Advancing Glenn Beck's and Andrew Breitbart's aggressive promotion of an August 10 conference call, Fox News' Gretchen Carlson and conservative columnist Ben Shapiro have alleged that the National Endowment for the Arts (NEA) broke laws against lobbying and electioneering during the secretly taped call. In fact, the transcript of the conference call released by Breitbart's website contains no evidence of illegal electioneering or lobbying by government officials.
Carlson and Shapiro baselessly claim NEA broke laws
Carlson baselessly claims NEA official's actions were "against the law." Discussing the release of secretly taped audio recordings of the August 10 conference call, Carlson claimed that "[y]ou can tell from listening to [former NEA communications director] Yosi Sergant, who, by the way, no longer has that position, because he was fired-slash-resigned from it, that, you know, we'll figure out how to talk about this legally, because here's the basic bottom line: You cannot tell federally funded organizations how they should be doing their work. In other words, you can't give them a mandate and say, 'Hey, push President Obama's health care reform plan with federal tax dollars.' That's against the law." [Fox News' Fox & Friends, 9/23/09]
Shapiro: NEA "conference call ... is in blatant violation of the Anti-Lobbying Act."
From Shapiro's September 21 blog post on Breitbart's BigHollywood.com:
All of this -- particularly the government-sponsored conference call itself -- is in blatant violation of the Anti-Lobbying Act (19 U.S. Code §1913), which explicitly provides: "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 ..."
Violation of this law, in turn, violates 31 U.S. Code §1352, which bans use of "funds appropriated by any Act [from being] expended by the recipient of a Federal contract, grant, loan, or cooperative agreement to pay any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any Federal action ..."
Shapiro: "The conference call also violates the Hatch Act," other laws.
From Shapiro's September 22 blog post on BigHollywood.com:
The conference call also violates the Hatch Act - in particular, 5 U.S. Code §7323(a)(4), which prohibits federal employees from "knowingly solicit[ing] or discourag[ing] the participation in any political activity of any person who - (A) has an application for any compensation, grant, contract, ruling, license, permit, or certificate pending before the employing office of such employee ..."
And then there are regulations of the Office of Management and Budget.
Also, many of the groups on the line were 501(c)(4) organizations, tax-exempt civic organizations who are generally allowed to lobby. Except if they receive federal funds, that is: "An organization described in section 501(c)(4) of the Internal Revenue Code of 1986 which engages in lobbying activities shall not be eligible for the receipt of Federal funds constituting an award, grant, or loan." (P.L. 104-99 §129.) "Lobbying activities" are defined narrowly -- they apply to contact with federal officials. But that, of course, is the whole point here: these artists are supposed to provide the groundwork for such contacts, which is barred by law.
It gets even worse. Under 18 U.S.C. §371, it could be found that this call was designed to defraud the United States: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both."
Anti-Lobbying Act restrictions limited to "large-scale" campaigns, requires direct or implied request to get people to contact Congress
Justice Department opinions on Anti-Lobbying Act have special force. The Anti-Lobbying Act specifically states that Justice Department opinions limiting the scope of the legislation due to constitutional concerns have the force of law. The act states: "[T]his [provision] shall not prevent officers or employees of the United States or of its departments or agencies ... 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." [18 U.S.C. § 1913]
Justice Department: Anti-Lobbying Act covers only "large-scale, high expenditure" lobbying campaigns. A 1989 Department of Justice Office of Legal Counsel (OLC) opinion on the applications of the Anti-Lobbying Act stated, "These remarks [in the law's legislative history] demonstrate that Congress was concerned about the use of appropriated funds to implement 'grass roots' mailing campaigns at great expense. [Footnote: 'Our calculations indicate that an expenditure of $7500 in 1919 would be roughly equivalent to one of $50,000 today'] Based on this legislative history, this Office has consistently concluded that the statute was enacted to restrict 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." [1995 OLC opinion quoted in 1996 Congressional Research Service (CRS) report, 12/23/96 (brackets, emphasis in original)]
Justice Department: Threshold amount of $50,000 for Anti-Lobbying Act violation. The CRS report further stated, "The Department of Justice has thus expressly interpreted the anti-lobbying criminal statute as having a de minimis threshold as far as the expenditure of federal funds for conduct which apparently was intended to come within the statutory restriction, that is, communications such as letters and telephone calls from an executive official to the public to put pressure on Congress concerning legislation. The de minimis threshold amount of $50,000 suggested in the 1989 Barr memorandum to Attorney General Thornburgh has been cited and reiterated by the current Department of Justice in guidelines issued to General Counsels." [CRS, 12/23/96]
