Understanding the Anti-Lobbying Law

Executive branch officials and employees are uniquely situated to influence the legislative process given their proximity to and control over various government functions, which is why Congress has enacted legal bans explicitly restricting the lobbying of Congress by executive branch officials and agencies. Yet, over the years, there have been multiple instances where White House and agency officials used appropriated taxpayer funds on grassroots and other lobbying efforts, abusing their positions of power and potentially violating the federal anti-lobbying law and the Consolidated Appropriations Act of 2017 (see Section 715), which prohibits lobbying and propaganda with appropriated funds.

Most recent examples include potential violations of the 1919 grassroots lobbying ban, the “Anti-Lobbying Act,” by President Trump, Vice President Mike Pence, White House staffer Dan Scavino, Jr., and various officials at the Health and Human Services Department (HHS), who tweeted out multiple calls asking the public to reach out to their Representatives in Congress and urge them to support the repeal and replacement of the Affordable Care Act. Mr. Scavino was reprimanded for these actions by the Office of Special Counsel, and Democrats in the House and Senate jointly asked the Government Accountability Office (GAO) to look into the tweets and other communications by HHS.

The White House website has also released and promoted pages asking the public to sign a petition to “Stand today and demand the Senate confirm Judge Gorsuch,” although that page was recently removed from the White House website.

And, most recently, Chemical Safety Board (CSB) member Rick Engler was linked to a call on Congress to save the CSB, which was “proposed for elimination” in President Trump’s FY 2018 Budget (see p. 93).

This is not a new problem: improper executive branch influence on Congress has been was attempted by the two previous administrations, as well. Under both Bush and Obama, the GAO found that multiple agency officials violated grassroots and other anti-lobbying laws.

These are serious infringements on our system of checks and balances, especially the violations by the most senior officials of the executive branch, yet seemingly little is done about them. This does not have to be the case, however.

Unlike other ethics statutes that expressly exempt the President and Vice President, the 1919 grassroots lobbying ban applies to federal personnel, except when “express authorization [is given] by Congress.” This criminal anti-lobbying law carries with it a “$500 fine; 1 year imprisonment or both; and Removal [from office].” The law states that:

No part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy, or appropriation, whether before or after the introduction of any bill, measure, or resolution proposing such legislation, law, ratification, policy, or appropriation; but this shall not prevent officers or employees of the United States or of its departments or agencies from communicating to any such Member or official, at his request, or to Congress or such official, through the proper official channels, requests for any legislation, law, ratification, policy, or appropriations which they deem necessary for the efficient conduct of the public business, or from making any communication whose prohibition by this section might, in the opinion of the Attorney General, violate the Constitution or interfere with the conduct of foreign policy, counter-intelligence, intelligence, or national security activities. [Emphasis added]

The Consolidated Appropriations Act of 2017 passed just this May contains similar language, prohibiting appropriated funds from beings used for

…. publicity or propaganda purposes, for the preparation, distribution, or use of any kit, pamphlet, booklet, publication, electronic communication, radio, television, or video presentation designed to support or defeat the enactment of legislation before the Congress or any State or local legislature or legislative body…..

Despite the plain language of these lobbying bans, not much has been done historically to address such alleged abuses.

While it is too soon to see how the relevant language in the Consolidated Appropriations Act of 2017 will play out, it appears that a 1989 Department of Justice (DOJ) legal opinion’s interpretation of the Anti-Lobbying Act and its legislative history is being used to give certain executive branch employees a lot of leeway in influencing the legislative branch.

The 1989 DOJ Memorandum to the Attorney General interprets the ban narrowly, and states that it does not apply in the following situations:

(1) Direct communications between executive branch officials and Members of Congress and their staffs;

(2) Public speeches, appearances, and writings;

(3) Private communications designed to inform the public about Administration positions or to promote those positions, as long as there is no significant expenditure of appropriated funds;

(4) Administration activities that historically have included communicating the Administration views to Congress, the media, or the public; or

(5) Communications or activities unrelated to legislation or appropriations, such as lobbying Congress or the public to support Administration nominees or treaties.

DOJ’s interpretation further states that the President, officials in the Executive Office of the President, Cabinet members, and Cabinet member officials who have been assigned to work with Congress have an implied “express authorization by Congress” to lobby Congress, and are thus exempt from the ban.

