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.

This is not an isolated incident either.  Both of the public radio stations in Washington, D.C., the nation’s capitol (WETA and WAMU) have postings on their websites telling listeners that they should call their congressional representatives to stop these proposed funding cuts.

The amended 18 U.S.C. § 1913 has gone largely unnoticed and has not yet been used to prosecute the recipients of federal funds (e.g., Planned Parenthood) who appear to lobby Congress regularly.  But there is no question about the reach of this federal provision and the possibility that public radio stations such as KCRW may be violating the law in their lobbying efforts to stop Congress from getting rid of taxpayer funding for public broadcasting.

Will the Holder Justice Department do anything about this possible violation of federal law? Unfortunately, given its record over the past two years of politicized law enforcement decisions, that is very doubtful.

However, note to entrepreneurial lawyers:  These possible violations of the Anti-Lobbying Act by public radio stations may trigger the qui tam provisions of the federal False Claims Act, which applies to every organization that receives money from the federal government.  The FCA imposes civil liability and stiff penalties on anyone who defrauds the government by getting a  false or fraudulent claim paid.  Using federally-appropriated funds to engage in illegal lobbying activities may very well violate the FCA.  Private parties can assert qui tam claims under the FCA and can recover up to triple damages and reasonable attorneys’ fee and costs.

So even if Eric Holder’s Justice Department doesn’t want to go after NPR, private parties and their lawyers may be able to do it and make a profit on it.

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.

Wrong.

There’s only one problem: the ACORN mentality – pinpointing and mobilizing particular groups in support of a radical-left agenda – is no longer restricted to government-funded private non-profits like ACORN.  The ACORN mentality now dominates the government itself.  Taxpayer dollars are being used by elected officials to encourage the deification of President Obama and his agenda.  And one of the chief organs of the government propaganda machine is the National Endowment for the Arts.

Let’s start from the beginning.  On August 25, artist Patrick Courrielche told the story of a conference call he attended on August 10.  That conference call was hosted by the NEA, the White House Office of Public Engagement, and United We Serve.  The goal of the conference call: “to help lay a new foundation for growth, focusing on core areas of the recovery agenda – health care, energy and environment, safety and security, education, community renewal.”  The call would push “a group of artists, producers, promoters, organizers, influencers, marketers, taste-makers, leaders or just plain cool people to join together and work together to promote a more civically engaged America and celebrate how the arts can be used for a positive change!” (more…)