Basic principles of American government limit the political role of administrative agencies in legislative debates.
Among the many twists and turns in this summer’s legislative drama involving Republicans’ efforts to repeal and replace the Affordable Care Act, one sideshow revealed an important lesson worth highlighting about American government—specifically, about the appropriate relationship between executive branch officials and members of Congress.
In the days leading up to the Senate’s late-night crescendo, where Senator John McCain (R-Ariz.) joined with Senators Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) to reject a last-ditch effort to pass a “skinny” repeal bill, U.S. Secretary of the Interior Ryan Zinke apparently made phone calls to Alaska’s two Senators threatening adverse departmental actions toward their state if Murkowski did not get behind the health care repeal effort.
Murkowski reportedly described Zinke’s phone call to her as “not … very pleasant,” acknowledging that he attempted to pressure her to change her vote. Murkowski’s fellow Republican Senator, Dan Sullivan, reportedly said that Zinke’s “troubling” call to him instilled “fear that the strong economic growth, pro-energy, pro-mining, pro-jobs and personnel from Alaska who are part of those policies are going to stop.”
Although Zinke’s phone campaign failed to sway Murkowski, it skirted close to, if not over, the line of illegality. It also flipped the roles of agency officials and members of Congress. The head of an executive department is Congress’s delegate, not its boss.
Government agencies like the U.S. Department of the Interior (DOI) owe their existence to Congress. They have been established through legislation and only exercise authority given to them under statutes passed by Congress. They are called “agencies” because they are supposed to operate, in an important sense, as agents of Congress, carrying out the spirit and the letter of the laws that Congress has directed them to administer.
Threats by the heads of administrative agencies also run afoul of the purpose—if not also the letter—of a series of laws prohibiting executive branch officials from using their resources and power to influence the legislative process.
The federal Anti-Lobbying Act, for example, prohibits agencies from devoting federal government resources “directly or indirectly” to support “any … telephone [use]…intended or designed to influence in any manner a Member of Congress… to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy, or appropriation.” This act exempts “proper” communications in the course of official business, but threatening calls about legislation outside the scope of an agency’s purview seem neither proper nor official.
Zinke’s alleged conduct also offended the spirit of the Hatch Act’s restrictions on “political activity” by federal officials. Although the Hatch Act typically restricts federal employees’ ability to get involved in campaigns, at least in a colloquial sense the words “political activity” encompass more than campaigning.
Even more concerning, Zinke may have skirted close to bribery—which occurs when someone “directly or indirectly, corruptly gives, offers or promises anything of value to any public official … with intent . . . to influence any official act.” Dangling federal resources or approval of projects and policies over a U.S. Senator would seem to amount to something “of value.”
Restrictions on political influence by executive officials serve a vital purpose in protecting democracy. The DOI has vast resources and wields power with enormous impacts, especially on states like Alaska, where it manages over 50 percent of the state’s land. A cabinet secretary’s ultimatum interferes with elected representatives’ ability to make decisions based on their independent judgment about their constituents’ needs and interests. Can the priorities of a school teacher or fishery worker in Anchorage really compete with lobbying by a powerful federal bureaucracy?
This is at least one reason why DOI regulations impose a specific duty on all its employees “to maintain especially high standards of honesty, integrity, impartiality, and conduct to ensure . . . the continual trust and confidence of citizens in their Government.” These internal regulations—which are themselves laws—reinforce existing principles about the proper role of administrative agencies in pursuing public service, not political power.
Failing to honor these principles by issuing threats in an effort to influence the legislative process risks judicial action if the Secretary of the Interior ever tries to carry through on his threats. In recognition of agencies’ role in the service of legislative mandates, courts demand that administrative agencies base their decisions on sound evidence and legitimate policy reasons—not on politics.
Even if it later comes to pass that the DOI has otherwise valid reasons that necessitate adverse action toward Alaska, Zinke’s phone calls have already muddied the waters, making it more likely that a court will strike down such future action as arbitrary and capricious. Strong-arm tactics by officials who have been granted the public’s trust are thus tactically foolhardy as well as legally suspect.
Unfortunately, Zinke’s apparent threats combine with other recent incidents to form what could be a larger pattern of using administrative power for overtly political purposes in the legislative arena. Recently, the U.S. Department of Health and Human Services (HHS) reportedly used funds appropriated for other purposes to create a public relations campaign aimed at promoting health care repeal legislation. President Trump himself asked personnel in the U.S. Department of Defense to call members of Congress on the legislation.
Although courts may have sound reasons to avoid weighing in on some of these matters, the U.S. Government Accountability Office (GAO)—a congressional office charged with auditing federal agencies—can and should investigate allegations of possible violations of the Anti-Lobbying Act and other laws seeking to separate administration from legislative politics. Fortunately, GAO says it will investigate HHS’s promotion of health care legislation. Some members of Congress have already reportedly said they plan to seek a congressional investigation into Zinke’s tactics, and the DOI’s Inspector General has opened an initial inquiry as well.
Regardless of which party holds the White House, lobbying pressure by cabinet officials interferes with the democratic relationship between Americans and their elected representatives. Despite calls by President Trump and others to “drain the swamp” in Washington, D.C., having cabinet officials try to strong-arm the people’s representatives only sinks the system in muck by offending core principles about the role of agencies in American government.