Department of Housing and Urban Development--Anti-Lobbying Provisions

B-325248

September 9, 2014

The Honorable Patrick McHenry
Chairman
Subcommittee on Oversight and Investigations
Committee on Financial Services
House of Representatives

Subject: Department of Housing and Urban Development--Anti-Lobbying Provisions

Dear Mr. Chairman:

This responds to your request for our opinion concerning whether a July 31, 2013, e‑mail communication (July 2013 E-mail) sent by the Deputy Secretary of the Department of Housing and Urban Development (HUD) to “friends and colleagues” violated any anti-lobbying provisions. See Letter from Chairman, Subcommittee on Oversight and Investigations, Committee on Financial Services, House of Representatives, to Comptroller General (Aug. 28, 2013) (Request Letter).

Section 716 of the Financial Services and General Government Appropriations Act, 2012, which was carried forward by the Consolidated and Further Continuing Appropriations Act, 2013, prohibits the use of appropriated funds for indirect or grassroots lobbying in support of or in opposition to pending legislation.[1] As explained below, we conclude that HUD violated section 716 by preparing and transmitting the July 2013 E-mail. Further, because section 716 prohibits the use of HUD’s appropriation for grassroots lobbying, making any obligation of funds toward this purpose exceed available appropriations, we also conclude that HUD violated the Antideficiency Act, 31 U.S.C. § 1341(a)(1)(A), when it obligated and expended funds to prepare and transmit the July 2013 E‑mail.

As agreed with your staff, we relied on information and legal views that HUD and HUD’s Office of Inspector General (HUD OIG) provided the subcommittee. Letter from Acting Assistant Secretary for Congressional and Intergovernmental Relations on behalf of Secretary, HUD, to Chairman, Subcommittee on Oversight and Investigations, Committee on Financial Services, House of Representatives (Sept. 24, 2013) (HUD Response to Subcommittee); HUD Inspector General, Report of Investigation, Case No. 2013HQ001744I (Feb. 18, 2014) (OIG Report). In accordance with our regular practice, we also contacted HUD to seek its legal views on this matter and any additional facts that it wished to provide. Letter from Assistant General Counsel for Appropriations Law, GAO, to Acting General Counsel, HUD (Apr. 15, 2014); Procedures and Practices for Legal Decisions and Opinions, GAO-06-1064SP (Washington, D.C.: Sept. 2006), available at www.gao.gov/legal/lawresources/resources.html. HUD, noting the OIG Report, told us it had “no further facts or analysis to add at this time.” Letter from Acting General Counsel, HUD, to Assistant General Counsel for Appropriations Law, GAO (May 15, 2014) (HUD Response to GAO).

BACKGROUND

On July 31, 2013, the Deputy Secretary of HUD sent an e-mail to over 1000 recipients, including members of the public, requesting they contact named senators in support of the Senate’s version of the Department of Transportation, HUD, and Related Agencies appropriations bill for fiscal year 2014 (Senate THUD Bill), then pending in the Senate. See OIG Report, at 1, Ex. A. Specifically, the July 2013 E-mail asked recipients to contact named senators to encourage them to vote in favor of procedural motions to advance consideration of the bill. Request Letter, at 1. The e-mail also asked recipients to encourage the senators to oppose specific amendments to the bill and to vote in support of the Senate THUD Bill itself. OIG Report, at Ex. A.

The July 2013 E-mail followed a number of communications that HUD’s Deputy Secretary previously had with “stakeholders”[2] in an effort to advance final passage of the bill. Id., at Memorandum of Interview (MOI) 5, 10, 12, 13. HUD described the July 2013 E‑mail recipients as “individuals from organizations that work on housing issues related to HUD’s programs . . . [who] generally have engaged and communicated with HUD on housing issues . . . .” HUD Response to Subcommittee, at 1-2. HUD noted that it had retained contact information for these people throughout the ordinary course of its work. Id., at 2.

The July 2013 E-mail encouraged “friends and colleagues” to take specific actions concerning the Senate THUD Bill.[3] Of note, the e-mail stated:

“TODAY AND TOMORROW are critical because it is the last chance for the Senate THUD bill to be voted on before Congress goes on August recess. We are once again facing a critical cloture motion vote tomorrow to end the debate. I am humbly asking you to let your Senators especially the ones listed below know how important it is that the cloture motion passes so that the Senate THUD bill MOVES FORWARD to a vote and TO VOTE for the Senate THUD bill.

