b'Payment of Attorney Fee Awards Against the\nUnited States Under 28 U.S.C. \xc2\xa7 2412 (b)\nThe U nited States is liable under 28 U.S.C. \xc2\xa7 2412(b) for a court award of attorney fees in civil\ncases \xe2\x80\x9cto the sam e extent any p arty would be liable under the common law or under the terms\no f any statute.\xe2\x80\x9d Attorney fees aw arded by a court under \xc2\xa7 2412(b) are to be paid from the\njudgm ent fund, and not from agency appropriations, unless an award is based on a finding of\nbad faith.\nAlthough the term s o f \xc2\xa7 207 of the E qual Access to J ustice Act, T itle n o f Pub. L. No. 9 6 -4 8 1 ,9 4\nStat. 2325 (1980), prohibit the paym ent of aw ards from the judgm ent fund without a specific\ncongressional appropriation for that purpose, the legislative history o f \xc2\xa7 207 reveals that\nC ongress only intended \xc2\xa7 207 to apply to aw ards under 5 U.S.C. \xc2\xa7 504 and 28 U.S.C.\n\xc2\xa7 2412(d), and not to apply to attorney fee aw ards under \xc2\xa7 2412(b). Thus, \xc2\xa7 207 does not bar\nthe Com ptroller G eneral from certifying awards o f attorney fees under 28 U.S.C. \xc2\xa7 2412(b).\n\nDecember 15, 1983\nM\n\nem orandum\n\nO p in io n\n\nfo r th e\n\nO f f ic e\n\nof\n\nA\n\ns s is t a n t\n\nA ttorney G eneral,\n\nL e g a l P o l ic y\n\nThis responds to your request for our opinion concerning the effect of \xc2\xa7 207\nof the Equal Access to Justice Act, Title II of Pub. L. 96-481, 94 Stat. 2325\n(1980) (the Act), on the payment of attorney fee awards against the United\nStates made under authority o f 28 U.S.C. \xc2\xa7 2412(b). Specifically, you wish to\nknow whether \xc2\xa7 207 bars payment of such awards from the judgment fund,\nand, if so, whether such awards may be paid from an agency\xe2\x80\x99s general appro\xc2\xad\npriation.1The General Accounting Office has refused to certify such awards for\npayment from the judgment fund, apparently on grounds that \xc2\xa7 207 bars\npayment of any awards authorized by the Act from this source. For reasons\ndiscussed below, we believe that awards made under authority of 28 U.S.C.\n\xc2\xa7 2412(b) are not subject to \xc2\xa7 207, and that \xc2\xa7 207 therefore does not preclude\ntheir being certified for payment from the judgment fund. Furthermore, we\n1 S ections 2414 and 2517 o f Title 28 s e t forth procedures for paym ent o f final judgm ents or com prom ise\nsettlem ents a g ain st the U nited States from th e general fund o f the T reasury, under authority o f the permanent,\nindefinite appropriation established by 31 U.S.C. \xc2\xa7 1304. The term \xe2\x80\x9cjudgm ent fund\xe2\x80\x9d is generally used as a\nshorthand rendition o f that process. U nder 31 U.S.C. \xc2\xa7 1304, the C om ptroller G eneral m ust \xe2\x80\x9ccertify\xe2\x80\x9d all final\ncourt ju d g m en ts and com prom ise settlem ents before they may be paid from the judgm ent fund. Because all\nfinal ju d g m en ts m ust be paid from the ju d g m e n t fund unless they are \xe2\x80\x9cotherw ise provided for,\xe2\x80\x9d the C om ptrol\xc2\xad\nle r G eneral has no d iscretio n to refuse to certify a final judgm ent w hich is properly payable from the\nju d g m en t fund and w hose payment is n o t governed by another statute. See General Accounting Office,\nPrinciples o f Federal Appropriations Law 12-13 (1981).\n\n180\n\n\x0cbelieve that the judgment fund is the only available source of payment of\nawards made under authority of \xc2\xa7 2412(b), except those based on a finding of\nbad faith.\nSection 2412(b), enacted by \xc2\xa7 204(a) of the Act, makes the United States\nliable for a court award of attorney fees in civil cases \xe2\x80\x9cto the same extent that\nany other party would be liable under the common law or under the terms of\nany statute.\xe2\x80\x9d2 Fees awarded by a court under authority of \xc2\xa7 2412(b) are to be\npaid in accordance with the provisions of \xc2\xa7 2412(c)(2):\nAny judgment against the United States or any agency and\nany official of the United States acting in his or her official\ncapacity for fees and expenses of attorneys pursuant to subsec\xc2\xad\ntion (b) shall be paid as provided in sections 2414 and 2517 of\nthis title, except that if the basis for the award is a finding that\nthe United States acted in bad faith, then the award shall be paid\nby any agency found to have acted in bad faith and shall be in\naddition to any relief provided in the judgment.\nWith the text of \xc2\xa7 2412(c)(2) before us, we turn first to your question whether\ngeneral agency appropriations are available to pay an award made under\nauthority of 28 U.S.C. \xc2\xa7 2412(b). Unless an award is based on a finding of bad\nfaith, we think they are not.\nBy its terms, \xc2\xa7 2412(c)(2) specifies that an award made under \xc2\xa7 2412(b)\n\xe2\x80\x9cshall\xe2\x80\x9d be paid from agency funds in cases where an award is based on a\nfinding of bad faith; in all other cases, awards \xe2\x80\x9cshall\xe2\x80\x9d be paid from the\njudgment fund. There is no indication in the legislative history of the Act of an\nintention to depart from the plain directive of the statutory text by making\nagency appropriations available for payment of awards in cases other than\nthose involving bad faith. It is an elementary principle of appropriations law\nthat an agency may expend its general appropriations in a particular manner\nonly if it has statutory authority to do so. Section 2412(c)(2) does not authorize\nthe use of an agency\xe2\x80\x99s general appropriation to pay any but bad faith awards,\nand we know of no other authority which would permit such a disposition of an\nagency\xe2\x80\x99s general appropriation. Compare 5 U.S.C. \xc2\xa7 504(d)(1)(A) (fee awards\n\xe2\x80\x9cmay be paid by any agency over which the party prevails from any funds made\navailable to the agency\xe2\x80\x9d). Moreover, under 31 U.S.C. \xc2\xa7 1304, all final judg\xc2\xad\nments must be paid from the judgment fund, unless \xe2\x80\x9cotherwise provided for.\xe2\x80\x9d\nSee Principles o f Federal Appropriations Law, supra note 1, at 12-13 (\xe2\x80\x9c[I]f a\njudgment is properly payable from the permanent appropriation, then payment\n2 Section 2412(b) provides in full as follows:\nU nless expressly prohibited by statute, a court may award reasonable fees and expenses of\nattorneys, in addition to the costs which may be aw arded pursuant to subsection (a), to the\nprevailing party in any civil action brought by or against the United States o r any agency and any\nofficial o f the U nited States acting in his o r her official capacity in any court having jurisdiction\no f such action. T he U nited States shall be liable for such fees and expenses to the same extent that\nany other party w ould be liable under the common law or under the term s o f any statute which\nspecifically provides for such an award.\n\n181\n\n\x0cof that judgment from agency funds violates 31 U.S.C. \xc2\xa7 1301 (restricting\nappropriations to the objects for which made) and is an improper payment.\xe2\x80\x9d).\nAccordingly, we conclude that an agency\xe2\x80\x99s general appropriation is not\navailable to pay awards made under authority of \xc2\xa7 2412(b), except where such\nan award is based on a finding of bad faith. Thus, in the absence of some\nspecific statutory directive to the contrary, \xc2\xa7 2412(b) awards can be paid only\nfrom the judgment fund.3\nBefore turning to an examination of the text of \xc2\xa7 207 of the Act, we make\nseveral observations regarding other provisions of the Act which we believe\nare relevant to an understanding of the effect of \xc2\xa7 207. In addition to the\nauthority contained in \xc2\xa7 2412(b), the Act also authorizes an award of attorney\nfees in certain administrative and judicial actions, where the position of the\nUnited States cannot be shown to be \xe2\x80\x9csubstantially justified.\xe2\x80\x9d These authori\xc2\xad\nties, enacted on a temporary and experimental basis, are codified at 5 U.S.C.\n\xc2\xa7 504 and 28 U.S.C. \xc2\xa7 2412(d).4 Awards made under authority of these provi\xc2\xad\nsions are to be funded in the following manner:\nFees and other expenses . . . may be paid by any agency over\nwhich the party prevails from any funds made available to the\nagency, by appropriation or otherwise, for such purpose. If not\npaid by any agency, the fees and other expenses shall be paid in the\nsame manner as the payment of final judgments is made pursuant to\nsection 2412 [and section 2517] of title 28, United States Code.\nSee 5 U.S.C. \xc2\xa7 504(d)(1); 28 U.S.C. \xc2\xa7 2412(d)(4)(A). In contrast to awards\n\nmade under the permanent authority of \xc2\xa7 2412(b), all awards made under the\nexperimental authorities in \xc2\xa7 504 and \xc2\xa7 2412(d) are to be paid in the first\ninstance from agency budgets. Only in very limited circumstances may awards\nmade under authority of \xc2\xa7 504 and \xc2\xa7 2412(d) be paid from the judgment fund.5\n3 O ne such contrary statutory d irectiv e appears in 39 U .S.C. \xc2\xa7 409(e), which provides that judgm ents\narising out o f activ ities o f the United States Postal Service shall be paid by the Postal Service from its own\nfunds. Judgm ents under th is provision are payable directly by the Postal Service and do not require the\nC om ptroller G en eral\xe2\x80\x99s certification. O th e r exam ples o f statutes providing alternative sources of funding for\njud g m en ts are cited in Principles of Federal Appropriations Law, supra note 1, at 12-13.