                                                             June 27, 1979


79-45    MEMORANDUM OPINION FOR COUNSEL TO
         THE PRESIDENT
         Advisory Committees—Application of the Russell
         Amendment (31 U.S.C. § 696)

   This responds to your request for an informal opinion on a legal ques­
tion that had arisen in connection with a proposed Executive order
reconstituting the National Advisory Committee for Women. That order
redesignated the committee and removed its nonadvisory functions. Your
question is whether this Office concurred in the general view taken by the
Office of Management and Budget (OMB) that the so-called “ Russell
amendment” (31 U.S.C. § 6%) does not limit the use of Government
funds to pay the expenses of an advisory committee if (1) the funds are
otherwise available for use in the procurement of advice of the kind that
the committee provides and (2) the committee has no nonadvisory func­
tions. We advised you informally that we concurred in OMB’s view. This
memorandum is a brief statement of the reasons for our opinion.
   The Russell amendment provides that no funds may be used to pay the
expenses of any “ agency or instrumentality” if (1) the agency or in­
strumentality has been in existence for more than 1 year and (2) Congress
has not appropriated “ any money specifically for such agency or in­
strumentality or specifically authorized the expenditure of funds by it.” 31
U.S.C. § 696.
   Enacted in 1944 as a rider to an appropriation bill, the Russell amend­
ment had an interesting preenactment history. It represented an attempt to
use the power of the purse to curtail the activities of certain nonstatutory
executive “ agencies” that had been created by Executive order. In point of
fact, it was directed at a particular agency—the Committee on Fair
Employment Practices. That committee had no clear statutory basis; but it
exercised a number of substantive powers, and it had taken vigorous ac­
tion to diminish racially discriminatory practices in employment. These
actions were obnoxious to Senator Russell and others who opposed the
early civil rights movement. Moreover, with regard to that committee and
others, there was doubt in some quarters that substantive actions taken

                                    263
  by nonstatutory agencies were lawful in the absence of actual statutory
 authority.
    As to the present question, there is no clear indication either in the
 language of the statute or in its legislative history that the Congress in­
 tended to do anything other than prevent the expenditure of funds for
 agencies such as the Committee on Fair Employment Practices—agencies
 that Senator Russell would later call “ action agencies.” 1 In particular,
 there is no clear indication that the Russell amendment was intended to
 prevent constitutional or statutory officers from using funds to procure
 advice on matters within their jurisdictions, if the funds were otherwise
 available for that purpose. Prior to enactment of the Federal Advisory
 Committee Act, 5 U.S.C. App. § 1 et seq., the Comptroller General and
 representatives of the Bureau of the Budget suggested that the statute
 could be interpreted broadly in this context, but we know of no judicial
 decision that settles the point.
    In 1972 Congress enacted comprehensive legislation that addressed
 many of the administrative and legal questions that arise in connection
 with the longstanding practice of procuring advice from ad hoc “ advisory
 committees.” The Federal Advisory Committee Act did a number of im­
 portant things. First, it expressly sanctioned the creation of advisory com­
 mittees by Executive order. 5 U.S.C. App. § 2 e( seq. Second, in con­
 templation that advisory committees would indeed expend agency funds
 from time to time, it created a system of agency reporting and record­
 keeping that was designed to subject advisory committees to tighter ad­
 ministrative and legislative control in fiscal matters, 5 U.S.C. App.
 § 12(a); and it affirmatively required agencies to provide support services
 for advisory committees in certain circumstances. 5 U.S.C. App. § 12(b).
Third, it provided generally that in the absence of some specific authoriza­
tion, advisory committees should be purely advisory in nature. 5 U.S.C.
App. §§ 2(b)(6), 9(b). Fourth, it provided that advisory committees should
generally have a life of 2 years. 5 U.SC. App. § 14(a). Finally, it gave the
Office of Management and Budget general responsibility for “ all matters
relating to advisory committees.” 5 U.S.C. App. § 7. In that connection,
it required the Director of OMB to review advisory committees annually,
to make appropriate administrative and legislative recommendations con­
cerning them, and to include in his annual budget recommendations a
summary of the amounts he “ deems necessary” for the expenses of ad­
visory committees. 5 U.S.C. App. § 7(e).
   Because of OMB’s unique statutory responsibilities for “ all matters
relating to advisory committees,” OMB’s opinion on questions arising in
the administration of the relevant statutes is entitled to substantial weight.
We should defer to it unless there are compelling indications that it is
wrong. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969); see,


 ' See 90 C o n g r e s s i o n a l   Record   6022-21 (1944).