“It is critical that your Senator hears from you NOW. Specifically, we need to maintain the current level of Republican support for the Senate THUD FY14 appropriations bill, acquire other Republican supporters and ensure vocal and active support from Democratic Senators. Please ask them:

·         to vote YES tomorrow on the cloture motion to end the debate and to vote YES on the merits of the bill when it comes up for a vote[.]

·         to defend against efforts by some Republicans to prevent the underlying bill from coming up for a vote or to enact harmful amendments such as those that would cut some of the important funding in the bill.

·         for example, Senators should vote ‘No’ against Senator Coburn’s Amendment 1754 which would have a devastating effect on our homeless population.”

OIG Report, at Ex. A (emphasis in original). The e-mail went on to list 17 senators on whom the recipients should focus their attention. Id. The senators named in the July 2013 E-mail were chosen based on their demonstrated support for the Senate THUD Bill. Id., at MOI 6.

DISCUSSION

At issue here is whether the July 2013 E-mail sent by HUD’s Deputy Secretary constitutes a violation of the governmentwide prohibition against grassroots lobbying contained in section 716 of the Financial Services and General Government Appropriations Act, 2012, and carried forward by the Consolidated and Further Continuing Appropriations Act, 2013. Pub. L. No. 112-74, § 716; Pub. L. No. 113-6, §§ 1101(a)(2), 1102, 1105.

Section 716 provides as follows:

“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.”

We have interpreted similar appropriations act language as prohibiting indirect or grassroots lobbying that is urging support or opposition of legislation currently pending before Congress. The prohibition is violated where there is evidence of a clear appeal by an agency to the public to contact Members of Congress in support of, or in opposition to, pending legislation. B-322882, Nov. 8, 2012. Our interpretation is derived from the statutory language as well as the legislative history of grassroots lobbying prohibitions and is consistent with a proper respect for an agency’s right to communicate with the public and Congress about its policies and activities. See B‑304715, Apr. 27, 2005; B‑270875, July 5, 1996; B‑192658, Sept. 1, 1978.

On its face, the July 2013 E-mail makes several clear appeals to the public to contact Members of Congress regarding pending legislation. According to the e‑mail, the Senate THUD Bill, which would have provided substantially more funding for HUD than the House alternative, was being considered on the Senate floor on July 31, 2013. OIG Report, at Ex. A. HUD’s Deputy Secretary sought to encourage final passage of the bill without amendments HUD considered harmful to the agency before Congress went into August recess. Id. Using statements including “I am humbly asking you to let your Senators . . . know,” “[i]t is critical that your Senator hears from you NOW,” and “[p]lease ask them: to vote YES,” the Deputy Secretary urged recipients to contact 17 named senators—immediately—regarding the Senate THUD bill. Id.

Among the recipients of the July 2013 E-mail were members of the public. See HUD Response to Subcommittee, at 1–2. Accordingly, this action constitutes a clear, direct appeal to the public regarding pending legislation. Compare B‑285298, May 22, 2000 (e-mail sent to interested farmers’ organizations noting that Congress needed to hear from farmers in their district in regards to pending legislation was found, on its face, to be a clear appeal) with B-304715 (no violation where communication merely consisted of language likely to influence the public to contact members of Congress, absent a clear appeal).

By its terms, section 716 applies to communication “designed to support or defeat legislation pending before the Congress.” Pub. L. No. 112-74, § 716. It does not restrict “normal and recognized executive-legislative relationships,” nor does it apply to agency communications “in presentation to Congress itself.” Id. We have acknowledged that anti-lobbying provisions like section 716 do not restrict the ability of agency officials to voice their position on matters of public policy by direct appeals to Congress, nor do we interpret such provisions in a manner that unnecessarily constrains agency communication with the public on such issues. B‑317821, June 30, 2009; B-270875. For example, we determined that HHS did not violate anti-lobbying provisions through its Web site, HealthReform.gov. B-319075, Apr. 23, 2010. The Web site contained information regarding the Administration’s stance on health care reform, including a forum for the public to provide comments, and a State Your Support Web page, which allowed users to sign a letter supporting the President. Id. It did not contain a direct appeal to the public to contact Members of Congress in support of pending legislation. Id.

However, HUD’s July 2013 E-mail does not just convey the agency’s position with regard to the Senate THUD Bill; it directly urges the public to contact specific senators regarding pending legislation and provides several points for recipients to emphasize. For example, the recipients were urged to implore the senators to “vote YES tomorrow on the cloture motion,” “vote YES on the merits of the bill,” and “vote ‘No’ against Senator Coburn’s Amendment 1754.” OIG Report, at Ex. A (emphasis in original).

