For Navy Times, the allegations that CNO nominee Adm. John Richardson and Rear Adm. Joseph Tofalo, head of the Pentagon’s Undersea Warfare shop, violated the 1913 Anti-Lobbying Act triggered a crash-course in arcane lobbying rules that almost everybody in Washington has seemingly figured out how to circumvent.
The Project on Government Oversight, the watchdog group that threw the penalty flag on Richardson, claimed the admirals were coordinating a grassroots campaign to fund the $80 billion Ohio-class submarine replacement program.
Richardson implored the crowd at October’s meeting of the Naval Submarine League to tell everyone from the local parent-teacher association to their congressman about the importance of the fleet of next-generation submarines to carry nuclear missiles. (Now, let’s just stop for a moment and imagine a PTA meeting agenda that includes, “Discussion on nuclear deterrent strategy in the 21st century.”)
Tofalo, whose office on the OPNAV staff is known as N97, then followed up on that idea in his speech, saying that if anyone wanted help with strategic messaging, they could “Dial “1-800-N97.”
Yes, both speeches were a little silly, but remember that NSL is essentially a pep-rally for the sub community, pas and present, and industry, with press in attendance.
According to the Department of Justice memo cited in the story, it’s generally illegal to lead a grass-roots campaign that mobilizes constituents to lobby Congress for a government program. It reads: “The Act may prohibit substantial ‘grass roots’ lobbying campaigns of telegrams, letters and other private forms of communication designed to encourage members of the public to pressure Members of Congress to support Administration or Department legislative or appropriations proposals.”
The reason for this is, as one source described it, to protect against the fabled government “self-licking ice cream cone.” That is a government program or entity that exists primarily to sustain itself, and often has ceased to provide a public benefit. In essence, the Anti-Lobbying Act of 1913 defends against a situation in which the executive branch uses taxpayer money to lobby for more money, creating massive and unsustainable self-licking ice cream cones.
Experts seem to agree that’s not exactly what Richardson and Tofalo were doing, though most also acknowledged they had entered the danger zone. Two Navy sources said that while admirals and senior leaders implore audiences to “advocate” for programs, they are generally careful to avoid saying “call your congressman.” But, let’s be real, that’s what they mean.
In fact, the Navy has a whole office, lead currently by Rear Adm. Craig Faller, that “educates” elected officials about the benefits of Navy programs and the needs of the service. (By the way, all the other services have reps on Capitol Hill as well.)
What seems clear is that what POGO is doing is a bit like a ref calling “holding” in a football game: everybody does it all the time, but refs tend to only call it when they think its particularly egregious. If they called it every time, the game would be bogged down in penalty calls.
Experts who spoke to Navy Times, as well as sources in the Navy, agree this was not an egregious infraction of the rules, though it’s a gray area that senior leaders generally try to avoid.
David Sheldon, the attorney who is quoted in the story, even laughed it off a bit, saying that in a time when admirals are dropping left and right from allegations of bribery and contracting fraud — a reference to the ongoing Fat Leonard scandal — it would be a waste of time and resources to run down such a petty infraction. It’s probably not an infraction at all.
From Sheldon: “The Admirals have certainly entered a grey area when speaking, but I do not think it was specific enough to be categorized as indirect lobbying, such as suggesting an individual lobby a particular Senator or Congressman. But in a day and age when Naval officers are going to jail left and right for procurement fraud and bribery, is this what we need to spend government resources questioning? And to suggest that, ‘We don’t think taxpayer resources should be used to influence members of Congress through their constituents,’ well, frankly, that’s laughable. Can you see Admiral Rickover, the father of the nuclear Navy, taking a back seat on this? I don’t think so.”