Charge of Illegal Lobbying Rejected

Dismissing Republican assertions, inspector general concludes that top Education Department officials did not violate law in urging college officials to support student loan overhaul.
January 4, 2011

WASHINGTON -- U.S. Education Department officials did not engage in illegal lobbying in 2009 when they encouraged higher education leaders to publicly endorse legislation that overhauled the student loan programs, the agency's inspector general said in a report Monday.

The report by the inspector general's office came in response to accusations made by Republican Congressional leaders in late 2009 that the department's political leaders had violated federal law in a series of public and private exchanges with college officials that year over the Student Aid and Fiscal Responsibility Act, which gutted the lender-based guaranteed student loan program and poured tens of billions of dollars into the Pell Grant Program, among other things.

Republican leaders steadfastly opposed the legislation, which many of them derided as a government takeover of the student loan program. As the legislation lurched toward apparent passage throughout 2009, they made nearly every possible effort to derail it.

Late that year, they alleged that in a series of calls and other communications -- including an October 2009 call with community college presidents on which Inside Higher Ed reported -- "department officials have pressed colleges and universities to support the legislation and implement the proposed changes before Congress actually changes the law." The legislation passed Congress in March 2010, with generally strong support from higher education leaders, though they were divided over the wisdom of ending the lender-based loan program and disappointed that it ultimately provided far less money than President Obama had originally promised.

The inspector general based its review on a series of e-mail exchanges between administration and higher education officials during the spring and summer of 2009, and a set of supplemental interviews with higher education leaders and lobbyists (and Education Department officials) last summer and fall, according to some of those interviewed.

Regarding the October 2009 call with community college officials, the inspector general concluded that there was no illegal lobbying inherent in department officials' statements that the administration "will need your voices ... and your support" and that "your voice is critically needed" to ensure ultimate passage of the legislation, which was then pending in the Senate. "Those statements do not include an explicit request to contact Congress, and therefore, do not violate the lobbying restrictions" in federal law, the inspector general said.

The IG reached similar conclusions about several other communications from department officials that were cited by Republican critics.

But the office's report most intensely examines a set of e-mail exchanges that unfolded outside of public view, between the then-deputy under secretary of education, Robert Shireman, and Terry W. Hartle, senior vice president for government and public affairs at the American Council on Education. The communications, in April 2009, were over whether and in what way higher education's key associations would endorse the student aid legislation, and they revealed a level of give-and-take that is often assumed to unfold between interest groups and administration officials, but rarely sees the light of day.

In the exchange, Hartle gives Shireman three options for letters of support that ACE might be able to wrangle from among the various higher education groups, and asks which one administration officials prefer. And the inspector general discusses an e-mail in which Shireman asks Hartle and a senior official at the National Association of Independent Colleges and Universities "What's the timing on a strong letter?" in support of the legislation, and says: "It seems to be a critical moment."

Fascinating as the exchanges may be for political scientists and others interested in federal higher education policy making -- and much as they show Education Department officials pushing hard for colleges to line up behind the legislation -- they fall well short of an illegal conspiracy by the administration to improperly influence Congress, the inspector general concluded.

"While the Deputy Under Secretary shared opinions (with input from White House officials) as to how the ACE letter could better support the President’s legislative agenda, he did not request in those communications that ACE, other organizations, or their constituent members contact Congress," the inspector general's report said.

And while Shireman did agree in one April 2009 e-mail that Hartle could tell other higher education groups that the administration had "asked for a letter" of support for the legislation, the fact that Shireman had not initiated that request, and that his affirmative response came in a private e-mail response rather than a public statement, differentiated the current case from previous ones in which federal agencies had been found to engage in improper lobbying, the inspector general said.

"During our review, we did not find any evidence that the Deputy Under Secretary directly requested that an organization sign the April 21, 2009, ACE letter to Congress or directly appealed to the public to contact members of Congress," the report stated. "Given the limited nature of the Deputy Under Secretary’s communications with ACE and their context, the communications do not fit the description of prohibited grassroots lobbying that [Justice Department] and [Government Accountability Office] guidance indicate are prohibited, that is substantial expenditures of appropriated funds for large scale publicity campaigns or explicit appeals to members of the public to contact their elected representatives in support or opposition to pending legislation."

Representative John Kline, the Minnesota Republican whose office initially sought the inspector general's inquiry, did not respond to a request to his office for comment Monday evening.

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