Application of 18 U.S.C. § 603 to Contributions to the President's Re-Election Committee ( 2003 )

Application of 18 U.S.C. § 603 to Contributions to the
President’s Re-Election Committee
Civilian executive branch employees do not violate 18 U.S.C. § 603 by contributing to a President’s
authorized re-election campaign committee.
May 23, 2003
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
You have asked whether our 1995 opinion that 18 U.S.C. § 603 (2000) would
not bar civilian executive branch employees from making contributions to a
President’s authorized re-election campaign committee1 retains continued vitality
in light of the D.C. Circuit’s opinion in Haddon v. Walters, 43 F.3d 1488 (D.C.
Cir. 1995).
In our 1995 opinion, we construed the scope of the exception to section 603
coverage set forth in subsection (c) of section 603. Subsection (c) provides that the
prohibition set forth in subsection (a) shall generally not apply to “any activity of
an employee (as defined in section 7322(1) of title 5).” 18 U.S.C. § 603(c). Section
7322(1) of title 5 of the United States Code in turn defines “employee” to mean (in
relevant part) “any individual, other than the President and the Vice President,
employed or holding office in . . . an Executive agency other than the General
Accounting Office . . . but does not include a member of the uniformed services.”
5 U.S.C. § 7322(1) (2000). We concluded that the subsection (c) exception
“applies to the entire executive branch with the possible exception of members of
the uniformed services.” 19 Op. O.L.C. at 106–07. Under this analysis, employees
of the White House Office could make contributions to a President’s authorized
re-election campaign committee without violating section 603.
In Haddon, the D.C. Circuit ruled that the Executive Residence was not an
“executive agency” within the meaning of 42 U.S.C. § 2000e-16 (2000). Section
2000e-16(a) proscribes (among other things) racial discrimination against employ-
ees in “executive agencies as defined in section 105 of Title 5.” In the course of
determining that the Executive Residence was not an “executive agency” within
the meaning of section 105, the court offered reasoning that would appear equally
applicable to the White House Office. See Haddon, 43 F.3d at 1489–90.
There is arguable tension between our 1995 opinion, which treats the White
House Office as an “Executive agency” for purposes of 5 U.S.C. § 7322(1), and
Haddon, which suggests that the White House Office is not an “Executive agency”
for purposes of 5 U.S.C. § 105 (2000) (which definition, by its terms, is “[f]or the
1
Whether 18 U.S.C. § 603 Bars Civilian Executive Branch Employees and Officers From Making
Contributions to a President’s Authorized Re-Election Campaign Committee, 19 Op. O.L.C. 103(1995).
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Application of 18 U.S.C. § 603 to Contributions to Re-Election Committee
purpose of this title”—i.e., title 5). For the following reasons, we think that the
1995 opinion continues to apply with full force in its limited realm.
First, the 1995 opinion was issued some four months after the ruling in Had-
don. We have good reason to believe that this Office was aware of Haddon at the
time the 1995 opinion was issued, and we therefore regard the omission of any
discussion of Haddon in that opinion to be the result of a considered decision that
Haddon did not bear meaningfully on the issue, rather than an oversight.
Second, although under Haddon the term “Executive agency” in section 105 of
title 5 would not include the President, the Vice President, the White House
Office, and certain other entities within the Executive Office of the President, cf.
Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992) (in absence of express
statement by Congress, statute should not be read to apply to President); 3 U.S.C.
ch. 2 (addressing White House operations separate from title 5), there would have
been good reason to regard Haddon as not bearing significantly on the meaning of
5 U.S.C. § 7322(1). The definition of “employee” in section 7322(1) expressly
excludes “the President and the Vice President.” There would be no purpose to
this exclusion if the President and Vice President were not otherwise understood to
be “holding office in . . . an Executive agency” for purposes of section 7322(1). In
addition, the exception to the substantive restriction on political activities in 5
U.S.C. § 7324(a) applies to certain employees who are “paid from an appropria-
tion for the Executive Office of the President.” Id. § 7324(b)(2)(B)(i). This provi-
sion appears to presuppose that employees paid by the Executive Office of the
President (which includes employees of the White House Office) are employees of
an “Executive agency” under section 7322(1). More generally, a reading of section
7322(1) that excluded employees of the White House Office from its scope might
be thought to produce highly anomalous results. If the White House Office is not
an “Executive agency” under section 7322(1), then employees of the White House
Office would be entirely free from the restrictions of the Hatch Act Reform
Amendments of 1993, Pub. L. No. 103-94, 107 Stat. 1001 (1993) (“HARA”), and
would be able to engage in all sorts of partisan political activity. Indeed, HARA
would no longer forbid a White House Office employee to “use his official
authority or influence for the purpose of interfering with or affecting the result of
an election,” 5 U.S.C. § 7323(a)(1) (2000), or “run for the nomination or as a
candidate for election to a partisan political office,” id. § 7323(a)(3). In sum, as a
result of features that appear to be unique to section 7322(1) and HARA generally,
there are (and were at the time the 1995 opinion was issued) powerful reasons to
conclude that the term “Executive agency” in section 7322(1) does not have the
same meaning that section 105 of title 5 generally assigns it (and that cases like
Haddon recognize) for the purpose of title 5.
Third, for similar reasons, even if Haddon were given a robust reading, the rule
of lenity would appear to require that the section 603(c) exception be construed to
apply to all civilian Executive Branch employees. Under this rule, “‘ambiguity
concerning the ambit of criminal statutes should be resolved in favor of lenity,’ . . .
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Opinions of the Office of Legal Counsel in Volume 27
and . . . ‘when choice has to be made between two readings of what conduct
Congress has made a crime, it is appropriate, before we choose the harsher
alternative, to require that Congress should have spoken in language that is clear
and definite.’” Jones v. United States, 529 U.S. 848, 858 (2000) (quoting Rewis v.
United States, 401 U.S. 808, 812 (1971); United States v. Universal C.I.T. Credit
Corp., 344 U.S. 218, 221–22 (1952)).
M. EDWARD WHELAN III
Acting Assistant Attorney General
Office of Legal Counsel
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