Permissibility of the Administration and Use of the Federal Payroll Allocation System by Executive Branch Employees for Contributions to Political Action Committees

Permissibility of the Administration and Use of the
Federal Payroll Allocation System by Executive Branch
Employees for Contributions to Political Action Committees

Federal employees who would offer the use of, or administer, the federal salary-allocation system
for allotments to political action committees, would not, without more, violate 18 U.S.C. §§602
and 607, or the civil provisions o f the Hatch Act Reform Amendments of 1993.

The Hatch Act Reform Amendments of 1993 would prohibit certain high-level and Executive Office
employees identified in 5 U.S.C. § 7324(b), the duties and responsibilities of whose positions con­
tinue outside normal duty hours and while away from the normal duty post, from using the salary-
allocation system to make contributions to political action committees.

The Hatch Act Reform Amendments of 1993 would not prohibit the remainder o f federal employees
covered by those Amendments from making contributions to political action committees through
the salary-allocation system; however, 5 U.S.C. § 7324(a) would expressly prohibit such employees
from taking steps to use the salary-allocation system to make such contributions while they are
on duty or in a federal building.

While use o f the salary-allocation system for contributions to political action committees would be
lawful under certain circumstances, the head o f each federal agency has the discretion to decide
whether to make the system available for that purpose to employees of the agency.

February 22, 1995

M e m o r a n d u m O p in io n f o r t h e D ir e c t o r
O f f ic e o f P e r s o n n e l M a n a g e m e n t

Early last year, the Office of Personnel Management (“ OPM” ) advised execu­
tive branch officials that executive branch employees now are permitted to make
voluntary salary allotments to political action committees (“ PACs” ), using the
mechanisms otherwise available to federal employees for salary allotments to other
organizations and institutions.1 Under the salary-allotment system, a federal
employee can authorize federal payroll administrators to transmit portions of his
or her salary, on a regular basis, to certain persons or institutions designated by
the assigning employee. See 5 C.F.R. pt. 550, subpart C.
The Criminal Division of the Department of Justice has questioned whether
federal employees offering or administering the salary-allotment procedure for
PAC contributions, or the employees who would make such contributions using
that procedure, would thereby violate the Hatch Act Reform Amendments of 1993,
Pub. L. No. 103-94, 107 Stat. 1001 (“ HARA” ), or two related criminal statutes,

1 See Memorandum for Heads o f Executive Departments and Agencies, from James B. King, Director, Office
o f Personnel Management (Feb. 17, 1994); Memorandum for [all Executive Branch] Chiefs o f Staff from M ichael
Cushing, C hief o f Staff, Office o f Personnel Management (Apr. 4, 1994).

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18 U.S.C. §§602 and 607.2 In response, OPM contends that such employees
would not violate the HARA or those criminal statutes.3
We have reached the following conclusions with respect to the use of the salary-
allocation system for contributions to PACs: 4
1. None of the federal employees who would engage in the practices in ques­
tion— offering the use of or administering the salary-allocation system, or making
contributions to PACs through that system— would, without more, violate the
relevant criminal provisions, 18 U.S.C. §§602 and 607.
2. Federal employees offering use of or administering the salary-allocation
system for PAC contributions would not, without more, violate the civil provisions
of the HARA. If, in practice, such employees were to request, urge or coerce
other employees to make PAC contributions, they could thereby violate the HARA
and the criminal statutes. But this potential for abuse does not render the proposed
practice unlawful per se.
3. Certain high-level and Executive Office employees identified in 5 U.S.C.
§ 7324(b), the duties and responsibilities of whose positions continue outside
normal duty hours and while away from the normal duty post, may not use the
salary-allocation system to contribute money to PACs, because to do so would
violate the HARA requirement that those employees not engage in political
activity using “ money derived from the Treasury of the United States.” 5 U.S.C.
§ 7324(b)(1).
4. The remainder of federal employees covered by the HARA may not, while
they are on duty or in a federal building, take steps to use the salary-allocation
system to make contributions to PACs, because 5 U.S.C. § 7324(a) expressly pro­
hibits those federal employees from engaging in political activity while on duty
or while in a federal building. Thus, for example, a covered employee may not,
while on duty or in a federal building, fill out direct-deposit forms for salary
allocations to PACs and deliver such forms to the employees who would process
or administer those allocations. A more difficult question is whether these contrib­
uting employees would violate the HARA if they were off duty and off federal
premises when they take the steps necessary to trigger the use of the salary-alloca-
2 See M em oranda for W alter Dellinger, A ssistant Attorney General, Office of Legal Counsel, from Jo Ann Harris,
A ssistant A ttorney General, Criminal Division (Sept. 9, 1994; Oct. 24, 1994).
3 See Letters for D awn E. Johnsen, D eputy Assistant Attorney General, O ffice of Legal Counsel, from Lorraine
Lewis, General Counsel, O ffice o f Personnel Management (Oct. 27, 1994; Nov. 4, 1994; Nov. 10, 1994; Dec. 13,
1994).
4 PACs, or “ political action committees,” are not defined as such under federal law However, 26 U.S.C. §9002(9)
defines “ political com m ittee” as:
any com m ittee, association, or organization (whether o r not incorporated) which accepts contributions or
m akes expenditures for the purpose o f influencing, or attempting to influence, the nomination or election
o f one o r m ore individuals to Federal, State, or local elective public office.
See also 2 U.S.C. §431(4) (similar definition with respect to committees making contributions and expenditures
for federal elections). For purposes of this Opinion, “ PA C ” refers only to an organization that comes within this
definition. In theory, there could exist other sorts o f PACs that do not make contributions or expenditures for the
purpose o f influencing elections for panisan political office. In this Opinion, references to “ PACs” do not include
such com m ittees, and insofar as federal employees might wish to use the salary-allocation system to make contribu­
tions to such com m ittees, such a practice w ould be beyond the scope o f the questions we address in this Opinion.

