By AUSTIN WRIGHT and PHILIP EWING
The Navy is reviewing allegations that President Barack Obama’s nominee to become the next chief of naval operations violated laws barring federal employees from lobbying the public when he urged attendees at a symposium to contact members of Congress in support of a new nuclear submarine program.
At issue are statutes that experts say are rarely enforced but are intended to keep executive branch officials from having undue influence over decision-making authorities reserved for Congress.
Adm. John Richardson, who now oversees the Navy’s nuclear propulsion program, urged attendees at a symposium in Northern Virginia last year to tell their members of Congress to get behind the Navy’s new ballistic missile submarine program, despite laws prohibiting federal agencies from directly appealing to the public to support or oppose pending legislation.
“Inform those in your sphere of influence: everyone from your congressmen to your local PTA,” Richardson said of the estimated $93 billion Ohio-class submarine replacement program at the annual Naval Submarine League symposium, according to a transcript. “Look for ways to make people aware of how vital this is to the nation’s security; the stakes are extremely high.”
A Navy spokesman, Cmdr. William Marks, said the service is reviewing the legal concerns, which were originally raised by the Project on Government Oversight, a nonpartisan group specializing in government ethics. The group is asking the Government Accountability Office, the independent oversight arm of Congress, to investigate Richardson’s comments. POLITICO was provided an early copy of POGO’s letter to the GAO.
“We don’t think taxpayer resources should be used to influence members of Congress through their constituents,” said Mandy Smithberger, director of POGO’s Straus Military Reform Project.
The group is also accusing a second top Navy officer, Rear Adm. Joseph Tofalo, of possible violations of anti-lobbying laws. Tofalo, who’s been nominated to be the next commander of Naval Submarine Forces, also spoke at last year’s submarine symposium. He told attendees they could contact the Navy for help with “strategic messaging.”
“If you need trifolds, priorities briefs, talking points for your congressman, we are more than happy to support you,” Tofalo, now the Navy’s director of undersea warfare, was quoted as saying at the symposium.
The big question is whether the allegations will be a factor in Richardson’s or Tofalo’s Senate confirmation hearings, which have not yet been scheduled.
The GAO investigated a similar issue last year involving the Department of Housing and Urban Development. It concluded federal officials are allowed to voice their opinions on public policy through direct communications with Congress — but there’s a “bright-line rule” against appeals to the public to contact their members of Congress about legislation under consideration.
According to military legal experts familiar with the relevant laws, the Navy’s inquiry will likely focus on two areas: first, a 1989 memo from the Office of Legal Counsel that sets the precedent for the interpretation of the 1919 Anti-Lobbying Act. Second is the prohibition included in all annual appropriations bills barring the use of public funds for indirect lobbying.
POGO sent its letter on Monday to GAO and to the Senate Armed Services Committee, which will oversee the confirmation process for Richardson and Tofalo for their new positions.
The letter, from POGO Executive Director Danielle Brian, notes that government agencies are free to offer their views on appropriations bills through “official communications” — which happens routinely as federal agencies jockey to adjust spending bills in their favor.
But the GAO has drawn a line when it comes to grass-roots lobbying.
Last year, the agency concluded that the deputy secretary of HUD violated the anti-lobbying provision in the appropriations bill that funded the department. The official had sent an email in July 2013 to more than 1,000 people, including members of the public, requesting they contact specific senators in support of legislation under consideration.
The email constituted “a clear, direct appeal to the public regarding pending legislation,” the GAO said. The provision included in all appropriations bills “is violated where there is evidence of a clear appeal by an agency to the public to contact members of Congress in support of, or in opposition to, pending legislation.”
In her letter to GAO, Brian wrote that “the federal government is the most powerful special interest that exists, which is why Congress has put in place a number of restrictions on the ability of federal agencies to influence the public.”
One expert, Kenneth Gold, who directs the Government Affairs Institute at Georgetown University, said anti-lobbying laws seek “to prohibit exactly the kind of acts that these admirals are being accused of.”
“There are no prohibitions on federal officials communicating directly with members of Congress and staffers about pending legislation,” he said. “The Anti-Lobbying Act is specifically directed at indirect communication.”
But, Gold added, these laws are rarely enforced — and it’s unclear which agency would even have jurisdiction.
“GAO gets into this, inspectors general get into this, the House Government Reform and Oversight Committee has gotten into this,” he said. The Office of Management and Budget, “because of appropriations law, has gotten into this. Everybody has a finger in this.”
The Ohio-class replacement program, which would yield 12 ships, is a hot topic right now on Capitol Hill.
Chief of Naval Operations Adm. Jonathan Greenert and other senior leaders have called it the Navy’s top priority program, one so expensive it could bankrupt the service’s normal shipbuilding account. So the Navy is trying everything it can to improve the odds it’ll be able to develop and build the new ships on schedule and preserve the rest of its yearly shipbuilding portfolio.
One proposal is for Congress to create a separate fund outside the Navy’s standard shipbuilding account to serve as an avenue for the extra money needed for the program. Lawmakers agreed and included the fund in last year’s defense policy bill, but new resistance this year means the National Sea-based Deterrence Fund is expected to be the subject of a floor battle this week in the House.
The Navy’s current Ohio-class ships have strict engineering limits about how long they can serve; their nuclear reactors can run for only so many years and their pressure hulls can dive and surface only so many times.
That’s why it’s so important for Congress to fund the Ohio-replacement on the Navy’s proposed schedule, Navy leaders say — and why Richardson, Tofalo and other leaders have tried to increase support as much as possible.
If lawmakers delay, don’t fund the program at the required levels or create other roadblocks, the first new ship might not be ready in 2031, when the USS Henry M. Jackson is scheduled to retire. That would create a major gap in America’s strategic defenses, the Navy warns.
Navy leaders and shipbuilding advocates hope to have their budget and political arrangements in place by fiscal year 2017, when the Navy and its vendors must begin detailed planning for the first ship. Current plans call for ordering the first hull in 2021 for a submarine that could cost about $12 billion.