LOBBYING ACTIVITIES AND FEDERAL EMPLOYEES AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO April 1995 Lobbying Activities Limitations Applied to Federal Employees What is Lobbying and Who Lobbies: The traditional definition of lobbying is the attempt by any individual to influence the passage or defeat of legislation by communicating with members of Congress or their staffs. Some may perceive "lobbying" as having a negative connotation but it is a vital and important activity. The activities involved in lobbying are intertwined with fundamental First Amendment rights of speech, association and petition, and may facilitate the exchange of important information and ideas between the government and private parties. Certainly federal employees have a particular interest in lobbying because the Legislative Branch determines their pay and benefits and certain working conditions. In addition, it is congressional action which determines what agencies shall carrying out the federal programs mandated by the Legislative Branch. Union officials and activists not only lobby on behalf of their members but they encourage their members to lobby and often supply them with phone numbers, sample letters and other material which can be utilized by the members in their individual lobbying activities. How are Lobbying Activities Restricted. Over 75 years ago, Congress passed a provision similar to that contained in the Civil Service Reform Act, now codified at 5 U.S.C. 7211, which affirmed employees' Constitutional right to "individually or collectively" petition Congress. Twenty-five years later, this right was restricted by Congress when it passed a criminal statute now found in that portion of the U. S. Code which contains the federal criminal statutes--18 U.S.C. 1913. The statute was not specifically designed to impinge on employees' first amendment rights. Rather, its intended purpose, as gleaned from its limited legislative history, was prompted by a single, particularly egregious instance of official abuse. The case involved the use of Federal funds to pay for telegrams urging selected citizens to contact their congressional representatives in support of legislation of interest to the instigating agency. The statute has been interpreted in a broader manner than the traditional concept of lobbying. It provides that appropriated funds may not be "used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, to favor or oppose by vote or otherwise, any legislation or appropriation by Congress. The Exceptions. There are exceptions to this blanket prohibition. In addition to the unequivocal right of employees to individually or collectively petition members of Congress on their own time, (while "off the clock"), the statute itself expressly permits communications with members of Congress by employees "on the request of any Member or to Congress, through the proper official channels, requests for legislation or appropriations which they deem necessary for the efficient conduct of the public business." In addition, the statute notes that there may be other circumstances where lobbying involving the use of appropriated funds is permissible by virtue of the language contained in other statutes. One such example is the provision contained in the labor-management provisions of the Civil Service Reform Act codified at 5 U.S.C. 7102. That section sets forth employees' rights including the right to present the views of the labor organization to the Congress. There have been several FLRA decisions which have held that the right which this section provides a basis for holding that the right of union officials to lobby while on official time is negotiable. When it is negotiated, the union official could then contact union officials using equipment purchased with appropriated monies and when on official time which is covered by appropriated funds. Enforcement and Penalties for Violations. Since the statute contains fine and imprisonment provisions, its enforcement is the responsibility of the Department of Justice. The penalty for either violating or attempting to violate the statute prohibiting lobbying involving the use of appropriated funds was just changed in 1994. The fine now is $1,000 rather than $500 and/or imprisoned for up to one year. In addition, an employee who is found to have violated this section, shall be removed from office. Lobbying Do's and Don'ts For Federal Employees The following list contains examples of both permissible and prohibited lobbying activities for covered employees. These examples will be discussed in greater detail in the next section of the booklet. -------------------------Federal Employees----------------------- * May visit their Congressional representatives while on leave. * May write their Congressional representatives using their own computer or typewriter, stationery and postage. * May telephone or send a telegram to Congressional representatives from their home or from a pay phone. * May, if a union official on official time and under the provisions of a collective bargaining agreement, contact Congressmen utilizing government telephones provided to the union. * May, under a collective bargaining agreement or based on past practices, use an agency's mail delivery, E-mail, inter-office phone or other communication system to advise employees of: *the contents of specific legislative proposals *when Congress may mark-up a legislative proposal *when Congress may vote on a certain issue *when AFGE is to testify on a certain legislative issue *AFGE's position on certain legislation * May Not write letters to or phone Members of Congressman when on the job and using an agency's phone, paper or other equipment. * May Not use the Agency's E-mail, or other communication system to circulate sample letters urging