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Branch Employees for Contributions to Political Action Committees

tion system— e.g., if an employee completes the direct-deposit form at home,
and sends it from home to the appropriate administrative employees. Although
the question is a close one, we conclude that such actions would not violate the
HARA, because they are not proscribed by the literal terms of the prohibitions
found in 5 U.S.C. § 7324(a).
While we have concluded that use of the salary-allocation system for PAC con­
tributions would be lawful under certain circumstances, nevertheless the head of
each federal agency has the discretion to decide whether to make the system avail­
able for that purpose to employees of the agency.5

I. STATUTORY BACKGROUND

A. The Hatch A ct Before the 1993 Amendments

In 1939, Congress passed the original Hatch Act, which declared unlawful cer­
tain political activity of federal employees. See Act of Aug. 2, 1939, ch. 410,
53 Stat. 1147. In section 9(a) of the Hatch Act, 53 Stat. at 1148, Congress pro­
vided in pertinent part:

No officer or employee in the executive branch of the Federal
Government, or any agency or department thereof, shall take any
active part in political management or in political campaigns. All
such persons shall retain the right to vote as they may choose and
to express their opinions on all political subjects.6

The prohibition in section 9(a) eventually was codified at 5 U.S.C. § 7324(a)(2)
(Supp. Ill 1965-1967), which provided that “ [a]n employee in an Executive
agency . . . may n o t . . . take an active part in political management or in polit­
ical campaigns.” 7

5 See 5 U.S.C. §5525 (“ The head o f each agency may establish procedures under which each employee o f the
agency is permitted to make allotments and assignments o f amounts out o f his pay for such purpose as the head
o f the agency considers appropriate/’); 5 C.F.R. §550.311(b) (an agency may permit an employee to make an
allotment “ for any legal purpose deemed appropriate by the head o f the agency’*). Accord Memorandum for Heads
of Executive Departments and Agencies, from James B. King, Director, Office o f Personnel Management at 1 (Feb.
17, 1994) (noting that, under O PM ’s proposal, the head o f each executive agency would have the option o f allowing
that agency’s employees to use salary allotments for distributing portions o f their salaries to PACs).
6 Section 9(a) further provided that heads and assistant heads o f executive departments, and certain officers
appointed by the President by and with the advice and consent o f the Senate, were not “ officers” or “ em ployees”
for purposes o f that section.
7 This prohibition did not apply to certain federal employees. See 5 U.S.C. § § 7324(d)(I)—(3) (Supp. IE 1965-
1967). W hat is more, by a 1940 amendment to the Hatch Act, Congress exem pted from the scope o f section 9(a)
any political activity in connection with nonpartisan campaigns, and activity in connection with any question not
identified with a political party, such as constitutional amendments and referenda. Act of July 19, 1940, ch. 640,
§4, 54 Stat. 767, 772 (subsequently codified at 5 U.S.C. §7326 (Supp. Ill 1965-1967)). Thus, under the old Hatch
Act, “ only partisan political activity [was] interdicted.” United Pub. Workers v. M itchell, 330 U.S. 75, 100 (1947)
(emphasis added).

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B. The Hatch A ct Reform Amendments o f 1993

In 1993, Congress eliminated many of the restrictions that previously had
cabined the political activities of federal employees. See Hatch Act Reform
Amendments of 1993, Pub. L. No. 103-94, 107 Stat. 1001. Most importantly,
Congress did an about-face on the prohibition at the very heart of the Hatch Act:
under a new 5 U.S.C. § 7323(a), effective February 3, 1994, covered federal
employees “may take an active part in political management or in political cam­
paigns,’ ’ subject to specific exceptions.8 Thus, the very category of activities that
was prohibited under the old Hatch Act is now expressly permitted.
Congress did, however, specify several important exceptions to the general rule
of § 7323(a). See 5 U.S.C. §§7323(a)(l)-(4), 7323(b), 7324. For present purposes,
three of those exceptions are germane:

1. Under 5 U.S.C. § 7323(a)(2), a covered employee may not “ knowingly
solicit, accept, or receive a political contribution from any person,” except under
limited circumstances not material here (see infra note 11).
2. Under 5 U.S.C. §§7323(b)(2)-(4), employees of certain enumerated federal
agencies, departments and entities— including, for example, the Criminal Division
of the Department of Justice — will continue to be bound by the proscription of
section 9(a) of the old Hatch Act (i.e., former 5 U.S.C. §7324(a)(2) (1988)):
unlike most other federal employees, such “ HARA-exempt” employees cannot
“ take an active part in political management or in political campaigns.” 9
3. Finally, almost all federal employees, including those who are “ HARA-
exempt,” may not engage in “ political activity” while: (i) on duty; (ii) in any
room or building occupied in the discharge of official duties by an individual
employed or holding office in the Government of the United States or any agency
or instrumentality thereof; (iii) wearing a uniform or official insignia identifying
the office or position of the employee; or (iv) using any vehicle owned or leased
by the federal government or any agency or instrumentality thereof. 5 U.S.C.
§ 7324(a). An exception to this prohibition is made for certain high-level and
executive office employees identified in 5 U.S.C. § 7324(b), the duties and respon­
8 This provision in §7323(a) applies to any individual— other than the President, the Vice President, members
o f the uniformed services, and employees in particular agencies and departments specified in § 7323(b)— who is
employed o r holding office in (i) an Executive agency other than the General Accounting Office; (ii) a position
w ithin the com petitive service which is not an Executive agency; o r (iii) the government o f the District of Columbia
(other than the M ayor, members o f the City C ouncil, and the R ecorder o f D eeds). See 5 U.S.C. §§7322(1), 7323(b).
However, on Septem ber 20, 1994, this Office opined that Congress should not be understood to have intended that
the President be precluded from limiting the political activities o f employees who are political appointees; indeed,
as we noted, if the HARA were instead interpreted to prevent a President from limiting the political activities of
even his high-level political appointees, the statute would raise serious constitutional questions. Letter for Lorraine
P. Lewis, G eneral Counsel, Office of Personnel Management, from W alter Dellinger, Assistant Attorney General,
O ffice o f Legal Counsel (Sept. 20, 1994). See also 59 Fed. Reg. 48,765, 48,767, 48,771 (1994) (discussing proposed
5 C.F.R. §7 34.104, w hich reflects the Sept. 20, 1994 OLC letter).
9 This prohibition does not apply to employees appointed by the President by and with the advice and consent
o f the Senate, even within the specified agencies, departments and entities. 5 U.S.C. §§ 7323(b)(2)(A), 7323(b)(3).
See also supra note 8.

