under the rules promulgated by the President. 22 Stat. at\n403-05.\nIn 1907, in accordance with an executive order issued by President Roosevelt,\nCivil Service Rule I was amended to read, in pertinent part:\nPersons who, by the provisions of these rules are in the competitive\nclassified service, while retaining the right to vote as they please\nand to express privately their opinions on all political subjects, shall\ntake no active part in political management o r in political cam\xc2\xad\npaigns.\n\nTwenty-fourth Annual Report of the Civil Service Commission 104 (1908)\n(emphasis added).\nThe CSC thereafter exercised its authority to investigate and adjudicate alleged\nviolations o f this Rule. The scope and meaning of the \xe2\x80\x9c take no active part\xe2\x80\x9d clause\nwere defined \xe2\x80\x9c in the mode of the common law \xe2\x80\x9d through these CSC adjudications.\nCivil Service C om m \xe2\x80\x99n v. N ational A ss\xe2\x80\x99n o f Letter Carriers, 413 U.S. 548, 559\n(1973). Between 1907 and 1939, the CSC applied Rule I in over 3000 adjudicated\ncases. The CSC from time to time summarized its adjudicatory rulings in the\nform o f guidelines. Most important for present purposes, section 17 of CSC Form\n1236, published in 1939, stated: \xe2\x80\x9c An employee may make political contributions\nto any committee, organization, or person not employed by the United States,\nbut m ay not solicit, collect, receive, or otherwise handle or disburse the contribu\xc2\xad\n\n62\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees fo r Contributions to Political Action Committees\n\ntions.\xe2\x80\x9d CSC Form 1236, \xe2\x80\x9c Political Activity and Political Assessments of Federal\n\nOfficeholders and Employees,\xe2\x80\x9d \xc2\xa717, at 7 (1939) [hereinafter \xe2\x80\x9c 1939 CSC Form\n1236\xe2\x80\x9d ], quoted in Appendix to Letter Carriers, 413 U.S. at 584 (emphasis added).\n2. The Hatch A ct\xe2\x80\x94 1939-1940\nIn section 9(a) of the Hatch Act, 53 Stat. at 1148, Congress by statute extended\nto the entire federal service the prohibition reflected in Rule I. Section 9(a) pro\xc2\xad\nvided in pertinent part:\nNo officer or employee in the executive branch of the Federal\nGovernment, or any agency or department thereof, shall take any\nactive p a rt in political management o r in political campaigns. All\nsuch persons shall retain the right to vote as they may choose and\nto express their opinions on all political subjects.\nIn its next session, Congress attempted to give some substantive content to sec\xc2\xad\ntion 9(a)\xe2\x80\x99s prohibition on taking an \xe2\x80\x9c active part in political management or in\npolitical campaigns.\xe2\x80\x9d The Senate Committee, led by Senator Hatch, first proposed\nthat a new section 15 of the Hatch Act authorize and direct the CSC to promulgate\nrules or regulations defining the term \xe2\x80\x9c active part in political management or\nin political campaigns.\xe2\x80\x9d See L etter Carriers, 413 U.S. at 570 n.16 (quoting pro\xc2\xad\nposed section 15 in S. Rep. No. 76-1236, at 4 (1940)). But this proposed conferral\nof \xe2\x80\x9c broad rulemaking authority\xe2\x80\x9d to the CSC was greeted on the Senate floor\nwith \xe2\x80\x9c strong objections,\xe2\x80\x9d as being \xe2\x80\x9c an unwise and invalid delegation of legisla\xc2\xad\ntive power to the Commission.\xe2\x80\x9d Id. at 570. See, e.g., 86 Cong. Rec. 2352 (1940)\n(statement of Sen. McKellar); id. at 2426-27 (statement of Sen. Lucas); id. at\n2875 (statement of Sen. Thomas); id. at 2924-27 (statement of Sen. Thomas);\nsee also Henry Rose, A C ritical Look a t the Hatch A ct (\xe2\x80\x9c Rose, Critical Look\xe2\x80\x9d ),\n75 Harv. L. Rev. 510, 513 (1962) (opposition in Senate to such a broad delegation\nof rulemaking authority to CSC \xe2\x80\x9c was strong and persistent\xe2\x80\x9d ).\nIn response to this opposition to the delegation of broad rulemaking authority\nto the CSC, Senator Hatch offered a substitute section 15, which limited the reach\nof the prohibition in section 9(a) to \xe2\x80\x9c the same activities . . . as the United States\nCivil Service Commission has heretofore determined are at the time of the passage\nof this act [viz., July 19, 1940] prohibited on the part of employees in the classified\ncivil service of the United States by the provisions of [Civil Service Rule I].\xe2\x80\x9d\nSee 86 Cong. Rec. 2928, 2937 (1940). Congress passed this substitute amendment.\nId. at 2958-59. See Act of July 19, 1940, ch. 640, 54 Stat. 767, 111-. As later\ncodified in 5 U.S.C. \xc2\xa7 7324(a)(2) (Supp. Ill 1965-1967), the phrase \xe2\x80\x9c an active\npart in political management or in political campaigns\xe2\x80\x9d was defined to mean:\nthose acts of political management or political campaigning which\nwere prohibited on the part of employees in the competitive service\n\n63\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nbefore July 19, 1940, by determinations of the Civil Service\nCommission under the rules prescribed by the President.\nThus, under the Hatch Act, the pre-1940 \xe2\x80\x9c determinations\xe2\x80\x9d of the CSC defined\nwhat behavior was unlawful. The decisions in these CSC cases, however, were\nnot reported, nor were they (or are they) even available to the public; rather, the\ndecisions were \xe2\x80\x9c buried in the raw file in a dusty storage cabinet\xe2\x80\x9d at the CSC.\nRose, C ritical Look, 75 Harv. L. Rev. at 516.30 Therefore, it was (and is) difficult\nto ascertain how, under Rule I, the CSC treated actions by federal employees\ninvolving the handling of political contributions.31 In addition, those adjudicatory\nrulings were widely perceived to be \xe2\x80\x9c inconsistent, or incapable of yielding any\nmeaningful rules to govern present or future conduct.\xe2\x80\x9d Letter Carriers, 413 U.S.\nat 571.\nFederal employee unions eventually challenged the definition in section 15 as\nbeing impermissibly vague. In rejecting that challenge, the Supreme Court held\nthat Congress had not codified into law the inaccessible, \xe2\x80\x9c impenetrable jungle\nof Commission proceedings, orders, and rulings,\xe2\x80\x9d id.; rather, the Court held, Con\xc2\xad\ngress intended section 15 to transform into codified law the CSC\xe2\x80\x99s \xe2\x80\x9c administrative\nrestatement of Civil Service Rule I law \xe2\x80\x9d \xe2\x80\x94 namely, the 1939 version of CSC\nForm 1236 \xe2\x80\x94 modified as necessary to reflect provisions in the 1939 and 1940\nActs themselves. Id. at 572-74.\nThe C ourt\xe2\x80\x99s holding in Letter Carriers meant that the prohibitions summarized\nin the 1939 CSC Form 1236 \xe2\x80\x94 included as an appendix to the Court\xe2\x80\x99s opinion\nin Letter Carriers, 413 U.S. at 581-95 \xe2\x80\x94 defined the scope of the prohibition con\xc2\xad\ntained in section 9(a) of the Hatch Act. Id. at 5 72-75.32 As of 1939, the CSC\nrule as to political contributions was as follows: \xe2\x80\x9c An employee may make polit\xc2\xad\nical contributions to any committee, organization, or person not employed by the\nUnited States, but may not solicit, collect, receive, or otherwise handle or disburse\nthe contributions. (See provisions of the Criminal Code, discussed in secs. 36 to\n30 See also id. at 522; M arick F. M asters & Leonard Bierman, The Hatch Act and the Political Activities o f\nFederal Employee Unions: A Need for Policy Reform, 45 Pub. Admin. Rev. 518, 520 (1985) (quoting C SC \xe2\x80\x99s acknowl\xc2\xad\nedgem ent that the public cannot go to original sources to study C SC \'s pre-Hatch-Act determinations, because those\ndeterminations are \xe2\x80\x98\xe2\x80\x9c embodied in diffused files and records o f the com m ission\' **).\n31 Some o f the C S C \'s decisions were summarized in annual reports. One can glean from these reports, that\nthe CSC, at least in certain instances, concluded that the ministerial handling o f political contributions by federal\nemployees violated Rule 1, even where th o se employees had no political objectives o f their own and were acting\nsolely as agents o f the contributors. For instance, in one case, the CSC requested the removal from federal service\no f an em ployee who had acted as a mere conduit for another\xe2\x80\x99s contributions. In re LeRoy, reported in Thirtieth\nAnnual Report o f the C ivil Service Commission 149, 152 (1914) (reporting events that occurred in 1910-1913).\nO n the other hand, in a case occurring at virtually the sam e time as LeRoy, the CSC considered similar behavior\nmerely a \xe2\x80\x9c technical[] v io la tio n of] the la w ," and found it sufficient simply to issue a warning to the employee\nnot to engage in similar conduct in the future. In re Wagner, reported in Twenty-ninth Annual Report of the Civil\nService Com m ission 164, 164 (1913) (reporting events that occurred in 1910-1911).\n32Accord Political Activity by Government Employees, 40 Op. A tt\xe2\x80\x99y Gen. 14, 26 (1941). But see Rose, Critical\nLook, 75 Harv. L. Rev. at 513-14, 518 n.33 (arguing, contrary to the conclusion in Letter Carriers, that the congres\xc2\xad\nsional purpose was in fact to codify the m ore than 3000 individual pre-1940 CSC determinations, rather than the\nForm 1236 pamphlet restatement).\n\n64\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees fo r Contributions to Political Action Committees\n\n50.).\xe2\x80\x9d 1939 CSC Form 1236 at 7, quoted in Letter Carriers, 413 U.S. at 5 8 4 .33\nIn 1940, in light of the Hatch Act itself, the CSC changed the rule to the following:\nEmployees may not solicit, collect, receive, disburse, or otherwise\nhandle contributions made fo r political purposes. They may make\n\nvoluntary contributions to a regularly constituted political organiza\xc2\xad\ntion for its general expenditures.\nCSC Form 1236a, \xe2\x80\x9c Political Activity and Political Assessments of Persons\nEmployed by State and Local Agencies in Connection with Activities Financed\nin Whole or in Part by Loans or Grants Made by the United States or by any\nFederal Agency,\xe2\x80\x9d \xc2\xa7 14, at 8 (1940) (emphasis added).\nHowever, this rule, like the others the CSC promulgated in 1939-1940, did\nnot set in stone the scope of prohibited activities under the Hatch Act. In Letter\nCarriers, the Court recognized that the CSC\xe2\x80\x99s definition of prohibited activities\nhad changed over time in accordance with the CSC\xe2\x80\x99s reformulation of Form 1236\nand, after 1970, in accordance with the regulations that the CSC promulgated in\nlieu of Form 1236. 413 U.S. at 575 (citing 5 C.F.R. pt. 733). The post-1970 CSC\nregulations were, the Court held, the \xe2\x80\x9c wholly legitimate descendants of the 1940\nrestatement adopted by Congress and were arrived at by a process that Congress\nnecessarily anticipated would occur down through the years.