A screenshot of DOT's "Like" of @SteveForbesCEO's Tweet. Source: OIG, DOT | GAO B-329368, page 3, Figure 1.
The Department of Transportation (DOT) engaged in illegal lobbying last summer by liking and retweeting a tweet that urged public support for a pending bill, according to a recent decision issued by the Government Accountability Office (GAO).
The tweet, posted in July by publishing mogul Steve Forbes, urged followers to “[t]ell Congress to pass” the 21st Century Aviation Innovation, Reform, and Reauthorization Act, a bill that would, among other things, privatize the American air traffic control system. The tweet also linked to a website that allows people to send auto-generated messages telling their congressional representative to support “air traffic control reform.”
The GAO found that the DOT, through one of its Twitter accounts, had “not only endorsed the message, but also created agency content,” in violation of section 715 of the Consolidated Appropriations Act of 2017, which provides:
No part of any funds appropriated in this or any other Act shall be used by an agency of the executive branch, other than for normal and recognized executive-legislative relationships, for publicity or propaganda purposes, and for the preparation, distribution or use of any kit, pamphlet, booklet, publication, radio, television, or film presentation designed to support or defeat legislation pending before the Congress, except in presentation to the Congress itself.
The GAO determined the like/retweet constituted “indirect or grassroots lobbying,” or “a clear appeal to the public to contact Members of Congress in support of or in opposition to pending legislation.” The GAO made clear in its decision that, when it comes to violating the ban on federal executive branch lobbying, money is no object:
[T]here is no de minimis violation of grassroots lobbying. A violation occurs regardless of how much the initial and remedial actions cost…. Here, it is of no consequence that the initial retweet and like were posted for a short amount of time—a day and a month, respectively—and that the initial and remedial actions possibly cost very little. A violation still occurred.
In other words, the integrity of our constitutional system of separation of powers can’t be measured in dollars and cents.
So what happens next? There is a punishment—of sorts. Because the GAO found DOT’s Twitter love also violated the Antideficiency Act, the DOT must report the violation to the President and Congress. However, the Anti-Lobbying Act, which carries actual criminal penalties for improper lobbying, including fines, removal from office, and imprisonment, was not at issue in this case.
A few months ago, the Project On Government Oversight explained how the GAO has a vastly different interpretation of the lobbying ban than the Department of Justice (DOJ), and that this divergence partly explains why violations are rarely punished. The DOJ has historically focused on a de minimis cost requirement before lobbying activities trigger the law, and released a legal opinion in 1989 that gives executive branch employees considerable leeway in influencing Congress. According to the legal opinion, for there to be a violation, the activity must be a “substantial” and “large-scale” campaign involving “a significant expenditure of appropriated funds.” By contrast, the GAO focuses on the degree to which the activity encourages the public to contact Congress about pending legislation.
We think the GAO’s interpretation of the lobbying ban strikes the right balance between fostering communication between the executive and legislative branches and preventing officials from misusing taxpayer funds and abusing their positions. The power of social media has made it easy for executive branch employees to overstep their bounds. With Twitter and Facebook, federal agencies can bring enormous pressure to bear on Congress with minimal effort and expense. The GAO has issued a clear warning to executive agencies to mind their Ps and Qs when using these new resources. Congress should consider amending the Anti-Lobbying Act to keep pace with changes in technology and the growing influence of social media.