DRAFT) LETTER TO HONORABLE ABRAHAM RIBICOFF FROM W.E. COLBY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000800150031-7
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 15, 2016
• Document Release Date: December 10, 2003
• Sequence Number: 31
• Publication Date: September 22, 1975
• Content Type: LETTER

El UNCLASSIFIED INTERNAL FI
EH ROUTING AND RECORD SHEET
SUBJECT: (Optional)
Legislative Counsel
7D35 HQ
TO: (Officer designation, room number, and DATE
building)
OGC
FORM
3-62 610 uSEDIT ON us ? SECRET
3-62
STATINTL
Office of Legislative Coin sel.
7-7 l a .7-- - ..}..._..-..
1-1 IN USTERNAL UNCLASSIFIED
CONFIDENTIAL
VAN-7 E SECRET
25 September 3,975
COMMENTS (Number each comment to show .an) whore
to wham. Draw o line across column after each commenl.)
Attached is a draft report in
response to a request for corn ments,
on S. 2068 and S.. 21.67. You will
note tl-,at this report is quite sir liar
to the report on S. 774 and S. 81.5,
which you reviewed previously.
Would you please review this d1-3-aft
and send us your comments by
3 October? Thank you.
CRC, 11/7/2003
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OLC 75-1798/b
DRAFT: WPB: sk (22 Sept 75)
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 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.
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, u "quasi-
judicial" or "administrative" agency action directly affecting private interests.
Under the doctrine of ejusdem gene! is , 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 rel ef.
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The Central Intelligence Agency was established by the National
Security Act of 1947 to coordinate the 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 benefactor y
functions. Thus, if sections 101(b) and (j) were interpreted to apply strictly
to influencing administrative agency actions % the Central
Intelligence Agency would have no direct interest in such regulation. I
would point out that such coverage would be consistent with the apparent
public interest objectives of the legislation.
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 tiie disclosure of sensitive information
and would conflict with the statutory author ities which charge the Director
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of Central Intelligence with the protection of Intelligence Sources and Methods
(50 U . S . C . 403> I. To the extent that sections 102, 103,
and 104 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.
These comments apply with greater force to S. 2167, section 102(g)
of which defines 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. "
If it is the intent of the Committee to apply 'these bills
to administrative agency action, I would merely suggest 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. We would he pleased to consult with the Committee in working out
appropriate modifications.
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 comxnunicat.on 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
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of the contacted employee and the outside party, the subject matter of the
communication, and the action taken in response to the communications.
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 communica-
tion" defined in section 1020). 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 over-broad coverage
would seriously impair this Agency's ability to function.
In the context of the policy issues and activities involved in the foreign
intelligence mission, a requirement that communications by outsiders con--
cerning "agency activity" or -"policy. issu . "' 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
with respect to sections 101(b) and (j) of S. 2068 and section 102(j) of
S. 2167, the proposed disclosure of the identity of the. contacted employee,
the subject matter of the communication, and the action taken in response
to the communication would conflict with statutory authorities pertaining
to the protection of Intelligence Sources and Methods [50 U.S.C. 4031 and
exempting the CIA from laws requiring disclosure of Agency organization
and personnel [50 U.S.C. 403(j)]
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I strongly urge 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 pro-
ceedings of administrative agencies. Indeed, this limitation 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, proseca al,
or adjudicative function connected with a proceeding before any Federal
agency or the courts. " This limitation is not applied to officials over
GS-15.
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,
W W. E. Colby
Director
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