\n4 Section 504(a)(1) o f T itle 5 provides for an award o f fees in agency adjudications in the following terms:\nAn agency that conducts an ad v ersary adjudication shall award to a prevailing party other than\nthe U nited States, fees and o th e r expenses incurred by that party in connection with that\nproceeding, unless the adjudicative officer o f the agency finds that the position o f the agency as\na party to the proceeding was substantially ju stified o r that special circum stances make an award\nunjust.\nSection 2412(d)(1)(A ) o f T itle 28 provides for fee awards in certain ju dicial proceedings involving the United\nStates in sim ilar term s:\nE xcept as otherw ise specifically provided by statute, a court shall award to a prevailing party\no ther than the U nited States fees an d other expenses, in addition to any costs aw arded pursuant to\nsubsection (a), incurred by that party in any civil action (other than cases sounding in tort)\nb rought by o r against the U nited States in any court have jurisdiction of that action, unless the\ncourt finds that the position o f the U nited States w as substantially justified or that special\ncircum stances m ake an award unjust.\nU n d er \xc2\xa7\xc2\xa7 203(a)(2) and 204(c) of the A ct, both o f these authorities are repealed effective O ctober 1, 1984.\n5 In brief, aw ards under 5 U.S.C. \xc2\xa7 5 0 4 and 28 U.S.C. \xc2\xa7 2 4 12(d) may be paid from the judgm ent fund only\nw hen th eir paym ent from agency funds w ould be a very heavy financial blow to the agency.\n\n182\n\n\x0cWe must now determine what effect, if any, \xc2\xa7 207 has upon the payment of\nawards made under authority of \xc2\xa7 2412(b) from the judgment fund. Section 207\nprovides that\nThe payment of judgments, fees and other expenses in the same\nmanner as the payment of final judgments as provided in this\nAct is effective only to the extent and in such amounts as are\nprovided in advance in appropriations acts.\nSee 5 U.S.C. \xc2\xa7 504 note. The effect of \xc2\xa7 207, where it applies, is to prohibit the\n\npayment of awards from the judgment fund unless and until Congress makes a\nspecific appropriation for that purpose. If \xc2\xa7 207 applies to fee awards made\nunder \xc2\xa7 2412(b), then those awards may not be certified by the Comptroller\nGeneral for payment from the judgment fund. Because of our conclusion that\n\xc2\xa7 2412(b) awards not based on bad faith may not be paid from an agency\xe2\x80\x99s\nappropriated funds, the result would be that such awards could not be paid at all\nwithout a specific new appropriation. However, for reasons discussed below,\nwe do not believe that Congress intended \xc2\xa7 207 to apply to awards made under\n\xc2\xa7 2412(b).\nThe terms of \xc2\xa7 207 are ambiguous. On the one hand, they mirror the wording\nin 5 U.S.C. \xc2\xa7 504(d)(1) and 28 U.S.C. \xc2\xa7 2412(d)(4)(A), which govern the\nfunding of awards made under 5 U.S.C. \xc2\xa7 504 and 28 U.S.C. \xc2\xa7 2412(d), both of\nwhich provide for payment of awards \xe2\x80\x9cin the same manner as the payment of\nfinal judgments.\xe2\x80\x9d By its terms, therefore, \xc2\xa7 207 could be construed to apply\nonly to awards made under authority of \xc2\xa7 504 and \xc2\xa7 2412(d). On the other\nhand, \xc2\xa7 207 could also be more broadly interpreted to govern all awards newly\nauthorized by the Act to be paid from the judgment fund, including awards\nmade under authority of \xc2\xa7 2412(b).\nBecause the language of \xc2\xa7 207 admits of more than one reasonable construc\xc2\xad\ntion, we turn to the legislative history to ascertain whether Congress intended\n\xc2\xa7 207 to apply to all awards made under the new authorities contained in the\nAct, or only to awards made under \xc2\xa7 504 and \xc2\xa7 2412(d).\nSection 207 was added to the Act on the House floor in response to a point of\norder to the Conference Report. The point of order, made by Representative\nDanielson, was\nthat the conferees have agreed to a provision in the Senate\namendment which constitutes an appropriation on a legislative\nbill, in violation of clause 2 of rule XX of the rules of the House\nof Representatives. The conferees have included, as an amend\xc2\xad\nment to the bill, a title II, which provides for the award of\nattorneys\xe2\x80\x99 fees and other expenses to the prevailing party other\nthan the United States, in certain actions or administrative pro\xc2\xad\nceedings in which the judgment or adjudication has been ad\xc2\xad\nverse to the United States, unless the court or adjudicative\n183\n\n\x0cofficer of the agency finds that the position of the United States\nwas substantially justified or that special circumstances make\nthe award unjust.\n126 Cong. Rec. 28638 (1980). Clause 2 of House Rule XX provides that\nconferees may not agree to Senate amendments which provide for an appro\xc2\xad\npriation in any bill other than a general appropriation bill \xe2\x80\x9cunless specific\nauthority to agree to such amendment is first given by the House by a separate\nvote on every such amendment.\xe2\x80\x9d Because the Act had never been considered\nby the full House as an independent piece of legislation, reaching the House\nfloor for the first time as Title II of the conference bill to amend the Small\nBusiness Act, H.R. 5612, Representative Danielson\xe2\x80\x99s point of order under\nHouse Rule XX could have applied to all of the fee-shifting authorities con\xc2\xad\ntained in the Act, including that under \xc2\xa7 2412(b). However, it appears that the\nonly specific fee-shifting authorities contained in the Act about which Repre\xc2\xad\nsentative Danielson was concerned, and to which he directed his point of order,\nwere those which authorized fee awards in civil cases in which \xe2\x80\x9cthe court or\nadjudicative officer of the agency [does not find] that the position of the United\nStates was substantially justified.\xe2\x80\x9d This reference clearly contemplates the\nauthorities codified at 5 U.S.C. \xc2\xa7 504 and 28 U.S.C. \xc2\xa7 2412(d), but does not\nencompass that codified at 28 U.S.C. \xc2\xa7 2412(b). In a word, even if the point of\norder could have been directed at all of the new fee-shifting authorities under\nthe Act, it appears in fact to have been directed only at those contained in \xc2\xa7 504\nand \xc2\xa7 2412(d).\nAs sustained by the Speaker p ro tempore, the point of order was narrowly\nfocused on certain provisions of Title II:\nThe provisions in title II [in] question authorize appropria\xc2\xad\ntions to pay court costs and fees levied against the United States,\nbut also provide that if payment is not made out of such autho\xc2\xad\nrized and appropriated funds, payment will be made in the same\nm anner a s the paym ent o f fin al judgm ents under sections 2414\nand 2517 of title 28, United States Code.\n126 Cong. Rec. 28638 (1980) (emphasis added). The funding provisions to\nwhich the Speaker pro tempore was necessarily referring were \xc2\xa7 504(d)(1) and\n\xc2\xa7 2412(d)(4)(A), which provide for payment of awards \xe2\x80\x9cin the same manner as\nthe payment of final judgments.\xe2\x80\x9d\nAfter the Speaker pro tem pore had sustained Representative Danielson\xe2\x80\x99s\npoint of order, Representative Smith offered an amended version of the bill to\ncure the defect. That amended version was identical to the conference version\nexcept that it contained a new section, \xc2\xa7 207. Representative Smith explained\nthat the proposed new section \xe2\x80\x9cmodifies those provisions which had been ruled\nto be an appropriation on an authorization bill.\xe2\x80\x9d The terminology chosen for\n\xc2\xa7 207 is consistent with this narrow purpose to block payment of awards made\nunder \xc2\xa7 504 and \xc2\xa7 2412(b) from the judgment fund.\n184\n\n\x0cThe limited construction of \xc2\xa7 207 that is suggested by its legislative history\nbetter effectuates the purpose of the several fee-shifting authorities enacted by\nthe Act than does a broad construction of that section, and leads to a far more\nsensible result. One of the primary purposes of the fee-shifting authorities in\n\xc2\xa7 504 and \xc2\xa7 2412(d) was to ensure greater agency accountability. And, in early\nversions of the legislation, agency budgets had been made the sole source of\npayment for awards made under \xc2\xa7 504 and \xc2\xa7 2412(d).6 This somewhat uncon\xc2\xad\nventional approach reflected the hope and expectation of some legislators that\nthe experimental fee-shifting provisions in \xc2\xa7 504 and \xc2\xa7 2412(d) would provide\na mechanism for holding agencies accountable for their activities. See, e.g.,\n126 Cong. Rec. 28106 (1980) (remarks of Sen. Thurmond) (\xe2\x80\x9caffecting the\n\xe2\x80\x98pocketbook\xe2\x80\x99 of the agency is the most direct way to assure more responsible\nbureaucratic behavior\xe2\x80\x9d). When the bill finally reached the House floor, how\xc2\xad\never, the conferees had agreed to make the judgment fund, as well as agency\nbudgets, available to pay fees awarded under \xc2\xa7 504 and \xc2\xa7 2412(d). It is very\nlikely that some Members of the House would have been concerned over the\npossibility that shifting the onus of paying these particular fee awards away\nfrom agency budgets to the judgment fund would cancel out whatever prophy\xc2\xad\nlactic effect the prospect of incurring adverse fee awards might otherwise have\non \xe2\x80\x9cbureaucratic behavior.