B-222710, APR 9, 1986

B-222710, APR 9, 1986

CONGRESS - CONTINGENCY FUNDS - AVAILABILITY DIGEST: 1. SENATE RESOLUTION TO ASSIGN INVESTIGATORS TO WORK WITH HELSINKI COMMISSION ON INVESTIGATION OF MEDVID DEFECTION CASE SATISFIES RESTRICTIONS CONTAINED IN 2 U.S.C. SEC. 68-2 ON USE OF SENATE CONTINGENCY FUND. APPROPRIATIONS - AUGMENTATION - REIMBURSEMENT OF EXPENSES OF OFFICIAL FUNCTION 2. SENATE USE OF CONTINGENCY FUND TO SUPPORT INVESTIGATION CARRIED OUT BY HELSINKI COMMISSION DOES NOT IMPROPERLY SUPPLEMENT OR AUGMENT THE COMMISSION'S APPROPRIATION BECAUSE THE ECONOMY ACT TYPE ARRANGEMENT FOR THE INVESTIGATION IS FOR A SENATE PURPOSE.

THE HONORABLE CHARLES MCC. MATHIAS, JR.

CHAIRMAN, COMMITTEE ON RULES AND ADMINISTRATION

UNITED STATES SENATE:

THIS IS IN RESPONSE TO YOUR JOINT REQUEST DATED MARCH 26, 1986, WITH SENATOR WENDELL H. FORD, FOR AN OPINION ON WHETHER THE EXPENDITURES CONTEMPLATED BY SECTION 23 OF S. REP. 353, THE ANNUAL OMNIBUS COMMITTEE FUNDING RESOLUTION OF 1986, CAN BE LAWFULLY MADE AND APPROVED. SECTION 23 PROVIDES THAT UP TO $200,000 ARE TO BE PAID FROM THE SENATE CONTINGENCY FUND TO HELP THE COMMISSION ON SECURITY AND COOPERATION IN EUROPE (THE HELSINKI COMMISSION) CONDUCT AN INVESTIGATION OF THE ATTEMPTED DEFECTION OF MIROSLAV MEDVID. WE CONCLUDE THAT THE SENATE CONTINGENCY FUND IS AVAILABLE FOR THESE PURPOSES, AS PROVIDED IN SECTION 23.

ACCORDING TO YOUR LETTER, YOUR PRIMARY CONCERN IS WHETHER THE CONTINGENCY FUND CAN BE USED IN VIEW OF 2 U.S.C. SEC. 68-2 (1982). THIS SECTION REQUIRES THAT THE CONTINGENCY FUND ONLY BE USED FOR EXPENSES "*** INTIMATELY AND DIRECTLY CONNECTED WITH THE ROUTINE LEGISLATIVE BUSINESS OF THE SENATE ***." THE ACTIVITIES PROPOSED FOR FUNDING WERE SPECIFICALLY INCORPORATED IN A RESOLUTION OF THE SENATE, WHICH WAS APPROVED AFTER DEBATE ON THE FLOOR OF THE SENATE. THIS DEBATE INCLUDED A CONSIDERATION OF THE ISSUE OF WHETHER THE ACTIVITIES TO BE FUNDED COULD BE CONSIDERED TO "INTIMATELY AND DIRECTLY CONNECTED WITH THE ROUTINE LEGISLATIVE BUSINESS OF THE SENATE." WE THINK WHERE, AS HERE, THE ACTIVITIES PROPOSED FOR FUNDING ARE WITHIN THE AUTHORITY OF THE SENATE AND ARE SPECIFICALLY INCORPORATED IN A SENATE REGULATION, THAT SUCH ACTIVITIES MUST BE CONSIDERED TO MEET THE QUOTED REQUIREMENTS. MOREOVER, THE RESOLUTION REQUIRES THAT THE EXPENSES PAID UNDER SECTION 23 MUST MEET STANDARDS WHICH, IF FOLLOWED, WOULD SATISFY THE OTHER REQUIREMENTS OF 2 U.S.C. SEC. 68-2, SUPRA. SEE SUBSECTION 23(B)(5).