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Branch Employees fo r Contributions to Political Action Committees

sibilities of whose positions continue “ outside normal duty hours and while away
from the normal duty post.” Id. § 7324(b)(2)(A). These employees may engage
in on-duty or on-premises political activity, but only “ if the costs associated with
that political activity are not paid for by money derived from the Treasury of
the United States.” Id. § 7324(b)(1).
It is the responsibility of the Office of Special Counsel (“ OSC” ) to investigate
allegations that federal employees have violated the prohibitions that remain in
the HARA. If the OSC believes such a violation has occurred, it can present the
case to the Merit Systems Protection Board (“ MSPB” ); the MSPB would then
adjudicate the case. See American Fed’n o f Gov’t Employees v. O’Connor, 747
F.2d 748, 753 (D.C. Cir. 1984), cert, denied, 474 U.S. 909 (1985). If the MSPB
finds that an employee has violated a prohibition in §7323 or §7324, the
employee is subject to removal from his or her position. 5 U.S.C. §7326. If the
MSPB finds by unanimous vote that the violation does not warrant removal, a
penalty of not less than a 30-day suspension without pay shall be imposed by
direction of the MSPB. Id.; see also Special Counsel v. Dukes, 8 M.S.P.R. 549
(MSPB, 1981) (MSPB lacks discretion to impose a penalty less severe than a
30-day suspension without pay).

C. OPM’s Regulations under the Hatch Act and under the HARA

In 1984, OPM issued regulations that specifically interpreted the old Hatch Act
to forbid use of the federal salary-allocation system for PAC contributions by
federal employees. See 49 Fed. Reg. 17,431-32 (1984).10 As we explain infra
pp. 66-72, these regulations arguably were undermined by subsequent decisions
of the federal courts and by other authorities. Nonetheless, between 1984 and the
present date, the federal salary-allocation system has not been used to facilitate
federal employees’ PAC contributions.
On February 2, 1994, this Office concluded that, under the HARA, OPM con­
tinues to have certain responsibility for issuing regulations concerning permitted
and prohibited activities under the Act. See Authority for Issuing Hatch Act Regu­
lations, 18 Op. O.L.C. 1 (1994).
On February 4, 1994 (the day after the HARA took effect), OPM superseded
its previous Hatch Act regulations, including the 1984 regulations that had pro­
scribed the use of the salary-allocation system for PAC contributions. See 59 Fed.
Reg. 5313-15. Thereafter, OPM advised executive branch officials that, in OPM’s
view, executive branch employees now are permitted to make voluntary salary
allotments to PACs using the mechanisms otherwise available to federal

l0 Under the original Hatch Act, the Civil Service Commission ( “ C S C ” ) was delegated limited authority to issue
interpretive regulations defining the scope o f permitted and prohibited activities. See infra pp. 63-66. In the Civil
Service Reform Act o f 1978, Pub. L. No. 95-454, 92 Stat. 1111, Congress eliminated the CSC, and OPM became
“ responsible for promulgating Hatch Act regulations.” American Fecfn o f G ov't Employees, 747 F.2d at 753. See
infra p. 67.

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employees for salary allotments to other organizations and institutions. See supra
note 1.
On September 23, 1994, OPM published interim regulations, which would
inform federal employees of the political activities that are permitted and prohib­
ited under the HARA. 59 Fed. Reg. 48,765-77. Those interim regulations do not
address directly the issue presented in this Opinion, though they do consider sev­
eral subsidiary issues that are germane here, and that we will consider herein.

B. Related Criminal Statutes— 18 U.S.C. §§ 602, 607

The Criminal Division also has questioned whether participants in the proposed
practice would violate either of two criminal statutes, 18 U.S.C. §§602 and 607.
Those statutes prohibit federal employees from soliciting political contributions
from other federal employees (§602), and prohibit persons from soliciting or
receiving political contributions while in a federal building (§607). See infra pp.
53, 58.

II. APPLICATION OF TH E HARA AND RELATED CRIMINAL
STATUTES

Federal employees could be involved in the salary-allocation process in three
distinct ways. First, under the procedure envisioned by OPM, certain federal
employees — in particular, the heads of federal agencies — would offer other fed­
eral employees the opportunity to use the federal salary-allocation system to make
contributions to PACs. Second, certain employees— possibly both within and out­
side the contributing employees’ agency — would administer the salary allocations
to PACs. Such employees would, for instance: collect the direct-deposit forms
on which employees request an allocation to a PAC; perform the ministerial func­
tions associated with such an allocation (such as recording the allocation, and
sending the forms on to other federal employees involved in the processing); and
transmit a portion of the contributor’s salary to the PAC, or to a PAC bank
account. Finally, certain federal employees would actually make contributions to
PACs by way of the salary-allocation procedure. These employees would fill out
direct-deposit forms indicating that they wish part of their salaries to be allocated
and transmitted to various PACs, and would transmit those forms to the appro­
priate officials (such as the payroll officer in their agency or department) to begin
processing. Subsequently, as a result of the contributing employees’ allocations,
other federal employees would transfer money to the designated PACs from the
contributing employees’ salaries.
In section A, infra, we discuss whether the federal employees who would offer
other employees the opportunity to use the federal salary-allocation system for

