Republicans are considering ways to trim the federal budget — and the funds that go toward public broadcasting are on the chopping block. Now it appears that certain public radio stations may be violating federal law to convince listeners to lobby Congress to stop these cuts.

Reps. Betty McCollum (D-MN) and Ed Markey (D-Mass.) already staged a silly press conference this week with Elmo, Grover and Big Bird dolls, along with someone in an Arthur the Aardvark costume, to try to embarrass Republicans into continuing to pay for public broadcasting. Of course, using these characters was probably not a good marketing idea to begin with, given the money-making powerhouse that Sesame Street represents and the enormous profits that have been earned through merchandising these characters.

Now public radio stations such as KCRW 89.9 in Santa Monica are sending out press releases with detailed information about the recommended spending cuts from the House Appropriations Committee in H.R. 1, the Full Year Continuing Appropriation Act. KCRW’s message comes from Sarah Spitz at kcrw.org and urges listeners to “take action in support of public broadcasting” by visiting another website. That website allows you to “Click Here to Write Congress” and asks visitors to “contact your representatives in Congress now and urge them to stand up for public broadcasting funding.”

What KCRW is doing, however, may violate the federal Anti-Lobbying Act. 18 U.S.C. § 1913 provides 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.”

Under a prior version of the statute as it was interpreted by at least one court decision, this anti-lobbying provision applied only to federal officers and employees. But the law was amended in 2002 and now applies to anyone who receives federally appropriated funds including recipients of federal grants such as NPR. Such grants cannot be used to lobby Congress directly or indirectly, which would include trying to persuade NPR listeners to lobby Congress on NPR’s behalf. So if any of the funds received by KCRW from the Corporation for Public Broadcasting were used to pay Sarah Spritz’s salary in writing this lobbying appeal or to fund the facilities used to broadcast her message on behalf of the radio station, then KCRW has violated federal law.   And if any federal funds were used to pay for this website, that is also a violation of the law.

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On September 22, the Congressional Research Service issued a report that asserted that a bill voted on by the House of Representatives on September 17 to defund ACORN was possibly unconstitutional as a prohibited “bill of attainder.”  However, as the Heritage Foundation demonstrates in a new WebMemo  , that legal analysis is wrong.

 The Defund ACORN Act does not meet the legal definition of a bill of attainder.  There is no valid reason why the courts would not defer to the legislative judgment of Congress as to the regulatory purposes of the statute.  Congressional concern over an organization that receives taxpayer funds engaging in numerous violations of the law is more than enough justification to meet any test applied by a court trying to determine the reasonableness and rational basis for such legislation. Even the CRS recognizes the tenuousness of its claim of unconstitutionality when it admits that a “court would most likely be able to discern a rational, non-punitive purpose for [the Act]: a desire to prevent federal funds being used for activities that violate federal or state laws.” 

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