HUD does not deny that it appealed to the public to contact named senators regarding pending legislation. [4] Rather, HUD emphasized that the July 2013 E-mail was transmitted by its Deputy Secretary, who is a Presidentially-Appointed and Senate-Confirmed (PAS) official. HUD Response to Subcommittee, at 1. HUD explained that a Department of Justice (DOJ) Office of Legal Counsel (OLC) memorandum opined that 18 U.S.C. § 1913, a lobbying prohibition that is enforced by DOJ, does not apply to PAS officials.[5] Section 1913 states in part that “[n]o part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, . . . [,]” be used in the manners prohibited by the statute. In a 1989 memorandum, DOJ OLC provided guidance on the extent to which section 1913 constrains the lobbying activities of the executive branch. 13 Op. Off. Legal Counsel 300 (1989). It construed section 1913 to exempt certain officials, including, for example, the President, his aides and assistants within the Executive Office of the President, and Cabinet members. Id., at 303. It stated that Congress “expressly authorized”[6] the lobbying activities of such officials by its continued appropriation of funds for positions whose responsibilities historically include seeking support for the Administration’s legislative program. Id., at 302–03. DOJ OLC further explained that to apply section 1913 to such officials would interfere with the President’s constitutional powers, making a narrow construction appropriate. Id., at 304–06.

Notably, however, DOJ OLC cautioned against these officials engaging in the sort of grassroots lobbying campaigns section 1913 was intended to prevent. 13 Op. Off. Legal Counsel at 303 n.5. See also Memorandum Opinion for the General Counsel, Department of Commerce, Application of 18 U.S.C. § 1913 to “Grass Roots” Lobbying by Union Representatives, OLC Opinion, at 7 n.6, Nov. 23, 2005, available at http://www.justice.gov/olc/memoranda-opinions/index.php. In particular, DOJ OLC, addressing a factual scenario similar to that presented here, noted that legislative history demonstrates that by enacting section 1913, Congress sought to prevent department heads from using appropriated funds for grassroots “mass-mailing” campaigns to “create artificially the impression that there [was] a ground swell of public support for the Executive’s position on a given piece of legislation.” 13 Op. Off. Legal Counsel at 304. DOJ OLC distinguished such activity from the permissible action of an agency openly engaging with the public regarding such policies to generate support. Id. See also OLC, Guidelines on 18 U.S.C. § 1913, at 1 (Apr. 14, 1995).

HUD, noting DOJ OLC’s position on section 1913, stated that “[f]ederal agencies under both Democratic and Republican administrations have relied on OLC’s opinion in guidance stating that neither . . . [section 1913] nor the appropriations laws’ restrictions on lobbying apply to the activities of . . . [PAS] officials.” HUD Response to Subcommittee, at 1. Without reference to DOJ OLC’s caution, HUD wrote regarding the July 2013 E-mail, “[c]onsistent with the . . . opinions and guidance [of DOJ OLC and these agencies] the email . . . was a communication from the Deputy Secretary—a ‘Presidentially-appointed, Senate-confirmed official.’” Id.

We disagree with HUD’s position that the Deputy Secretary is exempt from section 716. On its face, section 716 would exempt the Deputy Secretary to the extent he were engaging in normal executive-legislative relationships.[7] We have consistently found that under these types of appropriations restrictions, agency officials have broad authority to educate the public on their policies and views, and this includes the authority to be persuasive in their materials.[8] However, with regard to an appropriations act prohibition like that found in section 716, there is a bright-line rule: evidence of a clear agency appeal to the public to contact members of Congress in support of or in opposition to pending legislation is a violation of this prohibition. B‑322882, at 4. There is clear evidence of such an appeal to the public in this case.

CONCLUSION

HUD’s July 2013 E-mail that urged members of the public, to contact named U.S. senators in support of the Senate THUD Bill constitutes improper grassroots lobbying. HUD violated section 716 when it obligated and expended appropriated funds to prepare and transmit the July 2013 E‑mail.[9] Under the Antideficiency Act, an officer or employee of the federal government may not make or authorize an obligation or expenditure in excess of the amount available in an appropriation. 31 U.S.C. § 1341(a). Accordingly, any obligation or expenditure of appropriated funds for a purpose specifically prohibited by Congress is in excess of the amount available. B‑321982, Oct. 11, 2011. HUD should report its Antideficiency Act violation as required by law.[10] 31 U.S.C. § 1351.

If you have any questions, please contact Edda Emmanuelli Perez, Managing Associate General Counsel, at (202) 512-2853 or Julie Matta, Assistant General Counsel, at (202) 512-4023.

Sincerely,

Susan A. Poling
General Counsel