Applicability of 18 U.S.C. § 208 to National Gambling Impact Study Commission

Opinion

Applicability of 18 U.S.C. § 208 to National Gambling Impact Study Commission

T he N ational G am bling Im pact Study C om m ission is not an “ independent” agency for purposes o f a crim inal conflict o f interest statute, 18 U.S.C. § 208.

January 26, 1999

M em orandum O p in io n f o r t h e A c t in g G eneral C ou nsel

G eneral S e r v ic e s A d m in is t r a t io n

You have asked whether a criminal conflict of interest statute, 18 U.S.C. §208 (1994), applies to the National Gambling Impact Study Commission (“ Commis­ sion” ).1 The Commission was established by the National Gambling Impact Study Commission Act (“ Act” ), Pub. L. No. 104—169, §3(a), 110 Stat. 1482 (1996) (codified as amended at 18 U.S.C. § 1955 note (Supp. IV 1998)), in order to “ con­ duct a comprehensive legal and factual study of the social and economic impacts of gambling in the United States.” Id. § 4(a)(1). The Commission consists o f nine members, of whom six are appointed by Congress (three by the Speaker of the House and three by the Majority Leader of the Senate), and three are appointed by the President. Id. § 3(b)(l)(A)-(C). The appointing authorities are to consult among themselves to ensure that the Commission’s membership reflects, “ to the maximum extent possible, fair and equitable representation of various points of view” with respect to the Commission’s inquiry. Id. § 3(b)(3). The congressional leadership also has the predominant role in selecting the Chair of the Commission. Id. § 3(b)(5)(A). The Commission’s responsibilities are investigatory and advisory: not later than two years after its first meeting, it must submit to the President, Congress, State governors and Native American tribal governments “ a com­ prehensive report of [its] findings and conclusions, together with any recommenda­ tions” it may decide to make. Id. §4(b). The Commission has powers to hold hearings, issue subpoenas, secure information directly from Federal agencies, employ personnel and contract with the Advisory Commission on Intergovern­ mental Relations and the National Research Council. Id. §§5, 6, 7. Sixty days after submitting its final report, the Commission is to terminate. Id. § 10.

Section 208 was enacted in 1962 as part of a general revision of the conflict of interest laws. Pub. L. No. 87-849, § l(a), 76 Stat. 1119, 1124 (1962). In gen­ eral, 18 U.S.C. § 208(a) provides that, subject to certain exceptions, “ whoever, being an officer or employee of the executive branch of the United States Govern­ ment, or of any independent agency of the United States . . . participates person­ ally and substantially as a Government officer or employee, . . . [in a] particular matter in which, to his knowledge, he . . . has a financial interest,” shall be 1 S ee L e tte r for D aw n Johnsen, A cting A ssistant A ttorney G eneral, O ffice o f L eg al C ounsel, fro m Em ily C . H ew itt, G eneral C ounsel, G eneral S ervices A dm inistration (N ov. 7, 1997) ( “ G SA L etter” )

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subject to the criminal and civil penalties provided in §216 of title 18. We have previously concluded that the Commission is not within the executive branch.2 Thus, the sole substantive question to be considered here is whether the Commis­ sion is an “ independent” agency for purposes of § 208.3 We conclude that it is not. Although the reach of §208’s reference to “ inde­ pendent” agencies is not clear, and the legislative history is unhelpful (see Part I.A below), the Commission falls outside any likely construction of that section. As we discuss in Part I.B below, the Commission does not resemble the agencies whose “ independence” from Presidential control was upheld by the Supreme Court in two major cases that preceded the enactment of §208 — Humphrey’s Executor v. United Statesk, 295 U.S. 602 (1935), and Wiener v. United States, 357 U.S. 349 (1958). Nor, as we discuss in Part I.C below, do the Commissioners enjoy any form of protection from removal under the Act — and tenure protection is, for many purposes, a recognized test of “ independence.” Finally, as we discuss in Part II below, there is no other affirmative evidence, whether in the text of the Act or otherwise, that Congress intended the Commission to be regarded as “ independent” for purposes of § 208.

I.

Section 208 applies to “ an officer or employee of the executive branch of the United States Government, or of any independent agency of the United States.” 18 U.S.C. § 208(a). There are at least two possible explanations for Congress’s decision to distinguish between the executive branch and “ independent” agencies in this context.

