Politicizing the Arts Community: What Did the White House Do Wrong?

by Hans von Spakovsky and Elliot S. Berke

The allegations raised in “White House Creates ACORN for the Arts” and prior stories about the NEA enlisting artists who receive government grants to support President Obama’s political goals certainly raise a number of issues.  Foremost among them is whether such actions violate White House policy and potentially federal law.  The White House Counsel was concerned enough about the conference call that it was compelled to issue new guidelines for public outreach meetings, noting that some of the comments on the call may have been “misunderstood as seeking to inappropriately politicize activities of the NEA.”  But beyond violating these White House guidelines, which could result in further forced resignations but little else, what is really at issue with the alleged conduct?

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By seeking to enlist the private sector in lobbying for the President’s agenda, the alleged conduct may have violated the Anti-Lobbying Act (18 U.S.C. §1913), which as Ben Shapiro pointed out in a previous piece, 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.

The Anti-Lobbying Act, according to government handbooks, prevents government employees from engaging in “substantial ‘grass roots’ lobbying campaigns … expressly urging individuals to contact government officials in support of or opposition to legislation …. Provid[ing] administrative support for lobbing activities of private organizations”

It is important to note that 18 U.S.C. §1913 only applies to federal officers or employees and not to the private recipients of federal grants, contracts or other federal disbursements.  Thus, while the artists who responded to the NEA’s request for political help may not have violated this particular provision of federal law, Yosi Sergant, who was apparently the main person behind the NEA phone call, and other members of the White House staff who were involved in the May 12 meeting at the White House, may very well have violated §1913.  Those staffers included “people very close to the President” according to Mike Strautmanis, Chief of Staff for the Office of Public Engagement.  Punishment for such a violation can be severe – a civil penalty of not less than $10,000 and not more than $100,000 for each violation.

The behavior of these administration officials may have also violated 18 U.S.C. § 607, which prohibits anyone from promising “any employment, position, contract, or other benefit derived in whole or in part from an Act of Congress, as consideration, favor, or reward for past or future political activity.”   Ben Shapiro’s article relates that Mario Garcia Durham, the Director of Presenting for the NEA, told the gathered artists at the White House meeting that the “government and its policies should be shaped by participants’ voices in connection with the NEA,” a pretty direct statement that the NEA considers its mission to be ensuring the president’s policies are being supported by its constituency – which are the artists who get its grants.

Whether or not the conduct of NEA and White House officials violates the Hatch Act (5 U.S.C. §7324) hinges on how broadly the Office of Special Counsel (OSC), which has jurisdiction over Hatch Act violations, construes “political activity” and who specifically was involved in these calls and meetings.   In general terms, the Hatch Act prohibits all federal employees (except for the President and the Vice President) from engaging in “political activity” in the workplace.  While certain federal officials, such as some assistants to the President and some in Senate confirmable positions, are bound by the Hatch Act, they are exempt from the prohibition on engaging in political activity.  So who was involved in the alleged conduct is the first question.  

The second question goes to the underlying conduct.  “Political activity” is defined as activities that are “directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.”   That phrase has historically meant activities that were oriented towards campaigns or elections as opposed to simply political in the legislative sense, and the underlying intent is important.  As an example, the Bush Administration came under OSC scrutiny regarding briefings that were held in federal buildings that analyzed the political landscape in the run up to the 2004 and 2006 election cycles.  In this case, the alleged conduct appears to be even more forward looking – not rooted in an upcoming election cycle per se, but leveraging past campaign resources to promote a legislative agenda that may have an electoral benefit down the road.  It would be a much easier analysis if comments were made about the 2010 cycle or about the need to help out in vulnerable member districts.

 In the era of the permanent campaign – and the references to past support by the artists that apparently occurred on both the phone call and at the White House meeting – it remains to be seen if such conduct could be attributed to future and potential campaigns. On the other hand, the Hatch Act also prohibits soliciting or discouraging political activity by anyone with business before a federal agency – and there is no question that the artists the NEA was talking to had business (grants) before the NEA.  The issue again is whether the NEA was soliciting political activity.

Another interesting side point is that historically – and in some cases problematically – so called “political activity” by the White House has been within the purview of the White House Office of Political Affairs.  That office has not been without controversy.  Senator John McCain pledged to eliminate it during the 2008 campaign and Congressman Henry Waxman has also called for its abolishment.  But shortly after the election, President-Elect Obama announced that he would keep that  office although it has been relatively quiet over the last eight months.  The political conduct with the arts community seemed to come out of the White House Office of Public Engagement.  So it would seem that the desire to push a political agenda has drifted into other White House offices. 

But the ultimate question is whether the White House Counsel, the Office of Special Counsel or the Justice Department determines there is  enough evidence from the NEA telephone call and the meeting at the White House to form the basis of an investigation into the actions of White House and NEA staff.  That will serve as the ultimate indication as to whether this administration represents the promised new era of accountability or simply more politics as usual.


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Posted Oct 8th 2009 at 8:38 am in Culture, Featured Story, News, Obama, Politics | 38 Comments