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Branch Employees fo r Contributions to Political Action Committees

PAC contributions would thereby violate the prohibitions on solicitation found
in 5 U.S.C. § 7323(a)(2) and 18 U.S.C. §§602 and 607.
In section B, infra, we discuss whether the employees who would administer
the transmission of PAC contributions would thereby violate the prohibition in
5 U.S.C. § 7323(a)(2) on accepting or receiving political contributions, or the
prohibition in 18 U.S.C. §607 on receiving political contributions in a federal
building.
In section C, infra, we discuss whether administrative employees in “ HARA-
exempt” agencies and components who would handle and transmit other
employees’ PAC contributions would thereby violate the prohibition in 5 U.S.C.
§ 7323(b) on “ tak[ing] an active part in political management or political cam­
paigns.”
Finally, in section D, infra, we discuss whether any of the participants in the
proposed procedure would violate the “ on-duty,” “ on-site,” and related prohibi­
tions found in 5 U.S.C. §7324.

A. Solicitation — 5 U.S.C. § 7323(a)(2) an d 18 U.S.C. §§ 602 and 607

The Criminal Division has asked whether the act of offering employees use
of the salary-allocation system to make PAC contributions would be “ solicita­
tion” of political contributions in violation of any or all of the following three
statutes:

* 5 U.S.C. § 7323(a)(2), which prohibits covered employees from
soliciting “ political contributions,” except that one union member
may solicit another union member to contribute to the union’s PAC
under certain circumscribed circum stances;11

* 18 U.S.C. § 602(a), which makes it a felony for a federal officer
or employee “ to knowingly solicit any contribution within the
meaning of section 301(8) of the Federal Election Campaign Act
of 1971,” from any other federal officer or employee; and

* 18 U.S.C. § 607(a), which makes it a felony “ for any person
to so licit. . . any contribution within the meaning of section 301(8)
of the Federal Election Campaign Act of 1971 in any room or
building occupied in the discharge of official duties by [any officer
or employee of the United States].”

11 Specifically, an employee can solicit o r receive political contributions if (i) the person being solicited or making
the contribution is a m ember o f the same federal labor organization or federal employee organization as the covered
employee; (ii) the person being solicited or making the contribution is not a subordinate employee of the covered
employee; and (iii) the solicitation is for a contribution to a multicandidate PAC o f the labor organization or employee
organization o f the employees, and that PAC was established prior to October 6, 1993 5 U.S.C. § 7323(a)(2)(A )-
(C).

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W e conclude that federal employees, including the heads of agencies, would
not violate the prohibition on “ solicitation” in any of these three statutes merely
by offering employees use of the salary-allocation system to make voluntary PAC
contributions.
All three statutes ultimately are derived from the prohibitions on solicitation
in sections 11 and 12 of the Civil Service Act o f 1883, ch. 27, 22 Stat. 403
(“ the Pendleton A ct” ) ; 12 and we see no reason why “ solicit” should not have
the same meaning in all three statutes.13 However, Congress has not provided
a definition of the term “ solicit” in any o f the three provisions. Therefore, we
must give that term its ordinary meaning. See, e.g., A sgrow Seed Co. v.
W interboer, 513 U.S. 179,187 (1995).
In two recent opinion letters, the Office of Special Counsel — which has the
authority under 5 U.S.C. § 1212(f) to issue advisory opinions on the Hatch
A c t14— offered this definition of “ solicit” : “ to try to obtain by entreaty, persua­
sion or formal application.” 15 Under this definition, asking, requesting, or urging
another federal employee to make a political contribution would be prohibited
(putting aside the exception described in 5 U.S.C. § 7323(a)(2), which is not rel­
evant here). See also People v. Murray, 307 111. 349, 365, 138 N.E. 649, 655
(111. 1923) (to solicit a contribution is “ to try to obtain by asking; to ask for
the purpose o f receiving” ).
We think the Special Counsel’s definition of “ solicit” is an appropriate o n e .16
Under the Special Counsel’s definition— indeed, under any ordinary under­