First, Congress may have intended § 208 to reach all agencies of the Govern­ ment other than those within the legislative or judicial branch. “ [Independent” agencies on this account would be those agencies that, under the Supreme Court’s older jurisprudence, might have been considered to be “ hybrid” agencies, outside the executive branch and performing “ quasi-legislative” or “ quasi-judicial” func­ tions.4 Under present Supreme Court doctrine, such “ independent” agencies are

2 S ee L e tte r for M s. K ay C o le Jam es, C hairperson, N ational G am blin g Im pact Study C om m ission, from R ichard L. S h iffrin , D e p u ty A ssistant A ttorney G eneral, O ffice o f Legal C ou n sel (A ug. 13, 1997). In su p p o rt o f th at co n c lu ­ sio n , w e o b serv ed that th e m ajority of the C o m m issio n ers w ere congressio n ally appointed; that the congressional le ad ersh ip co n tro lle d the ch o ice o f the C om m ission’s C hair; and th a t the C om m ission carried o u t only inform ationg ath erin g an d ad visory functions, w hich need n o t be perform ed b y the ex ecu tiv e branch. Id at 1 W e fu rther po in ted o ut th a t “ [u ]n d er th e D ep artm en t’s precedents, w e regard such com m issio n s as o u tsid e the ex ecu tiv e branch. . . . In d eed , even w h ere th e con g ressio n al leadership appoints less than a m ajority o f m em bers, a com m ission su ch as [this] m ay b e o u tsid e th e e x e cu tiv e branch.” Id. (citing precedents). W e rem ain persuaded that the C om m ission is o u tsid e th e e x e cu tiv e branch.

3 T h e C o m m issio n is un d o u b te d ly an “ ag e n cy ” w ithin the “ exp an siv e d efin itio n ” o f 18 U S.C . § 6 , w hich d efines “ a g e n c y ” fo r p u rp o ses o f title 18 to include “ any . . c o m m issio n .” M em orandum O pinion f o r the C o m p tro ller G en era l o f th e U n ite d S ta te s' C onflict o f Interest — 18 U .S C. § 2 0 7 — A pp lica b ility to the G en era l A cco u n tin g O ffice, 3 O p . O L .C 433, 4 3 4 (19 7 9 ) ( “ G A O O pinion” )

4 T h is h as o ften b een ch a ra cte rized as the v iew that there is “ a headless ‘fourth b ran ch ’ o f g o vernm ent co n sistin g o f in d e p e n d e n t agencies having significant d u tie s in both th e legislative and executive b ran ch es b ut residing not en tire ly w ith in e ith e r.” A m eron, In c v U S A r m y C orps o f E ngineers, 787 F 2 d 875, 886 (3d C ir. 1986). S e e also

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Applicability o f 18 U.S.C. §208 to National Gambling Impact Study Commission

considered to be parts of the executive branch, although the President’s powerto remove agency heads may be restricted in certain ways. See Morrison v. Olson, 487 U.S. 654, 689-91 (1988) (interpreting cases on tenure protection for officials of independent agencies as hinging on whether protection impaired President’s duty to execute the laws). Congress could have understood the term “ independent agency” in 1962, however, to refer to agencies that we would now consider to be part of the executive branch. On that understanding, § 208 would apply to the executive branch, including agencies within the executive whose heads enjoy some degree of protection from presidential removal, and that may have been viewed in 1962 as outside the executive branch;5 but it would not apply to the legislative or judicial branches.

Alternatively, in referring to “ independent” agencies, Congress may have been recognizing the possibility that some agencies could be regarded as “ inde­ pendent” even while being firmly located within a particular branch. On this reading, §208 would reach not only “ independent” agencies within the executive branch but also any such agencies within the legislative or judicial branches.6 The pre-1962 case law had at least occasionally noted that in order to be “ inde­ pendent,” an agency might need to be protected from congressional, as well as executive, control.7 Moreover, the cases had also suggested that an agency might be, for at least some purposes, “ independent,” while yet belonging to a particular branch.8 Consequently, in applying §208 to “ independent” agencies, Congress id at 892 (B ecker, J , concurring in part); Federal T rade C o m m ‘n v R ubero id C o , 343 U S 470, 487 (1952) (Jack ­ son, J , dissenting).

