SENATOR COLLINS TO SECRETARY SEBELIUS: DON'T LOBBY WITH FEDERAL FUNDS

 WASHINGTON - U.S. Senator Susan Collins is concerned the federal funds directed to grantees of the Centers for Disease Control (CDC) appear to have been used for lobbying and to change state and local laws.

Senator Collins is the ranking Republican on the Senate Homeland Security and Governmental Affairs Committee, which has jurisdiction over efficiency, economy, and effectiveness of all agencies and departments and their relationships with state and local governments.

"While I strongly support the wellness and prevention mission of the CDC," said Senator Collins, "I also support the safeguards Congress has put in place on the use of federal funds to protect against the misuse of tax dollars.  Every dollar spent on inappropriate or illegal activities is a dollar that didn't go towards saving lives and improving health."

Senator Collins's letter cites the CDC's wellness and prevention efforts and potential misuse of funds possibly spurred by CDC guidance to grantees that seems to include an expectation that federal funds are to be used for wellness and prevention strategies that result in changes to state and local laws.  If true, without express authorization by Congress, CDC would be guiding its grantees to potentially violate federal law, exposing them to hefty civil penalties for each violation.  

Senator Collins' letter notes a number of examples where CDC grants were awarded to grantees that appear to have used funds to successfully lobby for changes in state and local laws, and asks the Secretary to explain the steps HHS has taken to ensure compliance with the lobbying ban.  The letter also asks the Secretary about the lobbying policy that existed in 2010 and how grantees were advised of the proper way to abide by that policy.

May 1, 2012

The Honorable Kathleen Sebelius

Secretary

Department of Health and Human Services

200 Independence Avenue, S.W.

Washington, D.C. 20201

Dear Secretary Sebelius:

            The oversight jurisdiction of the Senate Homeland Security and Governmental Affairs Committee, of which I am the Ranking Member, includes "the duty of studying the efficiency, economy, and effectiveness of all agencies and departments … [and] studying the intergovernmental relationships between the United States and the States and municipalities [federal, state, and local relations]".

            I am concerned about the appearance of impropriety in several instances where grantees of the Centers for Disease Control and Prevention (CDC) have, under the direction of official CDC guidance, appear to have used federal funds in attempts to change state and local policies and laws.  Since 2002, federal law has prohibited the use of federal funds, "directly or indirectly….to influence in any manner….an official of any government," whether it be federal, state, or local, "to favor, adopt or oppose, by vote or otherwise, any legislation, law, ratification, policy, or appropriation" (emphasis added). The only legal exception is if Congress grants "express authorization" that specifically authorizes an otherwise prohibited activity.  In order to deter the abuse of federal funds in this manner, Congress also imposed a significant punishment:  a civil fine of not less than $10,000 and not more than $100,000 for each violation.

            The grants with which I am concerned are part of the CDC's wellness and prevention efforts, including those in the Communities Putting Prevention to Work (CPPW) initiative.  Since I am a strong supporter of wellness and prevention efforts, including health education initiatives and voluntary worksite wellness programs, I am eager to ensure that these important programs are operating within the law and that any misuses of funds are quickly addressed.  The actual or perceived misuse of wellness and prevention funding has the potential of eroding support for these programs. 

            Perhaps more troubling than the potential misuse of funds is the fact that CDC provides official guidance to grantees that appears to include an expectation that federal funds are to be used for wellness and prevention strategies that result in changes to state and local policies and laws. If true, without express authorization by Congress, CDC would be guiding its grantees to potentially violate federal law, exposing them to hefty civil penalties for each violation.  

            For example, the CDC guidance, "MAPPS Interventions for Communities Putting Prevention to Work," states that "awardees are expected to use this list of…. strategies….to produce the desired outcomes for the initiative" (emphasis added).  The list of CDC-encouraged strategies that CDC refers to as "expected" includes: advocating for the banning of products, banning certain displays and vending machines, creating zoning restrictions, restricting sales, limiting product availability, reducing the density of fast food establishments, changing restaurant standards, enacting food labeling requirements, and modifying city planning. Each of these CDC strategies appears to require state and local laws and policies to be changed in order for the "desired outcomes" to be produced by the grantees. 

