Off-the-Record Ex parte Communications
Even though performing casework is an important congressional duty, it is not totally unrestricted. Federal law specifically prohibits certain off-the-record comments, known as ex parte communications, directed to executive or independent agency officials on the merits of matters under their formal consideration.6 Whenever parties to a dispute come before a formal tribunal, they are entitled to a fair, impartial hearing and to equal access to the fact-finder. The ex parte rule is designed to preserve the due process rights of all parties to administrative proceedings.
An ex parte communication is an oral or written communication made without proper notice to all parties and not on the public record, from an interested person outside the agency to a member of the agency, an administrative law judge, or an employee involved in the decision-making process.7 Since 1976, the “Government in the Sunshine Act” has prohibited anyone from making an ex parte communication to an administrative agency decision-maker concerning the merits of an issue that is subject to formal agency proceedings.8 This broad prohibition encompasses the statements of Members and employees of Congress acting on behalf of constituents.
Formal agency proceedings generally include those of a quasi-adjudicatory (or trial-type) nature and those rulemaking proceedings that must include formal hearings and a decision on the record. The legislative history of the Government in the Sunshine Act shows that “[t]he prohibition only applies to formal agency adjudication. Informal rulemaking proceedings and other agency actions that are not required to be on the record after an opportunity for a hearing will not be affected by the provision.”9 Thus, a House Member or employee may undertake communications to an agency on behalf of a constituent concerning those matters not subject to formal agency proceedings. Development of agency policy and establishment of budgetary priorities are examples of areas in which Members of Congress are generally free to voice their own views or to forward those of their constituents. Agencies often ask for public comment on proposed regulations. Representatives, like other members of the public, may clearly contribute their opinions.10 It should be noted that some communications, even if related to a matter not then in a formal agency proceeding, may become part of the public record concerning that matter if the communication forms the basis of subsequent formal action, particularly one involving competing claims to a valuable privilege.11
The proscription against ex parte communications does not extend to “general background discussions about an entire industry which do not directly relate to specific agency adjudication involving a member of that industry, or to formal rulemaking involving the industry as a whole.”12 The statute specifically exempts congressional status requests.13 As stated in a House report on the Government in the Sunshine Act: “While the prohibitions on ex parte communications relative to the merits apply to communications from Members of Congress, they are not intended to prohibit routine inquiries or referrals of constituent correspondence.”14
Both the House and Senate reports recognized the possibility that a request for background information or a status report “may in effect be an indirect or subtle effort to influence the substantive outcome of the proceedings.” Thus in doubtful cases, agency personnel may treat these requests as ex parte communications “to protect the integrity of the decision-making process.”15 One way to avoid violating the statutory prohibition is to put all communications with agencies in writing and to request that they be made a part of the record, available to all interested parties.
Example 1. After taking testimony in a formal, contested proceeding under Federal Acquisition Regulations, an agency official is about to decide which of two competing bidders will be awarded a contract. It would be an improper, ex parte communication for Member A to call up the official and suggest that one of the two competitors receive the award.
Example 2. In the same circumstances as Example 1, it would be proper for Member A to put his views in writing, as part of the formal record, under established agency procedures.
Example 3. A constituent company in Member B’s district has been awaiting a decision for some time in a formal agency proceeding. Member B may contact the agency seeking information regarding the status of the proceeding and urging prompt consideration of the company’s claim.
Example 4. A constituent company in Member C’s district has been awaiting a decision for some time in a formal agency proceeding. Member C has received information on the status of the proceeding from the agency’s congressional liaison officer. A call later that day from Member C to the head of the agency, asking for the same information, could be viewed as an attempt to influence the outcome. C should refrain.
6 5 U.S.C. § 557(d).
7 5 U.S.C. § 551(14).
8 See 5 U.S.C. § 557(a), (d).
9 Senate Comm. on Gov’t Operations, Government in the Sunshine Act, Report to Accompany S. 5, S. Rep. 94-354, 94th Cong., 1st Sess. 35 (1975); see also Government in the Sunshine Act, S. Conf. Rep. 94-1178, 94th Cong., 2d Sess. 29 (1976).
10 In addition, the “Congressional Review Act” requires formal congressional review of agency rules. Under the Act, agencies are required to submit proposed rules to the House and Senate for review by each Committee with appropriate oversight jurisdiction. Agency rules may be disapproved by joint resolution. 5 U.S.C. § 801 et seq.
11 See Home Box Office, Inc. v. FCC, 567 F.2d 9, 57 (D.C. Cir.) (“information gathered ex parte from the public which becomes relevant to a rulemaking will have to be disclosed at some time”), cert. denied, 434 U.S. 829 (1977); see also Action for Children’s Television v. FCC, 564 F.2d 458, 474-77 (D.C. Cir. 1977).
12 House Comm. on Gov’t Operations, Government in the Sunshine Act, H. Rep. 94-880, 94th Cong., 2d Sess., pt. I, at 20 (1976).
13 5 U.S.C. § 551(14); see S. Conf. Rep. 94-1178, supra note 9, at 29.
14 H. Rep. 94-880, supra note 12, pt. I, at 21-22.
15 Id. at 21; see also S. Rep. 94-354, supra note 9, at 37.