Members of Congress to support or oppose certain legislative initiatives. * May Not use the Agency's E-mail or other communication system to directly or indirectly urge employees to contact their Congressmen regarding legislative proposals. * May Not use official time and any equipment belonging to an agency to present the views of the union to Members of Congress unless this is a past practice or is provided for in a collective bargaining agreement. Questions and Answers Q. What does federal law provide concerning lobbying activities by federal employees? A. Generally, employees of the Executive Branch may not utilize anything provided for by funds appropriated by Congress for the purpose of providing any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, to favor or oppose by vote or otherwise, any legislation or appropriation. This would include but is not limited to an Agency's equipment, supplies and services such as copiers, computers, telephones, stationery, E-mail, networks, and mail delivery systems. Q. Who is responsible for enforcing the prohibition against lobbying with appropriated funds? A. If the head of an agency believes an activity of an employee may violate the prohibition against lobbying with appropriated funds, then he/she shall forward the matter to the Attorney General of the U. S. Department of Justice for investigation and enforcement. Q. What lobbying activities may employees engage in under the law? A. Any employee may lobby or contact a Member of Congress or staff when on leave and when using personal or pay telephones, stationary, etc. Q. When may union officials engage in lobbying activities? A. Union officials may undertake lobbying activities and communicate the union's message to Congress when on leave or when on official time provided that such lobbying activities are provided for under a collective bargaining agreement or are a past practice. Lobbying activities by union officials on official time are limited to their contacting Members of Congress and their staffs and other union officials but does not include urging other union members or employees to engage in specific lobbying activities. Q. To what extent are 'rank and file" employees permitted to express opinions on specific legislative proposals? A. Employees may express their opinions on specific legislative proposals. However, while they are "on the clock" they may not use work time or any equipment, supplies or services of an agency to communicate their views to members or Congress or to urge other employees to contact members of Congress with the intent of influencing their vote on legislative proposals. Q. Are employees or union officials permitted to use an agency's equipment, supplies or services to advise other employees of the contents of legislative proposals or of scheduled legislative action? A. Yes, if based upon a negotiated agreement or a past practice. However, the line is drawn at objectively communicating the facts about the legislation and the union's position. Officials cannot urge employees, directly or indirectly to contact Congress or sign petitions in support of or opposition to a particular proposal. TITLE 5. United States Code Chapter 71-Labor-Management Relations. Sec. 7211. Employees' right to petition Congress The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied. (Prior similar provisions were contained in Act Aug. 24, 1912, c. 389, 6, 37 Stat. 555. as amended by Act June 10, 1948, c. 447, 62 Stat. 354, set out in section 652(d) of former Title 5, which was transferred to former section 7102 of this title upon the general revision of this title by Pub. L. 89-554, 1, Sept. 6, 1966, 80 Stat. 378. Former section 7102 of this title, Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 523, was omitted in the general amendment of chapter 71 of this title by Pub.L. 95-454, Title VII, 701, Oct. 13, 1978, 92 Stat. 1191. TITLE 18. United States Code Chapter 93-Public Officers and Employees. Sec. 1913. Lobbying with appropriated moneys. No part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, to favor or oppose by vote or otherwise, any legislation or appropriation by Congress, whether before or after the introduction of any bill or resolution proposing such legislation or appropriation; but this shall not prevent officers of employees of the United States or of its departments or agencies from communicating to Members of Congress on the request of any Member or to Congress, through the proper official channels, requests for legislation or appropriations which they deem necessary for the efficient conduct of the public business. (June 25, 1948, c. 645, 62 Stat. 792.) Whoever, being an officer or employee of the United States or of any department of agency thereof, violates or attempts to violate this section, shall be fined under this title or imprisoned not more than one year, or both; and after notice and hearing by the superior office vested with the power of removing him, shall be removed from office or employment. (as amended Sept. 13, 1994, Pub.L. 103-322, Title XXXIII, 330016(1)(G), 108 Stat. 2147, (Crime Bill of 1994), for the purpose of changing fine from $500 to $1,000). TITLE 5. United States Code Chapter 71. Labor-Management Relations. Sec. 7102. Employees' Rights. Each employee shall have the right to form, join, or assist any labor organization....Except as otherwise provided under this chapter, such right includes the right-- (1) to act for a labor organization in the capacity of a representative and the right in that capacity, to present the views of the labor organization to heads of agencies, and other officials of the executive branch of the Government, the Congress, or other appropriate authorities... (Added Pub.L. 95-454, Title VII, 701, Oct. 13, 1978, 92 Stat. 1192.