\xe2\x80\x9d Section 207 can thus be best understood as in\xc2\xad\ntended to reinstate the requirement in previous versions of the legislation that\nawards under the experimental provisions of the bill should be paid from an\nagency\xe2\x80\x99s budget rather than the alternative source of the judgment fund.\nThere is no analogous reason why the House Members sponsoring \xc2\xa7 207\nshould have wished to impair the conventional and uncontroversial funding\nmechanism for awards under \xc2\xa7 2412(b). Indeed, applying \xc2\xa7207 to awards\nunder \xc2\xa7 2412(b) serves only to frustrate Congress\xe2\x80\x99 goals in enacting the latter\nprovision. The purpose of \xc2\xa7 2412(b) was to hold the United States \xe2\x80\x9cto the same\nstandards in litigating as other parties,\xe2\x80\x9d and to \xe2\x80\x9cplac[e] the Federal Government\nand civil litigants on a completely equal footing.\xe2\x80\x9d See H.R. Rep. No. 1418,96th\nCong., 2d Sess. 9 (1980) (Report of the House Committee on the Judiciary); S.\nRep. No. 253, 96th Cong. 2d Sess. 4 (1980). If \xc2\xa7 207 applied to awards made\nunder \xc2\xa7 2412(b), such awards could not be paid at a ll under existing law,\nexcept in cases involving agency bad faith.7 It would hardly be consistent with\n\n6 The funding provisions o f the version o f the bill passed by the Senate, identical to those reported o u t by\nthe H ouse C om m ittee on Small B usiness, would have placed fiscal responsibility for paying awards m ade\nunder \xc2\xa7 504 and \xc2\xa7 2412(d) exclusively on individual agencies. See Senate R eport at 18; H .R. Rep. No. 1005,\n96th C ong., 2d Sess. (Part 1) 11 (1980) (H ouse Com m ittee on Small B usiness). The funding provisions\nagreed to in conference, which gave prevailing parties access to the judgm ent fund, derived from the version\nof the bill reported out by the H ouse C om m ittee on the Judiciary. See H.R. Rep. No. 1005 (Part 1), 96th\nCong., 2d Sess. 12(1980).\n7 In the absence o f a specific appropriation to pay an aw ard m ade under \xc2\xa7 2412(b), it w ould rem ain an\nobligation o f the U nited States until satisfied by legislative action to authorize its paym ent. Such an\nobligation could rem ain unsatisfied forever if Congress never acted to authorize its paym ent, but history\nsuggests that such obligations usually are paid, and uncertainty as to the source o f funding fo r such aw ards in\nno way restricts the authority o f ju d g es to make them.\n\n185\n\n\x0cthe purpose of creating new liability simultaneously to cut off the only means\nof enforcing it short of new appropriations legislation.\nIn sum, we conclude that awards made under authority of \xc2\xa7 2412(b) are\npayable from the judgment fund and not from agency appropriations. More\xc2\xad\nover, \xc2\xa7 207 of the Act applies only to fee awards authorized by 5 U.S.C. \xc2\xa7 504\nand 28 U.S.C. \xc2\xa7 2412(d), and not to awards authorized by 28 U.S.C. \xc2\xa7 2412(b).\nThat section therefore does not prevent the payment of such awards from the\njudgment fund, and we know of no reason why they should not be certified by\nthe Comptroller General in accordance with the procedure called for in 28\nU.S.C. \xc2\xa7\xc2\xa72414 and 2517.\nLarry\n\nL.\n\nS im m s\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n186\n\n\x0c'


b"December 21, 1978\n\n78-99\n\nMEMORANDUM OPINION FOR THE COUNSEL\nTO THE PRESIDENT\nJudges\xe2\x80\x94 Members of Congress\xe2\x80\x94 Constitutional\nRestriction on Appointment (Article I, \xc2\xa7 6, cl. 2)\xe2\x80\x94\nOmnibus Judgeship Bill (28 U.S.C. \xc2\xa7 133, as\namended)\n\nThis responds to your inquiry concerning any legal restriction against the\nappointment of former or sitting Members of Congress to civil offices created\nby Congress at the time such persons were Congressmen. Specifically, the\nissue concerns the appointment of former members of the 95th Congress to the\nnew judgeships created by the Omnibus Judgeship Bill; 28 U .S.C . \xc2\xa7 133, as\namended by 92 Stat. 1630.\nThe relevant legal provision is Article 1, \xc2\xa7 6, cl. 2, of the Constitution:\nNo Senator or Representative shall, during the Time for which he\nwas elected, be appointed to any civil Office under the Authority of\nthe United States, which shall have been created, or the Emoluments\nwhereof shall have been increased during such time; and no Person\nholding any Office under the United States, shall be a M ember of\neither House during his Continuance in Office.\nThis provision poses no obstacle with respect to any current member of the\nHouse of Representatives since each m ember\xe2\x80\x99s term will expire, under the\nTwentieth Amendment, at noon on January 3, 1979.1 The same cannot be said\nfor each current Senator. A Senator is, under the Seventeenth Amendment,\nelected for a term of 6 years. However, under the Constitution, Article 1, \xc2\xa7 3,\ncl. 2, the terms of Senators are staggered so that one-third are chosen every\nsecond year. Accordingly, only those whose terms expire at noon on January 3,\n1979, will be eligible under Article 1, \xc2\xa7 6, cl. 2, for appointment to the subject\n\n'E ven if a m em ber o f the House of Representatives were reelected to a new term in the past\nelection he would not be disqualified for appointm ent to one o f the judgeships because the judge\xc2\xad\nships were created during the term expiring at noon on January 3. 1979. the term that constitutes\nthe period of disqualification.\n\n431\n\n\x0cjudgeships at that time. While other Senators will not be eligible in 1979 for\nappointment to the judgeships, their disqualification will lapse upon the\nexpiration o f their elected terms.\nJo h n M . H a r m o n\n\nAssistant Attorney G eneral\nOffice o f L egal Counsel\n\n432\n\n\x0c"


b'Establishment of the President\xe2\x80\x99s Council for\nInternational Youth Exchange\nProposed establishm ent o f the P resident\xe2\x80\x99s Council on International Youth Exchange (Council) within\nthe United States Inform ation Agency (USIA), for the purpose of soliciting funds from the private\nsector for the U SIA \xe2\x80\x99s youth exchange program s, is generally perm issible, although the C ouncil\xe2\x80\x99s\nactivities would be subject to certain lim itations and its continued operation after a year would\ndepend upon a specific congressional appropriation.\nU nder the Fulbnght-H ays A ct, em ployees of the USIA are perm itted actively to solicit private\ncontributions to support the U SIA \xe2\x80\x99s exchange program s. However, under 5 U .S .C . \xc2\xa7 3107, any\npublicity in this connection would have to be carefully tailored to further only the U S IA \xe2\x80\x99s\nfundraising activities and not generally to aggrandize the USIA or its officials, in accordance with\nguidelines o f the General A ccounting Office.\nU nder 31 U .S .C . \xc2\xa7 673, creation of the Council m ust be "authorized by law " in order for public\nfunds to be used for its expenses or for USIA em ployees to assist in its operation. W hile \xc2\xa7 673 does\nnot require specific statutory authorization for the establishm ent of governm ent councils and\ncom m issions, it does require that such entities and their functions be authorized \xe2\x80\x9c in a general\nw ay\xe2\x80\x9d by law. W hether the Council m eets this test may depend upon its size and functions.\nU nder the Russell A m endm ent, 3 1 U .S .C . \xc2\xa7 696, non-statutory councils and com m issions w hich are\nvested with authonty to take substantive action on the governm ent\'s behalf must receive specific\nbudgetary support from Congress w ithin a year of their establishm ent in order to continue\noperating beyond that date.\nT he functions of the proposed Council in connection with fundraising and advising activities, as well\nas its proposed relationship with the USIA, would be such as to require that its m embers be made\nem ployees of the federal governm ent.\n\nSeptember 16, 1982\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL,\nUNITED STATES INFORMATION AGENCY\nThis memorandum responds to your request for our comments regarding the\nestablishment of a new government council within the United States Information\nAgency (USIA). You and other officials of the USIA have outlined in several\nletters and meetings the proposed structure and functions of the council, which\nwould be named the \xe2\x80\x9c President\xe2\x80\x99s Council for International Youth Exchange\xe2\x80\x9d\n(Council). As presently planned, the Council would be composed of approx\xc2\xad\nimately 300 private citizens who would solicit contributions from the private\nsector for the USIA and submit an advisory report to the President and to the\n541\n\n\x0cDirector of the USIA (Director) outlining ways for the USIA to increase private\ncontributions to the USIA.\nFor the reasons outlined in detail in this memorandum, we conclude that most\nof the proposed activities of the Council that you have described are generally\nauthorized by law. We caution, however, that there are certain legal restrictions\nthat may affect the operations of the Council. These are discussed in more detail\nbelow. In our view, moreover, the USIA will be required to obtain specific\ncongressional appropriations for the proposed Council within a year of its\ncreation for it to continue to operate beyond that date. In light of these potential\ndifficulties, the USIA may wish to consider seeking legislation authorizing the\nproposed Council before its creation, rather than rely on existing statutory\nauthority to establish the Council. Securing such explicit congressional autho\xc2\xad\nrization would avoid the possibility that Congress may substantially reorganize\nthe Council, or even abolish it, after a year, resulting in a substantial loss of time\nand effort by members of the Council and the USIA. The decision whether to\nseek such prior authorization obviously involves an exercise of judgment that you\nand other officials of the USIA are best equipped to make. We defer to your sound\ndiscretion in this matter, and simply raise the issue for your consideration.