\xe2\x80\x9d Id. Thus, the Court\nheld that the contours of the \xe2\x80\x9c take an active part\xe2\x80\x9d prohibition in section 9(a)\nof the Hatch Act properly had evolved in accordance with the CSC\xe2\x80\x99s revised rules\nand regulations.\nSignificantly, however, the Court held that Congress had established two\nsubstantial limitations on the CSC\xe2\x80\x99s authority to promulgate regulations defining\nprohibited activities. First, those regulations were not to be promulgated pursuant\nto a \xe2\x80\x9c broad rulemaking authority\xe2\x80\x9d on the part of the CSC; indeed, Congress\nexpressly had rejected such a broad delegation of rulemaking power. Id. at 57071. Thus, the CSC\xe2\x80\x99s regulations were merely interpretive, rather than legislative,\nor substantive.34 Second, Congress placed a specific limit on the CSC \xe2\x80\x99s power\nto alter Form 1236 (and subsequently, to alter its regulations): the C SC \xe2\x80\x99s further\ndevelopment of the law o f prohibited activities had to be \xe2\x80\x9c within the bounds\nof, and necessarily no more severe than, the 1940 rules.\xe2\x80\x9d Letter Carriers, 413\nU.S. at 575 (emphasis added). That is to say, the 1940 rules (i.e., the 1939 CSC\nForm 1236 as amended by the provisions of the 1939 and 1940 Acts themselves)\nprovided the \xe2\x80\x9c outer limits\xe2\x80\x9d of any subsequent redefinition of prohibited activities.\n33 Sections 36 to 50 o f Form 1236, referenced in section 17, discussed several criminal statutes, including, most\nimportant, sections 11 and 12 o f the Pendleton Act, at that time codified at 18 U.S.C. \xc2\xa7\xc2\xa7208, 209. See 1939 CSC\nForm 1236 at 17-22.\n34 See, e.g.. Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977) (discussing differences between interpretive and\nlegislative regulations), Health Ins. Ass\'n v. Shalala, 23 F.3d 412, 422-24 (D.C. Cir. 1994), cert, denied, 513 U S .\n1147 (1995); Alcaraz v. Block, 746 F.2d 593, 61 3 -1 4 (9th Cir. 1984); American Postal Workers Union v. United\nStates Postal Sen., 707 F.2d 548, 558-60 (D.C. Cir. 1983), cert, denied, 465 U.S. 1100 (1984).\n\n65\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nId. at 576; see also id. at 571-72 (CSC could not fashion a more expansive defini\xc2\xad\ntion of prohibited activities); id. at 574 (CSC was to proceed to perform its role\n\nunder the Hatch Act \xe2\x80\x9c within the limits\xe2\x80\x9d o f the 1940 rules).\nIn sum, by interpreting the Hatch Act, the CSC could over time loosen, or\neliminate, prohibitions found in its 1939-1940 rules, but it could not establish\nmore restrictive prohibitions than those identified in the 1940 version of CSC\nForm 1236a.\n3. C SC Interpretations \xe2\x80\x94 1942\xe2\x80\x941978\nDespite the broad ban expressed in the 1939-1940 CSC rule on the solicitation,\ncollection, receipt, disbursement and handling of contributions made for political\npurposes, the CSC did not apply this rule in a literal fashion in adjudications\nafter 1940. M ost important, the CSC held in various adjudications that \xe2\x80\x9c handling\xe2\x80\x9d\npolitical contributions did not, without more, necessarily constitute taking \xe2\x80\x9c an\nactive part in political management or in political campaigns.\xe2\x80\x9d\nFor instance, the Commission acknowledged that a postman (a federal\nemployee) carrying mail \xe2\x80\x9c handles\xe2\x80\x9d campaign contributions without violating the\nstatute. In re Burns, et al., 1 Political Activities Reporter (\xe2\x80\x9c P.A.R.\xe2\x80\x9d ) 538, 540\n(1952). By the same token, an employee who did a \xe2\x80\x9c trivial favor\xe2\x80\x9d for a friend\nby delivering membership cards to a political club did not thereby violate the\nstatute. In re Hendershot, 1 P.A.R. 166, 173 (1946).\nIn a series of cases, the Commission ruled that employees did not violate the\nAct by delivering fellow employees\xe2\x80\x99 remittance for tickets for a political organiza\xc2\xad\ntion\xe2\x80\x99s dinner, or by delivering the organization\xe2\x80\x99s dinner tickets to fellow\nemployees, so long as the employees performing the ministerial task were not\ninvolved in promoting the dinner. In re B um s, et al. (McDonald, Green, Higgins,\nChandler and K earns), 1 P.A.R. 538, 542-43 (1952); In re Hargadine, 1 P.A.R.\n629, 633 (1952); In re Edwards, 1 P.A.R. 714 (1954); In re Villone, 1 P.A.R.\n719 (1954). In such cases, the charged employees were \xe2\x80\x9c merely endeavoring to\naccommodate friends,\xe2\x80\x9d by \xe2\x80\x9c acceding\xe2\x80\x9d to their \xe2\x80\x9c requests.\xe2\x80\x9d Hargadine, 1 P.A.R.\nat 633. The Commission accordingly refused to find a violation on the basis of\nsuch a \xe2\x80\x9c minimal errand service.\xe2\x80\x9d Villone, 1 P.A.R. at 719.\nFinally, in a case of particular relevance here, the Commission found that a\nfederal employee did not violate the Act when, \xe2\x80\x9c [a]s a favor\xe2\x80\x9d to three supervisory\nemployees, \xe2\x80\x9c he mailed their contributions to the campaign committee of their\nchoice.\xe2\x80\x9d In re Branlund, 1 P.A.R. 752, 753 (1955). Although undoubtedly this\nwas a \xe2\x80\x9c handling\xe2\x80\x9d of political contributions in a literal sense, id., the Commission\nnevertheless ruled that the employee \xe2\x80\x9c took no active part in political management\nor in a political campaign,\xe2\x80\x9d id.\nDespite these adjudicatory decisions, the CSC continued to publish more strin\xc2\xad\ngent rules. And in 1970, the CSC retained the strict prohibitions when it issued\nregulations on this subject. 35 Fed. Reg. 16,785 (1970). Thus, although under\nthe regulations a federal employee had the right to \xe2\x80\x9c [m]ake a financial contribu\xc2\xad\n\n66\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees fo r Contributions to Political Action Committees\n\ntion to a political party or organization,\xe2\x80\x9d 5 C.F.R.\xc2\xa7 733.111(a)(8) (1971), an\nemployee still was prohibited from \xe2\x80\x9c [d]irectly or indirectly soliciting, receiving,\ncollecting, handling, disbursing, or accounting fo r assessments, contributions, or\nother \xe2\x96\xa0\xe2\x80\x99funds for a partisan political purpose,\xe2\x80\x9d id. \xc2\xa7 7 3 3 .122(b)(3). Because\n\xc2\xa7733.122(b)(3) did not define a prohibition more stringent than those identified\nin the, 1939 and 1940 CSC rules, this regulation was within the C SC \xe2\x80\x99s delegated\nauthority, according to the Court\xe2\x80\x99s subsequent decision in Letter Carriers. By the\nsame token, the CSC\xe2\x80\x99s adjudicatory decisions limiting the severity of this prohibi\xc2\xad\ntion, see supra p. 66, also were within the Commission\xe2\x80\x99s power, because they\nreflected a diminution, rather than an enhancement, of the activities defined in\n1939 and 1940 as constituting an \xe2\x80\x9c active part in political management or in a\npolitical campaign.\xe2\x80\x9d\n4. Dissolution o f the CSC and Creation o f O PM \xe2\x80\x94 1978\nUnder the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat.\n1111, Congress eliminated the CSC, and OPM took over CSC\xe2\x80\x99s responsibility\nfor promulgating Hatch Act regulations. See American F ed\xe2\x80\x99n o f G o v\xe2\x80\x99t Employees\nv. O \xe2\x80\x99Connor, 747 F.2d 748, 753 & n.13 (D.C. Cir. 1984), cert, denied, 474 U.S.\n909 (1985).35 This authority, however, did not mean that Congress gave OPM\neither unlimited or dispositive power to interpret the Hatch Act. For one thing,\nOPM\xe2\x80\x99s regulatory authority was to be no more extensive than that previously\ngiven to the CSC \xe2\x80\x94 that is, OPM did not inherit any \xe2\x80\x9c broad rulemaking\nauthority,\xe2\x80\x9d see Letter Carriers, 413 U.S. at 570-71; therefore, OPM \xe2\x80\x99s Hatch Act\nregulations are merely interpretive (rather than \xe2\x80\x9c legislative\xe2\x80\x9d ) .36 Moreover, those\nregulations may not identify activities as prohibited unless such activities were\nwithin the group of prohibited activities defined in the CSC\xe2\x80\x99s 1939 and 1940\nrules. See supra pp. 6 4 -6 6 .37\n35 See also Authority for Issuing Hatch Act Regulations, 18 Op. O.L.C. 1, 3 A n.6 (1994).\n36 See supra p. 65 & note 34. By contrast, in another section o f the Hatch Act, Congress had granted the CSC\nexpress \xe2\x80\x9c legislative\xe2\x80\x9d rulemaking authority with respect to another matter, namely, identifying geographical areas\nwhere federal employees could take a more active role in political campaigns and management. See Act o f July\n19, 1940, ch. 640, \xc2\xa716, 54 Stat. 767, 771, Pub. L. No. 89-554, 80 Stat. 378, 526 (1966). Accordingly, the C SC \xe2\x80\x99s\nrules issued pursuant to this grant o f authority were legislative in nature, rather than interpretive. See Joseph v.\nCSC, 554 F.2d 1140, 1153 & nn.24-25 (D.C. Cir. 1977). This rulemaking authority was passed on to O PM in\n1979, see 5 U.S.C. \xc2\xa77327 (Supp. UI 1979); and O PM retains this rulemaking authority with respect to the geographic\nexceptions under the HARA, see 5 U.S.C. \xc2\xa77325. Accordingly, regulations issued pursuant to that authority, see,\ne.g., 59 Fed. Reg. 5313, 5314 (1994) (proposed 5 C.F.R. \xc2\xa7733.102), presumably are legislative, rather than interpre\xc2\xad\ntive.\n37 In some ways, O PM \xe2\x80\x99s regulatory authority is more limited than that previously enjoyed by the CSC. The MSPB\nhas been assigned the task o f reviewing the \xe2\x80\x9c rules and regulations o f the Office of Personnel M anagement,\xe2\x80\x9d 5\nU.S.C. \xc2\xa7 1204(a)(4); see also id. \xc2\xa7 1204(f). Thus, the MSPB has oversight authority \xe2\x80\x9c in the review of H atch Act\nregulations promulgated by the O PM .\xe2\x80\x9d American Fed\xe2\x80\x99n o f Gov\xe2\x80\x99t Employees, 747 F.2d at 755. Furthermore, the\nSupreme Court has explained that Hatch Act regulations themselves (now issued by OPM) should continue to be\n\xe2\x80\x9c refined by further adjudications,\xe2\x80\x9d \xe2\x80\x9c within the outer limits o f the 1940 rules.\xe2\x80\x9d Letter Carriers, 413 U.S. at 576.\nThis refinement role once was committed to the same agency that issued the regulations \xe2\x80\x94 the CSC. However, the\nM SPB\xe2\x80\x94 not O PM \xe2\x80\x94 has \xe2\x80\x9c inherited the C SC \xe2\x80\x99s \xe2\x80\x98accustomed role\xe2\x80\x99 o f refining the law of prohibited political activities\nthrough the continual decision o f cases.\xe2\x80\x9d American Fed\xe2\x80\x99n o f Gov\xe2\x80\x99t Employees, 747 F.2d at 755.\n\n67\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\n5. O PM \xe2\x80\x99s A m ended Regulations on Salary Allocations to PA C s \xe2\x80\x94 1982-1984\n\nBefore 1982, no agency or court had considered or addressed the applicability\nof the Hatch Act to PAC contributions. On December 28, 1982, OPM published\nproposed regulations \xe2\x80\x9c to clarify the . . . existing regulatory prohibition [in 5\nC.F.R. \xc2\xa7733.122(3)] on the solicitation, payment, collection, and receipt of polit\xc2\xad\nical contributions.