Hon. Larry D. Turner, Inspector General
United States Department of Labor
200 Constitution Avenue, NW, Room S-5502
Washington, D.C. 20210
Dear Inspector General Turner:
On March 7, 2021, President Biden signed Executive Order 14019, titled “Promoting Access to Voting” (“the E.O.”). This order required every federal agency to submit an action plan to the White House detailing efforts those agencies will take to “promote voter registration and voter participation.”
In response to the E.O., the Department of Labor (DOL) on March 25 of this year boasted of a “first-of-its-kind action” to issue guidance to states to designate the 2,300 American Job Centers as voter registration agencies under the National Voter Registration Act. DOL also invited “nonpartisan” organizations into Job Centers to conduct “voter outreach” activities.
The Anti-Deficiency Act (“ADA” or “the Act”), 31 U.S.C. §§ 1341-1355, specifically prohibits federal employees and officers from making or authorizing expenditures, obligations, or contracts beyond what Congress has appropriated for a given purpose. Under the Act, federal employees and officers are also prohibited from accepting voluntary services provided to government agencies.
Payments of funds or provisioning of resources by federal agencies to outside organizations for the purposes of voter registration efforts not specifically authorized by Congress would therefore be a violation of the Act. Guiding locally-run Job Centers to become 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. Though federal agency guidance is considered non-binding as a matter of law, it is often binding for practical purposes (see, e.g., Prof. Nicholas R. Parrillo, “Federal Agency Guidance and the Power to Bind,” Yale Journal on Regulation (May 1, 2019)).
Furthermore, inviting 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 found to be a violation of § 1342 of the Act.
Fortunately, the Act specifically provides an enforcement mechanism and, indeed, a reporting obligation. Heads of federal agencies who learn of subordinate federal officers or employees violating provisions of the Act “shall report immediately” in writing to both the President and Congress “all relevant facts and a statement of their actions taken” (31 U.S.C. § 1351).
The law provides strict penalties for those who refuse or fail to faithfully execute these important duties. Federal employees and officers who expend resources or accept volunteer services unlawfully are subject to specific personnel actions including suspension from duty without pay or removal from office. Federal employees who knowingly and willfully violate the Act are even subject to criminal penalties including a fine of up to $5,000 and imprisonment for up to two years (The Act, § 1350).
Mr. Inspector General, the Anti-Deficiency Act was enacted to prevent the federal bureaucracy from subverting the will of the people’s elected representatives. We urge you to investigate whether DOL’s recent actions are violative of the Act and provide a public report on your investigation and its findings.
Thank you for your time and attention to this matter.
Center for Renewing America
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