\nI. Background\n\nBecause the proposed size and functions of the Council have changed signifi\xc2\xad\ncantly over the past three months, it is appropriate to review the history of this\nproposal and to outline the current plan for the Council. This Office initially\nreviewed and expressed no objection to suggested language for a presidential\nspeech announcing the establishment of the Council. According to this language,\nwhich was ultimately included in the President\xe2\x80\x99s announcement of May 24,\n1982,1 the Council was to be a federal advisory committee organized to advise\nthe President and the Director about ways to increase private contributions to the\nUSIA for its newly planned programs on International Youth Exchange (Youth\nExchange Programs). See Federal Advisory Committee Act, 5 U.S.C. App. I\n(FACA) (authorizing establishment of advisory committees to the President and\nheads of agencies). The Youth Exchange Programs seek to stimulate awareness\nand appreciation of American society among European youth by subsidizing and\ngenerally encouraging private efforts to bring European youths to the United\nStates for study or for work.\nSubsequent to the President\xe2\x80\x99s speech, we were advised that the proposed\nfunctions of the Council had been expanded so that its members would also solicit\ncontributions to the USIA for its Youth Exchange Programs, in addition to\nadvising the President and Director on ways to increase such contributions. This\n1 In announcing the establishment of the Council, the President stated that \xe2\x80\x9c I plan to form a Presidential\nCommittee to advise me and to help Charlie W ick [the Director o f the USIA], who is my personal representative for\nthis effort, [to] help [him] find ways to stimulate greater private involvement across the country.\xe2\x80\x9d Remarks of\nPresident Ronald Reagan, White House Meeting on International Youth Exchanges, White House (May 2 4,1982)\nat 2.\n\n542\n\n\x0crevision contemplated a Council composed of approximately 50 prominent\nrepresentatives of corporations, foundations, and educational institutions serving\nin both an advisory and operational capacity. The solicitation of contributions, as\nwe understood at the time, was to be accomplished by members of the Council\nmaking telephone calls and individually contacting persons in the private sector\nto contribute to the Youth Exchange Programs. Because of the members\xe2\x80\x99 opera\xc2\xad\ntional duties, they were to be appointed by the Director as part-time employees of\nthe USIA. The members, however, were not to receive any salary from the\ngovernment for their activities, although they would have received reimburse\xc2\xad\nment for their expenses.\nMore recently, the scope of the Council\xe2\x80\x99s proposed operational efforts has been\nsignificantly expanded, and the responsibilities within the Council have been\ndivided. Under the latest proposal, as we understand it, the Council would be\ncomposed of approximately 300 major corporate leaders, who would be divided\ninto two groups\xe2\x80\x94 \xe2\x80\x9cdirectors\xe2\x80\x9d and \xe2\x80\x9c members.\xe2\x80\x9d The \xe2\x80\x9c directors,\xe2\x80\x9d who would\nnumber about 30, would oversee the operations of the Council through their\nservice on three committees\xe2\x80\x94 an Executive Committee, a Public Relations\nCommittee, and a Program Committee. Although the division of responsibilities\namong these committees has not been determined finally, we understand that the\nchairman of each committee would serve on the Executive Committee, which\nwould be responsible for overseeing the Council\xe2\x80\x99s overall fundraising and ad\xc2\xad\nvisory activities. The Public Relations Committee would be comprised largely of\npublicity experts from public relations firms. These advertising experts would\ndevelop and run a publicity campaign, which would include television and\nmagazine advertising soliciting contributions to the USIA. Although the respon\xc2\xad\nsibilities of the Program Committee have not been finalized, it would probably\nexamine and make recommendations to the Executive Committee on ways to\nimprove the Youth Exchange Programs.\nThe \xe2\x80\x9c members\xe2\x80\x9d of the Council, who would apparently number about 270,\nwould not be actively engaged as a group in the direction of the Council, but\nwould be available as a resource to assist in the projects undertaken by the\ndirectors. Thus, their contributions, financial and otherwise, would vary from\nindividual to individual. The Council as a group would submit an advisory report\nto the President and the Director on ways to increase contributions to the USIA,\nand perhaps also on ways the contributed money should be spent by the USIA.\nAny final decision on the raising or disbursement of the funds would be made by\nthe Director.\nIt is contemplated that the proposed Council would be a government entity.\nMembers and directors would be appointed by the Director and would be subject\nto his control when performing Council activities. This government connection\nand support is important, we understand, to symbolize the government\xe2\x80\x99s commit\xc2\xad\nment to Youth Exchange Programs, to elicit private participation in this effort,\nand to ensure USIA control over the disposition of contributed funds. Establish\xc2\xad\nment of the Council as a government entity within the USIA would also permit\nthe Council to use the facilities, staff, and funds of the USIA. According to your\n543\n\n\x0cmost recent proposal, however, the directors and members of the Council would\nnot be employees of the federal government as a result of their Council service.\nThus, under the current plan, the Council would be composed of 300 corporate\nexecutives who would solicit private contributions on behalf of the USIA, would\nbe appointed and supervised by the Director of the USIA, but would not serve as\nUSIA employees.\nIn the balance of this memorandum, we identify the following four areas in\nwhich the USIA\xe2\x80\x99s operation of the Council would be subject to certain restric\xc2\xad\ntions: first, the USIA\xe2\x80\x99s authority to undertake an advertising campaign to solicit\ncontributions; second, the USIA\xe2\x80\x99s authority to expand the size and operations of\nthe Council beyond that which has been proposed; third, the USIA\xe2\x80\x99s authority to\noperate the Council after a year unless it receives specific budgetary support from\nCongress; and fourth, the USIA\xe2\x80\x99s authority to select and supervise members and\ndirectors of the Council, and yet not to make them employees of the USIA.2\n\nII. Authority of the USIA to Solicit Contributions to\nYouth Exchange Programs\nWe first consider the restrictions on the authority of the USIA to solicit\ncontributions for the USIA\xe2\x80\x99s Youth Exchange Programs.\nThe authority of the USIA to undertake exchange programs is derived from the\nFiilbright-Hays Act, Pub. L. No. 87-256, 75 Stat. 527, as amended, 22 U.S.C.\n\xc2\xa7\xc2\xa7 2451-2459, which was passed in 1961.3 Section 105 of that Act, 22 U.S.C.\n\xc2\xa7 2455(f), grants the USIA authority to obtain private funding for these exchange\nefforts. That section states in full:\nForeign governments, international organizations and private in\xc2\xad\ndividuals, firms, associations, agencies, and other groups shall be\n2 Pursuant to conversations with members o f yo u r office, we have not examined several other issues raised by the\ncreation o f the Council. First, we have assumed that the establishment of the proposed Council would satisfy the\nrequirement o f \xc2\xa7 5(b) & (c) o f FACA, 5 U .S .C . App. \xc2\xa7 5(b)&(c) This section generally provides that a new\nadvisory committee should not be established if its functions are o r could be performed by one or more agencies or\nby an advisory committee already in existence, or by enlarging the mandate of an existing advisory committee\nSecond, because we have not been advised as to the specific backgrounds of members and directors of the Council,\nwe have not considered whether their backgrounds would satisfy the requirement in FACA that the committee\xe2\x80\x99s\nm embership be \xe2\x80\x9c fairly balanced in terms of the points of view represented and the functions to be performed by the\nadvisory committee \xe2\x80\x9d 5 U .S .C . App. \xc2\xa7 5(b)(2). In this regard, we suggest that you consider whether \xe2\x80\x9c points of\nview \xe2\x80\x9d will be balanced if membership is limited to corporate leaders, particularly if the USIA ultimately decides to\nhave the Council advise the Director on the distribution of the funds it collects, rather than simply raising funds and\nadvising on how to raise funds. We are not, of course, expressing any judgment on this issue, but only advising that\nthe subject should be considered. Finally, we have not considered what laws and regulations regarding conflicts of\ninterest would apply to the persons serving on the Council. We note, however, that our conclusion that Council\nmembers must be considered government employees, discussed infra, necessarily means that some conflicts laws\nand regulations would apply to the Council members.