\xe2\x80\x9d 47 Fed. Reg. 57,724, 57,724. In order to make clear that the\nfederal payrol 1-deduction system could not be used for political contributions,\nincluding contributions to PACs, OPM proposed to expand the Hatch Act defini\xc2\xad\ntion of \xe2\x80\x9c contribution,\xe2\x80\x9d 38 and to add three new subsections to the list of \xe2\x80\x9c prohibi\xc2\xad\ntions.\xe2\x80\x9d 39 OPM reasoned that automatic salary allocations to PACs should be\nimpermissible because \xe2\x80\x9c the use of a Federal payroll deduction scheme or the\nGovernment\xe2\x80\x99s allotment system as a conduit for political contributions by Federal\nemployees subject to the Hatch Act would involve the use of Federal workplaces\nand instrumentalities to pay, collect, and receive such contributions.\xe2\x80\x9d Id. OPM\nalso alleged that such a practice would \xe2\x80\x9c raise[] the unacceptable possibility of\nabuse,\xe2\x80\x9d and would \xe2\x80\x9c enable o r encourage supervisors and co-workers to bring\nvarieties of impermissible pressures upon the employee to [contribute].\xe2\x80\x9d Id.\\ see\nalso supra note 19.\nPublic-employee unions raised numerous objections to the proposed regulations.\nMoreover, the Office of Special Counsel informed OPM that, in the opinion of\nthe Special Counsel, the Hatch Act would not be violated by employees who\nperform the administrative and clerical \xe2\x80\x9c handling\xe2\x80\x9d o f other employees\xe2\x80\x99 PAC con\xc2\xad\ntributions:\nThe employees who perform the administrative and clerical chores\nwhich effect another employee\xe2\x80\x99s contribution to AFGE-PAC\narguably violate the Hatch Act since their duties cause them to\n\xe2\x80\x9c indirectly . . . handle . . . contributions . . . for a partisan polit\xc2\xad\nical purpose.\xe2\x80\x9d ( See section 733.122(b)(3), Part 733.5 C.F.R.). How\xc2\xad\never, this indirect, per[ip]heral \xe2\x80\x9c handling\xe2\x80\x9d of political contributions\n38 The proposed definition o f contribution was \xe2\x80\x9c any gift, subscription, loan, advance, deposit of money, allotment\no f money, o r anything o f value given o r transferred by one person to another, including in cash, by check, by\ndraft, through a payroll deduction or allotment plan, by pledge or promise, w hether or not enforceable, or otherw ise."\n47 Fed. Reg. at 57,725 (proposed 5 C.F.R. \xc2\xa7 7 3 3 .101(h)) (emphasis added).\n39 U nder O PM \xe2\x80\x99s proposed regulation, the following three prohibitions would have been added to the list in 5\nC.F.R. \xc2\xa7733.122:\n(14) Soliciting, collecting, o r receiving a contribution from any employee for any political party, political\nfund , o r other partisan recipient;\n(15) Paying a contribution to any em ployee who is the employer or employing authority o f the person\nmaking the contribution for any political party, political fund, or other partisan recipient; and\n(16) Soliciting, paying, collecting, or receiving a contribution, at or in any Federal workplace, for any\npolitical party, political fund , or other partisan recipient.\n47 Fed. Reg. at 57,725. \xe2\x80\x9c Political fund,\xe2\x80\x9d in turn, was defined to include any PAC that, inter alia, expends or\ntransfers money o r anything o f value to any candidate or organization, \xe2\x80\x9c for purposes o f influencing in any way\nthe outcom e o f any partisan election.\xe2\x80\x9d Id. (proposed 5 C.F.R. \xc2\xa7 7 3 3 .101(g)).\n\n68\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees fo r Contributions to Political Action Committees\n\ncan be distinguished from that which is performed by someone as\nan incident to holding office in a political party or PAC. The\nemployees who process the paperwork which accomplish the con\xc2\xad\ntribution to AFGE-PAC are performing their official duties. The\nindividual who \xe2\x80\x9c handles contributions\xe2\x80\x9d for the Democratic or\nRepublican party has identified himself with the success of a par\xc2\xad\ntisan political party. The Hatch Act was intended to restrict federal\nemployees with respect to the latter not the former.\nMemorandum for William E. Reukauf, Deputy Associate Special Counsel for\nProsecution, Office of the Special Counsel, from John R. Erck, Attorney, Re: C lo\xc2\xad\nsure Recommendation AFGE \xe2\x80\x94 PAC-DC, OSC M atter No. 1 0 -3 -0 0 4 6 9 (Dec. 2,\n1983) (concurred in by Deputy Associate Special Counsel Reukauf on Dec. 6,\n1983; transmitted to OPM on Apr. 6, 1984).\nDespite the unions\xe2\x80\x99 objections and the Special Counsel\xe2\x80\x99s opinion, OPM issued\nits amended regulations in final form on April 24, 1984. 49 Fed. Reg. at 17,43132. In the comment stage, the American Federation of Government Employees\n(\xe2\x80\x9c AFGE\xe2\x80\x9d ) had contended that OPM lacked the authority to issue the new regula\xc2\xad\ntions; AFGE argued that OPM would be acting outside its statutory authority by\ncreating a new prohibition, beyond those enumerated in the 1940 CSC R ules.40\nIn the final regulations, OPM responded to this argument by stating that \xe2\x80\x9c these\nregulations do not exceed the boundaries set forth in the Hatch Act. They merely\nclarify an existing OPM regulation (5 CFR 733.122(b)(3)).\xe2\x80\x9d 47 Fed. Reg. at\n17,431.\nOPM\xe2\x80\x99s defense of its authority was well-founded. OPM \xe2\x80\x99s new 1984 regulations\ntechnically did not create any prohibition broader than that already contained in\nthe sweeping proscription found in the 1939 and 1940 CSC rules regarding the\nhandling of contributions, see supra pp. 64-66; rather, OPM simply issued clari\xc2\xad\nfying regulations to explain how that already-existing prohibition (5 C.F.R.\n\xc2\xa7733.122(b)(3)) applied to a new fact situation \xe2\x80\x94 namely, salary allocations to\nPACs.\nIt is important to note, however, that whereas OPM was empowered to issue\nthe 1984 regulations, it was not required to do so; indeed, OPM could instead\nhave modified its previous rules to permit the practice in question, which would\nhave been in accord with the opinion of the Special Counsel (see supra pp. 6869) and with the adjudicatory decisions of the CSC (see supra pp. 6 6 -6 7 ).41 What\n40 See Comments o f American Federation o f Government Employees on Proposed Rule o f Office [of] Personnel\nManagement Amending 5 CFR Part 733, Political Activity o f Federal Employees at 20 n.13 (submitted to OPM\nMarch 4, 1983).\n41 In publishing its regulations, OPM stated that \xe2\x80\x9c [tjhe overwhelming majority of the former C ivil Service C om m is\xc2\xad\nsion\xe2\x80\x99s decisions . . . have held that these activities are violations o f the Hatch A ct." 49 Fed. Reg. at 17,431. OPM\ndid not, however, cite any CSC \xe2\x80\x9c decisions" in support o f this proposition, and, as explained supra p. 66, this\nclaim is belied by the historical evidence: in contrast to the strict CSC rules, the CSC adjudications almost uniformly\nContinued\n\n69\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nis more, exercising its power to reinterpret the Hatch Act to loosen its prohibitions,\nsee supra pp. 65-67, OPM could have eliminated altogether the broad prohibition\n\nfound in \xc2\xa7 7 3 3 .122(b)(3) of the regulations against \xe2\x80\x9c handling, disbursing, or\naccounting for\xe2\x80\x99 \xe2\x80\x99 political contributions.\n6. The B iller and Blaylock C a ses\xe2\x80\x94 1988\nAs we previously have noted, supra pp. 55-56, in two cases in 1988, federal\ncourts of appeals ruled that the test of whether a federal employee had taken\n\xe2\x80\x9c an active part in political management or in political campaigns\xe2\x80\x9d was whether\nthat employee had acted \xe2\x80\x9c in concert with a partisan political campaign or\norganization.\xe2\x80\x9d Biller, 863 F.2d at 1090 (emphasis added); accord Blaylock, 851\nF.2d at 1356 (\xe2\x80\x9c the Hatch Act is violated only by actions taken in concerted effort\nwith partisan activity or formal, organized, political groups\xe2\x80\x9d ).\nThe legal status of federal-employee salary allocation to PACs thus was in a\nstate o f flux following Biller and Blaylock. On the one hand, the OPM regulations\nplainly prohibited any federal employee from \xe2\x80\x9c directly or indirectly soliciting,\nreceiving, collecting, handling, disbursing, or accounting for assessments, con\xc2\xad\ntributions, or other funds for a partisan political purpose,\xe2\x80\x9d 5 C.F.R.\n\xc2\xa7 733.122(b)(3) (1994); and the 1984 amendments to the regulations made clear\nthat this prohibition extended to salary-allotment systems, id. \xc2\xa7733.101(h), and\nincluded contributions to a PAC so long as that PAC \xe2\x80\x9c expends\xe2\x80\x9d or \xe2\x80\x9c transfers\xe2\x80\x9d\nmoney to, inter alia, any political party, candidate, or organization, id.\n\xc2\xa7 7 3 3 .101(g). On the other hand, B iller and Blaylock could fairly be read to\nindicate that federal employees who performed the ministerial acts of handling,\nprocessing, and transferring fellow employees\xe2\x80\x99 PAC contributions would not vio\xc2\xad\nlate the Hatch Act, because those ministerial actions would not be undertaken\n\xe2\x80\x9c in concert w ith\xe2\x80\x9d any partisan political campaign or organization, including the\nPAC itself.\n7. The H atch A ct Amendments \xe2\x80\x94 1993\xe2\x80\x9494\nIn the HARA, Congress retained the old Hatch Act definition of \xe2\x80\x9c tak[ing] an\nactive part in political management or in a political campaign\xe2\x80\x9d : i.e., \xe2\x80\x9c those acts\no f political management or political campaigning which were prohibited for\nemployees o f the competitive service before July 19, 1940, by determinations of\nthe Civil Service Commission under the rules prescribed by the President.\xe2\x80\x9d 5\nU.S.C. \xc2\xa7 7323(b)(4). There is, moreover, no reason to believe that Congress\nintended the content or scope o f this definition to be anything other than what\nthe Supreme Court described in L etter Carriers. See supra pp. 63-66.\nOPM continues to have the same regulatory authority that it enjoyed under the\npre-1993 Hatch Act to define the contours o f \xe2\x80\x9c tak[ing] an active part in political\nm anagem ent or in a political campaign.\xe2\x80\x9d See supra pp. 66-67. Pursuant to that\nhad held that m ere ministerial handling o f political contributions by federal employees did not constitute taking\nan \xe2\x80\x9c active part in political management or in a political cam paign."