Says initiative impacting Americans’ free speech rights and imposing costs on American taxpayers may also violate the Antideficiency Act
WASHINGTON—United States Senator Bill Hagerty (R-TN), a member of the Senate Appropriations Committee, sent a letter to U.S. Secretary of Homeland Security Alejandro Mayorkas to confirm that he will submit to Congress for review the rules and policies establishing a “Disinformation Governance Board” to focus on “countering misinformation and disinformation” in America, as required under the Congressional Review Act (CRA), and to alert the Secretary that the creation of this board may violate the Antideficiency Act.
“Plainly, this DHS Disinformation Governance Board imposing significant constraints on the bedrock of American values and freedoms and new costs on the American people requires congressional review and may be a violation of the Antideficiency Act,” Hagerty wrote.
The CRA provides for Congress to oversee the federal regulatory process for implementing legislation by allowing it to review and potentially revoke, through a resolution of disapproval, rules, including agency actions, that substantively affect the American people. Under the CRA, rules must be submitted to Congress before they can take effect, at which point they can be brought for a vote under expedited procedures. When an agency fails to submit to Congress a policy that constitutes a rule under the CRA, a member of Congress may request that the Government Accountability Office (GAO) issue an opinion regarding whether the rule should have been submitted to Congress. If GAO finds that the policy should have been submitted to Congress because it constitutes a rule, then such rule can be brought before Congress for a vote under the same expedited procedures.
Additionally, Hagerty pointed out that the creation of the board may be a direct violation of the Antideficiency Act, which prohibits “making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law”—or, in other words, spending taxpayer funds on items that were not approved by Congress in law. Violations of the Antideficiency Act can result in administrative or criminal penalties. The Fiscal Year 2022 Omnibus Appropriations Act does not approve the Secretary of Homeland Security funding the operations of a Disinformation Governance Board and expressly prohibits the Secretary from using taxpayer dollars to alter or reallocate department functions or organizational units.
“As you know, an officer or employee, including you, who violates the Antideficiency Act ‘shall be subject to appropriate administrative discipline,’ and, for willful violations, faces a criminal fine, imprisonment, or both,” Hagerty continued.
Hagerty is requesting that the Secretary confirm by May 16 that he will submit this action to Congress for review and, in compliance with the Antideficiency Act, submit a letter to the Director of the Office of Management and Budget (OMB), the President, the Congress, and the Comptroller General of the United States providing specific information on this potential violation.
A copy of the letter to Mayorkas can be found here and below.
Dear Secretary Mayorkas:
On April 27, 2022 at a House Appropriations Committee hearing, you announced the creation of a “Disinformation Governance Board” that will focus on “countering misinformation and disinformation” in America. Separately, Nina Jankowicz announced that she will be employed as the board’s Executive Director. I write today because these actions merit review by Congress, both as a general matter, as well as under the Congressional Review Act and because the actions may be in violation of provisions of the Antideficiency Act.
Establishment of this board will significantly impact Americans’ free speech rights and cuts across numerous areas of government and society. It will change the relationship between the government and the governed to whom it answers. It will also substantially increase administrative costs for the number of different federal agencies engaged in this effort, which will impose increased costs on the American taxpayer.
Given this broad impact, Congress should be setting American policy in this area and certainly reviewing executive action impacting such fundamental rights, and therefore, it is imperative that this action receive congressional review.
Additionally, I write to confirm that you will comply with the requirements of the Congressional Review Act (CRA) in taking this action. Under the CRA, an agency action that falls within the definition of a “rule” must be submitted to Congress for review before it can take effect. 5 U.S.C. § 801(a)(1)(A). “The definition of a rule under the CRA is very broad.” Government Accountability Office B-323772, at 3 (Sept. 4, 2012), available at https://www.gao.gov/assets/b- 323772.pdf. In pertinent part, the CRA defines a rule as: “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.” 5 U.S.C. § 551(4). This is not limited to directives requiring notice, public comment, or similar Administrative Procedure Act procedures.
Further, this action may also be a direct violation of provisions of the Antideficiency Act (31 U.S.C. § 1341(a)(1)(A)), which prohibits “making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law.”
In this case, it appears that the amount available for this action is “none” and that Congress explicitly defunded it, just weeks ago. Section 513 of Division F of the Fiscal Year 2022 Omnibus Appropriations Act (P.L. 117-103) specifically prohibits the Secretary of Homeland Security from using any funds provided by Congress to carry out Section 872 of the Homeland Security Act of 2002, which means it defunded any action to “allocate or reallocate functions among the officers of the Department of Homeland Security or to establish, consolidate, or alter organizational units within the Department of Homeland Security.”
As you know, an officer or employee, including you, who violates the Antideficiency Act “shall be subject to appropriate administrative discipline,” and, for willful violations, faces a criminal fine, imprisonment, or both. A federal employee who willfully violates the Antideficiency Act, “shall be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office.” A federal employee who “knowingly and willfully” violated it “shall be fined not more than $5,000, imprisoned for not more than 2 years, or both.”
Plainly, this DHS Disinformation Governance Board imposing significant constraints on the bedrock of American values and freedoms and new costs on the American people requires congressional review and may be a violation of the Antideficiency Act. So that Americans’ elected representatives may timely review the rules and policies implementing this action as required under federal law, please confirm by Monday, May 16, that you will submit it to Congress before it purports to take effect. Further, in order to comply with the Antideficiency Act, you will need to submit a letter to the Director of the Office of Management and Budget, the President, the Congress, and the Comptroller General of the United States providing specific information on the violation if it has indeed occurred.
Thank you, and I look forward to your prompt reply.