Justice Department: Violation of Anti-Lobbying Act requires that official requests people to contact Congress. In a 2005 opinion, OLC also stated that the prohibitions of the Anti-Lobbying Act are aimed at lobbying campaigns "designed to encourage members of the public to pressure Members of Congress to support Administration or Department legislative or appropriations proposals." The opinion also said that "[t]he essence of a 'grass roots' campaign is the use of ... 'communication expressly asking recipients to contact Members of Congress.' " Similarly, the CRS report quoted 1995 OLC guidelines stating that the Anti-Lobbying Act prohibition applied only to "substantial 'grass roots' lobbying campaigns of telegrams, letters and other private forms of communication expressly asking recipients to contact Members of Congress, in support or opposition to legislation." [OLC opinion, 11/23/05]
Justice Department: Appropriations restrictions on lobbying similarly limited to " 'clear appeal by the agency to the public to contact congressional members in support of the agency's position.' " In the 2005 opinion, OLC also stated, "GAO has noted that appropriations riders imposing restrictions similar to those in section 1913 'apply primarily to indirect or grass-roots lobbying, and not to direct contact with or appeals to Members of Congress,' " ... and that "grass roots" lobbying involves " 'a clear appeal by the agency to the public to contact congressional members in support of the agency's position.' " [OLC opinion, 11/23/05]
Shapiro, Carlson did not point to any evidence of substantial grassroots campaign or request to contact Congress
Fox & Friends, Shapiro both quote Yosi Sergant asking for support for president's programs, but neither point to any request to contact Congress. Immediately before Carlson asserted that NEA officials had broken the law, Fox & Friends aired a clip of Sergant saying: "This is just the beginning. This is the first telephone call of a brand new conversation. We are just now learning how to really bring this community together to speak with their -- the government, what that looks like legally. So bear with us as we learn the language so that we can speak to each other safely. And we can really work together to move the needle and to get -- to get stuff done." In his September 21 blog post, Shapiro stated that an email from Sergant said: "A call has come in to our generation. A call from the top. A call from a house that is White. ... President Obama is asking us to come together ... Now is the time for us to answer this call." In his September 22 blog post, Shapiro did not point to any quotes by government officials. Neither Fox & Friends nor Shapiro pointed to an example of an express call for people to contact Congress.
"Full transcript" on BigHollywood.com does not contain any calls to contact Congress. BigHollywood.com has posted what it calls "Full NEA conference call transcript and audio," apparently derived from a secret tape of the call by call participant Patrick Courrielche. But nowhere in that 49-page transcript does any government official -- or indeed any participant -- make a call for people to contact Congress.
Administration reportedly says it has not violated the law. According to The Washington Times, NEA chairman Rocco Landesman stated: "This call was not a means to promote any legislative agenda and any suggestions to that end are simply false. Rather, the call was to inform members of the arts community of an opportunity to become involved in volunteerism." [9/22/09] Similarly, according to the Los Angeles Times, "White House spokesman Shin Inouye said the Aug. 10 teleconference 'was not meant to promote any legislative agenda -- it was a discussion on the United We Serve effort and how all Americans can participate.' " [9/10/09]
Hatch Act limited to activity in support of candidates, parties
Regulations under Hatch Act limit "political activity" to "an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group." In his September 22 blog post, Shapiro asserted that "[t]he conference call also violates the Hatch Act ... which prohibits federal employees from 'knowingly solicit[ing] or discourag[ing] the participation in any political activity of any person who -- (A) has an application for any compensation, grant, contract, ruling, license, permit, or certificate pending before the employing office of such employee." But regulations promulgated by the Office of Special Counsel -- the agency responsible for enforcing the Hatch Act -- define "political activity" as "an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group." Shapiro pointed to no statements by government officials advocating for the success or failure of a party, candidate, or partisan political group, and the "full transcript" on BigHollywood.com contains no such statements.
