LETTER TO MR. JAMES M. FREY FROM GEORGE L. CARY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000600100018-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 19, 2016
• Document Release Date: July 31, 2006
• Sequence Number: 18
• Publication Date: November 14, 1975
• Content Type: LETTER

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CENTRAL INTELLIGENCE AGENCY
WASHINGTON,D.C. 20505
14 NOV 1975
Mr. James M. Frey
Assistant Director for Legislative Reference
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Frey:
Enclosed is a proposed report to Chairman Ribicoff, Senate
Committee on Government Operations, in response to a request
for our recommendations on S. 2068, a bill "To provide for public
disclosure of lobbying activities t(') influence decisions in the Congress
and the executive branch, and for other purposes," and S. 2167, a bill
"To provide for the recording and public disclosure of lobbying
activities directed at the Congress and the executive branch, and for
other purposes."
Advice is requested as to whether there is any objection to the
submission of this report from the standpoint of the Administration's
program.
Sincerely,
SIGNED
George L. Gary
Legislative Counsel
Distribution:
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CENTRAL INTELLIGENCE AGENCY
WASHINGTON,D.C. 20505
Honorable Abraham Ribicoff, Chairman
Committee on Government Operations
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
This is in response to your request for our comments on S. 2068
and S. 2167, bills to regulate lobbying in connection with congressional
and Executive action. This Agency, of course, defers to Congress on matters
concerning lobbying directed at Congress. With respect to the regulation of
lobbying directed at the Executive branch, our interest is limited to the
concern that overbreadth of language will inhibit this Agency's foreign
intelligence mission.
S. 2068 would establish a "Federal Lobbying Disclosure Commission"
and would require individuals engaged in "lobbying" activities to file a
notice of representation with the Commission, to maintain records on their
activities, and to file quarterly reports with the Commission on their contacts.
S. 2167 would require lobbyists to register and file reports with the
Comptroller General.
S. 2068 and S. 2167 are very similar to two bills on lobbying introduced
earlier this Congress--S. 774 and S. 815. This Agency submitted a report
on these earlier bills, indicating that certain of their provisions could be
construed broadly to raise potential conflicts with the Agency's statutory
charter. Many of the same problems discussed in relation to S. 774 and
S. 815 exist with respect to S. 2068 and S. 2167.
We are attaching a detailed statement on the various provisions of
S. 2068 and S. 2167 and explaining why we cannot recommend favorable
consideration of these bills in their present form.
The Office of Management and Budget has advised there is no objection
to the submission of this report from the standpoint of the Administration's
program.
Sincerely,
George L. Cary
Legislative Counsel
r>>6 19 6
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1. S. 2068 would establish a "Federal Lobbying Disclosure Commission"
and would require individuals engaged in "lobbying" activities to file a
notice of representation with the Commission, to maintain records on their
activities, and to file quarterly reports with the Commission on their contacts.
The scope of S. 2068 hinges upon the definition of "lobbying. " Sections
101(b) and (j), taken together, define "lobbying" directed at the Executive
branch as a communication to a Federal officer or employee in order to influence
any action taken by such officer or employee with respect to any pending or
proposed rule, adjudication, hearing, investigation, or other action in any
Federal agency. The specific types of action enumerated in the definition--
rules, adjudications, and so forth--suggest an intent to limit the bill to the
administrative process--that is, "quasi-legislative, " "quasi-judicial, " or
"administrative" agency action directly affecting private interests. Under
the doctrine of ejusdem generis, the term "other action," also cited in the
definition, would be confined to the same kinds of agency action as those
specifically mentioned, e.g. licensing, issuing orders, imposing sanctions,
and granting or withholding relief.
2. The Central Intelligence Agency was established by the National
Security Act of 1947 to coordinate. th.e intelligence activities of the United
States; to correlate, evaluate, and disseminate foreign intelligence; and to
perform other functions and duties related to foreign intelligence and affecting
the national security. The Central Intelligence Agency is not a policy-
making agency; though supplying U.S. policy-makers with intelligence
assessments, it does not formulate or advocate policy positions. The Agency
is not an administrative agency and does not perform regulatory or benefactory
functions. Thus, if sections 101(b) and (j) were interpreted to apply strictly
to influencing administrative agency action, the Central Intelligence Agency
would have no direct interest in such regulation. Such coverage would be
consistent with the apparent public interest objectives of the legislation.