5 Thus, w e have no doubt that agencies such as the Federal T ra d e C om m ission ( “ F T C ” ), w hich H u m p h rey 's E xecu to r stated “ cannot in any proper sense be characterized as an aim o r an eye o f the ex e cu tiv e ,” 295 U S. at 628, should now be regarded as part o f th e executive branch 6 W e note that the C ourt seem s usually to have understood “ independen t” agencies — for purp o ses o f separation o f pow ers an a ly sis— n o t to encom pass agencies w ithin the legislative or jud icial branches T h u s, the C ourt has said that “ independent” agencies are those w hose statutes “ typically specify eith er that . . . ag en cy m em bers are rem ovable by the P resident for specified causes [such as the FTC] . . or else d o not specify a rem oval pro ced u re [such as the Federal E lection C o m m ission].” B ow sher v. S yn a r, 478 U .S. 714, 725 n.4 (1986) By contrast, a statu te “ that provides for d irect congressional involvem ent o v e r th e decision to rem o v e” the agency head creates an en tity that is not generally an “ independent ag e n cy ” in the constitutional sense. S ee id. T h u s, at least in B ow sher, the C ourt seem ed reluctant to view the C om ptroller G eneral as an “ independent ag e n cy ” for constitutional purposes Such a view w ould not negate the possibility o f considering the C om ptroller G en eral to be “ in d ep en d en t” w ithin the m eaning o f § 2 0 8 — a possibility that w e exam ine in Part I.C below . An agency m ight count as “ in d ep en d en t” un d er a particular statutory schem e w ithout necessarily being “ independent” in the constitutional sen se 7 F or exam ple, W illiam s v. U nited States, 289 U S . 553 (1933), addressed the q u estion w hether a ju d g e o f the C o u rt o f C laim s (a “ le g islativ e” o r “ A rticle I” court) enjoyed the tenure protection afforded to constitutional courts by A rticle 111, Section 1 o f the C onstitution A lthough denying that C ourt o f C laim s ju d g e s enjoyed such constitutional tenure, the S uprem e C o u rt observed that “ [t]he preservation o f [the C ou rt o f C la im s’] independence is a m atter o f public concern T he sole function o f th e court being to decide betw een the g overnm ent and private su ito rs, a condition, on the part o f the ju d g e s, o f en tire dependence upon the le gislative p lea su re fo r the ten u re o f th eir o ffices . . . to say th e least, is not d esira b le.” Id. at 562 (em phasis added).

8 S ee Lathrop v. D onohue, 367 U S 820, 853 (1961) (H arlan, J , concurring in ju d g m en t) (B ureau o f the B udget is “ in dependent” although w ithin the executive branch). S ee also D obson v C om m issioner, 3 2 0 U S 489, 497 (1943) (B oard o f T ax A ppeals w as statutorily designated as “ an independent ag en cy in the ex ecu tiv e branch o f the G o v ernm ent” ); R a ilro a d R etirem ent Bd. v A lton R. C o , 295 U.S 330, 344 (1935) (R ailroad R etirem ent B oard w as “ denom inated an independent agency in the executive branch o f the G o v ern m en t” ), G oldsm ith v. U nited S ta tes C o n tinued

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could have had in view those agencies, whether belonging to the executive, legis­ lative or judicial branch, that enjoyed at least some freedom from the control of higher authorities within that branch by virtue of protections against the removal of the agencies’ heads. As discussed below, this account of Congress’s intent has found support in this Office’s prior opinions.

We do not believe it is necessary in this memorandum to decide between these alternative readings, because the Commission does not count as “ independent” under either of the alternatives we describe. Furthermore, as we discuss below, there is no evidence that Congress intended it to be considered “ independent.”

A.

We begin by reviewing the legislative history of § 208. We have found little relevant history on the precise point at issue, and what little history there is sheds almost no light on it.

“ Section 208 was modeled on the former section 434 of title 18, which ‘disqualified] an employee of the Government who has an interest in the profits or contracts of a business entity from the transaction of business with such entity.’ ” Applicability o f 18 U.S.C. §208 to the Federal Communications Commission’s Representative on the Board o f Directors o f the Telecommuni­ cations Development Fund, 21 Op. O.L.C. 96, 98 (1997) (citation omitted). Sec­ tion 434 had made no express reference to independent agencies. That reference originated in the general reform o f the major federal conflict of interest statutes made by the Bribery, Graft and Conflicts of Interest Act of 1962, Pub. L. No. 87-849, 76 Stat. 1119. The legislation represented Congress’s response to the perception of several serious inadequacies in those statutes (including §434), among them the fact that they were ‘‘drafted in unnecessarily broad and imprecise ways,” thus creating “ uncertainties as to proper conduct and, to a degree, incon­ sistent practices among the departments and agencies of the Government.” Con­ flict o f Interest Statutes: Intermittent Consultants or Advisers, 42 Op. Att’y Gen. I l l , 112 (1962) (Kennedy, A.G.).

While the reference in §208 to “ independent” agencies as well as to the “ executive branch” may have been designed to make the statutory coverage more precise, we have found no explanation of what Congress specifically intended. The House Report on the 1962 law describes § 207(a) (and §§208 and 209) as applying to officers and employees of the ‘executive branch’ or an ‘independent agency,’ without further elaboration. See, e.g., H.R. Rep. No. 748, 87th Cong., 1st Sess. 11, 12, 13, 23, 24 (1961). The Senate Report describes §§207, 208 and 209 as applying to present and former government employees only in very general terms. See S. Rep. No. 2213, 87th Cong., 2d Sess. (1962), reprinted in

Bd. o f T ax A p p e a ls, 2 7 0 U .S 117, 121 (1 9 2 6 ) (Board o f T ax A ppeals perform ed “ q u asi ju d ic ia l” functions and w as w ithin e x e cu tiv e branch).

