The Senate Homeland Security and Government Affairs Committee reported out S. 591, the Regulatory Accountability Act of 2017. The bill’s proposed addition of section 553(c)(6) to the Administrative Procedure Act warrants attention. The provision has already been the focus of consideration in The Regulatory Review: Daniel E. Walters, Ditch the Flawed Legislative Proposal to Police Agency Communications (May 10, 2017).

Proposed section 553(c)(6) contains three complementary prohibitions on agency communications that apply once the agency publishes a notice of proposed rulemaking or notice of initiation of rulemaking. First, the agency may not “directly advocate[], in support of or against the proposed rule, for the submission of information that will form part of the record for the proposed rule.” Second, the agency may not appeal to the public or a third party “to undertake advocacy in support of or against the proposed rule.” Third, the agency may not engage in “publicity or propaganda” that Congress has not authorized. Moreover, the same prohibitions extend to grantees’ use of federal funds. However, the agency may request comments on the rule and “provide[] information regarding the rule in an impartial manner.” 553(c)(6)(B).

What does section 553(c)(6) mean and how will it be enforced?

Some readers might be surprised to learn that federal agencies have operated under prohibitions similar to the proposed section 553(c)(6)(A) for nearly 100 years with respect to lobbying for congressional action. In response to agencies’ efforts to engineer apparently grass roots support for their appropriations requests, by asking regulated entities or the public to send supportive messages to Senators and Representatives, Congress enacted a criminal statute, now codified at 18 U.S.C. §1913, prohibiting the practice. See Richard A. Smith, Should Government Contracts Subsidize Industry Lobbying, 23 A.F. L. Rev. 408, 411-16 (1982-83). (At the time agencies submitted their own requests for appropriation; ironically, within a few years Congress enacted the Budget and Accounting Act of 1921, Pub. L. 67–13, 42 Stat. 20, empowering the President develop and propose a budget for the entire federal government.) In 2002, the criminal penalties were replaced with civil penalties. 21^st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273, 116 Stat. 1758, §205(b).

Section 1913 provides that in the absence of express authorization by Congress, no appropriated funds shall

be used directly or indirectly to pay for any [communication], intended or designed to influence in any manner a Member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy or appropriation, whether before or after the introduction of any bill, measure, or resolution proposing such legislation, law, ratification, policy or appropriation; but this shall not prevent officers or employees of the United States or of its departments or agencies from communicating to any such Member or official, at his request, or to Congress or such official, through the proper official channels, requests for any legislation, law, ratification, policy or appropriations which they deem necessary for the efficient conduct of the public business . . .

The statute has been construed to apply to grantees’ use of grant funds as well. Anti-Lobbying Restrictions Applicable to Community Services Administration Grantees, 5 U.S. Op. Off. Legal Counsel 180, 1981 WL 30895 (June 17, 1981). Apparently, even before the provision’s criminal penalties were replaced with civil penalties, section 1913 had rarely, if ever, resulted in a criminal prosecution. And indeed, the United States Code Annotated indicates there have been a mere handful of attempts to enjoin such expenditure by private parties, and almost all have been unsuccessful. National Treasury Emp. Union v. Campbell, 654 F.2d 784, 788-93 (D.C. Cir. 1981) (finding no implied right of action and no standing); Grassley v. Legal Services Corp., 535 F. Supp. 818, 825-26 (S.D. Iowa 1982)(finding no implied right of action); American Public Gas Ass’n v. Federal Energy Administration, 408 F. Supp. 640, 641-42 (D.C. Cir. 1976)(refusing to enjoin further distribution of biased pamphlet because it was likely to have little effect on Congress and much of the booklet’s content was permissible).

Since 1951, section 1913’s prohibitions have been supplemented by “publicity or propaganda” riders contained in most appropriations bills. See generally, Comp. Gen., Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Op. B-302504, 2004 WL 523435 *5 (Mar. 10, 2004) (discussing history of “publicity or propaganda” riders). Such riders typically provide that “[n]o part of any appropriation contained in this or any other Act shall be used for publicity or propaganda purposes within the United States not heretofore authorized by the Congress.” They ordinarily apply to all governmental entities receiving appropriated funds.

Interpretation and enforcement of section 1913 and appropriations riders have largely taken place extra-judicially. Members of Congress often complain about potential violations of section 1913 or the applicable “publicity or propaganda” prohibitions. The Comptroller General, the Governmental Accountability Office (“GAO”), and, less frequently, the Department of Justice Office of Legal Counsel issue opinions regarding alleged or potential agency violations of these statutes.

