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.

Now we have new evidence that the White House itself has been using its sway to recruit artists – not just to support President Obama’s “volunteerism” initiatives, but to support basic planks of his political agenda, including health care.  In fact, the White House has been tapping its extragovernmental political allies to work with artists with the tacit promise that NEA funds will be in the offing for those who join the Obama Administration political program.

According to a briefing report from Arlene Goldbard, the Pratt Center for Community Development, State Voices, and the Nathan Cummings Foundation, on May 12, 2009, “more than 60 artists and creative organizers engaged in civic participation, community development, education, social justice activism, and philanthropy came together for a White House briefing on Art, Community, Social Justice, National Recovery.”  Each of the sponsors of the meeting was contacted by – yes, you guessed it – Yosi Sergant, who had just been promoted from the Office of Public Engagement to serve at the NEA.

According to the briefing report, the meeting had three segments: “(1) a meeting at the Kaiser Family Foundation to prepare for the briefing, (2) the two-hour White House briefing at the Eisenhower Executive Office Building, and (3) a post-briefing meeting at Bus Boys & Poets to interpret and respond to what we had learned …”

Mike Strautmanis, Chief of Staff for the Office of Public Liaison, spoke at the White House meeting.  He introduced Sergant, and stated that Sergant represented the “commitment to bring in people not traditionally part of the political process to share their talents and skills.”  More ominously, he stated that “With Yosi and Anita Decker (Director of Government Affairs at the NEA) in place… people very close to the President are involved in the effort.”

Joseph Reinstein, Deputy Social Secretary for the President, spoke at the meeting as well.  When he was asked by one artist whether there was a “direct link between arts policy and the Department of Education,” Reinstein stated, “President Obama has asked for greater cohesion and collaboration between agency work and departments …”  In other words, departments under the President’s control are being coordinated with supposedly independent agencies like the NEA.

As if the promise of “quid pro art” weren’t explicit enough from that comment, one questioner (artist Doria Roberts) asked about grants for individual artists: “how open will administration policy be to grants for individuals?”  Reinstein replied that while he couldn’t speak to that issue personally, others in the room – read Sergant and Buffy Wicks – could.  The proper legal response would have been to reject any link between the meeting and NEA funding.  Instead, Reinstein punted, implying that such funding would be forthcoming.

Then it got downright disturbing.  Mario Garcia Durham, Director of Presenting for the National Endowment for the Arts, spoke as well.  Apparently, he explained that “what the NEA supports and emphasizes comes from artists and organizations.”  He also told people to apply to the NEA, and that the NEA was committed to “the new Administration’s goals.”  Then he made the king of all booboos: he announced that there was a direct link between shaping government policy and the NEA.  “Government and its policies,” the brief reports Durham said, “should be shaped by participants’ voices in connection with the NEA.”

Perhaps the most problematic aspect of the meeting, however, was that it wasn’t just the White House and artists at this meeting – it was the White House, artists, and community organizers: specifically, far-left community organizers in the ACORN mold.  The NEA has a commitment to be nonpartisan, but by inviting community organizers and unions to a meeting with artists, it breaks that commitment.

This meeting was designed to concretize the synergistic relationship between far-left community organizers, the White House, the NEA, and artists.  Last week, I said that the White House was trying to set up an ACORN for the Arts.  I was speaking figuratively.  This meeting, however, makes that accusation literal.

At the after-meeting, Michael Nolan of Communications, Contacts & Concepts headed up a group that discussed artists actually writing legislation – in particular, “finding places in the Stimulus Bill where Community Arts organizations can insert themselves.”  That’s right – artists, with the tacit promise of NEA funding, attempting to rewrite Congressional legislation.

It gets worse.  The post-White House meeting working group on Healthcare Reform was led up not by an artist but by Michelle Miller of the Service Employees International Union (SEIU).  The SEIU is led by Andy Stern, who picked ACORN head Wade Rathke to handle SEIU’s organizing projects across the country (for more on the SEIU-ACORN relationship, see pieces by Don Loos and Anita Moncrief at Big Government).  At the May 12 meeting, SEIU was essentially tapped by the White House to lead artists in the right direction on health care.

The immigration reform working group was led by Sally Kohn of the Center for Community Change, a far-left pro-illegal immigration organization.  Again, why was the White House, in conjunction with the NEA, sponsoring an event for artists where leftist community organizers were tapped to discuss these issues with possible grantee artists?

The White House’s total unconcern with using the NEA to promise funding, then bringing in a combination of radical left community organizers to help brainstorm with artists is troubling in the extreme.  Again, if all of what has been reported in this briefing report is true, laws were broken.  By law, the NEA must remain apolitical.  By law, the White House must not funnel federal funds to its friends, or use the NEA to do so.  By law, neither the White House nor the NEA may use their governmental status to push outside entities to shape legislation, or provide administrative support for lobbying activities of private organizations.

All of these things were done at this meeting, if the briefing report is correct.  Congress must investigate this meeting, too.  And Americans must be on a sharp lookout for the quid pro art that is quietly and steadily taking place with our tax dollars.