\n3 The USIA has two authonzing statutes U nder the first, the Rilbnght-Hays Act, as amended, 22 U.S.C.\n\xc2\xa7\xc2\xa7 2451-2459, the USIA is charged with promoting by \xe2\x80\x9c grant, contract, or otherwise\xe2\x80\x9d \xe2\x80\x9c educational\xe2\x80\x9d and\n\xe2\x80\x9c cultural\xe2\x80\x9d exchanges between the United States and foreign countries. See 28 U .S.C. \xc2\xa7 2452 These exchanges\nfrequently occur under the auspices of private organizations which receive support through USIA grants, contracts,\nor other forms of assistance. The proposed Youth Exchange Programs fall within the broad mandate of this Act The\nUSIA also serves, pursuant to the Smith-Mundt Act of 1948, as amended, 22 U .S.C \xc2\xa7\xc2\xa7 1431-1479(1976 & Supp.\nII 1978), as \xe2\x80\x9c an information service to disseminate abroad information about the United States, its people, and\npolicies .\n\xe2\x80\x9d 22 U .S .C . \xc2\xa7 1431. See also 22 U.S C. \xc2\xa7\xc2\xa7 1461, 1461-1 (Supp. II 1978) In discharging this\nresponsibility, the USIA operates the Voice of Am erica, a government radio network which broadcasts to countries\nabroad. See 22 U .S .C . \xc2\xa7 1463.\n\n544\n\n\x0cencouraged to participate to the maximum extent feasible in\ncarrying out this chapter and to make contributions of funds,\nproperty and services which the [Director] is authorized to accept,\nto be utilized to carry out the purposes of this chapter. Funds made\navailable for the purposes of this chapter may be used to contrib\xc2\xad\nute toward meeting the expenses of activities carried out through\nnormal private channels, by private means, and through foreign\ngovernments and international organizations.\n\n(Emphasis added.)4 Under this provision, the USIA has clear authority to accept\nand to use contributions to meet the \xe2\x80\x9c expenses of activities carried out through\nnormal private channels, by private means,\xe2\x80\x9d such as youth exchanges operated\nby private institutions.5 A separate question is presented, however, whether and\nin what manner USIA employees may actively solicit such contributions. By\nproviding that private groups, firms, individuals, and organizations \xe2\x80\x9c shall be\nencouraged to participate to the maximum extent feasible . . . and to make\ncontributions,\xe2\x80\x9d the section raises two questions: may employees of the USIA\ngenerally encourage contributions and, if so, may they do so through a media\npublicity campaign?\nA . Who M ay Encourage Contributions\n\nThe use of the phrase \xe2\x80\x9c shall be encouraged\xe2\x80\x9d leaves some ambiguity regarding\nthe precise scope of the USIA\xe2\x80\x99s authority because the phrase could arguably\nconstitute only a congressional statement of encouragement for contributions,\nrather than an authorization for USIA employees actively to solicit contribu\xc2\xad\ntions.6The use of the term \xe2\x80\x9c shall be,\xe2\x80\x9d however, more likely indicates that entities\nother than Congress, namely the USIA, have authority to encourage private\ncontributions. If Congress had intended this phrase to serve merely as a statement\nof congressional encouragement, Congress presumably would have used the\nwords \xe2\x80\x9c are encouraged,\xe2\x80\x9d rather than the phrase \xe2\x80\x9c shall be encouraged,\xe2\x80\x9d thereby\nindicating an understanding that encouragement would take place in the future\nand by some persons or entities other than Congress itself.\nIn support of the foregoing interpretation, we note that \xc2\xa7 2455(f) is based on an\nanalogous section in the International Cultural Exchange and Trade Fair Par\xc2\xad\nticipation Act of 1956, Pub. L. No. 860, \xc2\xa7 4, 70 Stat. 778, which, according to\none of its sponsors \xe2\x80\x9c call[ed] for continued encouragement of private contribu\xc2\xad\ntions in support of this program.\xe2\x80\x9d 102 Cong. Rec. 14103 (remarks of Rep.\nThompson) (1956) (emphasis added). Furthermore, \xc2\xa7 2455(0 is not written in a\n4 When this provision was originally passed, the President was authorized to accept contributions made under this\nchapter. Reorganization Plan No 2 of 1977, \xc2\xa7 7(a)(2), 42 Fed. Reg. 62461, 91 Slat 1637 set out in 22 U .S.C 1461\nnote, transferred these functions to the Director.\n5 This provision would also give the USIA authority to accept voluntary \xe2\x80\x9c services,\xe2\x80\x9d such as those of the\nCouncil\xe2\x80\x99s members\n6 Ambiguous language in the two committee reports could be interpreted to provide some support for the view\nthat encouragement was to be provided by Congress rather than the USIA. See H Rep No 1094, 87th Cong , 1st\nSess. 14 (1961), S. Rep No. 372, 87th Cong., 1st Sess. 16 (1961).\n\n545\n\n\x0cmanner which would suggest that Congress was authorizing the USIA simply to\naccept contributions. By using the phrase \xe2\x80\x9c shall be encouraged,\xe2\x80\x9d Congress\nseems to have intended that contributions would be an acceptable, indeed\ndesirable, method of augmenting the funds available for the USIA\xe2\x80\x99s tasks relative\nto exchange programs. It seems unlikely that Congress would have enacted this\nprovision if it did not want the USIA to take reasonable steps necessary to make it\neffective. Thus, the section, in our view, authorizes continued encouragement by\nthe USIA of private contributions, rather than simply announcing Congress\xe2\x80\x99\nsupport for private contributions to the USIA\xe2\x80\x99s programs.\nThis interpretation is also consistent with the underlying intent behind the\nFulbright-Hays Act to promote close cooperation between the USIA and private\nentities in undertaking exchange efforts. The USIA is charged generally with\n\xe2\x80\x9c encourag[ing] private institutions in the United States to develop their own\nexchange activities, and providing] assistance for those exchange activities\nwhich are in the broadest national interest.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 1461-1. Since USIA\nemployees are authorized to \xe2\x80\x9cencourage\xe2\x80\x9d private entities to undertake their own\nexchange efforts, it is not illogical to conclude that they would also be authorized\nto solicit private contributions for the USIA\xe2\x80\x99s own programs.7\nB. Publicity Campaigns\n\nThe general language authorizing the \xe2\x80\x9c encourage[ment]\xe2\x80\x9d of private contribu\xc2\xad\ntions would also appear to authorize the use of a media campaign by the USIA to\nraise funds, even though a publicity campaign is not specifically authorized. As\nwe have said, Congress viewed the solicitation of private contributions as an\nappropriate method for the USIA to fund its operations. A media campaign\nrepresents a reasonable technique for undertaking such solicitation on a mass\nscale.\nAt the same time, however, we must examine carefully the employment of a\npromotional campaign or publicity effort because of the requirements of 5\nU.S.C. \xc2\xa7 3107. That section provides that \xe2\x80\x9c [appropriated funds may not be used\nto pay a publicity expert unless specifically appropriated for that purpose.\xe2\x80\x9d\nAccording to the brief legislative history of \xc2\xa7 3107, its purpose is to prevent an\nagency from employing \xe2\x80\x9c publicity\xe2\x80\x9d or \xe2\x80\x9c press agents\xe2\x80\x9d whose business it is to\n\xe2\x80\x9c advertise the work and doings o f that department,\xe2\x80\x9d unless their employment is\nspecifically authorized by Congress. 50 Cong. Rec. 4409 (1913) (remarks of\n7 The prohibition in the Smith-Mundt Act on the USIA\xe2\x80\x99s dissemination of political propaganda within the United\nStates does not affect this conclusion. The Smith-Mundt Act, 22 U .S C. \xc2\xa7 1461, which authorizes the \xe2\x80\x9c dissemina\xc2\xad\ntion abroad, of information about the United States, its people and its policies,\xe2\x80\x9d specifically prohibits the\ndissemination of \xe2\x80\x9c such information\xe2\x80\x9d within the United States. This restriction, however, only applies to \xe2\x80\x9c such\ninform ation,\xe2\x80\x9d meaning propaganda information disseminated abroad by the USIA pursuant to the Smith-Mundt\nAct. Cf. 1 1 8 C o n g .R e c. 19187, 19188 (1972) (remarks of Senators Javits and Rilbright). Neither the language of\nthis provision nor its underlying purpose would restrict the USIA\xe2\x80\x99s dissemination within the United States of\ninformation on cultural or educational exchanges undertaken pursuant to the Rilbright-Hays Act, 22 U.S.C.\n\xc2\xa7 2455(0. We understand from members of the General Counsel\'s Office of the USIA that the USIA has traditionally\ndrawn this distinction as the basis for its authority to disseminate information regarding exchange activities, and we\nagree with this analysis.\n\n546\n\n\x0cRep. Gillett).8 Because USIA funds and personnel would necessarily be used,\nhowever indirectly, to assist in an advertising campaign run by advertising\nexecutives serving on the Council, a question is raised regarding the permissible\nextent of the USIA\xe2\x80\x99s authority to undertake such an effort consistent with \xc2\xa7 3107.