\n\n70\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees for Contributions to Political Action Committees\n\nauthority, OPM superseded its old Hatch Act regulations on February 4, 1994.\n59 Fed. Reg. 5313-15. Thereafter, on September 23, 1994, OPM published interim\nregulations. In those regulations, OPM has eliminated from the list of prohibited\nactivities \xe2\x80\x94 including from the list of activities prohibited for \xe2\x80\x9c HARA-exempt\xe2\x80\x9d\nemployees \xe2\x80\x94 the four subsections (formerly 5 C.F.R. \xc2\xa7\xc2\xa7733.122(b)(3), (14)\xe2\x80\x94(16))\nthat were the basis for OPM \xe2\x80\x99s conclusion in 1984 that salary allocations to PACs\nwere prohibited, see supra pp. 68-70. Thus, there currently is nothing in OPM \xe2\x80\x99s\nregulations prohibiting \xe2\x80\x9c handling,\xe2\x80\x9d or \xe2\x80\x9c accounting for,\xe2\x80\x9d political contributions.\n8. Summary\nThis historical survey demonstrates why, for two reasons, HARA-exempt\nemployees are not bound by law to the terms of OPM \xe2\x80\x99s pre-HARA regulations.\nFirst, it is far from clear that it would have been impermissible to \xe2\x80\x9c handle\xe2\x80\x9d\nor \xe2\x80\x9c account for\xe2\x80\x9d other employees\xe2\x80\x99 PAC contributions prior to the HARA. While\nit is true that, by their plain terms, the OPM regulations previously found at 5\nC.F.R. \xc2\xa7\xc2\xa7733.122(b)(3), (14)\xe2\x80\x94(16) prohibited the actions at issue, it also is true\nthat those regulations were contradicted by: (i) the adjudicatory decisions of the\nCSC in the years immediately following passage o f the Hatch Act, see supra\npp. 66-67; (ii) the opinion of the Special Counsel in 1983, see supra pp. 6 8 69; and, most importantly, (iii) the decisions of the Second and Eleventh Circuits\nin Biller and Blaylock, respectively, see supra p. 70. These other authorities held\nthat the ministerial \xe2\x80\x9c handling\xe2\x80\x9d of political contributions was not proscribed by\nthe Hatch Act if the employee doing the handling was not acting on behalf of\nthe political group or candidate to which the contribution was made.\nSecond, even if the pre-1994 OPM regulations had constituted binding and\napplicable law prior to the HARA, the HARA did not codify into law the terms\nof those prior regulations with respect to HARA-exempt employees. Rather, the\nHARA simply left intact the Hatch Act definition of \xe2\x80\x9c active part in. political\nmanagement or in political campaigns.\xe2\x80\x9d As we have explained, supra pp. 6 5 70, this definition was not static: OPM (previously the CSC) was empowered\nto alter the definition in the direction of more permissive regulation. OPM con\xc2\xad\ntinues to have that authority under the HARA.\nIn the proposed regulations, OPM has exercised its delegated authority to\nredefine what constitutes an \xe2\x80\x9c active part in political management or in political\ncampaigns.\xe2\x80\x9d Whereas \xe2\x80\x9c handling\xe2\x80\x9d and \xe2\x80\x9c accounting for\xe2\x80\x9d such contributions once\nwere proscribed by the OPM regulations, they no longer are. OPM \xe2\x80\x99s redefinition,\nmoreover, comports with the great weight of authority over the years respecting\nthe ministerial handling of political contributions, including the adjudicatory\ndecisions of the CSC after the Hatch Act and the decisions of the courts of appeals\nin Biller and in Blaylock. Therefore, the OPM regulations now are in accord with\nthe other authorities on the matter, and there no longer is any bar on the ministerial\nhandling of, or \xe2\x80\x9c accounting for,\xe2\x80\x9d political contributions, including contributions\nto PACs.\n\n71\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nO. P olitica l A ctivity On D uty and in a F ederal B u ildin g\xe2\x80\x94 5 U.S.C. \xc2\xa7 7324\nThe Criminal Division has asked whether any of the participants in the proposed\npractice would violate the prohibitions stated in 5 U.S.C. \xc2\xa77324. Almost all cov\xc2\xad\nered employees, whether or not they are HARA-exempt, may not engage in\n\xe2\x80\x9c political activity\xe2\x80\x9d : (i) while on duty; (ii) while in \xe2\x80\x9c any room or building occu\xc2\xad\npied in the discharge of official duties by an individual employed or holding office\nin the Government o f the United States or any agency or instrumentality thereof\xe2\x80\x9d ;\n(iii) while wearing a uniform or official insignia identifying the employee\xe2\x80\x99s office\nor position; or (iv) while using any vehicle owned or leased by the federal govern\xc2\xad\nment. 5 U.S.C. \xc2\xa77324(a)(l)-(4). An exception to these prohibitions is made for\ncertain employees whose duties and responsibilities continue \xe2\x80\x9c outside normal duty\nhours and while away from the normal duty post.\xe2\x80\x9d Id. \xc2\xa7 7324(b)(2)(A). These\nemployees may engage in on-duty or on-premises political activity, but only \xe2\x80\x9c if\nthe costs associated with that political activity are not paid for by money derived\nfrom the Treasury o f the United States.\xe2\x80\x9d Id. \xc2\xa7 7324(b)(1).\nCongress did not define \xe2\x80\x9c political activity\xe2\x80\x9d in the HARA. OPM has proposed\nthat \xe2\x80\x9c political activity\xe2\x80\x9d be defined as \xe2\x80\x9c an activity directed toward the success\nor failure of a political party, candidate for partisan political office, or partisan\npolitical group.\xe2\x80\x9d 59 Fed. Reg. at 48,770-71 (proposed 5 C.F.R. \xc2\xa7734.101). We\nthink that this definition, as far as it goes, comports with Congress\xe2\x80\x99s intent. But\nit is important to note one other salient fact: It is evident from the statements\no f the H A R A \xe2\x80\x99s leading sponsors that Congress intended to create a bright-line\nrule, with no exceptions: section 7324(a) prohibits covered employees from\nengaging in all on-duty and on-site political activity.42 As the principal Senate\n42See, e.g., 139 Cong. Rec. 15,365-68 (1993) (statement o f Sen. Glenn) ( \xe2\x80\x9c no political activity of any kind on\nthe jo b \xe2\x80\x9d ; \xe2\x80\x9c nothing political on the job, not even a lapel button o f any size\xe2\x80\x9d ; political activity on the job \xe2\x80\x9c would\nbe absolutely and unequivocally prohibited . . . ; no political activity on the job, zero, including even what is per\xc2\xad\nmitted under to d ay \xe2\x80\x99s Hatch A ct\xe2\x80\x9d ; "N othing on the job. Cannot even wear a campaign button on the jo b ."; \xe2\x80\x9c all\npolitical activity on the job would be b an n ed "; "A bsolutely no political activity will be acceptable on the jo b ");\nid. at 15,376 (statem ent o f Sen. Glenn) ( \xe2\x80\x9c unequivocally, . . . \xe2\x80\x94 no political activity on the jo b \xe2\x80\x9d ); id. at 15,53132 (statement o f Sen. G lenn) ( \xe2\x80\x9c Simply p u t . . . what S. 185 does is say that you do not even permit anything\non the jo b that has been permitted ail these years under the Hatch Act. You cut it out. There will be no politics\non the jo b , none.\xe2\x80\x9d ; \xe2\x80\x9c O n the job, you can do nothing, period.\xe2\x80\x9d , \xe2\x80\x9c no button [of] any kind, on the job, no kind\no f political activity on the jo b period\xe2\x80\x9d ; \xe2\x80\x9c N o political activity on the jo b \xe2\x80\x94 zero\xe2\x80\x94 including even what is permitted\ntoday.\xe2\x80\x9d ); id. at 15,739-41 (statement o f Sen. Glenn) ( \xe2\x80\x9c [Tlhere will be no political activity on the job. There are\nno exceptions to that. There will be no political activity o f any kind on the job.\xe2\x80\x9d ; \xe2\x80\x9c This bill would say on the\njob, you can d o absolutely nothing political. You cannot have a campaign button on. You cannot do anything.\xe2\x80\x9d );\nid. at 16,038 (statem ent o f Sen. Glenn) (\xe2\x80\x9c W e prohibit all political activity on the job with S. 185. I keep hammering\n. . . and ham m ering that thought home, because there has been so much misunderstanding. We tighten up the Hatch\nAct and make it tougher than it now is. N o political contributions, no political activity, no wearing of a button\non the jo b .\xe2\x80\x9d ; \xe2\x80\x9c [o]n the job, zero\xe2\x80\x9d ); id. at 16,054 (statement o f Sen. DeConcini) (\xe2\x80\x9c The prohibition on workplace\nactivity is an absolute prohibition.").\nIn an earlier session o f Congress, Senator G lenn\xe2\x80\x94 the chief sponsor o f Hatch Act reform legislation\xe2\x80\x94 expressed\nthe same understanding w ith respect to an identical provision, noting that the on-the-job prohibition \xe2\x80\x9c has to be\nSim on p u re \xe2\x80\x94 you cannot do anything." 136 Cong. Rec. 9156 (1990); see also id. at 9358-59 (statement of Sen.\nG lenn) (\xe2\x80\x9c None. A one-w ord answer, no political activity on the jo b ." , \xe2\x80\x9c nothing o f a political nature is permitted\non the job; I mean nothing\xe2\x80\x9d ; \xe2\x80\x9c This would clarify it. This would say anything on the job is verboten, it is out,\nit is not permitted. . . . If you are on duty an d you are on the job, that is it, no politics."); id. at 10,034 (statement\no f Sen. G lenn) ( \xe2\x80\x9c there can be no political indication, there can be no political activity on the job; none, period;\n\n72\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees fo r Contributions to Political Action Committees\n\nsponsor of the bill stated, on-the-job political activity \xe2\x80\x9c would be absolutely and\nunequivocally prohibited.\xe2\x80\x9d 139 Cong. Rec. 15,366 (statement of Sen. Glerrn).43\nThus, for example, Congress intended to prohibit the wearing of political buttons\non duty.44 Nor can covered employees stuff envelopes with political materials\nor send out campaign materials while they are on the job or in a federal\nbuilding\xe2\x80\x94 such activities are permitted only off-site and \xe2\x80\x9c off the job.\xe2\x80\x9d 45 Most\nimportant for present purposes, political contributions, including PAC contribu\xc2\xad\ntions, cannot be \xe2\x80\x9c request[ed]\xe2\x80\x9d nor \xe2\x80\x9c given\xe2\x80\x9d while on the job: \xe2\x80\x9c [i]t would be\nno solicitation, no public statement, no nothing on the job o f a political nature\xe2\x80\x9d ); id. ai 15,098 (statement o f Sen.\nGlenn) (\xe2\x80\x9c Nothing can be done o f a political nature while you are on the jo b during the day. Nothing. Zero. That\nis it.\xe2\x80\x9d ; \xe2\x80\x9c All political activity on the job is banned. Everything.\xe2\x80\x9d ).\nEarlier in that same session, several sponsors o f equivalent legislation in the House also spoke o f the on-duty\nban in absolutist terms. See, e.g., 135 Cong. Rec. 6767 (1989) (statement o f Rep. Horton) ( \xe2\x80\x98\xe2\x80\x98No on-the-job political\nactivity will be allowed. Just that simple, none whatsoever.