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3. However, sections 101(b) and (j) could be interpreted to cover
the internal administrative actions of all Executive agencies, such as those
relating to agency management., personnel, or contracts. It could also be
construed most broadly to cover "any action" taken by an Executive employee.
If either of these constructions is intended, situations might arise in which
the proposed regulations would conflict with this Agency's statutory charter.
For example, it is possible that officials or representatives of a. private
company which has developed a new intelligence technology, e.g. an electronic
collection device, would seek to demonstrate the feasibility and utility of
the system to the Agency. Under sections 102 (b) (3) and 104(a)(3), the
communicating official would be required to disclose the subject matter of
the communication. This would result in the disclosure of sensitive informa-
tion and would conflict with the statutory authorities which charge the Director
of Central Intelligence with the protection of Intelligence Sources and Methods
(50 U.S. G. 403). To the extent that sections 102, 103, and 1.04 would require
records and reports disclosing the identities of contacted Agency personnel,
the regulations would conflict with 50 U.S. C. 403(j) which exempts the
Agency from laws requiring disclosure of agency organization and personnel.
4. These comments apply with greater force to S. 2167, section 102(g)
of which defines the policy-making process in the Executive branch as "any
action taken by a Federal officer or employee ... with respect to any pending
or proposed rule, rule of practice, adjudications, regulations, determination,
hearing, investigation, contract, grant, or license." The inclusion of the
terms "contract" and "rule of practice" suggest an intention. to extend the
coverage of S. 2167 beyond administrative agency action to agency manage-
ment and contracting, matters not usually considered related to "lobbying"
and which have traditionally been subject to different statutory regulations
than those which apply to "lobbying activities."
5. Recommendations: If it is the intent of the Committee to apply
these bills to administrative agency action, it is suggested that this scope
be more clearly defined. If broader application is contemplated, however,
it is requested that some accommodation be made for the considerations
discussed above, Perhaps language could be included in the bill providing
that nothing contained in the Act should be construed to require the dis-
closure of information which is prohibited or otherwise exempted from
disclosure by law. The Agency is prepared to consult with the Committee
in working out appropriate modifications.
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6. Because of its broader coverage, section 201 of S, 2167 raises
more serious problems. S. 2068 has no comparable provision. Under
section 201, certain Executive branch employees would be required to make
detailed records of any "oral or written communication which pertains to any
Federal agency activity or policy issue." These records, available for public
inspection in an agency "public reading room," would contain the identities
of the contacted employee and the outside party, the subject matter of the
communication, and the action taken in response to the communications.
7. It is noted that this section abandons the terminology defined in
and used throughout the rest of the bill in favor of new undefined terms.
"Oral or written communication" is used in lieu of "executive communication"
defined in section 102(l). The undefined terms "agency activity" and "policy
issue" are substituted for the terms "executive policy-making process"
defined in section 102(j) . This shift in language and the potentially broad
interpretation of the terms "agency activity" and "policy issue." could extend
the requirements of section 201 to almost any kind of communication, including
those which have no relation to attempts at influencing agency action directly
affecting private rights. Such overbroad coverage would seriously impair
this Agency's ability to function.
8. In the context of the policy issues and activities involved in the
foreign intelligence mission, a requirement that communications by outsiders
concerning "agency activity" or "policy issues" be made public would make
impossible the essential confidentiality upon which this Agency's outside
sources of information insist. Moreover, sensitive agency intelligence
activities could not be kept secret, where communications regarding these
activities are required to be made public. In addition, as discussed above
2167,
with respect to sections 101(b) and (j) of S. 2068 and section 102(j) of
the proposed disclosure of the identity of the contacted employee, the subject
matter of the communication, and the action taken in response to the communica-
tion would conflict with statutory authorities pertaining to the protection of
Intelligence Sources and Methods [50 U . S . C . 403] and exempting the CIA
from laws requiring disclosure of Agency organization and personnel
[50 U.S.C. 403(j)] .
9. Recommendations: It is suggested that section 201 of S. 2167,
if adopted, be strictly limited to lobbying activities by lobbyists and to
communications designed to influence the quasi-legislative, quasi-judicial,
and enforcement proceedings of administrative agencies. Indeed, this limita-
tion is suggested by section 201(a) (2) which requires employees under GS--15
level to prepare records of communications "only to the extent that such
communications pertain to their involvement in any rule-making, investigative,
prosecutorial, or adjudicative function connected with a p -oceeding before
any Federal agency or the courts." This limitation is not ,'applied to officials
over GS-15.
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