At Least 6 Federal Laws and Regulations Violated By the NEA Conference Call

by Ben Shapiro

Yesterday, I posted about the NEA conference call’s clear and obvious violations 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 …”  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 …”  

Violation of this law, in turn, violates 31 U.S. Code §1352, which, if read broadly, bans the use of federal funds for lobbying by the recipients: “funds appropriated by any Act [may not be] 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 …”  

But that’s not all.  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.  At least one organization represented on the conference call – Americans for the Arts — has charitable 501(c)(3) status.  Under OMB Circular No. A-122, Attachment B, Section 25, federal moneys going to 501(c)3s cannot be used for “(1)Attempts to influence the outcomes of any Federal, State, or local election, referendum, initiative, or similar procedure, through in kind or cash contributions, endorsements, publicity ,or similar activity; … (3) Any attempt to influence: (i) The introduction of Federal or State legislation; or (ii) the enactment or modification of any pending Federal or State legislation through communication with any member or employee of the Congress or State legislature (including efforts to influence State or local officials to engage in similar lobbying activity), or with any Government official or employee in connection with a decision to sign or veto enrolled legislation; (4) Any attempt to influence: (i) The introduction of Federal or State legislation; or (ii) the enactment or modification of any pending Federal or State legislation by preparing, distributing or using publicity or propaganda, or by urging members of the general public or any segment thereof to contribute to or participate in any mass demonstration, march, rally, fundraising drive, lobbying campaign or letter writing or telephone campaign …”  The responsibility falls on the federal agencies to implement the OMB circular.  If any of the 501(c)3s on the call received federal moneys at any time near the conference call, the federal agency authorities who approved such disbursements violated this circular. 

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.”  Courts, in fact, have found that action designed to accomplish political activities with federal funds falls under this statute: in 1980, the 8th Circuit held in United States v. Pintar that where individuals conspired to use a federal program “to accomplish political objectives … unrelated to legitimate [agency] business,” they had defrauded “the United States of its right to have programs of an agency financed … by the United States Government … administered, honestly, fairly, without corruption or deceit.” 

Undoubtedly, there is more to come here.  At the very least, a bevy of federal laws have been violated.  Any failure by the Congress of the United States to initiate a full-scale investigation must be considered action designed to enable the misuse of taxpayer funds in violation of federal law.


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Posted Sep 22nd 2009 at 12:24 pm in Art, Law, Politics | 91 Comments