12 Section 602(a), for exam ple, is derived from section 11 o f the Pendleton Act, which provided in pertinent
part that no congressional, judicial or executive branch officer o r em ployee “ shall, directly or indirectly, solicit
or receive, o r be in any m anner concerned in soliciting or receiving, any assessment, subscription, or contribution
for any political purpose whatever, from any officer, clerk, o r employee o f the United States, . . . or from any
person receiving any salary o r compensation from moneys derived from the Treasury o f the United States." 22
Slat, at 406. In 1980, section 11 of the Pendleton Act was amended to elim inate the provision prohibiting receipt
o f contributions by federal employees. Pub. L. No. 96-187, tit. IT, § 2 0 1(a)(3), 93 Stat. 1339, 1367. See H.R. Rep.
No. 96-4 2 2 , at 25 (1979), reprinted in 1979 U.S.C.C.A.N. 2860, 2885.
Sim ilarly, the prohibition currently found in §607 is a descendent o f section 12 of the Pendleton Act, which
provided in pertinent part that “ no person shall, in any room o r building occupied in the discharge of official duties
by any officer o r em ployee o f the United States . . ., solicit in any m anner whatever, or receive any contribution
o f m oney or any other thing o f value for any political purpose whatever.” 22 Stat. at 407.
,3 In enacting the HARA, Congress added §602(b), which states that an activity cannot be a violation o f §602(a)
“ unless that activity is prohibited by section 7323 or 7324” o f the HARA. See Pub. L. No. 103-94, §4(b), 107
Stat. at 1005. Thus, a person’s conduct cannot violate §602(a) unless it is also a civil violation of the HARA.
Congress did not impose a sim ilar restriction on §607. Thus, in theory, “ solicit” could have a meaning in §607
distinct from its meaning in the other two statutes. But we see no reason not to treat the term identically in all
three statutes.
[*See American Fed.'n o f Gov’t Employees, 747 F.2d at 752-55 (explaining the nature and effect of “ the advice
the Special Counsel is perm itted to give” ).
15 See Letter for C heryl D. Mills, Associate Counsel to the President, from William E. Reukauf, Associate Special
Counsel for Prosecution, O ffice o f Special Counsel at 2 (Feb. 4, 1994); Letter for Dennis I. Foreman, Deputy General
Counsel, Department o f the Treasury, from William E. Reukauf, Associate Special Counsel for Prosecution, Office
o f Special Counsel at 2 (Feb. 4, 1994).
16This definition is, for example, consistent with pertinent dictionary definitions o f “ solicit.” As we have
explained, the solicitation prohibitions derive from the Pendleton Act. Shortly after enactment of that Act, Black’s
Law Dictionary defined “ solicitation” as “ Asking; enticing; urgent request.” Black’s Law Dictionary 1105 (1st
ed. 1891); see also Black's Law Dictionary 1392 (6th ed. 1990) (“ Asking; enticing, urgent request. . . . Any action
which the relation o f the parties justifies in construing into a serious request.” ); Webster’s Third New Int’l Dictionary

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 Permissibility o f the Administration and Use o f the Federal Payroll Allocation System by Executive
Branch Employees fo r Contributions to Political Action Committees

standing of the term — it is hard to see how the conduct in question here would
rise to the level of “ solicitation.” Pursuant to OPM ’s proposal, the head of each
agency would send a memorandum to all employees informing them that “ there
is now no legal ban to voluntary allotments by Federal employees directed to
political action committees.” See Memorandum for [all Executive Branch] Chiefs
of Staff, from Michael Cushing, Chief of Staff, Office of Personnel Management
(Apr. 4, 1994), Attachment 2. The proposed memorandum further would “ empha­
size” to employees that “ this program is entirely voluntary on your part, a service
we have added for our employees.” Id. Such a memorandum would not urge
employees to make contributions, and would not request or encourage such action.
We conclude that such an offer of use of the salary-allocation system for voluntary
PAC contributions would not thereby be a “ solicitation” of such contributions.
Cf., e.g., In re D odds, 2 Political Action Reporter 253 (Civil Service Comm’n,
1945) (announcing to employees under one’s supervision that they had the legal
right to make voluntary contributions to political campaign funds if they so desired
is not, without more, “ solicitation” ).
Moreover, the statutory context of the solicitation ban in §7323 supports this
conclusion. In § 7323(a), Congress has prohibited only those solicitations that can
be said to constitute “ tak[ing] an active part in political management or in political
campaigns.” 17 The “ tak[ing] an active part” standard was derived from the
prohibition in section 9(a) of the old Hatch Act. See supra p. 49. Under the old
Act, two courts o f appeals held that a covered federal employee could violate
the “ tak[ing] an active part in political management or in political campaigns”

2169 (1986) (defining “ solicit” as, inter alia, “ to make petition to: entreat, importune . . esp: to approach with
a request or plea (as in selling or begging)"; “ to move to action: serve as an urge or incentive to. incite” ; “ to
strongly urge (as one’s cause o r point): insist upon"; “ to endeavor to obtain by asking or pleading: plead for . . .;
also : to seek eagerly or actively"; “ to demand as a requisite: call fo r require"). Also notable is 47 U.S.C.
§227(a)(3), which defines “ telephone solicitation" as “ the initiation of a telephone call or message for the purpose
o f encouraging the purchase or rental of, or investment in, property, goods, or services." This definition would
require some encouragement or urging, at the very least.
OPM, in its interim regulations, has proposed that “ solicit” should mean “ to request expressly o f another person
that he or she contribute something to a candidate, a campaign, a political party, or partisan political group." 59
Fed. Reg. 48,771 (1994) (proposed 5 C .F R . §734.101) (emphasis added). We believe OPM is correct that a
“ request" (or an “ u rg in g ") is required, but we have no occasion to decide whether such a request necessarily
must be “ express!] ” A strong argument could be made that even an “ im plicit," or veiled, request is a solicitation.
For example, the Special Counsel has concluded that it would be a solicitation for an official to “ suggest" that
an individual work for a political campaign. See Letter for Dennis I. Foreman, Deputy General Counsel, Department
o f the Treasury, from W illiam E. Reukauf, Associate Special Counsel for Prosecution, Office o f Special Counsel
at 3 (Feb. 4, 1994); see also People v. Murray, 307 III. at 365, 138 N.E. at 655 (“ Solicitation [of political contribu­
tions] is not necessarily by word o f mouth or writing.” ); Civil-Service Law — Political Contributions— Solicitation
o f by Federal Officer, 24 Op. A tt'y Gen. 133, 134-35 (1902) (dissemination to federal employees of a circular
stating that financial assistance is “ needed" for Republican state committee, and that supervisory officials “ will
be greatly obliged" if the recipients “ will aid to the extent of [their] ability and inclination,” even though not
a “ dem and," was a “ req u est" constituting an impermissible solicitation under section 11 o f the Pendleton Act);
Special Counsel v. Rivera , 61 M.S.P.R. 440, 443—44 (MSPB, 1994) (letter stating that “ [w]e hope you can . . .
contribute to this worthy cause [viz., a partisan candidacy]" was a solicitation o f contributions).
l7That section permits employees to “ take an active part in political management or in political cam paigns."
The prohibition o f solicitation is enumerated as one o f the few exceptions to this rule; thus, it is fair to read the
statute as prohibiting only those solicitations that in fact constitute “ tak[ing] an active part in political management
or in political cam paigns.”