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1962 U.S.C.C.A.N. 3852. Applicability o f Post-Employment Restrictions on Dealing with Government to Former Employees o f the Government Printing Office, 9 Op. O.L.C. 55, 56 n.3 (1985) (“ GPO Opinion” ). A legal commentator of the time (and participant in the framing of the legislation) observed that §§ 207- 209 were to apply to officers and employees of independent agencies as well as of the executive branch, but offered no explanation for this innovation. See Roswell B. Perkins, The New Federal Conflict-Of-Interest Law, 76 Harv. L. Rev. 1113, 1123 (1963).9

B.

Given that the legislative history of § 208 is unilluminating, we have considered an interpretative approach that draws on the Supreme Court’s pre-1962 jurispru­ dence. This approach is based on the rule of construction that “ [w]hen Congress codifies a judicially defined concept, it is presumed . . . that Congress intended to adopt the interpretation placed on that concept by the courts.” Davis v. Michigan D ep’t o f Treasury, 489 U.S. 803, 813 (1989).

At the time of §208’s enactment in 1962, two major Supreme Court cases on “ independent” agencies, Humphrey’s Executor and Wiener, had addressed the constitutionality of statutory limitations on the power of the President to remove agency heads or commissioners. Those cases could serve to explain how §208’s reference to “ independent agencies” should be construed.

In Humphrey's Executor, the Court upheld a statute restricting the President’s power to remove a Commissioner of the FTC on grounds of “ inefficiency, neglect of duty, or malfeasance in office.” 295 U.S. at 619. The Court held that the constitutionality of such removal restrictions turned on “ the character of the office.” Id. at 631. The Court viewed the FTC as “ an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid.” Id. at 628. Such an agency was not “ an arm or an eye of the executive” ; rather, its Commissioners were expected to discharge their functions “ without executive leave and . . . free from executive control.” Id. The powers of the FTC were not “ purely” executive,

9 W e note also that, in 1989, C ongress enacted 18 U S C § 202(e)(1) (1994), w hich provided a defin itio n o f “ executive b ran ch ” ap p licab le to § 2 0 8 Ethics R eform A ct o f 1989, Pub. L N o 101-194, § 4 0 1 , 103 S tat. 1716, 1748. T he definition reaches any “ entity o r adm inistrative unit in th e executive b ran ch ,” but d o es not sp ecifically m ention “ independent ag e n cy ,” w hich is not otherw ise defined. A rguably, som e en tities p reviously covered b y § 208 as “ independent a g e n c [ie s]” w ere, after the am endm ent, covered (in addition o r instead) by the reference to the “ executive branch ” W e do not believe that the am endm ent requires giving the term “ independent ag e n c y ” in § 2 0 8 a broader m eaning than in our analysis, on the ground that otherw ise all “ independent ag en c[ies]” w ould com e w ithin the refere n ce to the “ executive b ran ch ” and the term “ independent agency” w ould be red u n d an t First, there is no evidence indicating that, by defining “ executive b ra n c h ,” C o n g ress intended to enlarge th e ex ten t to w hich § 2 0 8 reaches entities outside the executive branch. Second, if the referen ce is redundant, that m ay m erely reflect C o n g ress’s appreciation o f the changes in the S uprem e C o u rt’s ju risp ru d en ce m arked b y its 1987 d ecision in M orrison T hird, as w e discuss in Part I.C below , som e entities o utsid e the ex ecu tiv e branch could be covered as “ independent agencfies] ”

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but were “ quasi-legislative or quasi-judicial.” Id. Insofar as the FTC conducted investigations and reported its findings to Congress, it was acting in a quasi-legislative capacity; insofar as the statute required it to function as a master in chan­ cery, it was acting quasi-judicially. Id. 10 Wiener followed H umphrey’s Executor’s “ sharp line of cleavage between offi­ cials who were part of the executive establishment” and “ those who are members of a body ‘to exercise its judgment without the leave or hindrance of any other official or any department of the government,’ 295 U.S., at 625-626, as to whom a power of removal exists only if Congress may fairly be said to have conferred it.” 357 U.S. at 353. The Court applied that distinction to the President’s removal of a member of the W ar Claims Commission.11 Although the statute creating that body said nothing about removal, the Court inferred that “ Congress provided for a tenure defined by the relatively short period of time during which the War Claims Commission was to operate.” Id. at 352. Looking to “ the nature of the function that Congress vested in the War Claims Commission” to decide whether such an implied removal restriction was valid, id. at 353, the Court found that that agency had been created as “ an adjudicating body with all the paraphernalia by which legal claims are put to the test of proof, with finality of determination ‘not subject to review by any other official of the United States or by any court by mandamus or otherwise.’ ” Id. at 354-55 (citation omitted). Because the intent of Congress was to vest the W ar Claims Commissioners “ with adjudicatory powers that were to be exercised free from executive control,” Morrison, 487 U.S. at 688, the implied statutory removal restrictions were constitutional.