\xe2\x80\x9d ); id. at 6773 (statement of Rep. Martin) ( \xe2\x80\x9c prohibits\nany political activity whatsoever on the jo b \xe2\x80\x9d ); id. (statement of Rep. Morelia) ( \xe2\x80\x9c It will ban absolutely all politicking\nin the Federal workplace . . . . By taking this black and white approach, no partisan political activities on the\njob, any otherwise legal activities o ff the job, the Hatch Act reform bill would clear up the ambiguity and vagueness\n. . . .\xe2\x80\x9d ); id. at 6777 (statement o f Rep. Parris) ( \xe2\x80\x9c \'bright line* rule\xe2\x80\x9d \xe2\x80\x94 \xe2\x80\x9c prohibiting all on-the-job political activity\nwhile permitting participation in any otherwise legal political activity during the Federal em ployees\xe2\x80\x99 ow n tim e\xe2\x80\x9d \xe2\x80\x94\n\xe2\x80\x9c would provide clear guidance on permissible activity\xe2\x80\x9d ).\n43O PM \xe2\x80\x99s proposed regulations reflect this absolute, bright-line rule, creating distinctions that might otherwise\nseem hypertechnical. See 59 Fed. Reg. at 48,774 (proposed 5 C.F.R. \xc2\xa7734.306, Example 10) (\xe2\x80\x9c An employee may\nstuff envelopes for a mailing on behalf o f a candidate for partisan political office while the employee is sitting\nin the park during his lunch period if he is not considered to be on duty during his lunch period.\xe2\x80\x9d ); id. (proposed\n5 C.F.R. \xc2\xa7734.306, Example 11) ( \xe2\x80\x9c An employee may engage in political activity in the courtyard outside o f a\nFederal building where no official duties are discharged as long as the employee is not on duty.\xe2\x80\x9d ).\n44 See, e.g., S. Rep. No. 103-57, at 14 (1993), reprinted in 1993 U.S.C.C.A.N. 1802, 1815; 139 Cong Rec. 15,36667 (1993) (statement o f Sen. Glenn); id. at 15,532 (statement o f Sen. Glenn); id. at 15,741 (statement o f Sen. Glenn);\nid. at 15,785 (statement o f Sen. Sarbanes); id. at 16,039 (statement o f Sen. Glenn); id. at 16,054 (statement of\nSen. DeConcini); id. at 3275 (statement o f Rep. Upton); see also, e.g., 135 Cong. Rec. 6773 (1989) (statement\nof Rep. Morelia).\nInsofar as the broad ban on \xe2\x80\x9c political activity\xe2\x80\x9d in \xc2\xa77324 establishes an across-the-board prohibition on certain\nforms of on-duty expressive activity\xe2\x80\x94 such as, e.g., wearing buttons or putting up bumper stickers \xe2\x80\x94 it may raise\ndifficult constitutional questions. Compare, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 618 (1973) (insofar as state\nlaw restricts public employees from wearing political buttons or displaying political bumper stickers, such restrictions\n\xe2\x80\x9c may be . . . unconstitutional\xe2\x80\x9d ); Hobbs v. Thompson, 448 F.2d 456, 475 (5th Cir. 1971) (banning firefighters from\ndisplaymg political bum per stickers is unconstitutional); American Fed\'n o f Gov\xe2\x80\x99t Employees v. Pierce, 586 F. Supp.\n1559, 1561-63 (D.D.C. 1984) (Veterans Administration policy absolutely prohibiting employees from wearing polit\xc2\xad\nical buttons on duty is unconstitutional); McNea v. Garey, 434 F. Supp. 95, 108-11 (N.D. Ohio 1976) (municipal\nregulation prohibiting police officers from all discussions or expressions o f politics is unconstitutional); Weaver v.\nShaffer, 170 W. Va. 107, 108-09, 114, 290 S.E.2d 244, 245-46, 251 (W. Va. 1980) (state law prohibiting deputy\nsheriffs from engaging in \xe2\x80\x9c any political activity o f any kind\xe2\x80\x9d would be unconstitutionally overbroad were it not\nfor court\xe2\x80\x99s interpretation o f that ban to proscribe only those political activities that the Supreme Court in Letter\nCarriers decided may constitutionally be proscribed), with, e.g.. Wicker v. Goodwin, 813 F. Supp. 676, 678, 681\n(E.D. Ark. 1992) (state law prohibiting state troopers from publicly and openly espousing candidacies is not unconsti\xc2\xad\ntutional); Connealy v. Walsh, 412 F. Supp. 146, 158 (W.D. Mo. 1976) (juvenile court regulation prohibiting\nemployees from displaying political bumper stickers on vehicles used for court business or parked in court parking\nlot is not unconstitutional); State ex rel. Troutman v. City o f Farmington, 799 S.W.2d 638, 642-43 (Mo. App. 1990)\n(municipal laws and regulations prohibiting police officers from expressing opinions on political subjects and can\xc2\xad\ndidates on duty, and from displaying on duty any political pictures, stickers, badges or buttons, are not unconstitu\xc2\xad\ntional); Ferguson Police Officers Ass\xe2\x80\x99n v. City o f Ferguson, 670 S.W.2d 921, 928-29 (Mo. App. 1984) (city provision\nprohibiting police officers from speaking, literally o r through bumper stickers, signs and buttons, in favor or against\ncandidates for city council, is not unconstitutional); State v. Staler, 122 So. 2d 1 (Fla. 1960) (state statute prohibiting\nstate employees from \xe2\x80\x9c advising\xe2\x80\x9d other employees to make political contributions is not unconstitutional, even as\nto \xe2\x80\x9c advice\xe2\x80\x9d that is not coercive in nature). We have no occasion in this Opinion to address these constitutional\nquestions.\n4 iSee, e.g., 139 Cong. Rec. at 1233 (statement o f Sen. Glenn); id. at 15,368 (statement of Sen. Glenn); id. at\n15,785 (statement o f Sen. Sarbanes); see also , e.g., 136 Cong. Rec 10,035 (1990) (statement o f Sen. Glenn).\n\n73\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nillegal to give as well as to ask for\xe2\x80\x9d such contributions while on duty. 139 Cong.\nRec. 16,039 (statement of Sen. Glenn ) . 46\nWith this understanding o f the meaning of \xe2\x80\x9c political activity\xe2\x80\x9d in \xc2\xa77324, we\ncan now examine whether and under what circumstances any of the participants\nin the proposed salary-allocation practice would violate the restrictions in that\nstatute.\n1. Offerors\nThe Criminal Division has argued that \xe2\x80\x9c the circulation of the proposed payroll\nwithholding offer . . . may constitute [on-duty and on-site] \xe2\x80\x98political activity.\xe2\x80\x99 \xe2\x80\x9d\nM emorandum for Walter Dellinger, Assistant Attorney General, Office of Legal\nCounsel, from Jo Ann Harris, Assistant Attorney General, Criminal Division at\n7 (Oct. 24, 1994) (citing 5 U.S.C. \xc2\xa77324).\nBut, just as making available the salary-allocation system for PAC contributions\ncannot fairly be considered \xe2\x80\x9c solicitation,\xe2\x80\x9d see supra pp. 53-58, neither can it\nfairly be considered \xe2\x80\x9c political activity.\xe2\x80\x9d As long as the heads of agencies making\nsuch offers do not request employees to make use of the allocation system, and\ndo not favor one PAC over another (or favor allocation to PACs over nonalloca\xc2\xad\ntion), then it is hard to see how they would be engaged in \xe2\x80\x9c political activity,\xe2\x80\x9d\nany more than they would be when they authorize their employees to take an\nexcused absence, with pay, in order to vote in an election. See, e.g., Department\no f Justice Order No. 1630.1B, ch. 14, \xc2\xa791(b) (July 22, 1991) (heads of compo\xc2\xad\nnents may, under certain circumstances, authorize excused absence for employees\nwho wish to vote or register to vote in any election). Under OPM \xe2\x80\x99s proposed\nregulation \xe2\x80\x94 which we think is an accurate interpretation of \xc2\xa7 7 3 2 4 \xe2\x80\x94 activity\nbecomes \xe2\x80\x9c political,\xe2\x80\x9d and thus proscribed on duty and in federal buildings, only\nwhen it is \xe2\x80\x9c directed toward the success or failure of a political party, candidate\nfor partisan political office, o r partisan political group.\xe2\x80\x9d See supra p. 72. The\nneutral offer of access to the salary-allocation system proposed by OPM would\nnot be proscribed under this standard; while such action may facilitate political\nactivity, it is not political activity itself.\n2. Adm inistering Employees\nThe Criminal Division further has suggested that federal employees imple\xc2\xad\nmenting other employees\xe2\x80\x99 salary allocations to PACs may violate the HARA\nprohibition against \xe2\x80\x9c political activity\xe2\x80\x9d on duty or in federal facilities. Memo\xc2\xad\nrandum for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel,\nfrom Jo Ann Harris, Assistant Attorney General, Criminal Division at 7 (Oct.\n24, 1994).\n46 Accord 136 Cong. Rec. 9777 (1990) (statem ent o f Sen. Glenn with respect to materially identical legislation)\n( \xe2\x80\x9c N o political activity, no political contributions, no nothing by Federal employees while they are on the job.\xe2\x80\x9d )\n(em phasis added).\n\n74\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees fo r Contributions to Political Action Committees\n\nWe conclude, however, that the employees who would perform the acts of m in\xc2\xad\nisterial facilitation of PAC contributions would not thereby engage in \xe2\x80\x9c political\nactivity.\xe2\x80\x9d The actions of those employees would not be undertaken with any intent\nto benefit the PACs; the employees in question would merely be providing a\nservice that they are required by duty to provide, in response to requests by other\nemployees over which the facilitating employees have no control. (Indeed, insofar\nas the authorization forms merely request salary assignments to particular bank\naccounts, the employees administering those assignments may well be unaware\nthat they are dealing with PAC contributions\xe2\x80\x94 that is to say, the administering\nemployees\xe2\x80\x99 involvement in political activity could be entirely unwitting.)\nAgain, under OPM \xe2\x80\x99s proposed regulation, an activity is \xe2\x80\x9c political activity\xe2\x80\x9d \xe2\x80\x94\nand therefore cannot be performed on duty \xe2\x80\x94 if that activity is \xe2\x80\x9c directed toward\nthe success or failure of a political party, candidate for partisan political office,\nor partisan political group.\xe2\x80\x9d We think the \xe2\x80\x9c political activity\xe2\x80\x9d ban in the statute,\nand the \xe2\x80\x9c directed toward the success or failure\xe2\x80\x9d language of the proposed regula\xc2\xad\ntion, fairly read, contain an implicit intent requirement: an employee\xe2\x80\x99s activity\nis not \xe2\x80\x9c political activity\xe2\x80\x9d unless that employee intends that the activity be directed\ntoward the success or failure of a political party, candidate, or group. If an\nemployee merely acts at the behest, or \xe2\x80\x9c direction,\xe2\x80\x9d of another employee, and\nhas no independent intent to assist in the \xe2\x80\x9c success or failure\xe2\x80\x9d of the political\nparty, candidate, or group, then that employee would not herself be engaged in\n\xe2\x80\x9c political activity.