These interpretations have narrowed the seemingly broad scope of section 1913, in part to accommodate agency official’s legitimate interactions with the public and members of Congress. See Anti-Lobbying Laws, 2 U.S. Op. Off. Legal Counsel 160, 1978 WL 15291 (July 18, 1978). In particular OLC has opined that section 1913 applies only with regard to pending legislation. See Comp. Gen., Memorandum to the Honorable Lowell Weicker, Jr., B-223098, 1986 WL 64325, at *5 (Oct. 10, 1986). Over time, GAO’s decision law has largely limited the focus of the “publicity or propaganda” riders’ prohibitions to agency publications that are either: (i) self-aggrandizing, (ii) purely partisan, or (iii) covert propaganda. See Office of Legal Counsel, Expenditure of Appropriated Funds For Informational Video News Releases, 2004 WL 3554705, at *7 (July 30, 2004)(“OLC VNR Opinion”). The Comptroller General and OLC all seem to have adopted the GAO’s test, OLC VNR Opinion at *7; Comp. Gen., Environmental Protection Agency-Application of Publicity or Propaganda and Anti–Lobbying Provisions, B-326944, 2015 WL 8618591 *7 (Dec. 14, 2015).

The self-aggrandizement prong of the test, grounded in the prohibition against “publicity,” encompasses communications tending to emphasize the importance of the agency or activity in question,” OLC VNR Opinion at *7 (citing Comp. Gen., Labor-Federal Security Appropriation Act, 1952, 31 Comp. Gen. 311, 313 (Jan 18., 1952)), most particularly gratuitous self-aggrandizement or puffery, id. Communications prohibited as “purely partisan in nature”, and thus unlawful “propaganda,” are ones “completely devoid of any connection with official functions” or “completely political in nature.’” OLC VNR Opinion at *7 (citing Comp. Gen. Op. B-144323 (Nov. 4, 1960)). Covert propaganda focuses on agency statements that do not identify the agency as a source. OLC VNR Opinion at *7 (citing Comp. Gen., Memorandum to the Honorable John M. Ashbrook, Op. B-129874, 1978 WL 10700, *2-*4 (Sept. 11, 1978)).

A number of initiatives have been questioned as transgressions of section 1913 or the “publicity or propaganda” riders. Video news releases (VNR’s) prepackaged news stories ready for use, in whole or in part, by media outlets were the subject of conflicting opinions by the GAO, finding them to be prohibited covert propaganda, and the OLC, finding them permissible. Compare GAO, Video News Releases, B-302710, 2004 WL 1114403 (May 19, 2004), with OLC VNR Opinion.

The Department of Education’s arrangement with Armstrong Williams to provide commentaries on the No Child Left Behind Act during his television and radio programs without disclosing his arrangement with the Department was found to constitute unauthorized propaganda. GAO, Contract to Obtain the Services of Armstrong Williams, B-305368, 2005 WL 2416671 (Sept. 30, 2005).

Prior to the enactment of the Affordable Care Act, the Obama Administration created a HealthReform.gov website that included a “State Your Support” page, which allowed the user to send a letter supporting health care reform to President Obama. The website was found to violate neither section 1913 nor the applicable “publicity or propaganda” rider, in part because the form letters of support were directed to the President, not Congress. Use of Appropriated Funds for HealthReform.gov website and the “State Your Support” Webpage, B-319075, 2010 WL 1645614 (April 23, 2010).

The most recent major controversy involves EPA’s effort to encourage comments supporting its proposed Waters of the United States Rule via a “Thunderclap” message posted on the social media sites of 1.8 million supportive individual’s. EPA sought to counter the “Ditch-the-Rule” Campaign sponsored through a website created by the American Farm Bureau Federation. The Comptroller General found that EPA’s effort violated the applicable appropriations rider prohibiting unauthorized propaganda. Comp. Gen., Environmental Protection Agency‑Application of Publicity or Propaganda and Anti–Lobbying Provisions, B-326944, 2015 WL 8618591 (Dec. 14, 2015).

Should prohibitions like those of section 1913 and the publicity or propaganda appropriations riders extend to agency encouragement of participation in its own rulemaking proceedings?

In the absence of significant agency efforts to encourage public participation in rulemaking, small groups with similar parochial interests, often the regulated entities, find it much easier to organize and participate than more diffuse groups in which most members have relatively little at stake, often the regulatory beneficiaries. In the 1970s some agencies established programs to encourage participation by reimbursing some participants for the costs they incurred in participating in agency process or by establishing citizen advisory groups. John S. Applegate, Beyond The Usual Suspects: The Use Of Citizens Advisory Boards In Environmental Decisionmaking, 73 Ind. L.J. 903 (1998) (citizen advisory boards); Carl W. Tobias, Of Public Funds And Public Participation: Resolving The Issue Of Agency Authority To Reimburse Public Participants In Administrative Proceedings, 82 Colum. L. Rev. 906 (1982). The Administrative Conference of the United States has recently reported that agencies are increasingly using social media to interact with the public, but noted that few have experimented with the use of social media in the rulemaking context. Administrative Conference Recommendation 2013-5, Social Media in Rulemaking 2-3 (Dec. 5, 2013).