The Supreme Court’s recent case law casts doubt on the viability of the doctrinal categories used in Humphrey's Executor and Wiener. In particular, the Court now recognizes the “ difficulty of defining such categories of ‘executive’ or ‘quasi­ legislative’ officials,” Morrison, 487 U.S. at 689 n.28.12 Moreover, this Office has found the rationale of Wiener “ questionable.” 13 Nonetheless, the question here is what Congress intended in 1962 when enacting §208, not whether the

10S e e a lso M o rriso n , 487 U .S . at 687 (ex p lain in g H u m p h rey 's E xecutor) ; P ow er o f the P resident to Rem ove M e m b ers o f th e T ennessee V alley Authority F rom O ffice, 39 O p A tt’y G en. 145, 146 (1938) (Jackson, A cting A .G.) (H u m p h r e y ’s E x e c u to r rested on facts that th e F T C “ exercises quasi-leg islativ e and quasi-judicial fun ctio n s and is n o t a p art o f th e ex e cu tiv e b ra n c h ” , Court a ls o stressed leg islativ e history “ m dicaung a p u rp o se o f th e C ongress to se c u re th e m a x im u m ind e p en d en ce of the C o m m issio n from E x ecu tiv e interference and co n tro l” ).

11 T h e W a r C laim s C o m m issio n w as established by the W ar C laim s A ct o f 1948, Pub. L. N o 8 0 -8 9 6 , 62 Stat 1240 Its re sp o n sib ility w as to h ea r and adjudicate certain claim s arising o ut o f enem y co n d u ct d u n n g the Second W o rld W ar.

]2S ee a lso R u b e ro id C o , 343 U .S at 487-88 (Jackson, J , dissenting) l3 77ie C o n s titu tio n a l Sep a ra tio n o f Powers betw een the P resid en t a n d C ongress, 20 O p O .L .C 124, 168 n 115 (1 9 9 6 ) ( “ D ellin g er M em o ra n d u m ” ). Specifically, w e said that “ [t]he rationale o f W iener, w hich is essen tially that C o n g ress m u st h av e im plied a for-cause rem oval restriction w hen th e Court believes that th e functions o f the agency d em an d such te n u re p rotection, 357 U.S at 3 5 3 -5 6 , seem s questionable. T h ere w ould be nothing illogical in a le g islativ e d ec isio n , fo r exam ple, to protect a g a in st review o r revision o f th e decisions o f th e agency, see id. 3 5 4 - 55, w h ile placin g th e ag e n c y ’s decisionm akers w ithin the control o f the P resident. . . T o the extent that W iener assu m es th a t co n tro l is and o u g h t to be a b in a ry m a tte r— eith er plenary o r non-existent — its reasoning is difficult to reco n c ile w ith m o re recen t separauon o f p o w ers decisions th a t reject su ch an either/or approach to presidential co n tro l. Id. W e n o ted , how ever, that Wiener “ co n tin u es to be fo llo w e d ” in th e lo w er courts Id.

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Applicability o f 18 U.S C. § 208 to National Gambling Impact Study Commission

Constitution admits the possibility of “ hybrid” agencies not belonging to any of the three branches. We think it plausible to suppose that in 1962, Congress would have understood a statutory reference to “ independent agencies” to mean agencies such as the FTC or the War Claims Commission, i.e., agencies that were not then considered to be part of the executive branch, or indeed of any of the three branches.

Assuming that such was Congress’s intent, we find that the Commission would not be an “ independent” agency under the standards of Humphrey’s Executor or Wiener. First, unlike the FTC or the War Claims Commission, the Commission exercises no functions that under Humphrey’s Executor and Wiener were consid­ ered to be adjudicatory in nature. Second, the Commission exists solely to conduct a-study and to report its findings and recommendations to Congress, the President, and State and tribal governments.14 Its responsibilities are “ essentially of an inves­ tigative and informative nature, falling in the same general category as those powers which Congress might delegate to one o f its own committees." Buckley v. Valeo, 424 U.S. 1, 137 (1976) (emphasis added). We think that the Commission functions much as a congressional committee does when conducting an investiga­ tion or drafting a legislative proposal based on the information it has gathered; indeed, it seems to us that, given its overall statutory structure, the Commission is a part of the legislative branch.15 It is therefore unlike the “ headless fourth branch” regulatory agency that Humphrey’s Executor took the FTC to be.

In summary: because Humphrey’s Executor and Wiener were assuredly “ within the lively knowledge of Congress” when §208 was enacted. Wiener, 357 U.S. at '353, we think that they provide a plausible test of what Congress intended when referring in that section to “ independent agenc[ies].” If that test is applied, then the Commission cannot be counted as “ independent.”

C.

The paucity of relevant legislative history relating to § 208 leaves open a second possibility: that an agency could be considered independent under the statute if, and only if, its head (or, in cases where the agency has a collective head, the members of that body) enjoys at least some degree of protection against removal from superior officials, whatever the branch to which the agency belongs. In other words, the Congress that enacted § 208 may have perceived some agencies as “ independent” even if they were located in a particular branch (rather than in a putative “ headless fourth branch” ), provided that they resembled the paradig­

14 “ T his com m ission does not have the pow er to regulate, only to m ake recom m endations It is a study co m m issio n , not a regulatory body ” 142 Cong. Rec. 17,421 (1996) (statem ent o f Sen G lenn).