\xe2\x80\x9d 47 The employees in question here would facilitate the PAC\ncontributions not because they intended to assist the PAC, but because their duty\nrequired them to do so: they would have no discretion in the matter. Were it\nthe case that employees could violate \xc2\xa7 7324(a) by virtue of any ministerial and/\nor unwitting assistance in political activity, regardless of an intent to advance any\npolitical end, then any postal employee delivering a mailed political contribution\nwould violate \xc2\xa7 7324(a). That could not have been Congress\xe2\x80\x99s intent.\n3. Contributors\nThe most troublesome aspect of the proposed use of the salary-allocation system\nfor PAC contributions arises with respect to the federal employees who would\nactually be making the contributions through the use of that system .48\nWe first must address a threshold question: whether an employee engages in\n\xe2\x80\x9c political activity\xe2\x80\x9d under \xc2\xa77324 when the employee takes steps to have a portion\nof his or her salary transmitted to a PAC. Federal employees are, as a general\nmatter, permitted under the HARA to make contributions to partisan political can\xc2\xad\ndidates and to partisan political organizations such as PACs. See, e.g., 59 Fed.\n47 This assumes, o f course, that the facilitating employee, as pan o f her job duties, simply administers all salary\nallocations equally and without favor, and does not have an independent intent to \xe2\x80\x9c direct,\xe2\x80\x9d or effect, the political\ncontribution.\n48 There is nothing in O PM \xe2\x80\x99s regulations that speaks directly to the questions raised in this section. Nonetheless,\nwe note that none o f our conclusions in this section is in any way inconsistent with those proposed regulations.\n\n75\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nReg. at 48,772 (proposed 5 C.F.R. \xc2\xa7 734.208(a)). However, it also is clear under\nthe HARA that making such a political contribution is \xe2\x80\x9c political activity,\xe2\x80\x9d see\n18 U.S.C. \xc2\xa7610, and therefore is subject to the restrictions of \xc2\xa77324. Furthermore,\nin light of Congress\xe2\x80\x99s obvious intent that \xe2\x80\x9c political activity\xe2\x80\x9d be read as broadly\nas possible, see supra pp. 1 2 -1 A, it is plain that a federal employee also engages\nin \xe2\x80\x9c political activity\xe2\x80\x9d by taking action sufficient to effect the making of a political\ncontribution, such as by taking steps to ensure that a portion of his or her salary\nis contributed to a political campaign or to a PAC.\nOPM does not dispute that making contributions to partisan political campaigns\nor candidates is \xe2\x80\x9c political activity.\xe2\x80\x9d 49 OPM contends, however, that under the\nSecond Circuit\xe2\x80\x99s holding in B iller, making contributions to PACs is not a \xe2\x80\x9c polit\xc2\xad\nical activity,\xe2\x80\x9d because such contributions are not necessarily partisan in nature.\nSee Letter for Dawn E. Johnsen, Deputy Assistant Attorney General, Office of\nLegal Counsel, from Lorraine Lewis, General Counsel, Office of Personnel\nM anagement at 9 (Nov. 4, 1994); Letter for Dawn E. Johnsen, Deputy Assistant\n[Attorney General], Office o f Legal Counsel, from Lorraine Lewis, General\nCounsel, Office of Personnel Management at 3 -4 (Dec. 13, 1994).\nIn B iller, two union presidents had urged their members\xe2\x80\x94 fellow federal\nemployees \xe2\x80\x94 to contribute funds to the unions\xe2\x80\x99 PACs. The Second Circuit ruled\nthat the fundraising pleas of the union presidents were not solicitations in concert\nwith a partisan political campaign or organization. 863 F.2d at 1090. The court\nreasoned as follows:\n[A]s the ALJ found, the funds [contributed to union PACs] were\n\xe2\x80\x9c not designated for any political campaign, party, committee or\ncandidate a t the time th ey were m ade.\xe2\x80\x9d . . . [T]here is no proof\nin the record that suggests either that petitioners were acting in con\xc2\xad\ncert with a partisan political campaign o r that the funds were actu\xc2\xad\na lly distribu ted or spent fo r that purpose. On that subject, the\nrecord is silent.\nId. (emphasis added). The court did not address whether its decision would have\nbeen different if the record had indicated that the union PACs \xe2\x80\x9c actually distrib\xc2\xad\n\nuted or spent\xe2\x80\x99 \xe2\x80\x99 their collected funds for a partisan political campaign.\nEven if we assume that PAC contributions could not be considered \xe2\x80\x9c partisan\xe2\x80\x9d\nactivities under B iller\xe2\x80\x99s interpretation of the old Hatch A ct,50 OPM \xe2\x80\x99s reliance\non this aspect of B iller is unpersuasive under the HARA, for the following reasons.\n49This is confirm ed in O P M \xe2\x80\x99s proposed regulations. Making political contributions to a political candidate would\nbe \xe2\x80\x9c political activity\xe2\x80\x9d because it is \xe2\x80\x9c an activity directed toward the success or failure of a political party, candidate\nfor partisan political office, o r partisan political group.\xe2\x80\x9d 59 Fed. Reg. at 45,770-71 (proposed 5 C.F.R. \xc2\xa7734.101).\n50T he Second Circuit suggested that this might not be the case if and when the contributed PAC funds \xe2\x80\x9c were\nactually distributed o r sp en t\xe2\x80\x9d by the PACs on partisan political campaigns. 863 F.2d at 1090. The subsequent confu\xc2\xad\nsion engendered on this question is exemplified by the positions articulated by the Special Counsel. In 1992, the\nSpecial Counsel com m ented that, under her reading o f Biller, encouraging contributions to PACs did not implicate\n\n76\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees fo r Contributions to Political Action Committees\n\nAlthough there are indications in the congressional floor debates that some\nmembers of Congress may have intended the HARA to prohibit only partisan\npolitical activity on duty and in a federal building,51 the language of \xc2\xa77324 does\nnot refer to \xe2\x80\x9cpartisan political activity\xe2\x80\x9d \xe2\x80\x94 an omission that seems fairly con\xc2\xad\nspicuous in light of the Hatch Act\xe2\x80\x99s prior focus on partisan activity. For purposes\nof this Opinion, we need not decide whether \xc2\xa77324 of the HARA does (or con\xc2\xad\nstitutionally may) prohibit any or all political activity relating to nonpartisan issues\nand elections. It is sufficient for present purposes simply to note that, regardless\nof how that question would be answered, and whether or not PACs can in some\nsense be considered \xe2\x80\x9c nonpartisan,\xe2\x80\x9d one thing is clear: Congress intended that\nmaking contributions to PACs is to be considered \xe2\x80\x9c political activity\xe2\x80\x9d under the\nterms of the HARA.\nThis conclusion is compelled by the language of the statute itself. Congress\nindicated in section 4 of the HARA, 107 Stat. at 1005 (creating 18 U.S.C. \xc2\xa7610)\nthat \xe2\x80\x9c making . . . any political contribution\xe2\x80\x9d is \xe2\x80\x9c political activity.\xe2\x80\x9d \xe2\x80\x9c Political\ncontribution,\xe2\x80\x9d in turn, is defined to include \xe2\x80\x9c any gift . . . or deposit of money\nor anything of value, made for any political purpose.\xe2\x80\x9d 5 U.S.C. \xc2\xa77322(3)(A).\nIndeed, Congress specifically identified contributions to multicandidate political\ncommittees as \xe2\x80\x9c political contributions\xe2\x80\x9d in \xc2\xa7 7323(a)(2) of the statute.52 Because\na multicandidate political committee is a type of PA C ,53 it follows that making\na contribution to a PAC is \xe2\x80\x9c political activity,\xe2\x80\x9d at least as that term is understood\nin the HARA.54 This conclusion is bolstered by the fact that the leading Senate\nthe Hatch Act if those contributions \xe2\x80\x9c were not earmarked for distribution to partisan groups or candidates when\nthe request was m ade.\xe2\x80\x9d Transcript o f Tenth Annual Judicial Conference o f the United States Court o f Appeals\nfor the Federal Circuit, 146 F.R.D. 205, 276 (1992) (comments o f Special Counsel Kathleen Koch). However, that\nsame year, the Special Counsel informed covered employees that \xe2\x80\x9c active participation\xe2\x80\x9d or \xe2\x80\x9c active involvement\xe2\x80\x9d\nin a PAC was prohibited with respect to those PACs that \xe2\x80\x9c function to ensure the success or failure of certain\npartisan political candidates.\xe2\x80\x9d Office o f Special Counsel, Hatch Act Facts . . . About PACs 2-3, 4 (1992).\n51 See, e.g., 139 Cong. Rec. at 3278 (statement o f Rep Ford) ( \xe2\x80\x9c employees would continue to be prohibited from\nengaging in partisan political activity while on duty\xe2\x80\x9d ); id. at 3281 (statement of Rep. Gephardt) (taxpayer money\nmay not be used for \xe2\x80\x9c partisan political purposes\xe2\x80\x9d ); id. at 15,370 (statement o f Sen. Roth) (bill would prohibit\n\xe2\x80\x9c partisan political activity\xe2\x80\x9d on duty), id. at 16,038-39 (statement o f Sen. Glenn) (the prohibition \xe2\x80\x9c means that no\npartisan political activity can occur during working hours\xe2\x80\x9d ); id at 21,818 (statement of Rep. Ford) (\xe2\x80\x9c employees\nwould continue to be prohibited from engaging in partisan political activity while on duty\xe2\x80\x9d ).\n52 In \xc2\xa7 7323(a), Congress banned solicitation o f all \xe2\x80\x9c political contributions\xe2\x80\x9d except those made under certain cir\xc2\xad\ncumstances to particular multicandidate political committees. Congress must have considered contributions to such\ncommittees to be \xe2\x80\x9c political contributions,\xe2\x80\x9d because otherwise there would have been no need to carve out the\nexception.\n53Section 7323(a)(2)(C) refers to \xe2\x80\x9c multicandidate political com m ittees,\xe2\x80\x9d as that term is defined under section\n315(a)(4) o f the Federal Election Campaign Act o f 1971, 2 U.S.C. \xc2\xa7441a(a)(4). Such a committee, by definition,\n\xe2\x80\x9c has made contributions to 5 or more candidates for Federal office.\xe2\x80\x9d 2 U.S.C. \xc2\xa7441a(a)(4). This is a PAC under\nthe definition we are using in this Opinion, see supra note 4.\n54 Under the definition o f PAC that we are using in this opinion, see supra note 4, PACs that are not multicandidate\npolitical committees also make contributions or expenditures to influence campaigns for partisan political office;\ntherefore, there is nothing about such PACs to distinguish them from multicandidate political committees for purposes\no f the present discussion. A federal employee contributing to any PAC would know that her contribution would\nbe used\xe2\x80\x94 at least in p a rt\xe2\x80\x94 to support one or more partisan candidates for political office. See FEC v. California\nMed. Ass\xe2\x80\x98nf 502 F. Supp. 196, 201-03 (N.D. Cal. 1980) (holding that it is necessary to presume, as a m atter of\nlaw, that at least a portion o f every contribution to a PAC that makes contributions in federal elections w ill be\nused by the PAC for contributions to such elections, even if the PAC uses a majority o f its funds for other purposes);\nContinued\n\n77\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nsponsor of the HARA, Senator Glenn, referred specifically to PAC contributions\nin explaining what activity would be prohibited on duty. See 139 Cong. Rec.