CREW's Sloan: No violation of Hatch Act. According to a blog post by ABC News correspondent Jake Tapper, Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington (CREW) said: "Government agencies are not supposed to be engaged in political activities. ... Here, because they didn't veer off into 'This is about the election,' where you'd get into violations of the Hatch Act, it's not illegal. But it doesn't look good -- it looks terrible. It's inappropriate." [ABCNews.com, 9/22/09]
Shapiro's, Carlson's claims follow Beck's, Breitbart's promotion of allegations against NEA
Beck repeatedly promotes allegations against NEA, Sergant. As Media Matters for America has documented, Beck has promoted allegations that Sergant and the NEA are "creating a propaganda machine for the president of the United States." Beck also pushed allegations about White House employee Buffy Wicks "leading" an NEA conference call to tie ACORN to the Obama administration.
Following Fox News, media cover NEA call. Following Fox' focus on the story, CNN's Lou Dobbs advanced similar attacks on the White House. Washington Post columnist George Will also attacked the White House over the NEA call. And The New York Times, the Los Angeles Times, Politico, and ABC News also covered the White House's issuing of new guidelines that, as The New York Times wrote, "instructed government agencies to keep politics away from the awarding of federal grants, a step taken as the administration sought to minimize the fallout after an official at the National Endowment for the Arts urged artists to advance President Obama's agenda."
Breitbart promotes GOP senators' letters saying NEA may have violated Hatch Act, lobbying restrictions. BigGovernment.com -- another Breitbart website -- has published a letter from Republican Sens. Mike Enzi (WY), Judd Gregg (NH), Lamar Alexander (TN), Richard Burr (NC), Johnny Isakson (GA), John McCain (AZ), Orrin Hatch (UT), Lisa Murkowski (AK), Tom Coburn (OK), and Pat Roberts (KS) saying: "[T]here remain significant concerns that NEA's participation in these calls may have stepped over the line. If true, the activities may have violated criminal restrictions on lobbying Congress, the Hatch Act, appropriations restrictions on spending funds for such purposes, and/or are in direct contradiction with the NEA's mission under its authorizing statute."
From the September 23 edition of Fox News' Fox & Friends:
STEVE DOOCY (co-host): So last week, BigGovernment.com took aim at ACORN.
BRIAN KILMEADE (co-host): Right.
DOOCY: This week they released the contents of a conference call that was made on August the 10th. On it, Yosi Sergant, NEA's communications director, talked essentially to a number of artists about getting on board with the president's health care initiative.
KILMEADE: More than that -- education and environmentals.
DOOCY: Oh, it was big, and there's been fallout. First a little snippet.
SERGANT [audio clip]: This is just the beginning. This is the first telephone call of a brand new conversation. We are just now learning how to really bring this community together to speak with their -- the government, what that looks like legally. So bear with us as we learn the language so that we can speak to each other safely. And we can really work together to move the needle and to get -- to get stuff done.
CARLSON: You can tell from listening to Yosi Sergant, who, by the way, no longer has that position, because he was fired-slash-resigned from it, that, you know, we'll figure out how to talk about this legally, because here's the basic bottom line: You cannot tell federally funded organizations how they should be doing their work. In other words, you can't give them a mandate and say, "Hey, push President Obama's health care reform plan with federal tax dollars." That's against the law.
So that guy does not have that job anymore. And here was the statement from him on the firing of Yosi Sergant: "Some of the language used by the former NEA director of communications was unfortunately not appropriate and did not reflect the position of the NEA. This employee has been relieved of his duties as director of communications." But you have to wonder who did --
CARLSON: -- Yosi get his talking points from?
KILMEADE: So the National Endowment for the Arts is a nonprofit, apolitical organization that looks for federal grants. And all of a sudden --
DOOCY: And doles them out.
KILMEADE: -- they're now being urged to support and promote the president's policies regardless of what president? It just so happens to be --
KILMEADE: -- this president on all three counts? Well, the White House at this hour is trying to minimize the fallout, perhaps, after this has become public, as we tell you this story. They are now urging government agencies to keep politics out of federal grants. So that problem's solved.
CARLSON: Yeah, right.
DOOCY: Because a number of those outfits -- 16 of the 21 groups on the phone call got millions of dollars, so it's like, "OK, we gave you the money, now you're going to be supporting us, right?" Next thing you know, they sign a letter -- they're all supporting you. That has got to stop, the White House says.