                                                      264
Zemel v. Rusk, 381 U.S. 1, 11-12 (1965); Udall v. Tollman, 380 U.S. 1,
 16-18 (1965). We have reviewed all of the relevant materials and find no
compelling reason to question OMB’s conclusion that the Russell amend­
ment does not limit the availability of Government funds for payment of
the expenses of purely advisory committees.
   There are two views of this question that are consistent with the view
taken by OMB. The first gives controlling weight to the.original legislative
intention. The Russell amendment was intended to prevent nonstatutory
agencies or instrumentalities from exercising actual governmental power
without statutory authority. It was never intended to prevent statutory or
constitutional officers from using Government money to obtain advice
concerning their own duties, provided they are otherwise authorized to do
so. Mere advisers are not “ agencies” or “ instrumentalities” of Govern­
ment for purposes of the Russell amendment. They do not become “ agen­
cies” or “ instrumentalities” merely because they meet and advise collec­
tively. They become “ agencies” or “ instrumentalities” for Russell
amendment purposes only if the officer to whom they report seeks to in­
vest them with actual authority to take substantive action on his or the
Government’s behalf.
   This interpretation of the Russell amendment is entirely consistent with
the views that Senator Russell expressed when he first proposed the
measure. We take the liberty of quoting his remarks at length:
      Mr. President, the purpose of the committee amendment, which
      is apparent from a reading thereof, is to retain in the Congress
     the power of legislating and creating bureaus and departments of
     the Government, and of giving to Congress the right to know
     what the bureaus and departments of the Government which
     have been created by Executive order are doing.
      * * * I realize, Mr. President, that in time of war, emergencies
     may arise which might dictate that the executive branch of the
     Government should immediately create some agency to deal with
     an immediate difficulty, but certainly there is no excuse for the
     continuance of an agency which has been in existence for longer
     than 12 months for which the Congress has not appropriated, or
      for which the Congress has not had any opportunity to appro­
     priate.
         Secondly, Mr. President, no agency which has power to issue
     orders affecting the lives and business o f the American people
     should stay in existence fo r more than 12 months unless the Con­
     gress has passed upon an appropriation fo r such agency. I have
     made an effort to ascertain the number of agencies which would
     be affected by this provision. According to a report which was
     filed by the Bureau of the Budget in response to a request which I
     made of the director of that agency, about 13 agencies would be
     affected.
                                *******

                                    265
        I do not believe, Mr. President, that any lengthy discussion of
     this amendment is necessary. Its purpose is clear. Certainly those
     who have been complaining about bureaucrats and bureaucracy
     in this country, and who have heretofore complained because the
     Congress had not created or passed upon such agencies, should
     support this amendment and thereby give Congress the right at
     least to keep advised as to what all the different agencies of the
     Government are doing.
                               * * * * * * *

