    Negotiated Sale of Foreign Gifts to Members of Congress

T he General Services Administration is authorized to negotiate the sale of gifts from
   foreign governments to their original recipients, including Members of Congress, not­
   withstanding the general prohibition against public contracts with Members of Con­
   gress in 18 U.S.C. §§431 and 432.

                                                                                         June 8, 1981
   MEMORANDUM OPINION FOR THE GENERAL COUNSEL,
        GENERAL SERVICES ADMINISTRATION

   I am responding to your request for this Office’s opinion as to the
legality of a proposed negotiated sale to Members of Congress of gifts
given to those Members by foreign governments. As the terms of the
sale are explained in your letter, we conclude that your proposal would
not violate 18 U.S.C. §§ 431 or 432.
   According to your letter, GSA proposes a two-stage sale of certain
gifts that were given to employees of the U.S. government by foreign
governments. The first stage is a negotiated sale of the gifts to their
original recipients, under 41 C.F.R. 101-49.401 (1980), for a price to be
set by independent appraisal. The second stage will be a sale by public
advertising of those gifts not purchased by their original recipients
through a negotiated sale. It is clear, in general, that the negotiated sale
of foreign gifts to their original recipients is expressly authorized by 5
U.S.C. § 7342(e).1 Your question, however, is whether this authority
extends to negotiated sales to Members of Congress given the general
prohibitions against public contracts with Members of Congress that
appear in 18 U.S.C. §§431 and 432.
   In relevant part, 18 U.S.C. §431 prohibits certain public contracts
with Members of Congress, as follows:
            Whoever, being a Member of or Delegate to Congress,
          or a Resident Commissioner, either before or after he has
          qualified, directly or indirectly, himself, or by any other
          person in trust for him, or for his use or benefit, or on his

   1Section 7342(e) was amended to authorize negotiated sales by §515 o f the Foreign Relations
Authorization A ct, Fiscal Year 1978, Pub. L. No. 95-105, 91 Stat. 862 (1977). That section first
appeared only in the Senate version of the Act, but was adopted by the conference committee. Both
the Senate committee report and the conference report on the proposed A ct specifically refer to the
possibility that a negotiated sale m ight be to the original recipient o f .the foreign gift S. Rep No. 194,
95th Cong., 1st Sess. 30 (1977), H .R . Rep. No. 537, 95th Cong., 1st Sess. 40 (1977).