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prohibition only if that employee acted “ m concert with a partisan political cam­
paign or organization.” B iller v. MSPB, 863 F.2d 1079, 1090 (2d Cir. 1988)
(emphasis added); accord Blaylock v. MSPB, 851 F.2d 1348, 1356 (11th Cir.
1988) (“ the Hatch Act is violated only by actions taken in concerted effort with
partisan activity or formal, organized, political groups” ). Were an employee, such
as the head of an agency, merely to inform other employees of their legal rights,
and in a neutral manner make available to them a means of exercising those rights,
that employee would not thereby be acting “ in concert with a partisan political
campaign or organization.” Therefore, such an offering employee would not have
taken an “ active part in political management or in political campaigns,” and,
accordingly, would not have engaged in improper solicitation under § 7323(a).18
Notwithstanding the foregoing, the Criminal Division has suggested that the act
o f offering access to the salary-allocation system for PAC contributions may vio­
late the law because, in practice, such an offer may be perceived as soliciting
such contributions. The Criminal Division’s argument is that, as a result of the
paperwork associated with the salary-allocation system, an employee’s “ giving
history” can be “ accessed and examined by management.” Moreover, the Federal
Election Campaign Act (“ FEC A ” ) requires that political committees, such as the
PACs in question here, publicly identify all persons who have contributed more
than $200 in a calendar year. 2 U.S.C. § 434(b)(3)(A); see also id. § 438(a)(4)
(names of such contributors available for public inspection). The fact that manage­
ment can thereby discover an em ployee’s political contributions “ provides fertile
ground for the proposed payroll withholding program to assume a most sinister
cast.” Memorandum for Walter Dellinger, Assistant Attorney General, Office of
Legal Counsel, from Jo Ann Harris, Assistant Attorney General, Criminal Division
at 6 -7 (Oct. 24, 1994). According to the Criminal Division,

once employees realize that their political giving patterns can be
individually accessed and traced through payroll records or through
FECA reports, offers o f payroll withholding made by management
are susceptible of being understood by employees as suggestions
that an affirmative response is expected. Once that occurs, it seems
to us that the offer o f payroll withholding for PAC donations
becomes a “ solicitation’ on the part o f those in management that
circulate it.

18 The case w ould be very different, o f course, if the offer were not neutral, such as where contributions were
perm itted only to certain PACs deemed acceptable to the agency head. In that case, the Biller/Blaylock standard
m ight be m et, and the action m ight fairly be considered “ taking an active part in political management or in political
cam paig n s"; such differential treatment in favor o f some PACs to the exclusion of others might, therefore, amount
to an improper “ solicitation,” depending on the circumstances. But that is not the scenario OPM proposes.

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Branch Employees fo r Contributions to Political Action Committees

Id. at 7. This argument is similar to that used by OPM itself in 1984 to justify
its prohibition on salary allotments to P A C s.19
This argument has two principal problems. First, the hypothesized danger—
that management may be able to discover employees’ contribution practices —
is not unique to the making of PAC contributions through the salary-allotment
procedure. The public has access, by virtue of the FECA, to significant informa­
tion about contributors to PACs, and this will be the case whether or not those
contributions are made through the salary-allocation system. The risk of access
to contribution information should not be significantly greater as a result of use
of the salary-allocation system: federal officials should not have any additional
access to contribution practices of their subordinates through payroll records.
Records of employees’ financial contributions retained in personnel files within
the employees’ agency are protected by the Privacy Act, see 5 U.S.C.
§ 552a(a)(4)-(5), and may not be revealed to the officers and employees of the
agency, id. § 552a(b).20
Second, and more important, it is not legally dispositive that some subordinate
employees might perceive that they are expected to contribute to PACs. The mere
possibility that an offer of access to a salary-allocation system may be susceptible
of being misunderstood by some employees as a solicitation does not automati­
cally transform all offers into solicitations. Section 7323(a) of the HARA and
18 U.S.C. §§602 and 607 do not prohibit a “ sinister cast” ; they prohibit conduct
that is, in fact, solicitation.
What is more, even if the proposed practice might be susceptible to a risk of
actual (rather than merely perceived) solicitation, that risk does not render the
practice unlawful per se. Whether any particular “ offer” of access to the salary-
allocation system for PAC contributions would be an impermissible solicitation

19 OPM explained that such a prohibition was required for prophylactic reasons:
Use o f the Federal payroll system as a vehicle for collecting political contributions, as well as the conven­
ience o f making these contributions through payroll deductions, would increase the opportunities for coer­
cion o f employees. Introducing the political contribution process into Government would make it possible
for supervisors, administrative officers, and others in a position to affect careers or working conditions
to discover the identity o f political contributors and other information concerning their contributions.
Because allotments or payroll deduction authorizations pass through many hands during processing, there
exists the risk o f either intentional or inadvertent disclosure o f sensitive data. Although such a disclosure
could be cause for discipline, tracing the disclosure to its source in the processing chain would not be
possible in every case. The authority to discipline thus would not be a complete deterrent and where exer­
cised would not forestall potential misuse o f the information already disclosed. Even if the integrity of
payroll data is not compromised, individual employees could be directly approached by colleagues or
superiors seeking to identify contributors. Even i f not so intended, this could create among employees
a perception o f pressure to contribute to a particular political action fund.
49 Fed. Reg. at 17,432 (emphasis added).
20There is an exception to this prohibition where those officers or employees “ have a need for the record in
the performance o f their duties.” Id. §552a(b)(l). It is difficult, however, to imagine a situation in which supervisors
would have a legitimate “ need . . . in the regular performance o f their duties” for information concerning their
subordinates’ political contributions. See Parks v. IRS, 618 F.2d 677, 680-81 (10th Cir. 1980).