\nIn interpreting this provision and an analogous provision discussed below,\nboth this Office and the Comptroller General originally sought to draw a distinc\xc2\xad\ntion, reflected in the legislative history of the section, between activities that are\nintended to \xe2\x80\x9c give[ ] to the country information as to the work of [a] depart\xc2\xad\nment,\xe2\x80\x9d and activities that seek to \xe2\x80\x9c extol and exploit the virtues of [a] depart\xc2\xad\nment.\xe2\x80\x9d 50 Cong. Rec. 4411 (1913) (remarks of Rep. Lever). Under this view,\nagencies are authorized to hire employees for their press offices, even without\nspecific statutory or budgetary authority, because these employees are engaged\nprimarily in an informational capacity, and not to extol the virtues of the agency.\nSee, e.g ., 31 Comp. Gen. 311 (1952). This Office has conceded at the same time,\nhowever, that \xe2\x80\x9c [t]he line between information and \xe2\x80\x98publicity\xe2\x80\x99 is almost impossi\xc2\xad\nble to draw, since any information about an agency\xe2\x80\x99s activities will publicize the\nagency, and almost all publicity will contain information about the government\nor about government programs.\xe2\x80\x9d 9 Similarly, in a book published only last month\nby the General Accounting Office (GAO), that agency recognizes that this\ndistinction \xe2\x80\x9c does not provide adequate guidelines to distinguish the legitimate\nfrom the proscribed.\xe2\x80\x9d Principles of Federal Appropriations Law, 3\xe2\x80\x94148 (1982)\n(Federal Appropriations Law). See also B - l 94776 (June 4, 1979); B-177704\n(February 7, 1973).\nBecause this is an area in which the line is so difficult to draw, and because the\nissues are directly pertinent to statutory restrictions on the use of appropriated\nfunds, we believe it is appropriate to accord considerable deference to decisions\nof the GAO. That agency is charged with enforcing \xc2\xa7 3107 and represents the\ninterests of the Congress, whose control of executive activities \xc2\xa7 3107 seeks to\nprotect. In Federal Appropriations Law the GAO reviews a series of unpublished\nComptroller General opinions on \xc2\xa7 3107. After recognizing the difficulty in\ndrawing a line between the legitimate dissemination of information, on the one\nhand, and \xe2\x80\x9c puffing\xe2\x80\x9d of agency activities, on the other, the GAO states that it\ndoes not view 5U .S .C . \xc2\xa73107 as prohibiting an agency\xe2\x80\x99s legiti\xc2\xad\nmate informational functions or legitimate promotional functions\nwhere authorized by law. The apparent intent of the statute is to\nprohibit publicity activity \xe2\x80\x9c for the purpose of reflecting credit\n8 When introducing this provision, its author explained that it is not \xe2\x80\x9c proper for any department of the\nGovernment to employ a person simply as a press agent to advertise the work and doings of that department and it is\nto prevent that in any department that this amendment is offered." He went on to state that such positions for\npublicity experts "ought not to exist without, as my amendment suggests, a special appropriation by Congress or\nspecial recognition and approval by Congress o f such an official.\xe2\x80\x9d 50 Cong. Rec. 4409 (1913) (remarks of Rep.\nGillett). See also id at 4410 (remarks of Rep. Fitzgerald) (\xe2\x80\x9cno service of the Government should employ a man\nwhose duty is to prepare press matter in order to extol or to advertise the work of the service with which he is\nconnected\xe2\x80\x9d ).\n9 Memorandum from Norbert A. Schlei, Assistant Attorney General, Office of Legal Counsel, to Joseph Dolan,\nAssistant Deputy Attorney General, \xe2\x80\x9c Request of House Subcommittee for Interpretation of 5 U S.C. \xc2\xa7 5 4 ,\xe2\x80\x9d at 3\n(Mar 1, 1963).\n\n547\n\n\x0cupon an activity, or upon the officials charged with its administra\xc2\xad\ntion, rather than for the purpose of furthering the work which the\nlaw has imposed upon it.\xe2\x80\x9d\nFederal Appropriations Law at 3-152, quoting A-82332 (Dec. 15, 1936). In the\nGAO\xe2\x80\x99s view, \xe2\x80\x9c the statute is not intended to interfere with the dissemination of\ninformation which an agency is required or authorized by statute to disseminate,\nor with promotional activities authorized by law.\xe2\x80\x9d Federal Appropriations Law, at\n3-153; B - 139965 (Apr. 16, 1979). See also B-181254 (Feb. 28, 1975).10\nThe GAO book gives the same interpretation to a separate but analogous\nprovision routinely included in the USIA\xe2\x80\x99s appropriation statute which prohibits\nthe use of any agency funds for \xe2\x80\x9c publicity or propaganda purposes not authorized\nby the Congress.\xe2\x80\x9d See Departments of State, Justice, and Commerce, the\nJudiciary, and Related Agencies Appropriation Act, 1980, Pub. L. No. 96-98,\n\xc2\xa7 601, 93 Stat. 416, 435 (1979).11 With respect to this provision, the GAO states\nthat it is \xe2\x80\x9c reluctant to find a violation where the agency can provide a reasonable\njustification for its activities.\xe2\x80\x9d Federal Appropriations Law, at 3-148. See also\nB - 184648 (Dec. 3, 1975); B-178528 (July 27, 1973). The GAO cites with\napproval a Comptroller General opinion which upheld the authority of the\nDepartment of Commerce to undertake a \xe2\x80\x9c national multi-media campaign to\nenhance public understanding of the American economic system.\xe2\x80\x9d Federal\nAppropriations Law, at 3-149. In the GAO\xe2\x80\x99s view, this campaign was a reason\xc2\xad\nable means of discharging the Department of Commerce\xe2\x80\x99s function of promoting\ncommerce and did not \xe2\x80\x9c aggrandize\xe2\x80\x9d the Commerce Department. See B-184648\n(Dec. 3, 1975). The GAO book cites only two cases in which the Comptroller\nGeneral has found an activity prohibited because of the ban on unauthorized\npublicity. In the first case, the Comptroller General held that a speech by the\nDeputy Assistant Secretary of Defense apparently seeking public assistance in\nlobbying for Defense programs was impermissible. See B-136762 (Aug. 18,\n1958). In the second case, which predated the appropriation statute, the Comp\xc2\xad\ntroller General found that attempts by the Federal Housing Administration (FHA)\nto promote homeowner improvements were prohibited. The opinion reasoned\nthat the creation of demand for housing was not an authorized purpose of the\nFHA. See 14 Comp. Gen. 638 (1935).\nIn light of the extremely narrow interpretation given to these provisions in the\nComptroller General opinions, we believe that the Comptroller General would\nuphold the limited use of appropriated funds to support a reasonable and carefully\ncontrolled advertising campaign by the Council. Like the Departments of Energy\nand Commerce, the USIA has specific authority to promote an activity in the\nprivate sector\xe2\x80\x94 namely, the making of contributions of funds, property, and\n10 For this proposition, the GAO relies on two Comptroller General opinions. These decisions approved a Federal\nEnergy Administration (FEA) advertising campaign to conserve energy on the ground that the FEA had the authority\nto promote energy conservation. See B-139965 (Apr. 16, 1979); B -181254 (Feb. 28, 1975).\n11 This section states in full:\nNo part of any appropriation contained in this Act shall be used for publicity or propaganda purposes\nnot authonzed by the Congress\n\n548\n\n\x0cservices for youth exchange programs. A media campaign represents an effective\nmethod for reaching the public and conveying the need, as in the FEA case cited\nin footnote 10, to conserve energy or, in this case, to support exchange programs.\nWe would caution, however, that the proposed USIA advertising campaign\nshould be carefully tailored and scrutinized so that it does not unduly emphasize\nthe accomplishments of the USIA or aggrandize the agency or its officials.\nPossibly in contrast with the advertising campaigns previously sanctioned by the\nComptroller General and cited in the GAO report, the proposed advertising\ncampaign soliciting contributions to the USIA would undoubtedly involve some\ndegree of favorable comment on the programs of the USIA, albeit with the\npurpose of promoting an activity which the USIA is generally authorized to\npromote\xe2\x80\x94 the donation of funds. For this reason, we believe that the advertising\ncampaign should focus primarily on the private youth exchange activities, and\nnot place any undue emphasis on the officials or operations of the USIA itself.\nWith this caveat, we conclude that a reasonable media campaign would be\napproved by the Comptroller General in these unique circumstances.\n\nIII. Authority to Establish a Council to Solicit Contributions\nA second legal issue arises from the USIA\xe2\x80\x99s plan to solicit contributions by\ncreating a new council staffed by persons who would be part-time volunteers of\nthe USIA. Section 673 of Title 31 (1976) states:\nNo part of the public moneys, or of any appropriation made by\nCongress, shall be used for the payment of compensation or\nexpenses of any commission, council, board, or other similar\nbody, or any members thereof, or for expenses in connection with\nany work or the results of any work or action of any commission,\ncouncil, board, or other similar body, unless the creation of the\nsame shall be or shall have been authorized by law. . . .\nUnder this section, the use of any money for the expenses of any council is\nprohibited \xe2\x80\x9c unless the [council] shall have been authorized by law.