In the influential Sierra Club v. Costle, 657 F.2d, 298 (1981), the D.C. Circuit recognized that government agencies can legitimately seek to build public support for their regulatory program. Id. at 402 (“Informal contacts may enable the agency to win needed support for its program . . .”). However, such efforts can be abused in a way the result in “falsified consent.” “Falsified consent” appears to legitimately reflect “the will of the people,” but is orchestrated by the government, sometimes using misleading representations. Michael G. Yudof, When Government Speaks: Politics, Law, and Government Expression in America 15, 145, 152-57 (1983); Bernard W. Bell, Legislative History Without Legislative Intent, 60 Ohio State L.J. 1, 20-21 (1999).

The value of such agency-sponsored grassroots support, and the need for prohibitions like those in section 1913 and the “publicity or publicity” riders might turn on our conception of the “notice-and-comment” process. Notice-and-comment rulemaking might be viewed as a process for discovering the citizenry’s preferences, that is, as a type of agency referendum or plebiscite. Any person’s views, even if unsupported by cogent reasoning, would be relevant in such a process. However, agency processes in general, and agency rulemaking in particular, have conventionally been seen as more deliberative and grounded in reasoned decision-making. The function of comments is not primarily to register preferences but to inform the agency of problems with or anomalies in the proposed rule or propose changes or refinements in the rule justified by reasoned analysis.

In some ways this distinction mirrors that Alexander Hamilton drew between the judiciary and the political branches of government. In Federalist 78, Hamilton distinguished legislators and the president, which he described as creatures of will, from judges, who exercised only judgment and not will. On such a continuum, agencies fall somewhere in the middle. They make policy decisions, but under the constraints of both the parameters set forth by Congress and judicial review. Judicial review requires agencies to justify their policy choices in terms of statutorily-encoded policy and internal coherence. In short, rulemaking is supposed to be an exercise of judgment informed by Congress’ and the agency’s policy preferences.

Thus, it is not entirely clear that the new section 553(c)(6)(A) is worthwhile in term of the workings of the rulemaking process. Moreover, though the extant GAO/Comptroller General/OLC decisional law might provide standard for courts to adopt, the imposition of the requirement, particularly in a context distinct from congressional processes, will inevitably create a good deal of confusion regarding precisely which communications fall within its prohibitions.

Moreover, violations of section 1913 and the publicity or propaganda appropriations riders do not lead to invalidation of substantive or appropriation statutes influenced by such unlawful or unauthorized agency lobbying. Indeed, the provisions are enforced largely by advising agencies regarding whether their communications are consistent or inconsistent with the relevant statutes.

But how will the section 553(c)(6)(A) prohibitions be enforced? Nothing in the Regulatory Accountability Act precludes parties aggrieved by a regulation from challenging its validity based on section 553(c)(6) violations. (One provision of the bill limits reviewability of violations special procedural rules governing major and high-impact rules, 553(l)(7).) Typically, violations of the current notice-and-comment rulemaking requirements provide a ground for invalidating the final rule as adopted “without observance of the procedures required by law.” 5 U.S.C. §706(2)(D); see, Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking 477 (5th ed. 2012). This means that section 553(c)(6)(A)’s prohibitions have a greater possibility for disruption and perhaps a greater potential chilling effect on agency communications than the long-standing limitations on seeking public support for an agency’s preferred congressional actions. An aggrieved party will likely be able to challenge a final rule’s validity based on any agency violation of the communications limitations. Presumably the rule would be considered a product of a failure to comply with proper procedures. In many circumstances, the agency could presumably argue that the violation was “harmless,” that it did not affect the agency’s ultimate conclusion. Thus, the agency could argue that even though its solicitation served to increase the sheer number of supportive comments, possibly to the extent that positive comments outnumbered negative ones, the sheer volume of support was largely irrelevant to its decision, which was not and perhaps could not have been based on the sheer volume of supportive comments.

But what if a solicited submission raised an important and sound point or provided significant information that the agency took into account because it found the submission persuasive. In a sense, the solicitation of the comment might not be considered harmless, because without the solicitation the comment would never have been made. Nevertheless, it seems odd to require the agency to ignore a meritorious comment merely because it would not have been made had the government not solicited it (or, more precisely, solicited it in a communication that is found not to be “impartial”). These possibilities may create a chilling effect among agencies, so that agencies steer well clear of any sort of communication, beyond a bare minimum, seeking comments.

Moreover, could an aggrieved party also seek to enjoin the agency from violating the prohibition, by seeking an order requiring an agency to “take down” or withdraw an offending communication?

It is not clear that the prohibitions on advocacy applicable to agencies vis-à-vis Congress in the legislative process should be applied to agencies in the rulemaking process, given the lesser importance of sheer preferences in the latter process. Moreover, section 553(c)(6)(A), unless “enforced” in the extra-judicial manner in which 18 U.S.C. §1913 and the “publicity and propaganda” bans are enforced, could prove quite disruptive to the rulemaking process.

Bernard W. Bell is a Professor of Law and Herbert Hannoch Scholar at Rutgers Law School.

This post is part of the Regulatory Reform in Congress Series, which highlights and analyzes legislative proposals to reform the federal regulatory state. All posts in this RegReform Series can be found here.