WASHINGTON – Senator Chuck Grassley said today that an opinion from the American Law Division at the Congressional Research Service says the online initiative of the Department of Health and Human Services called “State Your Support” may violate federal prohibitions on the use of official funds in at least three specific ways, despite the Secretary’s assertion that the campaign is “entirely legal and proper.”
“The campaign now on www.hhs.gov is not purely informational because it expressly has visitors ‘affirm’ their commitment to work with congressional leaders to enact legislation this year,” Grassley said. “It looks like the type of violation the law was written to prohibit.” He said the HHS website doesn’t simply urge public comment, it provides a pre-written letter to the President for people to sign their names to, and then collects postal and email addresses.
A copy of the November 2 legal opinion is posted below, along with the November 4 response from the Secretary and Grassley’s October 20 letter of inquiry. An analysis from Grassley of the legal opinion and HHS response follows this news release, along with the text of the “State Your Support” message.
Past statements by White House officials make it clear that initiatives like “State Your Support” are part of a strategy. White House Deputy Communications Director Dan Pfeiffer said on August 4, 2009, on CNN, “we intend to use a lot of the grassroots viral internet techniques from the campaign” for the President’s health care reform agenda. This week, the HHS Secretary said that the names and addresses collected by “State Your Support” will be used by the administration to invite people “to health reform-related events in their area.”
Four years ago, House Speaker Nancy Pelosi said official use of funds for propaganda constituted “underhanded tactics ... not worthy of our great democracy.” She spoke strongly at the time about tax dollars not being used to run a government propaganda machine. Grassley has conducted active, nonpartisan congressional oversight of the Department of Health and Human Services for many years.
The appropriations clause of the U.S. Constitution gives the Congress sole power of the purse, which includes prescribing how agencies may and may not use taxpayer dollars. Congress has made clear that agencies are not to use public funds to finance campaign tactics and grassroots propaganda. By law, official HHS funds cannot be used “for publicity or propaganda purposes ... designed to support or defeat legislation pending before the Congress ... ,” according to and Section 503(a) of Division F and Section 717 of Division D of the 2009 Omnibus Appropriations Act or for “printed or written matter, or other device, intended or designed to influence in any manner ... an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy ... ,” according to 18 U.S.C. § 1913.
Grassley said that what’s on the HHS website is particularly troubling given the recent effort by the Centers for Medicare and Medicaid Services to prohibit health plans from notifying Medicare beneficiaries about the way benefits could change based on pending health-care legislation.
SUMMARY OF THE LEGAL ANALYSIS BY THE AMERICAN LAW DIVISION
OF THE CONGRESSIONAL RESEARCH SERVICE
HHS Website Activities Not Constituting Legitimate Informational Activities
The CRS memorandum concludes that it is a legitimate inquiry to determine if the department is “expending funds to expressly urge the public to engage in a letter writing campaign involving an electronic submission of a form letter to a government official (sometimes referred to as ‘astroturf’ lobbying, that is, an artificially stimulated letter writing campaigns) urging the adoption of a particular public policy in legislation this year.” Such an expenditure would be in contrast to activities that have found to be permissible as “legitimate informational activities” expressly listed by GAO, but instead here HHS is not merely “’report[ing] on the activities and programs of their’ department; not ‘justify[ing] those policies to the public’; nor is the department ‘rebut[ting] attacks on those policies.’”
Violations of Laws Governing Use of Appropriated Funds
According to the analysis of current law prepared by CRS attorneys, HHS may have committed at least three distinct violations of laws governing the use of appropriated funds.
Violation of General Appropriations Publicity and Propaganda Prohibition
HHS may be in violation of Section 720, Division D of the Omnibus Appropriations Act of 2009 prohibition on the use of funds for publicity or propaganda purposes, which according to CRS, has been noted by GAO to prohibit “all unauthorized publicity and propaganda.”
Specifically the CRS memorandum concludes that “If the expenditure for the letter writing campaign to the President, supporting the President’s position with regard to health care reform proposals, is not deemed sufficiently ‘informational’ or educational, that is, that it is not a communication with the public ‘regarding its functions, policies, and activities,’ then it may be argued that it may be in violation of the general appropriations rider in Section 720, Division D, of the Omnibus Appropriations Act of 2009 as a “publicity or propaganda” campaign involving a grass roots lobbying effort directed at the President.”
Violation of Appropriations Prohibitions Against Publicity and Propaganda Directed at Congress
HHS may be in violation of Section 503(a) and Section 717 of Division D of the 2009 Omnibus Appropriations Act which prohibit publicity or propaganda “designed to support or defeat legislation pending before the Congress.” In the past, GAO has found violations of the law where there is “evidence of a clear appeal by the agency to the public to contact congressional members and to urge them to support the agency’s position.” In this case, CRS cites the fact that the HHS website uses a form letter that is submitted electronically to the President which “expressly commits the signor of the letter to ‘work with our congressional leaders.’” CRS found that this direct appeal to the public may be a violation because the HHS-drafted form letter includes “express language” that could be seen “as a direct and express ‘appeal’ or ‘urging,’ that is, a call to action, within the government produced material to contact and communicate with congress, and thus “more than a mere ‘exposition’ or argument in favor of the administration’s position.”
Violation of 18 USC § 1913
Finally, CRS has found that HHS may have violated 18 U.S.C. § 1913, a criminal violation, which, according to CRS, “prohibits the use of federal appropriations for ‘printed or written matter, or other device, intended or designed to influence in any manner ... an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, [or] policy ....’” according to CRS, HHS may in violation of this statute by “urging the public to write letters to express support or opposition to legislation or policy” which is “precisely the types of activities which had been considered to be within the prohibition in the past.”
TEXT OF LETTER TO THE PRESIDENT FOR VISITORS TO SIGN ON HHS.GOV
State Your Support
Dear Mr. President,
We strongly support your commitment to comprehensive health reform.
This is not a luxury. The continuing, sharp escalation of health care costs for families, businesses, and government is unsustainable. Reform is imperative.
We believe that health reform must be enacted this year.
Reform is needed to help America’s families struggling with rising costs and those who are losing their insurance.
At the same time, real health reform is crucial to keeping American businesses competitive in the world economy and for the country’s long-term economic viability. As our country faces economic challenges, the time for reform is now.
We support health reform that follows these principles:
• Protect families’ financial health
• Assure affordable, quality health coverage for all Americans
• Provide portability of coverage
• Guarantee choice of doctors
• Invest in prevention and wellness
• Improve patient safety and quality of care
• End barriers to coverage for people with pre-existing medical conditions
• Reduce long-term growth of health costs for businesses and government
During these extraordinarily challenging times, we need to put aside past differences and address the health and economic crisis. Our shared interest must come before narrow interests so we can achieve a health system that is affordable and provides high quality for all Americans. We will support your budget with its reserve fund dedicated to achieving health care reform in a fiscally responsible manner. Each of us must be prepared to contribute to achieving this fundamental goal.
By signing this statement we affirm our commitment to work with you and our Congressional leaders to enact legislation this year which provides affordable, high quality coverage for all Americans.
11-2-09 Legal opinion of the American Law Division of the Congressional Research Service