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      account, undertakes, executes, holds, or enjoys, in whole
      or in part, any contract or agreement, made or entered
      into on behalf of the United States or any agency thereof,
      by any officer jor person authorized to make contracts on
      its behalf, shall be fined not more than $3,000.
Section 432 of Title 18 imposes criminal penalties on any officer or
employee of the United States who, on behalf of the United States,
“directly or indirectly makes or enters into any contract, bargain, or
agreement” with any Member of Congress. These prohibitions, in turn,
are subject to a number of exceptions specified in 18 U.S.C. §433. In
relevant part, § 433 provides:
        Sections 431 and 432 o f this title shall not extend to any
      contract or agreement made or entered into, or accepted
      by any incorporated company for the general benefit of
      such corporation; nor to the purchase or sale o f bills of
      exchange or other property where the same are ready for
      delivery and payment therefor is made at the time o f making
      or entering into the contract or agreement.
(Emphasis added.)
   As your letter points out, the proposed negotiated sales of foreign
gifts would fall within the letter of the emphasized language of § 433
because the gifts would be ready for delivery at the time of sale, and
payment would be made for the gifts at that time. Thus, reading § 433
on its face, the negotiated sale of foreign gifts to the Members of
Congress who originally received them, like the negotiated sale of such
gifts to other government employees, would appear to be authorized by
5 U.S.C. § 7342(e) and permitted by 18 U.S.C. §433. On this basis, your
own conclusion is that such sales are legally permitted.
   Your evident concern, however, is that, although these sales would
fall within the literal terms of § 433, the fact that the proposed sales
would be negotiated with Members of Congress prior to public adver­
tising might possibly give rise to the appearance of the kind of potential
abuse that gave impetus to the enactment of 18 U.S.C. §§431 and 432.
It might be argued, for example, that § 433 was intended only to permit
sales of government property to Members of Congress when such
property is offered on like terms to all members of the public generally,
e.g., the sale of postage stamps to all members of the public by U.S.
Post Offices. Putting aside the question whether this possibility might
ever suggest, as a matter of policy, that negotiated sales with Members
of Congress should not be preferred, we agree with you, as explained
below, that 18 U.S.C. §§431-433 do permit, as a matter of law, the
kind of negotiated sales you propose.
   Our primary reason for this conclusion is the literal language of 18
U.S.C. § 433. The plain language of a statute is ordinarily the best
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evidence of what its drafters intended; indeed, in this instance, the
recorded legislative deliberations concerning the Act do not shed any
light on the A ct’s meaning or purpose.2 Furthermore, because the
statutes here in question are criminal statutes, it would pose well-
recognized problems of fairness, perhaps of constitutional dimension, if
a greater scope for the statutes were to be inferrred from considerations
not apparent on their face. Busic v. United States, 446 U.S. 398, 406
(1980); United States v. Bass, 404 U.S. 336, 347-48 (1971) and cases
there cited; United States v. Mandel, 415 F. supp. 997, 1022 (D. Md.
1976).
   Finally, although, under your proposal, the Members of Congress
who originally received the gifts in question would enjoy a “right of
first refusal” not common to all members of the public, we do not
believe, in any event, that your proposal portends the kind of abuse that
18 U.S.C. §§431 and 432 contemplate. The evident purpose of these
statutes, as interpreted in two early formal opinions of the Attorney
General,3 is to avoid the potential for Members of Congress and em­
ployees of the Executive Branch to exert corrupt influence over one
another. In this case, the “negotiation” of a sale of foreign gifts would
not raise a significantly greater potential for corruption than any other
form of sale because no bargaining is to occur between the Members of
Congress and GSA. Instead, the price to be paid for each gift is to be
determined by an independent appraisal; the price will be the appraised
value, plus the cost of the appraisal. 41 C.F.R. § 101-49.401 (1980). This
establishes a strong safeguard against improper influence on either side.
   On this basis, we conclude that the negotiated sale of foreign gifts to
their original recipients who are Members of Congress is authorized by
5 U.S.C. § 7342(e),4 and that these sales will involve no violations of 41
U.S.C. §§431 or 432.
                                                              L a r r y L . S im m s
                                                   Deputy Assistant Attorney General
                                                       Office o f Legal Counsel




    2T he relevant provisions now contained in 18 U.S.C. §§431-433 were first enacted in the A ct of
Apr. 21, 1808, ch. 48, 2 Stat. 484. See 17 Annals o f Cong. 155-56, 161, 163-64, 171, 178, 330-32, 368-
69 (1807-08); 18 Annals of Cong. 1509, 1613, 1618-19, 1719-22, 2080, 2173-75 (1808).
    3 "T he object o f the statute is only to prevent jobbing between members of the legislature and the
Executive, for the pecuniary advantage of the former.” 4 Op. A tt’y Gen. 47, 48 (1842); “The policy of
the law is to prevent the exercise of executive influence over the members of Congress by the means
o f contracts . . .     2 Op Att’y Gen. 38, 40 (1826).
    4It is clear from the legislative history o f the Foreign Relations Authorization Act, Fiscal Year
1978, that Congress was aware that the new §7342 would govern the disposition o f foreign gifts to
Members of Congress. See 123 Cong. Rec. 26,532-35 (1977) [House debate on conference report]. We
express no views, however, w hether, if we viewed the sales you propose as within the purview o f 18
U.S C. §§431 and 432, 5 U.S.C. § 7342(e) should be construed as a pro tanto implied repeal o f those
prohibitions.
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