The president’s supporters enjoy him because he frequently “speaks his mind,” especially on Twitter, openly and without regard for “political correctness” or the “truth.” On Thursday, however, the carefree tweeting style of the president and his aides were in clear and unambiguous conflict with statutory prohibitions against the use of taxpayer money to lobby lawmakers.
Desperate to get his healthcare legislation passed in the House of Representatives, Donald Trump and Dan Scavino, his director of social media, posted messages to Twitter encouraging the ACHA’s supporters—there aren’t many, but they’re out there—to contact their representatives and demand that they vote in favor of the ACHA. Trump’s tweet included a video message, apparently produced in the White House, urging viewers to contact their lawmakers and urge passage of the bill.
But it turns out that the Congress, in its wisdom, long ago prohibited federal employees from using taxpayer resources to engage in any sort of grassroots lobbying effort.
The Anti-Lobbying Act (also know as 18 U.S.C. § 1913), for example, prohibits federally appropriated funds from being used to influence members of Congress “to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy, or appropriation.”
On Thursday afternoon, when press secretary Sean Spicer was asked about the tweets and whether they comported with the law, he had an answer at the ready: “That is not applicable to the president. I believe you’re referring to 18 U.S.C. § 1913.”
And Spicer has a point: According to this 2015 Congressional Research Service analysis, the law has been interpreted by the Department of Justice very narrowly and is not applicable to “public speeches or public writings of federal executive branch officials”:
The Department of Justice, Office of Legal Counsel, has noted that prohibited “grass roots” lobbying campaigns with federal appropriations would involve those where the public is expressly asked to contact Members of Congress:
The essence of a “grass roots” campaign is the use of “telegrams, letters, and other private forms of communication expressly asking recipients to contact Members of Congress.”
So whether the president himself is somehow exempt from the prohibitions or not, the tweets from Trump and Scavino were clearly public forms of communication, and as such, the Department of Justice wouldn’t view them as violating the law.
But the Anti-Lobbying Act isn’t the only rule prohibiting the use of taxpayer funds in lobbying efforts. Congress also includes a rider in every appropriations bill—the laws that fund the operations of government, including the White House—mandating that none of the money can go to “publicity or propaganda” directed at “legislation pending before Congress.”
Here’s the rider, which is included both in the most recently passed appropriations bill for 2016 and the proposed one (which hasn’t yet passed the Senate) for 2017:
Sec. 715. No part of any funds appropriated in this or any other Act shall be used by an agency of the executive branch, other than for normal and recognized executive-legislative relationships, for publicity or propaganda purposes, and for the preparation, distribution or use of any kit, pamphlet, booklet, publication, radio, television, or film presentation designed to support or defeat legislation pending before the Congress, except in presentation to the Congress itself.
Both Trump and Scavino’s tweets would appear to constitute “publications” under the rider, and they were both without a doubt designed to support legislation pending before Congress. Of course, it’s hard to argue that a material amount of funds appropriated under the act were involved in the tweets—the seconds required to compose them were on paid time, and the electricity required to maintain the devices while the tweets were sent were paid for with tax dollars, but that’s about it.
The film that accompanied Trump’s tweet, however, is a different story. The law specifically bars “film presentations,” and the production clearly required resources: Use of a (presumably) government-provisioned camera, use of the White House as a set, lighting, personnel to film it, etc. The plain language of the rider bars executive agencies (the Executive Office of the President is such an agency) from using taxpayer dollars to create films designed to influence public opinion about legislation pending before Congress. That appears to be exactly what Trump did.
The White House did not return a request for comment; neither did the Government Accountability Office or the Office of Government ethics. According to the 2015 CRS report, however, nobody has actually been prosecuted (“or even indicted”) under the Anti-Lobbying Act’s provisions since it was enacted early in the last century, so the administration probably doesn’t have anything to worry about. (Even the non-partisan watchdog group Citizens for Responsibility and Ethics and Washington took a pass when we asked them about the tweets: “We wouldn’t go that far,” a spokesman wrote in an email. “You could note that the Obama administration took extra effort to stay on the right side of that line, but I’m not sure these tweets cross it.”)
Indeed, Barack Obama made similar exhortations to his followers to contact Congress. But he did so in ways that seem clearly tailored to follow the law. In 2009, he tweeted in support of his healthcare bill: “Members of Congress need to know how much support there is at home for reform. Please call your Rep’s local office.” That’s a lawyer’s hair shy of “tell them you support” the bill. Likewise, in a 2011 speech before Congress, he urged “every American who agrees to lift your voice and tell the people who are gathered here tonight that you want action now” on his jobs bill—again, using language that falls just short of explicitly urging voters to support or oppose a particular bill.
Also, ACHA probably isn’t not going to pass anyway: We hear that Rep. Marsha Blackburn, the deputy Republican whip, is worried that she doesn’t have the votes to make it Mitch McConnell’s problem.