\xe2\x80\x9d Thus, while\nsolicitation of contributions by USIA employees may be authorized, creation of\nthe Council itself must be \xe2\x80\x9c authorized by law\xe2\x80\x9d within the meaning of this section\nin order for public funds to be used for its expenses or for USIA employees to\nassist it in its operations.\nThe requirements of this section have never been clearly articulated, although\nthis section apparently does not require specific authorization for the establish\xc2\xad\nment of committees. Immediately following its passage, the Attorney General in\na 1909 opinion concluded that authority for the creation of a council \xe2\x80\x9c would be\nsufficient if their appointment were authorized in a general way by law.\xe2\x80\x9d 27 Op.\nAtt\xe2\x80\x99y Gen. 432,437 (1909). The Comptroller General adopted a similar position\nthat a council is authorized if its \xe2\x80\x9c duties or functions can be performed only by\n549\n\n\x0csuch a group or if it is generally accepted that such duties can be performed best\nby such a group.\xe2\x80\x9d 40 Comp. Gen. 478, 479 (1961).12\nEven though \xc2\xa7 673 would not require specific statutory authorization for the\ncreation of the Council, a question remains whether the Council will be \xe2\x80\x9c autho\xc2\xad\nrized in a general way by law.\xe2\x80\x9d No clear legal lines can be drawn in this area,\nespecially before the Council has begun operations. We believe that, as presently\nplanned, the Council would be authorized in light of Congress\xe2\x80\x99 preference for\nprivate funding of USIA programs and close cooperation between the USIA and\nprivate organizations. In our view, however, the larger the Council and the more\ndiverse its functions and structure become, the greater the risk that Congress or a\ncourt could determine that it is not \xe2\x80\x9c authorized in a general way by law.\xe2\x80\x9d We\nleave it to the judgm ent of the General Counsel\xe2\x80\x99s Office of the USIA to determine\nat what point it believes the size and operation of the Council may exceed prudent\nbounds.\nIV. Comgressiioiroal A ppropriations\nA third limitation on the operation of the Council is the requirement that it\nobtain specific congressional funding for its expenses after the first year of its\noperation. Section 696 of Title 31 requires that no money may be spent for any\n\xe2\x80\x9c agency or instrumentality\xe2\x80\x9d after it has been in existence for more than one year\n\xe2\x80\x9c if the Congress has not appropriated any money specifically for such agency or\ninstrumentality or specifically authorized the expenditure of funds by it.\xe2\x80\x9d (Em\xc2\xad\nphasis added.)13 The purpose of this provision, commonly referred to as the\nRussell Amendment after its author, Senator Richard Russell, is \xe2\x80\x9c to retain in the\nCongress the power of legislating and creating bureaus and departments of the\nGovernment.\xe2\x80\x9d 90 Cong. Rec. 3059 (1944) (remarks of Sen. Russell). Before\n12 The passage o f the so-called Russell Amendment, 31 U .S .C . \xc2\xa7 696, provides further support for the view that\n\xc2\xa7 673 does not require specific statutory authorization for the creation of a committee. Section 696 requires, as we\ndiscuss in detail infra, that no money may be spent for an "agency o r instrumentality" after it has been in existence\nfor more than one year " if the Congress has not appropriated any money specifically for such agency or\ninstrumentality or specifically authorized the expenditure of funds by it \xe2\x80\x9d The purpose of this provision was to assure\ncongressional control over various government commissions that had come into existence over the years without\nstatutory authorization See generally 90 Cong. Rec. 3059, 3060, 3064 (1944) (remarks of Sen. Russell). By\nintroducing this enforcement mechanism, Congress may have implicitly recognized that the Executive Branch has\nsome discretion to create commissions, at least for a year, w ithout clear statutory authorization.\n13 Section 696 states in full:\nA fter January 1, 1945, no part of any appropriation o r fund made available by this or any other Act\nshall be allotted or made available to, or used to pay the expenses of, any agency o r instrumentality\nincluding those established by Executive order after such agency or instrumentality has been in\nexistence for more than one year, if the Congress has not appropriated any money specifically for\nsuch agency or instrumentality or specifically authorized the expenditure of funds by it. For the\npurposes of this section, any agency o r instrumentality including those established by Executive\norder shall be deem ed to have been in existence during the existence of any other agency or\ninstrumentality, established, by a pnor Executive order, if the principal functions of both of such\nagencies or instrumentalities are substantially the same or similar When any agency or instrumen\xc2\xad\ntality is or has been prevented from using appropriations by reason of this section, no part of any\nappropriation or fund made available by this or any other Act shall be used to pay the expenses of the\nperformance by any other agency or instrumentality o f functions which are substantially the same as\nor sim ilar to the principal functions of the agency or instrumentality so prevented from using\nappropriations, unless the Congress has specifically authorized the expenditure of funds for perform\xc2\xad\ning such functions.\n\n550\n\n\x0cpassage of this section, members of Congress had expressed concern over the\nestablishment of various government councils and commissions without specific\nstatutory authority. Section 696 sought to make these entities accountable to\nCongress by requiring that they receive specific budgetary support within a year\nof their establishment. See 90 Cong. Rec. 3059, 3060, 3064 (1944) (remarks of\nSen. Russell).\nThis Office has previously interpreted this section narrowly. In our view, it\ndoes not apply to \xe2\x80\x9c entities that exist by virtue of statutory authority.\xe2\x80\x9d 14Thus, we\nhave found that \xe2\x80\x9c purely advisory committees\xe2\x80\x9d do not need to obtain specific\nbudgetary approval because they are established under the Federal Advisory\nCommittee Act (FACA). We have also found that the term \xe2\x80\x9c agency or instrumen\xc2\xad\ntality,\xe2\x80\x9d as used within this section, covers only entities that are invested \xe2\x80\x9c with\nactual authority to take substantive action on [an official\xe2\x80\x99s] or the government\xe2\x80\x99s\nbehalf.\xe2\x80\x9d 15Thus, \xe2\x80\x9c purely advisory committees\xe2\x80\x9d would also not be covered by this\nsection because they take no \xe2\x80\x9c substantive action.\xe2\x80\x9d\nEven under this narrow interpretation, however, the proposed Council for\nInternational Youth Exchange would be subject to the requirements of 31 U .S.C .\n\xc2\xa7 696. First, as a committee performing both advisory and operational functions,\nthe Council is not specifically authorized by any statute since FACA specifically\nauthorizes the creation of committees which are only advisory. Second, even\nassuming that the Council would have sufficient revenues of its own to cover\noperational expenses, it would nevertheless rely on appropriated funds to support\nits activities because, as we understand it, it would both require the assistance of\nUSIA personnel and the use of USIA facilities. The cost of these USIA personnel\nand expenses would be covered by appropriated funds, whose use would be\nunauthorized after one year unless the Council received specific congressional\nappropriations.I6-Finally, the Council would be an \xe2\x80\x9c agency or instrumentality\xe2\x80\x9d\nwithin the meaning of 31 U.S.C. \xc2\xa7 696 because, as contemplated, it would\ndischarge responsibilities vested by law in the USIA and would not be purely\nadvisory. Although this office has interpreted the term \xe2\x80\x9c agency or instrumen\xc2\xad\ntality\xe2\x80\x9d to cover only entities that take substantive action, we have nonetheless\nindicated that an entity that \xe2\x80\x9c acts on behalf of the government or exerts any\ngovernmental power,\xe2\x80\x9d such as a commission, should be covered.17 Section 696\nwas specifically passed to regulate the establishment of government councils and\n14 See memorandum from Mary C. Lawton, Deputy Assistant Attorney General, Office of Legal Counsel, to\nRobert J. Lipshutz, Counsel to the President, \xe2\x80\x9cApplication o f Russell Amendment to Purely Advisory Com m it\xc2\xad\ntees,\xe2\x80\x9d at 6 (June 27, 1979) (Lawton Memorandum).\n15 Lawton M emorandum, p. 3.\n16 Even if the Council could operate without government assistance after the first year, a question would remain\nwhether the existence of a council operating on contributed funds contravenes the underlying intent of \xc2\xa7 696\nSection 696 was passed in order to permit Congress to control through the budgetary process the operation of\ngovernment instrumentalities that exercise governmental power. See 90 Cong Rec 3059, 3060, 3064 (1944)\n(remarks of Sen. Russell) Creating and operating \xe2\x80\x9c instrumentalities\xe2\x80\x9d that perform government functions, but rely\non contributed funds, might be said to contravene that intent. But cf. 90 Cong. Rec. 3067 (remarks of Sen Danaher)\n(arguing that borrowing by government corporation should not be an appropriation within this provision) We have\nnot attempted to resolve this question because we have been informed that the use of USIA facilities, staff, and funds\nis contemplated.