Note: CREW declined comment on this blog post.
On June 14, 2011, Citizens for Responsibility and Ethics in Washington (CREW) filed a complaint with the Office of Congressional Ethics (OCE) against Speaker of the House John Boehner. The complaint alleged that the Speaker had violated the Anti-deficiency Act, 31 U.S.C. § 1341(a), by directing the House Counsel to hire outside counsel to defend the constitutionality of the Defense of Marriage Act (DOMA). The essence of the claim was that the contract between House Counsel and the outside firm, signed in April 2011, violated the Act because the $500,000 obligation incurred exceeded the available appropriations in the FY2011 appropriation for the House Counsel’s office.
When I first read the complaint, several things struck me. First, the “ethics” issue raised by CREW was really a highly technical question of appropriations law. Not being an expert in this area, I couldn’t tell whether CREW’s claim was colorable or not. But I do know that the House Counsel has contracted with outside counsel in the past, using funds from other House accounts with the approval of the Committee on House Administration. It seemed odd that CREW did not address this fact, which was specifically mentioned by House Counsel Kerry Kircher in testimony that CREW submitted with its complaint.
Second, although Kircher made it clear that the funds to pay outside counsel would not be coming from the House Counsel’s office, but “from other sources in the House,” CREW offered little but vague generalities to support the proposition that this would be impermissible under the Anti-deficiency Act. The complaint is sprinkled with general citations to GAO’s multi-volume “Principles of Federal Appropriations Law,” but CREW identifies no specific authority for the proposition that reprogramming or transferring funds among House accounts is prohibited.
It is worth mentioning here that the core purpose of the Anti-deficiency Act is to ensure that the executive branch adheres to congressionally-imposed limits on expenditures. Although GAO has opined that the Act applies to the legislative branch, it appears that no legislative branch contract or expenditure has ever been found to have violated the Act. (FWIW, when I looked at the Act in connection with the government shutdowns in the 1990s, it was not clear to me that it was intended to apply to Congress at all).
Third, it was particularly surprising that CREW’s complaint does not cite any appropriations law expert in support of its theory. As far as can be determined from its website, CREW’s staff has no background in appropriations law. Given the highly technical nature of the allegations, one would have expected CREW to consult an expert before filing what is, after all, a claim that the Speaker of the House has violated a criminal statute. If it did so, there is no indication of it in the complaint.
Fourth, CREW’s decision to file a complaint against the Speaker also seemed curious. Following the Bipartisan Legal Advisory Group’s decision to defend DOMA, Boehner “directed House Counsel and House Administration Committee to assure that sufficient resources and associated expertise, including outside counsel, are available for appropriately defending the federal statute.”
The House Counsel is, of course, the House’s chief lawyer and was a party to the DOMA contract. The House Administration Committee is the committee of jurisdiction over accounts of the House generally, with specific authority over expenditures and auditing and settling of accounts, including those of House officers and administrative offices. See House Rule X(1)(k). The committee’s chairman, Dan Lungren, reflected the committee’s approval by signing the DOMA contract.
Presumably, when Speaker Boehner gave direction to the House Counsel and House Administration Committee, he expected that they would act in compliance with all applicable laws, rules and regulations. Filing an ethics charge against the Speaker for an Anti-deficiency Act violation in the House is like impeaching the President for a similar violation in the executive branch. Does CREW expect that the Speaker personally researches appropriations law to ensure that the House’s contracts are in compliance? Did it expect him to consult with an appropriations law expert to ensure that the DOMA contract in particular was lawful? Put another way, did it expect that he would do more than CREW itself apparently did before filing its complaint?
Finally, CREW chose to file its complaint with the OCE, an office with absolutely no expertise (and questionable authority) with regard to interpreting or opining on the Anti-deficiency Act or any other appropriations law issue. By contrast, it chose not to submit its complaint to GAO, a legislative branch agency with unquestionable and unparalleled expertise in this area. Unlike OCE, (which, AFAIK, has never addressed a remotely comparable issue), GAO has express statutory authority and decades of experience in resolving precisely these types of questions.
Fortunately, after CREW filed its complaint, the chairman of the House Legislative Branch Appropriations Subcommittee did ask GAO for an opinion on whether the DOMA contract violated the Anti-deficiency Act. On July 6, GAO issued an opinion, finding that the DOMA contract did not violate the Act and that the House has statutory authority to transfer funds from other contracts to cover the costs of the contract and other obligations of the House Counsel’s office.
GAO’s opinion relies heavily on 2 U.S.C. § 95b(b), which provides explicit authority for transfers among various House accounts, including that for the House Counsel. Significantly, the CREW complaint makes no mention of this provision, which naturally leads to the question of whether it was aware of it at the time that it filed its complaint.
CREW responded to the GAO opinion by withdrawing its OCE complaint. However, it did not issue an apology or explain its failure to discuss apparently controlling law in its original complaint. Moreover, its withdrawal letter somewhat churlishly claims that GAO did not address all of the issues raised in the CREW complaint, such as the question of whether the DOMA contract violated the Anti-deficiency Act by incurring obligations beyond FY2011. In fact, GAO did address precisely this question. See GAO Opinion of July 6, 2011 at 3 n.5.
We all make mistakes. But filing this strained ethics complaint against the Speaker of the House would seem to require something more than “my bad.” CREW has some explaining to do.