THE SECOND ISSUE RAISED IN THE FLOOR DEBATE WAS THE APPARENT USE OF THE SENATE CONTINGENCY FUND TO SUPPLEMENT OR AUGMENT ANOTHER APPROPRIATION.

THE COMMISSION WAS ESTABLISHED ON JUNE 3, 1976, BY PUB.L. NO. 94-304, 22 U.S.C. SEC. 3002 ET SEQ., AND IS COMPOSED OF NINE MEMBERS FROM EACH HOUSE OF THE CONGRESS AND THREE MEMBERS FROM DESIGNATED AGENCIES IN THE EXECUTIVE BRANCH. ITS FUNCTIONS, SET FORTH IN 22 U.S.C. SEC. 3002, ARE TO

(1) MONITOR COMPLIANCE WITH OR VIOLATIONS OF PROVISIONS CONTAINED IN THE FINAL ACT OF THE CONFERENCE ON SECURITY AND COOPERATION IN EUROPE RELATING TO "HUMAN RIGHTS AND COOPERATION IN HUMANITARIAN FIELDS;"

(2) MONITOR AND ENCOURAGE THE DEVELOPMENT PROGRAMS AND ACTIVITIES OF THE UNITED STATES GOVERNMENT AND PRIVATE ORGANIZATIONS TO EXPAND EAST WEST ECONOMIC COOPERATION; AND

(3) PROMOTE AND ENCOURAGE A GREATER INTERCHANGE OF PEOPLE AND IDEAS BETWEEN EAST AND WEST.

TO CARRY OUT THESE DUTIES, THE COMMISSION RECEIVES ANNUAL APPROPRIATIONS, USUALLY CONTAINED IN THE DEPARTMENT OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY AND RELATED AGENCIES APPROPRIATION ACT. (SEE, E.G., ITS FY 1986 APPROPRIATION CONTAINED IN PUB.L. NO. 99 180, DECEMBER 13, 1985.) NOTWITHSTANDING THE PLACEMENT OF ITS APPROPRIATION, THE COMMISSION IS "DEEMED TO BE A STANDING COMMITTEE OF THE CONGRESS" (22 U.S.C. SEC. 3007(B)) AND ITS EMPLOYEES ARE CONSIDERED TO BE "CONGRESSIONAL EMPLOYEES" (22 U.S.C. SEC. 3008(D)).

IF, THE COMMISSION'S APPROPRIATION WAS MADE SPECIFICALLY FOR THE PURPOSE NOW SOUGHT TO BE CHANGED TO THE CONTINGENCY FUND, WE WOULD HAVE TO REGARD THE FUNDING ARRANGEMENT AS AN UNAUTHORIZED AUGMENTATION OF THE COMMISSION'S APPROPRIATION. WE DO NOT THINK THAT IS THE SITUATION HERE. THE HELSINKI COMMISSION HAS A BROADER MANDATE THAN THE INVESTIGATION SPECIFIED IN SECTION 23 AND IT WOULD NOT BE REQUIRED TO DEVOTE ITS OWN RESOURCES TO THE MEDVID INVESTIGATION. SINCE THE SENATE BELIEVES THAT THE COMMISSION PROVIDES A CONVENIENT FRAMEWORK FOR THIS TYPE OF INVESTIGATION, WE HAVE NO OBJECTION TO A KIND OF "ECONOMY ACT" (SEE 31 U.S.C. SEC. 1535) ARRANGEMENT IN WHICH ONE FEDERAL ENTITY PROVIDES SERVICES TO ANOTHER FEDERAL BODY ON A REIMBURSABLE BASIS. THE STATUTORY AUTHORIZATION FOR THE SENATE CONTINGENCY FUND (2 U.S.C. SEC. 68-2) AFFORDS THE SENATE RULES AND ADMINISTRATION COMMITTEE CONSIDERABLE FLEXIBILITY IN APPROVING EXPENDITURES FROM THIS FUND.

FOR THESE REASONS, WE CONCLUDE THAT THE CONTINGENCY FUND IS AVAILABLE FOR THE EXPENDITURES CONTEMPLATED BY SECTION 23 OF S. RES. 353.