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would depend on the particular facts of each case.21 In those cases where osten­
sible offers do cross the line to become actual solicitations, the makers of such
solicitations will be subject to penalty under 5 U.S.C. §§ 7323(a)(2) and 7324(a),
and may be subject to criminal sanctions under 18 U.S.C. §§602 and 607, as
well. In addition, if a supervisor does tell (or suggest to) subordinate employees
that their contribution practices will be “ accessed and examined by management,”
or if a supervisor (or other employee) otherwise pressures an employee to con­
tribute to PACs, such action could constitute impermissible “ coercion” under 18
U.S.C. § 6 1 0 .22 But the fact that there m ay be such instances of abuse does not
mean that every offer of access to the system automatically becomes a solicitation.

B. R e c e ip t— 5 U.S.C. § 7323(a)(2) a n d 1 8 U.S.C. § 6 0 7

The Criminal Division has questioned whether the federal employees who would
implement and administer other employees’ salary allocations to PACs would vio­
late 5 U.S.C. § 7323(a)(2) or 18 U.S.C. §607, which prohibit some forms of
“ receiving” or “ accepting” political contributions:

* Under § 7323(a)(2), a covered federal employee may not
“ accept, or receive a political contribution from any person,”
except that one union member may receive another union member’s
contribution to the union’s PAC, as long as the contributing
employee is not a subordinate o f the receiving employee.

* Under §607, it is a felony “ for any person to . . . receive any
contribution within the meaning o f section 301(8) of the Federal
Election Campaign Act o f 1971 in any room or building occupied
in the discharge of official duties by [any officer or employee of
the United States].”

Under the proposed practice, some administrative employees would process the
direct-deposit forms, and would transmit to PACs a portion of contributing
em ployees’ salaries. Even if it could be argued that these administering employees
would (in some sense) handle the money from the contributing employees’ salaries
prior to transmitting the contributions to the PACs, we conclude that this cannot

21 See The President— Interpretation o f 18 U.S.C. §603 Inow §607] as Applicable to Activities in the White
House, 3 Op. O.L.C. 31, 32 n.3 (1979) (“ W e have not considered a . . . critical question, which turns primarily
on matters o f fact, i.e., whether a solicitation w ithin the terms o f the statute has occurred.” ).
22 Section 610, which was enacted as part o f section 4 o f the HARA, 107 Stat. at 1005, provides:
It shall be unlawful for any person to intimidate, threaten, command, or coerce, or attempt to intimidate,
threaten, com m and, o r coerce, any em ployee o f the Federal G overnment as defined in [HARA] section
7322(1) . . . to engage in, o r not to engage in, any political activity, including, but not limited to, voting
or refusing to vote, for any candidate o r measure in any election, making or refusing to make any political
contribution, o r working or refusing to work on behalf o f any candidate. Any person who violates this
section shall be fm ed not more than $5,000 or imprisoned not more than three years, or both.

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Branch Employees fo r Contributions to Political Action Committees

be considered “ receipt” or “ acceptance” of the contributions in the sense
intended under the two pertinent statutes.
The Attorney General addressed this issue in the early years of the Pendleton
Act. Section 11 of the Pendleton Act, which was the direct predecessor of the
statutes at issue here, provided in pertinent part that no congressional, judicial
or executive branch officer or employee “ shall, directly or indirectly, . . . receive,
or be in any manner concerned in . . . receiving, any assessment, subscription,
or contribution for any political purpose whatever, from any officer, clerk, or
employee of the United States, . . . or from any person receiving any salary or
compensation from moneys derived from the Treasury of the United States.” 22
Stat. at 406.
In 1896, Attorney General Harmon opined that section 11 should not be strictly
construed to make criminal the “ purely mechanical” handling of a political con­
tribution by a federal employee. Contributions fo r Political Purposes, 21 Op. A tt’y
Gen. 298 (1896). In the case the Attorney General considered, one Bellman, an
agent of the Postmaster General, was detailed to be the conduit for payments
by the government to secret agents. Under the “ established practice,” secret
agents sent orders to Bellman to make payments out of their government remit­
tance directly to the agents’ families, creditors, etc. Id. at 299. One agent asked
Bellman to pay $50 to another person, in aid of a political campaign. Bellman —
who had nothing whatever to do with soliciting or inducing such a diversion of
funds— did as the agent asked him. Despite the fact that Bellman knew the diver­
sion of funds was in aid of a political campaign, id., and the fact that Congress
in section 11 “ absolutely prohibited the . . . receipt of political contributions by
all persons in the Government service in any place or in any way,” id. at 300,
the Attorney General concluded that “ I can not see how it can fairly be said
that [Bellman’s action] was a violation of the provisions of [section 11].” Id.
The Attorney General reasoned:

It is admitted that [Bellman] did not solicit the contribution. Nor
can it be said, in any proper sense o f the term, that he received
it. He physically took the money from the package, but he did so
merely as the agent of the owner, and so long as it remained in
his possession he held it as the agent o f the owner, who had a
right at any time to revoke his order and reclaim the money. This
right continued until Bellman actually handed the money over to
the third person, who alone can be said to have received it. When
he received it it was from the secret agent in Chicago by the hand
of Bellman and not from Bellman. He was accountable to the agent
in Chicago and not to Bellman for its use or misuse. Bellman had
no more to do with the transaction than a mere messenger would
have had to whom the owner had handed it for delivery. The receipt

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of money, etc., intended by [section 11] is acceptance of possession
which confers a right of disposal, not possession which simply con­
stitutes the taker a mere custodian without right on his own behalf
or that of others.