15 A s discussed above, w e have previously concluded that the C om m ission is not w ithin th e executive branch. See su p ra note 2 W hat branch a com m ission m ay fall in depends on a n um ber o f factors W e do not m ean to suggest here that w henever a com m ission’s m ission is to conduct a study and to rep o rt its findings and reco m m en d a­ tions to C ongress that it is necessarily legislative rath er than executive

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matic independent agencies with respect to tenure protection. Accordingly, agen­ cies in the legislative or judicial branches, as well as in the executive, could be counted as “ independent” under §208. In fashioning this interpretation, we again consult the Supreme Court’s pre-enactment case law. We also find support for it in several of this Office’s precedents.

As construed by the Supreme Court only a year before § 208 was enacted, its precursor statute, 18 U.S.C. §434 (Supp. II 1946), was said to be designed “ to insure honesty in the Government’s business dealings by preventing federal agents who have interests adverse to those of the Government from advancing their own interests at the expense of the public welfare.” United States v. Mississippi Valley Generating Co., 364 U.S. 520, 548 (1961). The individual with whose conflicted activities the Court was most concerned in Mississippi Valley was a part-time consultant to the Bureau of the Budget (the precursor of the Office of Management & Budget). At the time, the Bureau of the Budget was apparently considered to be in some sense “ independent.” See Lathrop v. Donohue, 367 U.S. at 853 (Harlan, J., concurring in judgment); National F ed’n o f Federal Employees v. Cheney, 883 F.2d 1038, 1045 (D.C. Cir. 1989) (Bureau of Budget was “ quasi­ independent” entity within Treasury Department), cert, denied, 496 U.S. 936 (1990). Nonetheless, the Bureau of the Budget could not have been “ inde­ pendent” in the sense indicated by Humphrey’s Executor and Wiener, if only because the Treasury Department, where the Bureau had been lodged, was plainly within the executive branch.16 It is at least conceivable, therefore, that Congress intended § 208 to apply to certain agencies that were acknowledged to belong to a particular branch, provided that they had a sufficient resemblance to the con­ stitutional paradigms of “ independence.” In particular, since protection against removal has figured in the cases as the key element in defining agency “ independ­ ence,” an agency in the legislative or judicial branch could be “ independent” within the meaning of § 208 if its head enjoyed some form of tenure protection. Cf. Williams, 289 U.S. at 562.

Several of this Office’s opinions have reflected this possibility, finding that par­ ticular agencies were to be considered “ independent” for purposes of §208, despite the fact that they were situated within the legislative or judicial branches. To be sure, § 208 does not ordinarily apply to officers or employees of the legisla­ tive and judicial branches.17 Nevertheless, although an agency is within the legis­ lative or judicial branch, we have thought that it might still be considered ‘‘inde­ pendent” for purposes of § 208. Our opinions in this line are relevant to the status o f the Commission under § 208, insofar as it might be argued that the Commission

16 S ee P o w e r o f the P resid en t to Remove M e m b ers o f the T ennessee Valley A u th o rity F rom O ffice, 39 O p A tt’y G en at 146 (u n d er H u m p h r e y ’s Executor, o n ly an agency “ not a p art o f the ex ecu tiv e b ran ch ” could be considered in d e p en d en t fo r sep aratio n o f pow ers analysis).

17 S ee G P O O p in io n , 9 O p. O .L C at 5 6 (discussing leg islativ e history); G A O O pinion, 3 O p. O .L C . at 435 (§ 2 0 8 an d co m panion statutes “ do not by th e ir term s and w ere not intended to apply to officers and em ployees o f th e le g islativ e and ju d ic ia l branches” ).

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Applicability o f 18 U.S.C. § 208 to National Gambling Impact Study Commission

is an “ independent” agency in the legislative branch. As further discussed below, however, that suggestion ultimately lacks merit.

Three OLC opinions are relevant. First, in the GAO Opinion, we found that the GAO was, under §208, an “ independent” body not within the executive branch and arguably within the legislative branch. See GPO Opinion, 9 Op. O.L.C. at 57-58 (citing GAO Opinion, 3 Op. O.L.C. 433). The Comptroller General is removable “ not only by impeachment but also by joint resolution of Congress,” Bowsher v. Synar, 478 U.S. at 728, and consequently he or she is an officer of the legislative branch who “ may not be entrusted with executive powers.” Id. at 732. Nonetheless, it remains the case that the governing statute provides that Congress may remove that officer only for a cause such as inefficiency, neglect of duty, or malfeasance. Id. at 728—29. In the GAO Opinion, we analyzed the effect of the tenure protection enjoyed by the Comptroller General, together with other statutory provisions of title 31, on the status of that officer under §208. Without denying that the Comptroller General and the GAO are “ subservient to Congress,” 478 U.S. at 730,18 we found that the statute gave the Comptroller General some measure of “ independence” from Congress, so that GAO officers and employees were properly considered subject to § 208. We said:

The establishment of a fixed tenure of office, subject to removal for cause, has generally been regarded as intended to promote an element of independence of action. C f, Humphrey’s Executor v. United States, 295 U.S. 602, 624—26 (1935). Thus, while the Comp­ troller General and GAO are independent of the executive branch, they apparently are expected to be somewhat independent of the legislative branch as well. I therefore am led to conclude that what­ ever their status for other purposes, the Comptroller General and officers and employees of the GAO are officers and employees of an “ independent agency of the United States” for purposes of 18 U.S.C. § 207 — §§ 208 and 209 as well.

GAO Opinion, 3 Op. O.L.C. at 436.19 Second, in the GPO Opinion, we concluded that the GPO is not “ independent” for purposes of § 208. We reached that conclusion despite the fact that the Public Printer is presidentially appointed. Our analysis tracked the judicial view that the GPO is an entity within the legislative branch, whose primary function is to pro­ vide support for Congress. See GPO Opinion, 9 Op. O.L.C. at 57.20 The question

[* S ee a lso id. at 746 n .l 1 (S tevens, J., concurring in ju dgm ent) (C om ptroller Genera) and G A O “ h av e a fundam en­ tally different relationship w ith C ongress than do independent agencies like th e Federal T rad e C o m m issio n ” )

19In addition, w e note that form er 31 U S C §41 (a) (1921) (now 31 U .S.C . § 7 0 2 (a) (1994)),-specifically d eclared the G A O to be “ independent” o f th e executive. See G A O O pinion, 3 O p. O .L .C . at 436 20 W e have subsequently review ed the status o f the G P O at som e len g th , and h ave again found that it is an agency w ithin th e legislative branch See Involvem ent o f the G overnm ent P rinting O ffice in E xecutive B ranch Printing C ontinued

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o f the Public Printer’s tenure of office was not considered in this opinion, although our conclusion would have been fortified if it had been. The GPO’s statute, 44 U.S.C. §§301-317, vests appointment power of the Public Printer in the President (subject to Senate advice and consent), but is silent as to the Public Printer’s removal. By inference, therefore, the Public Printer can be removed at will by the appointing authority (i.e., the President), and does not enjoy tenure protection. See Dellinger Memorandum, 20 Op. O.L.C. at 172-73 (because the Librarian of Congress — like the GPO, a congressional agency — “ is not protected by an explicit for-cause removal limitation, . . . we therefore infer that the President has at least the formal power to remove the Librarian at will” ). Our conclusion as to the GPO can thus be read to provide some (indirect) support for the view that an agency in the legislative (or judicial) branch is ‘ ‘independent’’ for purposes of § 208 if, but only if, its head enjoys a degree of tenure protection.

A third opinion addressing the United States Sentencing Commission falls within this line. See Memorandum for Jamie Gorelick, Deputy Attorney General, from Teresa Wynn Roseborough, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Sentencing Commission/Conflict Rules at 14 (July 21, 1994) (“ Sentencing Commission Opinion” ). There we found the Sentencing Commis­ sion, which had been established by statute as “ an independent commission in the judicial branch of the United States,” 28 U.S.C. § 991(a) (1994), to be an “ independent” agency under §208; see also Mistretta v. United States, 488 U.S. 361, 384—85, 390, 393 (1989) (Sentencing Commission held an independent agency within judicial branch). Like the GAO and unlike the GPO, the Sentencing Commissioners enjoy some degree of tenure protection: the statute “ grants the President authority to remove members of the Commission, although ‘only for neglect o f duty or malfeasance in office or for other good cause shown.’ 28 U.S.C. § 991(a).” Mistretta, 488 U.S. at 409. Here, too, an agency that was located out­ side the executive branch was found to be “ independent” under §208, and here again the agency head enjoyed tenure protection.

In the present case, this test o f “ independence” is not met. Nothing in the Act creating the Commission states or implies that Commissioners are to enjoy any form of tenure protection. On this reading of the statute (which, like the reading outlined in Part I, seems to us a plausible construction), the Commission is not subject to § 208.

O f the three OLC precedents considered in this Part, the GPO Opinion, holding § 208 inapplicable, closely fits the circumstances of the Commission. Moreover, the conclusion that the Commission is not ‘ ‘independent’’ for purposes of § 208 under the test considered here harmonizes with our precedents in another respect: it accords with our past view that the section does not cover those who are ‘‘prop­ erly regarded as officers or employees o f the Congress or one of its Houses or

a n d D u p lic a tin g , 20 O p. O .L .C . 214 (1996) M o re recently still, w e reaffirm ed the an alysis o f the la tte r m em orandum . S e e G o vern m en t P rinting O ffice Involvem ent in Executive B ranch P rin tin g , 2 0 O p. O L C . 282 (1996).