The legal opinion highlights the ban’s legislative history to support the notion that the original sponsor of the ban only wanted to eliminate “‘grass roots’ mass mailing campaigns at great expense” and “the use of appropriated funds for large-scale, high-expenditure campaigns specifically urging private recipients to contact Members of Congress about pending legislative matters on behalf of an Administration position.”

DOJ ultimately concludes that the lobbying ban only prohibits “large-scale publicity campaigns to generate citizen contacts with Congress on behalf of an Administration position with respect to legislation or appropriations” and mentions that lobbying must be “substantial” before rising to the level targeted by the statute.

According to DOJ’s Memorandum, an expenditure of more than $7,500 was considered substantial in 1919. In 1989, DOJ estimated that, with inflation, an equivalent expenditure would be roughly $50,000. According to our estimates, an equivalent lobbying expenditure in 2017 would be roughly $106,000, again after inflation.

The GAO, has remained relatively silent on the issue of how much money needs to be expended before there is a violation of the grassroots lobbying ban. GAO has instead focused on how to determine whether an agency or federal employee calls on Congress:

Federal agencies and departments have a legitimate need to communicate with the public, as well as with Congress, regarding their policies and activities. This includes executive branch officials expressing their views regarding the merits or deficiencies of existing or proposed legislation, even when their objective may be to persuade the public to support the agency’s position—so long as the public is not urged to contact Members of Congress. [Emphasis added; citations omitted]

This standard has been used to seemingly greater effect than DOJ’s interpretation, and it still safeguards the legitimate communication needs of the executive branch.

For example, using this reasoning, the GAO didn’t find that the Social Security Administration had violated the law when, in 2005, the agency mentioned in published materials both that the Social Security Trust Fund would soon be drained, and that Congress could make changes to prevent the fund from being exhausted. Because there was no specific call on the public to contact Congress, there was no lobbying violation.

The Department of Health and Human Services was also cleared of lobbying violation allegations after it asked the public to show support for President Obama’s health care reform package. GAO stated that “[t]he Web site and Web page did not constitute grassroots lobbying because they contained no clear, direct appeal to the public to contact Members of Congress in support of or in opposition to health care reform.”

In 2012, an employee of the Consumer Product Safety Commission was absolved after the employee encouraged a pool and spa industry representative to contact Congress about safety regulations. Despite the request to call on Congress, GAO failed to find a lobbying violation because the call was related to an old bill rather than pending legislation.

There are many other instances, however, where GAO has found violations of the grassroots lobbying ban.

The Department of Housing and Urban Development was found to have violated the anti-lobbing ban in 2014 when it sent an email to 1,000 recipients, including members of the pubic, requesting they contact Senators about supporting pending bills. GAO’s finding highlights how different its interpretation of the law is from DOJ’s: the GAO didn’t include any references to the amount spent on the emailing activities, and GAO disagreed with the proposition that the email was exempt from the lobbing ban because it was sent by a Presidentially Appointed, Senate-Confirmed official who was supporting the Administration’s legislative program. GAO found that there was “clear evidence” that HUD both made an appeal to the public to contact Congress and violated the lobbying ban in doing so.

A year later, GAO found a grassroots lobbying violation in a case involving the Environmental Protection Agency (EPA). The EPA used social media to promote its “Waters of the United States” (WOTUS) rulemaking, and the GAO found that this action violated prohibitions against publicity or propaganda, and was therefore grassroots lobbying. Yet again, the finding was not tied to a specific expenditure amount. The GAO recommended that the EPA should determine the costs associated with the violation and report it to the President and Congress.

The GAO and DOJ seem to be at odds on what constitutes a violation of the grassroots lobbying ban. The GAO seems to have concluded that violations occur where federal agencies, officials, or employees encourage the public to contact Congress about pending legislation, even if a cost cannot be quantified. The DOJ, however, isn’t likely to enforce the law absent a $100,000 expenditure, even in instances where executive branch officials are behind a grassroots lobbying campaign that could reach millions of people and create a large groundswell of support for or opposition to pending legislation.

It might be time for DOJ to reevaluate its legal interpretation.

Moreover, it is time for Congress to modify anti-lobbying laws to reflect the power of social media and other modern advances in technology, even if it’s found that the cost thresholds don’t reflect the nearly 100-year-old original intent of its sponsor. It is unacceptable that, although there is little doubt that certain tweets and other efforts have violated the anti-lobbying laws over the years, there has been little interest in enforcing those laws to prevent the executive branch from illegally influencing Congress.