Id. at 300-01.23
W e agree with Attorney General H annon’s reasoning, and think it directly
applicable h ere.24 “ The receipt of money . . . intended by [§ 7323(a)(2) and by
§607] is acceptance of possession which confers a right of disposal, not possession
which simply constitutes the taker a mere custodian without right on his own
behalf or that of others.” Indeed, the ministerial employees under the proposed
practice would not even have the option to decline to handle the contributions
in question: as a part of their assigned duties, they would be required to treat
allocations to PACs as they do all other allocations. We therefore conclude that,
because the administering employees — like postal employees who pick up and
deliver mail containing PAC contributions — would be “ mere custodians,” or
conduits, of the contributions, they would not be recipients thereof.
M oreover, the employees administering the allocated contributions to PACs
would not be acting “ in concert with a partisan political campaign or organiza­
tion.” B iller, 863 F.2d at 1090 (emphasis added). Therefore, like the employees
who “ offer” the use of the allocation system, see supra pp. 55-56, they would
not be “ tak[ing] an active part in political management or in political campaigns,”
and, accordingly, could not be in violation of § 7323(a)(2).25

23 See also In re Harper, reported in Thirty-fifth Annual Report o f the Civil Service Commission 178 (1919)
(the Justice Departm ent, citing the “ pettiness o f the o ffe n s e /’ refused to prosecute a federal employee who had
acted as a conduit, o r “ temporary custodian,” o f political contributions).
24The Civil Service Commission subsequently disagreed with the Attorney G eneral’s interpretation o f section
11; the CSC reasoned instead that “ even if [a federal employee] acts as the agent or messenger of another officer
o r em ployee for the purpose o f delivering a contribution, voluntary or otherw ise, to a political committee, the receipt
by the agent o f money from his principal, knowing it to be for the purpose mentioned, and both being officers
o r employees o f the United States, is prohibited by the statute.” In re LeRoy, reported in Thirtieth Annual Report
o f the C ivil Service C om m ission 149, 151 (1914). And, in the LeRoy case and in another case occurring at approxi­
m ately the same time, certain United States Attorneys and tw o district judges apparently agreed with the CSC’s
interpretation, rather than with that of A ttorney General Harmon. See id. at 152 (reporting successful prosecution
o f LeRoy); In re Dutro, reported in Thirtieth Annual Report o f the Civil Service Commission 158 (1914) (quoting
ju d g e’s ruling rejecting 1896 Attorney G eneral Opinion, and reporting eventual conviction for violation o f section
11). The CSC subsequently cited the Dutro case as having “ definitively established) the principle that an employee
o f the G overnm ent who receives a political contribution from another such employee as a mere agent or messenger
for the purpose o f turning it over to a political organization commits a violation o f [section 11].” CSC Form 1236,
“ Political A ctivity and Political Assessments o f Federal Officeholders and Em ployees,” §39, at 20 (1939). We
are, however, m ore persuaded by the 1896 A ttorney General Opinion.
^ U n d e r the proposed definitions of “ accept” and “ receive” in the interim OPM regulations, the ministerial
handling o f contributions could not constitute “ acceptance” o r “ receipt” o f those contributions, because the
em ployees in question would not be acting “ officially on behalf o r ’ the PACs to w hich the contributions were
made. See 59 Fed. Reg. at 48,770-71 (proposed 5 C.F.R. §734.101). This interpretation is consistent with the holdings
in Biller and Blaylock. See id. at 48,768-69 (discussing Biller and Blaylock).

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Branch Employees fo r Contributions to Political Action Committees

C. Handling o f Contributions by Em ployees in “ H A R A -E xem pt” A gencies an d
C om ponents— 5 U.S.C. § 7323(b)

Under 5 U.S.C. §§7323(b)(2)-(4), employees of certain enumerated federal
agencies, departments and components — including, for example, the Criminal
Division of the Department of Justice— cannot “ take an active part in political
management or political campaigns.” See supra p. 50. The statutory definition
of this “ take an active part” standard is, moreover, the same under the HARA
as it was under the pre-HARA Hatch A ct.26 Congress’s intent was that the
employees in question would be “ exempt from coverage under the [HARA] and
maintained under the current [i.e., pre-HARA] law.” 139 Cong. Rec. 15,789
(1993) (statement o f Sen. R oth).27
Under the old Hatch Act, OPM had interpreted the “ take an active part”
standard to prohibit federal employees from handling or accounting for other fed­
eral employees’ PAC contributions,28 and OPM had, in fact, specifically deter­
mined that the persons administering the federal salary-allocation system would
violate the law if the system were used for PAC contributions.29 See supra p.
51; infra pp. 68-70. The Criminal Division has argued that “ HARA-exempt”
employees should still be subject to these regulatory prohibitions:

[I]t appears to us that under 5 U.S.C. § 7323(b)(4), employees of
. . . excluded components remain bound by the prohibitions con­
cerning political activity by federal employees that were in effect
prior to 1940 which contain prohibitions on “ handling” or
“ accounting for” political funds, as well as the “ solicitation,”
“ acceptance,” or “ receipt” of political contributions. 5 C.F.R.
§ 7 3 3 .122(b)(3). The terms “ handling” and “ accounting for” seem
to us broader than the terms “ solicit,” “ accept,” or “ receive” that
apply to employees in the remainder of the government. If we are
correct in that conclusion, and if we are correct in assuming that
employees of the Criminal Division continue to be governed by
the broader terms of 5 C.F.R. § 733.122(b)(3), one might reasonably
argue the mere administrative processing of payroll withholding
forms concerning PAC donations by the Division support staff
places them at risk of inadvertently violating the Act.

“ Compare 5 U.S.C. §7324