\n16,038 (1993).\nThus, a federal employee does engage in political activity by taking steps \xe2\x80\x94\nsuch as transmitting direct-deposit forms to the appropriate payroll officials \xe2\x80\x94\nsufficient to ensure that a portion of his or her salary is transferred to a PAC.\nIn the following sections, we discuss whether and when such activity would vio\xc2\xad\nlate \xc2\xa77324.\na. Em ployees C overed Under \xc2\xa7 7324(b)\nIn \xc2\xa7 7324(b), Congress addressed the political activity of certain employees who\nare not covered under \xc2\xa77324(a), to whom we will refer as \xe2\x80\x9c 7324(b) employees.\xe2\x80\x9d\nThe employees in question are those \xe2\x80\x9c the duties and responsibilities of whose\npositions continue outside normal duty hours and while away from the normal\nduty post,\xe2\x80\x9d and who are either (i) \xe2\x80\x9c employee[s] paid from an appropriation for\nthe Executive Office o f the President\xe2\x80\x9d ; o r (ii) \xe2\x80\x9c employee[s] appointed by the\nPresident, by and with the advice and consent of the Senate, whose position[s]\n[are] located within the United States, who determine!] policies to be pursued\nby the United States in relations with foreign powers or in the nationwide adminis\xc2\xad\ntration of Federal law s.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 7324(b)(2).55 Such employees \xe2\x80\x9c may engage\nin political activity otherwise prohibited by subsection (a),\xe2\x80\x9d 5 U.S.C. \xc2\xa7 7324(b)(1),\nsuch as political activity on duty. This special treatment was necessary because\nthese employees are, for purposes of the HARA, \xe2\x80\x9c considered to be continuously\non duty,\xe2\x80\x9d and \xe2\x80\x9c [w]ithout this exception, the language of [\xc2\xa7 7324(a)] could be\nread to preclude political activity at any time by these individuals.\xe2\x80\x9d H.R. Rep.\nNo. 103-16, at 22 (1993). Because the \xe2\x80\x9c on-duty\xe2\x80\x9d prohibitions were therefore\nunworkable for the \xc2\xa7 7324(b) employees, Congress allowed those employees to\nengage in political activity, but only \xe2\x80\x9c if the costs associated with that political\nactivity are not p a id fo r by m oney derived from the Treasury o f the United\nStates." 5 U.S.C. \xc2\xa77324(b)(l). Therefore, the \xc2\xa77324(b) employees cannot use\n\nthe federal salary-allotment system to make political contributions, such as con\xc2\xad\ntributions to PACs, because the costs incurred in making such contributions\xe2\x80\x94\nsee also California Med. Ass\xe2\x80\x99n v. FEC, 453 U .S. J82, 199 n.19 (1981) (plurality opinion) (even if person contributing\nto PAC attempts to \xe2\x80\x9c e arm a rk []\xe2\x80\x9d such contribution for nonpolitical purposes (e.g., \xe2\x80\x9c administrative support\xe2\x80\x99*), it\nmust be assumed as a m atter o f law that the funds will be used for the PA C \xe2\x80\x99s contributions to political campaigns).\nInsofar as federal em ployees might wish to m ake contributions to political committees that have not made, and\ndo not make, contributions or expenditures to influence cam paigns for partisan political office\xe2\x80\x94 that is, to committees\nother than those we have defined as \xe2\x80\x9c PA C s\xe2\x80\x9d \xe2\x80\x94 such employee contributions would be beyond the scope of this\nO pinion. See supra note 4.\n55 It m ay be unclear whether certain em ployees are covered under the two-part test o f \xc2\xa7 7324(b). And, as OPM\nitself has noted, \xe2\x80\x9c in view o f the different circumstances o f each employee who might claim coverage,\xe2\x80\x9d it would\nbe \xe2\x80\x9c impractical to seek to identify all positions which qualify\xe2\x80\x9d for \xc2\xa77324(b) status. 59 Fed. Reg. at 48,769. If\nit is unclear whether a particular employee falls within the aegis o f \xc2\xa7 7324(b), a request can be made to the Office\nof Special Counsel for an advisory opinion on th at question. See 5 C.F.R. \xc2\xa7 1800 3.\n\n78\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees fo r Contributions to Political Action Committees\n\nspecifically, the costs of processing and transmitting the money to the PACs \xe2\x80\x94\nwould be \xe2\x80\x9c paid for by money derived from the Treasury of the United States.\xe2\x80\x9d 56\nb. All Other Federal Employees Covered by the HARA\nAll other federal employees covered by the H A R A 57 may not engage in \xe2\x80\x9c polit\xc2\xad\nical activity\xe2\x80\x9d : (i) while on duty; (ii) while in \xe2\x80\x9c any room or building occupied\nin the discharge of official duties by an individual employed or holding office\nin the Government of the United States or any agency or instrumentality thereof\xe2\x80\x9d ;\n(iii) while wearing a uniform or official insignia identifying the employee\xe2\x80\x99s office\nor position; or (iv) while using any vehicle owned or leased by the federal govern\xc2\xad\nment. 5 U.S.C. \xc2\xa77324(a)(l)-(4).\nIt follows that such an employee may not make contributions to PACs while\nin a federal building or while on duty. Furthermore, if such an employee wishes\nto take steps to effect a transfer of a portion of her salary to a PAC \xe2\x80\x94 such as\ntransmitting to the appropriate authorities the forms authorizing such salary trans\xc2\xad\nfers\xe2\x80\x94 she must do so only when off-duty and outside a federal facility. Under\nthe proposed practice, then, covered employees would violate \xc2\xa7 7324(a) if they\nwere to fill out and transmit the necessary direct-deposit forms while on duty\nor in a federal building.\nOPM contends that \xe2\x80\x9c [t]o allow employees to mail allotment authorizations but\nnot hand them directly to payroll personnel would result in an illogical and\nunenforceable arrangement.\xe2\x80\x9d Letter for Dawn E. Johnsen, Deputy Assistant\n[Attorney General], Office of Legal Counsel, from Lorraine Lewis, General\nCounsel, Office of Personnel Management at 4 (Dec. 13, 1994). Indeed, requiring\nemployees to be off duty when they transmit authorization forms to payroll per\xc2\xad\nsonnel may seem like a legalistic technicality. Nonetheless, this result comports\nwith Congress\xe2\x80\x99s objective to create a bright-line rule \xe2\x80\x94 that the \xc2\xa7 7324(a) prohibi\xc2\xad\ntions be \xe2\x80\x9c absolute[] and unequivocal]\xe2\x80\x9d \xe2\x80\x94 so that there could be no ambiguity\nor vagueness about what is and is not permitted on duty. See supra pp. 72-74\n& nn. 42-46. Accordingly, the prohibition we have identified here is similar to\nsome of the examples OPM has identified in its proposed regulations \xe2\x80\x94 for\n56Under the Federal Leave Act, see 5 U.S.C. \xc2\xa7\xc2\xa76301(2)(x) and (xi), certain employees are not subject to the\nannual-leave and sick-leave provisions o f chapter 63 o f title 5, in part because such employees are, for leave purposes,\nconsidered to have duties that continue beyond normal duty hours. See also 5 C.F.R. \xc2\xa7\xc2\xa7630.21 l(b)( 1)\xe2\x80\x94(3). As the\nHouse Report on HARA noted, such employees may, fo r Leave Act purposes, be \xe2\x80\x9c presumed to be on duty at\nall times \xe2\x80\x9c See H.R. Rep. No. 103-16, at 23 (1993). However, some o f these employees will not satisfy one of\nthe other requirements to fall within HARA \xc2\xa7 7324(b)\xe2\x80\x94 for example, their appointment may not be subject to the\nadvice and consent o f the Senate. It is important to note that these leave-exempted employees who are not covered\nby \xc2\xa77324(b) should not be considered \xe2\x80\x9c continuously on duty\xe2\x80\x9d for purposes of HARA \xc2\xa77324, even where their\nexclusion from the Leave Act is \xe2\x80\x9c based on the presumption that the position requires the employee to be on duty\nat all tim es." Id. If such employees were considered \xe2\x80\x9c continuously on duty\xe2\x80\x9d for purposes of \xc2\xa77324, they would\nnever be permitted to engage in any political activity\xe2\x80\x94 including voting, making contributions, etc. But Congress\nintended that \xc2\xa77324 would not \xe2\x80\x9c preclude political activity\xe2\x80\x9d for employees \xe2\x80\x9c at any tim e.\xe2\x80\x9d Id. at 22. Therefore,\nfor purposes o f HARA \xc2\xa77324 (albeit not necessarily for purposes o f the Leave Act), such employees should be\nconsidered to be on duty only during their \xe2\x80\x9c regular,\xe2\x80\x9d o r \xe2\x80\x9c ordinary,\xe2\x80\x9d duty hours, and remain \xe2\x80\x9c free to engage in\npolitical activity . . . [o]n their own tim e.\xe2\x80\x9d Id. at 23.\n37 See supra note 8.\n\n79\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nexample, that an employee m ay not stuff envelopes with political literature while\nin a federal building, but may do so while sitting in a park during his lunch period\nif he is not considered to be on duty during that lunch period. See 59 Fed. Reg.\nat 48,774 (proposed 5 C.F.R. \xc2\xa7734.306, Example 10); see also supra note 43.\nGiven that Congress has precluded all political activity from occurring (for\nexample) in federal buildings, it is not illogical to require employees who engage\nin such activity to do so outside of those buildings.\nThe question then becomes whether contributing employees would violate\n\xc2\xa7 7324(a) even if they are off duty and outside a federal building when they fill\nout the relevant forms and transmit those forms to the appropriate administrative\nofficials. Such a practice might at first glance appear objectionable, because an\nemployee acting in such a manner would cause other federal employees\xe2\x80\x94 i.e.,\nthe \xe2\x80\x9c administering employees\xe2\x80\x9d \xe2\x80\x94 to do, on her behalf, precisely what the contrib\xc2\xad\nuting employee may not herself do: send a contribution to a PAC while on duty\nand from a federal building.58 Although, for reasons explained below, this is a\nclose question, we conclude that an employee acting in this manner would not\nviolate \xc2\xa77324(a), because none of that employee\xe2\x80\x99s \xe2\x80\x9c political activities,\xe2\x80\x9d or activi\xc2\xad\nties \xe2\x80\x9c directed toward the success\xe2\x80\x9d of the PAC, would violate the plain terms\no f the four prohibitions in that subsection. In particular, such an employee would\nnot be on duty or in a federal building when she engaged in political activity.