            In other guidance, CDC instructs its awardees with more specific strategies for influencing state and local governments to change laws and policies.  The CDC document "Nutrition and Physical Information for American Recovery and Reinvestment Act Communities Putting Prevention to Work" provides CDC awardees examples of state and local policy and legislative changes that CDC awardees appear to be expected to accomplish.  These examples include: changing local zoning policies that restrict the density of fast food outlets in a region, freezing the outlets' development and proximity to each other, and setting a required minimum distance from schools. The CDC guidance also includes examples of state laws that awardees can then use federal funds to advocate for that restrict the recipes restaurants use and restrict certain foods from being served by state agencies.

            In response to CDC guidance, several grantees as recently as 2010 have engaged in strategies that, absent an expressed authorization by Congress, appear to violate federal law regarding influencing state and local governments to adopt laws and policies.  For example, the California Department of Public Health (CDPH), after receiving a $2.2 million grant from the CDC in 2010, announced in a project summary that federal funds would be used to "advance policy changes."  CDPH then described in quarterly reports how federal funding was used to analyze "proposed state legislation…to levy a tax" and eliminate certain beverages from CA middle and highs schools.  CDPH also reported that federal funds were used for "State level joint use policy options" that were then "researched and presented to [the] Governor."  In subsequent reports, CDPH indicated federal funds were involved in "CA's Governor sign[ing] two beverage bills" that directly correspond with the legislative "analysis" CDPH created earlier with federal funds.

            In another example, King County, WA received a $10 million anti-smoking grant from the CDC in 2010.  In the third quarter report, King County included among its description of project activities the fact that the County Board of Health "adopted changes to code on smoking in public places and places of employment that closed loopholes in the existing code, and passed a resolution encouraging no-smoking policies in multi-family housing…"

            The Pennsylvania Department of Health (PDH) received a $1.5 million anti-tobacco grant from the CDC in 2010.  In its quarterly reports, PDH informed CDC that, using tax dollars, "three ordinances were passed…210 policy makers were contacted…31 ordinances were passed…[and] there were 26 community presentations made to local governments, and 149 policy makers were contacted…and 16 additional ordinances were passed this quarter, for a cumulative total of 47."

            While I strongly support the wellness and prevention mission of the CDC, I also support the safeguards Congress has put in place on the use of federal funds to protect against waste and abuse of tax dollars.  In order to clarify CDC guidance, policies, and funding to determine whether there has been improper use of federal funds, please provide responses to the following questions and requests for information by May 18, 2012:

1.     Do you agree with the attached CRS American Law Division legal opinion that, since 2002, 18 U.S.C § 1913 has prohibited all lobbying and public policy advocacy at all levels of government including federal, state, and local, without express Congressional authorization?

2.     Please provide a copy of the CDC policy on lobbying and public policy advocacy that existed in 2010. 

a.      When was this policy first established?

b.     How was CDC lobbying policy transmitted to recipients of CDC-awarded funds in FY 2010?

3.     Please document each instance from fiscal year 2007 to fiscal year 2011 where CDC awardees used federal funds to pay for lobbying activities.  The activities to be reported include those which are listed in 18 U.S.C § 1913 and include:  any advertisement,  telephone, letter, printed or written matter, or other device (such as emails, websites, videos, audio, or other electronic communications), intended or designed to influence in any manner a Member of Congress, a jurisdiction, or an official of any government (including local and state governments), to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy, or appropriation.  The information should be documented and provided in a word-searchable format that includes the name of the awardee, total amount of the award, date the award was granted, the stated purpose of the award, a list of all activities in the aforementioned list that the awardee carried out with federal funds, and an indication of whether or not the desired outcomes in state or local policy or legislative changes took place.

4.     Please provide legal justification that authorized CDC to provide grantee guidance as recently as 2010 establishing the expectation that grantees use federal funds to change state and local laws and policies.  Please include an explanation of how this expectation may be met by grantees without violating 18 U.S.C § 1913.

5.     What steps have you taken since 2010 to ensure CDC does not encourage or fund possible violations of 18 U.S.C § 1913?

            Thank you for your assistance in this important oversight matter.  Please have your staff contact …. in order to transmit your response.

Sincerely,