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Applicability o f 18 U.S.C. §208 to National Gambling Impact Study Commission

agencies and who are responsible in some immediate sense to the Congress,” such as “ those officers and employees appointed by the Congress or one House thereof to perform functions in aid of the legislative process.” GAO Opinion, 3 Op. O.L.C. at 435-36.

II.

We find no other reason to believe that Congress intended to subject the Commission to §208. On the contrary, our conclusion that the Commission is not “ independent” for purposes of §208 is well supported by the language and legislative history of the Act.

First, nothing in the language of the Act itself designates the Commission as “ independent.” As noted above, this distinguishes the Commission from other bodies that we have found to be subject to § 208, such as the GAO and the Sen­ tencing Commission.

Second, the language of the Act assumes that the nine Commissioners will rep­ resent a variety of distinct and incompatible points of view with respect to gam­ bling, and that some Commissioners will be associated with the gambling industry. Thus, section 3(b)(2) of the Act states that “ [t]he [Commission] members may be from the public or private sector, and may include . . . members of . . . industry.” In addition, section 3(b)(3) states that the appointing authorities are to consult together “ to achieve, to the maximum extent possible, fair and equitable representation of various points of view” on the Commission. That the Commis­ sion membership was intended to include representatives of different points of view — some of whom could be expected to have financial interests in the Commission’s recommendations — does not in itself mean that §208 is inappli­ cable, see Office of Government Ethics Informal Opinion 82 x 22 (1989 ed.). Nonetheless, the statutory criteria for Commission membership clearly indicates that Congress was not attempting to insulate the Commission from outside influ­ ences in order to ensure its “ independence.” The legislative history confirms that understanding. The House Judiciary Committee’s Report on the legislation, H.R. 497, stated:

the Committee expects that the [appointing] authorities may con­ sider for appointment representatives of various interested groups including, gambling proponents and opponents, state gambling regulators, federal and state prosecutors, Indian gambling operators, professionals who treat compulsive gamblers, casino operators, activists who have opposed gambling referenda, state lottery offi­ cials, and representatives of non-gambling businesses in areas around gambling operations.

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H.R. Rep. No. 104—440, pt. 1, at 8 (1995), reprinted in 1996 U.S.C.C.A.N. 1192, 1197.

In the House debate, Representative Hyde, Chairman of the House Judiciary Committee that reported out the bill, sought to answer charges that the Commis­ sion might be skewed against the gambling industry. He said:

I believe that this Commission can do the most good if its study is as neutral, objective, and comprehensive as possible — consid­ ering the views of all sides o f this issue. In that spirit, I proposed a committee amendment in the nature of a substitute to H.R. 497, which the Judiciary Committee adopted on a voice vote.

My substitute included the vast majority of the provisions con­ tained in H.R. 497 as originally introduced, but it added language so as to assure that all points of view would be represented on the Commission. Specifically, the bill now requires that the appointing authorities consult together to ensure that the overall makeup of the Commission fairly and equitably represents] various points of view.

142 Cong. Rec. 3642-43 (1996).21 Thus, instead of seeking to promote public confidence in the Commission’s study by requiring that the Commission be “ independent” of outside influence, Congress preferred an approach in which at least some Commissioners could have open and avowed interests, biases and commitments that would check and balance those o f other Commissioners. From this (partly) “ adversarial” system, it was hoped that a balanced and objective study would be more likely to result. Plainly, a Commission so conceived would be very likely to include members whose per­ sonal stakes in the outcome of the Commission’s work would be disqualifying under § 208, if that statute were to apply. Given Congress’s careful decisions about the nature o f the Commission, the statute gives no indication that §208 was intended to apply to this advisory body.

21 S im ilarly, in th e S en ate deb a te. Senator C o ats, a supporter, stated:

O p p o n en ts o f this c o m m issio n have raised m any charges against it. T h e y have claim ed th at the co m m is­ sio n is a tool o f the relig io u s right. They h av e claim ed th a t the com m issio n w ill b eco m e a w itch hunt ag a in st th e g am b lin g industry.

M r. P resid en t, these claim s are unfounded. T h e app o in tm en t o f com m issio n ers w ill b e equally divided b etw een th e ex e cu tiv e bran ch and the tw o H o u ses o f C ongress, en su rin g that no factio n m ay dom inate th e w ork o f th e com m ission.

142 C o n g . R ec. 17,425, 17,426 (1996).

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Applicability o f 18 U.S.C. § 208 to National Gambling Impact Study Commission

Conclusion

For all of the above reasons, we conclude that the Commission should not be considered an “ independent” agency within the meaning of §208, whichever meaning of that term is adopted, and hence is not subject to that statute.

BETH NOLAN

Deputy Assistant Attorney General Office o f Legal Counsel