\n17 Lawton M emorandum, p 5.\n\n551\n\n\x0ccommissions, at least if they perform non-advisory functions. See 90 Cong. Rec.\n3059 (1944) (remarks of Sen. Russell). Thus, the Council, which would take\nsubstantive action\xe2\x80\x94 fundraising\xe2\x80\x94 on behalf of the USIA, would be an \xe2\x80\x9c instru\xc2\xad\nmentality\xe2\x80\x9d using appropriated funds. Accordingly, we believe that it would be\nsubject to the requirement of \xc2\xa7 696 that it obtain specific congressional appropri\xc2\xad\nations within a year of its creation in order for it to continue beyond that date.18\nV. Employee Status off Council Members amd Directors\nThe final problem raised by the establishment of the Council relates to the fact\nthat the USIA apparently does not wish the Council\xe2\x80\x99s directors and members to be\nemployees of the USIA within the meaning of the civil service laws. See 5 U.S.C.\n\xc2\xa7 2105. Section 2105, Title 5, defines an employee within the meaning of that\nTitle as a person who is (1) appointed by a federal officer or employee, (2) en\xc2\xad\ngaged in the performance of a federal function under law, and (3) subject to the\nsupervision of a federal officer or employee. As we understand the proposed\nfunctions of the Council, both the director and members would necessarily be\nemployees within the meaning o f this provision.19\nFirst, they would all be appointed to the Council by the Director of the USIA.\nThis appointment is necessary, we understand, to elicit private participation in\nthe project, to symbolize the government\xe2\x80\x99s commitment to Youth Exchange\nPrograms, and to exercise USIA control over the Council. Indeed, even if the\nUSIA did not wish to \xe2\x80\x9c appoint\xe2\x80\x9d members and directors to the Council, the\nregulations of the Office of Personnel Management would require that they be\nappointed by the government if they are to assume their proposed respon\xc2\xad\nsibilities. According to the Federal Personnel Manual, Chapter 735, App. C,\n\xe2\x80\x9c Conflicts of Interest Statutes and Their Effects on Special Government Em\xc2\xad\nployees,\xe2\x80\x9d (FPM, App. C), when a person is serving on a government advisory\ncommittee, board, or other group in an independent capacity, rather than present\xc2\xad\ning the views or interests of a particular organization, he must be formally\nappointed. See generally Memorandum from J. Jackson Walter, Director, Office\nof Government Ethics, to Heads o f Departments and Agencies of the Executive\nBranch, \xe2\x80\x9c Members of Federal Advisory Committees and the Conflict-of-interest\nStatutes,\xe2\x80\x9d p. 6 (July 9,1982) (Walter Memorandum). The members and directors\nof the Council would not be \xe2\x80\x9c invited to appear at an agency in a representative\ncapacity,\xe2\x80\x9d but rather to render independent advice and to solicit contributions in\nthe name of the agency. Accordingly, they would have to be formally appointed.\nSecond, the directors and members of the Council would be engaged in the\nperformance of a federal function. In their advisory capacity, these individuals,\n18 Section 691, Title 31, provides an exemption from the funding requirement of \xc2\xa7 696 for \xe2\x80\x9c interagency groups\nengaged in authorized activities o f common interest to such departments and establishments and composed in whole\nor in part o f representatives thereof.\xe2\x80\x9d As the language of \xc2\xa7 691 indicates, however, it only exempts committees\nwhich are established to coordinate common activities between more than one agency. Thus, it would not exempt the\nCouncil, which is organized only to further the exchange activities of the USIA. from the obligation to obtain\nfunding within one year o f its creation.\n19 We have assumed that the members of the Council would be actively engaged in assisting the Council.\n\n552\n\n\x0cas we have said, would be rendering independent advice to the USIA. See\ngenerally Walter Memorandum, pp. 6-7. In their operational capacity, they\nwould be soliciting for and in the name of the USIA. See FPM, App. C-5 (\xe2\x80\x9cWhen\nan advisor or consultant is in a position to act as a spokesman for the United States\nor a Government agency as, for example, in an international conference\xe2\x80\x94 he is\nobviously acting as an officer or employee of the Government\xe2\x80\x9d ).\nThird, the members and directors of the Council would be subject to the\nsupervision of a federal officer or employee. Whether an individual is independ\xc2\xad\nent or supervised depends on \xe2\x80\x9c the detail with which the party for whom the work\nis eventually produced actually supervises the manner and means by which the\nwork is performed.\xe2\x80\x9d Lodge 1858, AFGE v. Webb, 580 F.2d 496,504 (D.C. Cir.),\ncert, denied, 439 U.S. 927 (1978). According to your proposal, the USIA would\nexercise control over the manner of solicitation, the content and targets of the\nsolicitation, the individuals who would be doing the solicitation, and the manner\nin which the money so raised would be expended. The Agency also plans to\nprovide staff and offices for the Council, which is generally inconsistent with an\nindependent relationship between the Agency and the Council. Moreover, of\xc2\xad\nficials of the USIA have been and wish to continue to be actively involved in the\ncreation of the Council. Finally, officials of the USIA do not plan to enter into a\ncontract with the Council for fundraising, which is generally one indication of an\nindependent relationship.20 Accordingly, in our view, the activities of the direc\xc2\xad\ntors and members of the Council, as you have described them, would require that\nthey be employees of the federal government within the meaning of Title 5 .21\n\nVI. Conclusion\nThis memorandum has outlined the various legal questions raised by the\ncreation of the proposed Council by the USIA. In our view, the USIA may\nestablish the Council in the manner you have proposed so long as its members\nand directors are employees of the USIA, and any publicity effort the Council\nundertakes is carefully tailored to further only the fundraising goals of the USIA,\nand not unduly to publicize the USIA.22 We also caution that the larger the size of\nthe Council, and the more diverse its functions, the greater the risk that it could\nstray beyond the limits of the \xe2\x80\x9c authorized in a general way by law\xe2\x80\x9d exception to\n\xc2\xa7 673. Because no bright line can be drawn under this statute, we leave it to your\n20 An approach involving a contract between the USIA and the Council for fundraising would raise questions as to\nwhether the USIA has the authority to enter into a contract for fundraising, and whether such a contract with the\nCouncil would satisfy the procurement laws. We have not examined these issues, since the current proposal does not\ncontemplate such an approach. In any event, we would generally defer to the initial judgment of your office on\nquestions such as these relating to the authority of the USIA.\n21 As you know, the members and directors of the Council could either be regular government employees or\nspecial government employees, depending upon the length and terms of their service. See FPM, App. C.\n22 Although we have not specifically considered what conflicts of interest laws and regulations would apply to the\nsolicitation o f funds by the Council, our conclusion that Council directors and members must be considered\ngovernment employees necessarily means that certain conflicts of interest restrictions would apply. More generally,\nbecause of the unusual functions of the Council, we recommend that the USIA exercise particular care in the\nsolicitation of contributions to ensure that no improper pressure is placed on members of the public to contribute,\nand that no conflicts o f interest would arise in the course of this solicitation.\n\n553\n\n\x0cinformed judgment to decide whether the proposed Council remains, in its\ncurrent form, within prudent bounds.23\nIf you should like our advice on any more specific aspects of the proposed\nCouncil, please feel free to contact us.\nT h e o d o r e B. O lso n\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n23 You have raised two other questions about the operation of the Council, neither of which, in our opinion, raises\na legal problem . First, you have asked whether the President can direct through memorandum rather than executive\norder that the Council engage in both operational and advisory functions. FACA states that an advisory committee\nshall be solely advisory unless specifically provided otherwise by statute or \xe2\x80\x9c Presidential directive." 5 U .S.C . App.\n\xc2\xa7 9(b) We believe an executive memorandum is all that is required to satisfy the requirement of a presidential\ndirective. See Office of M anagement and Budget Circular A -63, 38 Fed. Reg. 2306, 2308 (1973).\nSecond, you have asked w hether the members and directors of the Council may be appointed by the Director,\nalthough the President would recommend their appointment to the Director. We see no legal problem with the\ndirector of an agency appointing the members o f a committee which advises both him and the President, at least\nwhere the President recommends their appointment.\n\n554\n\n\x0c'