Why one former OMB director believes agencies are at risk of violating spending law

The White House’s desire for agencies to promote voter registration at federal facilities like Job Corps Centers or community health centers is raising  concerns about potential violations of the Anti-Deficiency Act.

Former OMB Director Russ Vought and current president of the Center for Renewing America, sent a letter to current OMB Director Shalanda Young today detailing why he believes the current approach to implementing the March 2021 executive order, Promoting Access to Voting, would put federal employees in jeopardy of breaking the law.

“In recent months, agencies have slowly begun responding to outside requests to make their plans for complying with this order public and transparent,” Vought wrote to Young in the letter obtained by Federal News Network. “What we have seen thus far is of deep concern. Some of these plans provide that agencies will expend federal taxpayer funds or other resources and partner with preapproved outside organizations in order to satisfy the Biden administration’s directive to engage in voter registration efforts.”

The Anti-Deficiency Act prohibits agencies from spending money without appropriations. There are some recognized exemptions too.

Vought, who served as OMB director or acting director from 2019 to 2021 and as deputy director from 2018 to 2020, wrote that it seems the Biden administration is asking agencies to either use appropriations for other things than intended or to take “gifts” from outside organizations to promote voter registration.

“[I]nviting White House-preapproved outside organizations to volunteer their time and efforts on federal property in furtherance of the administration’s stated policy of increasing voter registration and participation could be seen as a violation of the ADA,” he wrote.

A Center for Renewing America spokesperson added the concern is that federal civil servants could put themselves in jeopardy if they participate in voter registration activities.

An OMB spokesperson declined to comment on the letter.

Concerns overstated?

Two experts on the Anti-Deficiency Act say the letter over states the concern about possible violations.

Tim Westmoreland, a law professor at Georgetown University, a former counsel to the Subcommittee on Health and the Environment in the House of Representatives and a former director of the Medicaid program at the Department of Health and Human Services during the Clinton administration, said typically Congress is not specific in appropriations statute making violations of the ADA difficult.

“The ADA would be triggered if statutory language for specific purpose was violated, but language in the bill report or floor language is not enough to make it illegal,” he said. “If agencies are given general appropriations to carry out a specific authority, it’s unclear if activities within that general authority are in violation of the ADA. They may get criticized by the appropriations committees, but it has to be very specific  reason that Congress allocated these funds for to be a violation.”

Howell Jackson, professor at Harvard Law School and a federal budget expert, added that he would’ve expected agency leaders to go through an ordinary review of legal and regulatory requirements before signing off on any use of funding.

“In the ordinary course — and the Biden administration folks are pretty good on this dimension — the general counsel or financial officer of each agency would sign off on compliance efforts, including ADA issues,” he said in an email to Federal News Network. “Enforcement of the ADA is, of course, up to the Justice Department and OMB, which is not likely in this instance, I would think. A new administration might reach different conclusions, but if individual officials have followed ordinary procedures in getting sign-off on their compliance efforts, it may be difficult to demonstrate an intentional violation.”

Examples of concerns

The Center for Renewing America highlighted several potential actions agencies plan or have taken as most concerning.

The Labor Department issued guidance to designate 2,300 job centers as voter registration sites and invited organizations to conduct outreach efforts.

CRA says “designating locally-run job centers as voter registration agencies, much like most state registries of motor vehicles, would add a significant burden on them and incur additional personnel obligations in these federally-funded centers. For that reason, this initiative could be found to be violative of the ADA. Additionally, enlisting the voluntary services of state and nonprofit workers to further the aims of Biden’s E.O. could be found to be a violation of § 1342 of the Act.”

CRA also pointed to the Department of Housing and Urban Development’s plan to work with more than 3,000 public housing authorities (PHAs) about their efforts to promote voter registration as another concerning example

The Biden administration said it will work with PHAs on “permissible ways to inform residents of non-partisan voter registration information and services. The department will also assist relevant HUD-funded service providers by highlighting and sharing promising practices that improve non-partisan voting registration and voting access for people experiencing homelessness.”

The Center for Renewing America spokesperson said these examples and other may take up federal resources, money and people, for voter registration efforts that were not intended by Congress.

“This is an example of writing an EO and then trying to make policy and understand what authorities can be used to execute the EO by agencies,” the spokesperson said. “They have to figure it out. This is an imbalance between the objectives of the EO and the underlying authority that every agency needs.”

Feds to seek counsel

Georgetown’s Westmoreland said unless there are clear examples of Congress telling agencies to spend money on a specific thing or not to spend money on something, like with the Hyde amendment that prohibited agencies from spending money on abortions except for some specific instances, it’s hard to make the case that these efforts would be risky for employees.

“This is less of a budget argument and more of a political argument. The ADA is a good law and people do training on it all the time,” he said. “I think this argument in this letter is simply trying to chill or scare people from doing things that may otherwise be legal. They should turn to their general counsel and seek more information. I’d be surprised if there is any statue to prohibit federal employees from doing voter registration.”

Westmoreland said there also is some irony that Vought is worried about the Anti-Deficiency Act given the Trump administration’s actions when it came to spending appropriated funding.

The Government Accountability Office found multiple violations of the ADA during the four years of the Trump administration. OMB even changed Circular A-11 in 2019 about reporting possible ADA violations.

The CRA spokesperson said the Trump administration took the ADA seriously but just disagreed with GAO’s oversight of the executive branch. The spokesperson said the administration always thought they had good legal grounds and were conscious of the ADA’s requirements when making spending decisions.

Westmoreland said the Trump administration often skated right up to the edge or even went over the edge in using appropriated funds for other activities than they were designated for, including the border wall.

“Members of their own party said this is not how appropriations law works,” he said. “They also used EOs to tell agencies to do controversial things and didn’t create new authority for them, like in advancing religious freedom.”

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