         O f course, everyone has his pet agencies, everyone has depart­
      ments which he wants preserved, and if we start action like that
      proposed, if we are to say that the President of the United States
      can legislate by Executive order when we favor the objective
      which he is seeking, we should say that we favor the President of
      the United States taking to himself the power that is vested by the
      Constitution in the Congress of the United States, and legislating
      and creating departments of government which issue orders that
      bring the people of the United States before them, and pass
      orders which direct people how they shall proceed in their daily
      business. [90 C o n g r e s s io n a l R e c o r d 3059-3061 (1944) (em­
      phasis added.)]
 Turning from the legislative history to the statutory text itself, we note
 that the language Senator Russell chose to adopt in framing his proposal is
 peculiarly apt if we accept the view that he had “ action agencies” in mind.
The language is less appropriate if we assume that there was a larger pur­
 pose behind it. In common legal parlance an “ agency” or “ instrumental­
ity” is an entity or means through which a principal acts or exerts power.
An individual or group that advises the Government but does not act on
the Government’s behalf or exert governmental power is not an “ agency”
or “ instrumentality” o f Government in that limited sense. To be sure,
these words can be read more expansively. The text could be construed to
refer to any entity established by the Government for a governmental
purpose—any “ establishment” or division within the Government,
whether or not it acts on behalf of the Government or exerts any govern­
mental power. But when a statutory text is open to more than one con­
struction, we should consult other materials to determine what was in­
tended; and, as we have said, when one consults the legislative history of
the Russell amendment, one finds a very substantial basis for the conclu­
sion that Senator Russell was concerned, not with advisory dr other an­
cillary processes, but with the unauthorized exercise of actual governmen­
tal power by agencies not created or authorized by Congress. That history
supports a technical and limited construction of the critical language.
   This brings us to the second argument that supports the position taken
by OMB. Whether or not one assumes that the Russell amendment was
originally intended to apply to nonstatutory advisers or advisory groups,
the Federal Advisory Committee Act has intervened. It has specifically

                                     266
 authorized the creation of purely advisory committees; it has provided
 that they may have a 2-year life; and it has contemplated, and made provi­
 sion for, the practice of using agency funds to support advisory commit­
 tees. Accordingly, if indeed agency funds may otherwise be lawfully ex­
 pended for such a purpose, there is no longer any reason, under the
 Russell amendment, to bar an expenditure of funds in support of an ad­
 visory committee merely because the committee has been in existence for
 more than 1 year. To that extent, either the Federal Advisory Committee
 Act has superseded the Russell amendment in its application to purely ad­
 visory committees, or the Act has brought advisory committees within that
 class of entities to which Senator Russell had no objection: entities that ex­
 ist by virtue of statutory authority.
    It would be possible to construe these statutes in another way. Implied
 repeals are disfavored. Standing alone and strictly construed, the Russell
 amendment applies to any agency or instrumentality, whether or not the
 existence of the agency or instrumentality is authorized by statute; and so
construed, the Russell amendment could be interpreted as imposing an
across-the-board requirement for additional, “ specific” authorization for
any expenditure of money by or for any agency or instrumentality
whenever the agency or instrumentality has been in existence for 1 year.
We doubt, however, that such a broad construction would be true to the
underlying legislative purpose. Given that purpose, if (1) an agency or in­
strumentality performs functions that are indeed authorized by statute and
(2) a law or appropriation makes funds available for the support of such
functions, the Russell amendment should not be interpreted as imposing
additional, “ specific” authorization requirements merely because the
agency or instrumentality has been in existence for 1 year. If the function
is authorized, the only real question is the one that is always present, no
matter how old or young the agency may be: are the funds in question ac­
tually available for support of that function?
    This appears to be the approach that the Comptroller General has taken
in matters involving issues of this kind,2 and it is a reasonable one. If


   2 For example, in his opinion on agency funding o f the National Commission on the
Observance o f International W om en’s Year (B-182398, January 13, 1977), the Com ptroller
General attributed no significance whatever to the fact that some o f the funds were used to
support activities conducted during the first year o f the Commission’s existence, while others
were used for activities in the second year. The legal question was the same in either case:
whether the agency in question was authorized to expend funds to support functions o f the
kind that the commission perform ed. Thus, in the case o f the Departm ent o f State, the
Comptroller General found sufficient authority for an expenditure in support o f the commis­
sion in the Departm ent o f State’s general statutory duty to “ provide for the participation by
the United States in international activities * • * for which provision has not been made by
the terms o f any treaty, convention, or Special Act o f Congress * * • [and] * * * pay the
expenses o f participation in [such] activities * •         22 U.S.C. § 2672. N othing more
“ specific” was required. In the case o f other agencies, the Com ptroller General found insuf­
ficient authority under the statutes the agencies administered.

                                            267
function is authorized by statute, and there is authorization for the
expenditure of funds to support such a function, the Russell amendment
does not require a more “ specific” authorization merely because the
agency or instrumentality may be more than 1 year old.

                                 M   ary   C. Law   ton

                         Deputy Assistant Attorney General
                                             Office o f Legal Counsel




                                268