\nO f course, the federal government subsidizes the transmission costs associated\nwith transferring funds from em ployees\xe2\x80\x99 salaries to PACs. And there is some evi\xc2\xad\ndence that one of Congress\xe2\x80\x99s goals in enacting \xc2\xa77324 was to prevent federal\nemployees from using taxpayers\xe2\x80\x99 funds to engage in political activity.59 For\nexample, the House Majority Leader stated: \xe2\x80\x9c Any on-the-job political activities\nare prohibited. It prohibits any use of taxpayer money for partisan political pur\xc2\xad\nposes.\xe2\x80\x9d 139 Cong. Rec. 3281 (1993) (statement of Rep. Gephardt).60 Moreover,\n58 W e explained above that, in such a case, the administering employees would not themselves violate the onduty prohibition, because they are not the persons \xe2\x80\x9c directing\xe2\x80\x9d the activity toward the success o r failure o f the\nPA C to which the contribution is made, and may even be entirely unaware that their activity in any way involves\npolitical allocations. See supra p. 75. By contrast, however, the contributing employee would be engaged in\n\xe2\x80\x9c directing\xe2\x80\x9d the on-duty, on-premises activity toward the success o f the PAC.\n59 In 1984, O PM itself apparently was o f th e view that, under the pre-HARA Act, similar considerations wan-anted\na restriction prohibiting the practice at issue here: \xe2\x80\x9c [T]he use o f a Federal payroll deduction scheme or the Govern\xc2\xad\nm ent\'s allotm ent system as a conduit for political contributions by Federal employees subject to the Hatch Act\nw ould involve the use o f Federal workplaces and instrumentalities to pay, collect, and receive such contributions.\xe2\x80\x9d\n47 Fed. Reg. at 57,724.\n60 Several H ouse m embers in an earlier Congress expressed the same understanding with respect to a materially\nidentical \xe2\x80\x9c o n -d u ty \xe2\x80\x9d prohibition in H.R. 3400, 100th Cong. (1987) (proposing new 5 U.S.C. \xc2\xa77324{a)(l)-(4)(B )).\nSee, e.g., 133 Cong. Rec. 32,087 (1987) (statem ent o f Rep. Horton) (\xe2\x80\x9c It . . . prohibits use of taxpayer money\nfor political purposes\xe2\x80\x9d ); id. at 32,088 (statement o f Rep. Ridge) ( \xe2\x80\x9c [Pjolitical work . . . cannot be allowed on the\ntaxpayer\xe2\x80\x99s time. It cannot be done on Federal Government time, with Federal information or equipment.\xe2\x80\x9d ); id. at\n32,104 (statem ent o f Rep. Rahall) (bill prohibits \xe2\x80\x9c use o f taxpayer money for political activities\xe2\x80\x9d ); id. at 32,105\n(statem ent o f Rep. Biaggi) (same); see also 135 Cong. Rec. 6776 (1989) (statement o f Rep. Gephardt) (bill would\n\xe2\x80\x9c prohibit governm ent facilities from being used for partisan political purposes\xe2\x80\x9d ).\nThis is not to say that legislators provided no other reasons for the \xe2\x80\x9c on-duty\xe2\x80\x9d prohibition. For example, there\nare snippets o f the legislative history of the HARA in 1993 suggesting that Congress also expected the \xe2\x80\x9c on-duty\xe2\x80\x9d\nprohibition to: (i) foreclose the possibility o f coercion o f subordinate employees by supervisory employees, see,\ne.g., 139 Cong. Rec. 15,367-68 (statement o f Sen. Glenn); id. at 15,531-32 (statement o f Sen. Glenn); id. at 15,741\n\n80\n\n\x0cPermissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive\nBranch Employees fo r Contributions to Political Action Committees\n\nas we have explained, \xc2\xa7 7324(b) expressly forbids the employees identified in that\nsection from using federal funds for political activity. It might seem anomalous\nto forbid the \xc2\xa7 7324(b) employees from using the salary-allocation system, but\nto permit all other federal employees to use that system \xe2\x80\x94 and the federal funds\nassociated with i t \xe2\x80\x94 for political activity, just because the latter are not, under\nthe HARA, considered to be continuously on duty. In that case, the \xe2\x80\x9c continuously\non duty\xe2\x80\x9d employees, see supra pp. 78-79, would in a significant respect be more\nrestricted in the exercise of their political activity than all other federal employees.\nNevertheless, in stark contrast to \xc2\xa7 7324(b), \xc2\xa7 7324(a) does not include an\nexpress prohibition on the use of federal funds for political activity. In the four\nsubsections of \xc2\xa7 7324(a), Congress saw fit to ban political activity by a federal\nemployee while (i) on duty; (ii) in a federal building; (iii) in uniform; or (iv)\nusing a federal vehicle. Conspicuously absent from this list is any prohibition\non political activity \xe2\x80\x9c using instrumentalities owned by the United States,\xe2\x80\x9d \xe2\x80\x9c using\nany federal facilities,\xe2\x80\x9d or \xe2\x80\x9c using money derived from the Treasury o f the United\nStates.\xe2\x80\x9d 61\nIndeed, the fact that Congress did include such a prohibition in \xc2\xa7 7324(b) only\nstrengthens the argument against reading such a prohibition into the previous,\ncompanion subsection. A fundamental canon o f statutory construction, frequently\ninvoked by the Supreme Court in recent years, is that \xe2\x80\x9c \xe2\x80\x98where Congress includes\nparticular language in one section of a statute but omits it in another section of\nthe same Act, it is generally presumed that Congress acts intentionally and pur\xc2\xad\nposely in the disparate inclusion or exclusion.\xe2\x80\x99 \xe2\x80\x9d Russello v. United States, 464\nU.S. 16, 23 (1983) (citation omitted).62 The language of \xc2\xa77324(b) \xe2\x80\x9c shows that\nCongress knew how to draft\xe2\x80\x9d a prohibition on the use of federal funds for political\nactivity \xe2\x80\x9c when it wanted to.\xe2\x80\x9d City o f Chicago v. Environmental Defense Fund,\n(statement o f Sen. Glenn); id. at 16,051-52 (statement o f Sen. Glenn); and (ii) to prevent the \xe2\x80\x9c specter,\xe2\x80\x9d or appearance\nto the public, that the federal government is supporting particular candidates, see, e.g., H.R. Rep. No. 103-16, at\n19(1993).\n61 By contrast, several state \xe2\x80\x9c Little Hatch Acts\xe2\x80\x9d do include such specific prohibitions. See, e.g., A la Code \xc2\xa7 1 7 l-7 (c) (1987) (no state employee \xe2\x80\x9c shall use any state funds, property o r time, for any political activities\xe2\x80\x9d ); Alaska\nStat. \xc2\xa7 24.60.030(a)(5) (1992) (legislative employee may not, with certain exceptions, \xe2\x80\x9c use or authorize the use\no f state funds, facilities, equipment, services, or another government asset or resource\xe2\x80\x9d for certain political purposes);\nConn. Gen. Stat. Ann. \xc2\xa75-266a(b) (1988) (slate employee shall not \xe2\x80\x9c utilize state funds, supplies, vehicles, o r facili\xc2\xad\nties\xe2\x80\x9d for certain political purposes); N.C. Gen. Stat. \xc2\xa7 126\xe2\x80\x9413(a)(2) (1993) (state employee may not \xe2\x80\x9c utilize State\nfunds, supplies or vehicles\xe2\x80\x9d for certain political purposes); Tenn. Code Ann. \xc2\xa72-19-206(a) (1985) (state employee\nmay not \xe2\x80\x9c use any o f the facilities o f the state, including equipment and vehicles,\xe2\x80\x9d for certain political activity).\n62 See also Brown v. Gardner, 513 U.S. 115, 120 (1994); FEC v. NRA Political Victory Fund, 513 U.S. 88,\n95 (1994); BFP v. Resolution Trust Corp., 511 U.S. 531, 537 (1994); Custis v. United States, 511 U.S. 485, 492\n(1994); City o f Chicago v. Environmental Defense Fund, 511 U.S. 328, 338 (1994); Keene Corp. v. United States,\n508 U.S. 200, 208 (1993); International Org. o f Masters, Mates & Pilots v. Brown, 498 U.S. 466, 476 n,10 (1991);\nGozlon-Peretz v. United States, 498 U.S. 395, 404-05 (1991); General Motors Corp. v. United States, 496 U.S.\n530, 537 (1990); United States v. Monsanto, 491 U S . 600, 610-11 (1989); INS v. Cardoza-Fonseca, 480 U.S.\n421, 431-32 (1987); Lawrence County v. Lead-Deadwood School Dist. No. 40-1 , 469 U.S. 256, 267 (1985); United\nStales v. Erika, Inc., 456 U.S. 201, 2 07-08 (1982); Lehman v. Nakshian, 453 U.S. 156, 162-63 (1981); Fedorenko\nv. United States, 449 U.S. 490, 512-13 (1981).\n\n81\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\n511 U.S. 328, 338 (1994); a cco rd Custis v. United States, 511 U.S. 485, 49293 (1994).\nThe discrepancy between \xc2\xa7\xc2\xa7 7324(a) and 7324(b) might be explained by the\nfact that Congress may have considered such an explicit \xe2\x80\x9c no federal funds\xe2\x80\x9d\nprohibition to be superfluous in the former subsection. Congress might not have\ncontemplated any situation in which otherwise lawful political activity could be\naccomplished using federal funds without violating one of the four subsections\nof \xc2\xa7 7324(a); thus, Congress could well have believed that the prohibitions in that\nsubsection precluded the need for a separate \xe2\x80\x9c no federal funds\xe2\x80\x9d provision. But\n\xe2\x80\x9c [t]hat expectation, even if universally shared [by members of Congress], is not\nan adequate substitute for a legislative decision,\xe2\x80\x9d Yellow Freight Sys., Inc. v. Don\xc2\xad\nnelly, 494 U.S. 820, 824-25 (1990), to prohibit the use of federal funds for polit\xc2\xad\nical activity. See also Fort Stew art Schools v. FLRA, 495 U.S. 641, 650 (1990)\n(\xe2\x80\x9c There is no conceivable persuasive effect in legislative history that may reflect\nnothing more than the speakers\xe2\x80\x99 incomplete understanding of the world upon\nwhich the statute will operate.\xe2\x80\x9d ). Even,if Congress intended a complete ban on\nfederal funds for political activity, \xe2\x80\x9c [t]he short answer is that Congress did not\nwrite the statute that way.\xe2\x80\x9d Russello, 464 U.S. at 23 (citation omitted). Therefore,\nthe \xe2\x80\x9c no federal funds\xe2\x80\x9d prohibition of \xc2\xa7 7324(b) does not apply to employees who\nare not identified in that section, and those employees may make contributions\nto PACs through the use of the salary-allocation system so long as they are off\nduty and off federal premises when they take the steps sufficient to trigger the\nuse of the system.\nCONCLUSION\nNone of the federal employees who would engage in the practices in question\nwould, without more, violate the relevant criminal provisions, 18 U.S.C. \xc2\xa7\xc2\xa7602\nand 607. W hat is more, federal employees offering use of or administering the\nsalary-allocation system for PAC contributions would not, without more, violate\nthe civil provisions of the HARA.\nHowever, the federal employees identified in 5 U.S.C. \xc2\xa7 7324(b) may not use\nthe salary-allocation system to contribute money to PACs. The heads o f agencies\nmay, in their discretion, permit all other federal employees covered by the HARA\nto make political contributions to PACs through use of the salary-allocation\nsystem, but only if such employees are off duty and off federal premises when\nthey take the steps necessary to use that system.\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n82\n\n\x0c'