Restructuring the Relationship Between the Federal Government and Radio Free Europe/Radio Liberty

Restructuring the Relationship Between the Federal
Government and Radio Free Europe/Radio Liberty

N o impermissible conflict o f interest arises from the practical identity o f g ra n to r and
grantee o f federal funds, w here such an arrangem ent has been authorized b y federal
statute.

N o separation o f pow ers concern is im plicated by C ongress' appropriation o f funds
directly to a private entity w hose functions relate exclusively to the flow o f inform a­
tion; nor does this situation raise a problem o f excessive delegation o f governm ent
authority to the private sector.

January 23, 1981
M EM ORANDUM O PIN IO N FOR T H E BOARD OF
IN TER N A TIO N A L BROA DCA STING

This responds to your request for the opinion of this Office on two
questions relating to the possible restructuring of the relationship be­
tween the federal government and Radio Free Europe/Radio Liberty,
Incorporated (R FE/R L ).
R F E /R L is a private nonprofit corporation entirely dependent upon
federal funds, which it receives under an annual grant from the Board
for International Broadcasting (BIB), a federal entity created in 1973
pursuant to Pub. L. No. 93-129, 87 Stat. 456 (1973). Under this law, the
BIB is responsible for ensuring the continuation of R F E /R L as an
independent broadcast medium; at the same time BIB is also charged
with ensuring that its grants to R F E /R L are applied in a manner not
inconsistent with the broad foreign policy objectives o f the U.S. gov­
ernment. Pursuant to these complementary statutory mandates, the
board of directors of R F E /R L operates under the general oversight of
the BIB and is subject to its direction in matters of concern to the U.S.
government.
Proposals to reform or simplify the relationship between the federal
government and R F E /R L have generally taken the form of merging
the private and public boards, or eliminating one of them. One such
suggestion, which was reported out of the Senate Foreign Relations
Committee in 1977 but defeated on the floor, was to condition further
grants to R F E /R L on having the presidentially appointed members of
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the BIB also serve as the board o f directors o f R F E /R L . Another more
recent proposal is that the BIB be abolished and funds appropriated
directed to R F E /R L .
W ith respect to the first proposal, you ask whether any conflict of
interest arising from the practical identity o f grantor and grantee would
pose a legal problem. If such an arrangement were in fact incorporated
into the statute as was proposed in 1977, and thus authorized by law,
there would be no legal basis on which any resulting conflict of interest
could be successfully challenged. N or would there appear to be any
issue o f constitutional dimension in such a conflict.
Your second question relates to the suggested abolition of the BIB,
and the direct appropriation of funds to the private corporation, R F E /
R L .1 C ontrary to the advice you have received from counsel for R F E /
RL, in our view there would be no legal or constitutional bar to
channelling federal funds for private expenditure in this manner, al­
though we have not found any precedent directly in point. There is no
statute which inhibits Congress’ power, if it wishes to do so, to appro­
priate directly to a private corporation for the purpose of accomplish­
ing governm ental objectives. And, assuming Congress took all neces­
sary legislative steps to effectuate its desired end, we perceive no legal
basis on which to object to it.
N or is there any principle of constitutional law which would neces­
sarily be implicated by a direct legislative appropriation to a private
entity.2 T o be sure, Congress generally includes some provision for
supervision by some executive agency of the use of federal funds in any
appropriation intended fo r use in the private sector. And, one of the
consistent themes in discussions of the continued funding of R F E /R L
over the years has been Congress’ concern to ensure accountability in
its use of public monies. But these concerns, and the controls imposed
pursuant to them, are grounded in political and administrative consider­
ations, not in any requirement imposed by the Constitution.
The teaching o f Buckley v. Valeo, 424 U.S. 1 (1976), does not suggest
the contrary. T he relevant holding in the Buckley case is that Congress
may not, consistent with the constitutional principle of separation of
powers, seek to remove from the control o f the Executive Branch its
pow er to administer and enforce public law. A t issue in that case were
rulemaking and enforcement functions which Congress had vested in
the Federal Elections Commission, a body whose members Congress
itself appointed. The Court held that because these functions

‘ You state that in this case som e or all o f the directors o f R F E /R L might be appointed by the
President. O ur conclusions on the permissibility o f a direct appropriation to R F E /R L do not depend
on the status o f all or any of its directors as presidential appointees, and w e have therefore not taken
this possibility into account in our analysis.
2 As a practical matter, Congress’ appropriation would be framed as a directive to the Secretary of
the Treasury to cause certain funds to be paid to the private corporation. However, the Secretary of
the Treasury would have no discretion to determine whether the corporation were entitled to receive
it. United States v. Price, 116U.S 43 (1885).

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“represent[ed] the performance of a significant governmental duty exer­
cised pursuant to a public law,” 424 U.S. at 141, the Commission’s
members must be appointed by the President in the manner contem­
plated in Article II, §2, clause 2 of the Constitution. Among the
functions mentioned by the Court as requiring performance by a presi­
dential appointee were the conduct of litigation, rulemaking and advi­
sory opinions, and determinations of eligibility for federal funds and for
federal elective office. By contrast, among the Commission’s powers
which the Court noted might appropriately have been given legislative
appointees were those “relating to the flow of necessary information—
receipt, dissemination, and investigation . . . .” 424 U.S. at 137. Some
expenditure o f public funds is necessarily involved in these latter activi­
ties, and it is therefore plain that responsibility for expenditure of
federal funds in and o f itself is not within the class of “significant
governmental duties” which can be performed only by a presidential
appointee.
We are aware of no authority given R F E /R L under the law which
would constitute “the performance of a significant governmental duty”
so as to require that it be retained within the Executive Branch. The
Commission has no power to make rules or interpret laws as they apply
to other persons or entities. It has no authority to conduct litigation in
the name of the government, nor otherwise to apply or enforce the
law. Its only responsibilities under the law are of precisely the sort
which the Court noted in Buckley could be delegated outside the
Executive Branch: functions relating to the flow of information. Even if
these functions were somehow regarded as having a “public” character
in this context, this would not be sufficient to require their performance
by an officer o f the United States.
Related to the separation of powers principle at issue in Buckley, and
susceptible to similar analytic treatment, is the delegation doctrine. This
doctrine, as relevant here, expresses the constitutional concern that
significant executive or legislative power be exercised by an officer of
the United States appointed or elected, respectively, in accordance with
the Constitution. See Liebmann, Delegation to Private Parties in American
Constitutional Law, 50 Indiana L.J. 650 (1975). As noted, we are un­
aware of any situation in which R F E /R L would be vested with the
sort of executive or legislative authority which would trigger a concern
for excessive delegation to the private sector.

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 We would be happy to be of further assistance to you as proposals
for restructuring the government’s relationship with R F E /R L are de­
veloped.*

L e o n U lm a n
Deputy Assistant Attorney General
Office o f Legal Counsel

• N o t e : In 1982, Congress enacted a law by which further federal grants to R F E /R L were made
conditional upon amendment o f th e R F E /R L certificate o f incorporation to restrict membership on
the R F E /R L board to the presidentially appointed members of the Board for International Broadcast­
ing. Pub. L. N o . 97-241, §11, 96 Stat. 273, 296-97 (1982). Ed.

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