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Sebelius’s Suspect Solicitations
Did the HHS secretary illegally encourage donations from health-industry firms?

HHS secretary Kathleen Sebelius

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Katrina Trinko

Secretary of Health and Human Services Kathleen Sebelius is under fire from congressional Republicans after reports last week that she called health-industry officials and insinuated they should donate to efforts promoting Obamacare.

“If she is raising money from private entities and coordinating with those entities to do something that Congress has refused to do, the Constitution doesn’t allow that and federal law makes it a criminal violation,” Senator Lamar Alexander (R., Tenn.) tells National Review.

“The analogy to Iran-Contra in 1987 and 1988 at the end of the Reagan administration is very strong here,” Alexander continues. If Sebelius is raising funds to promote Obamacare, a purpose for which Congress refused to appropriate more money, “I don’t see how what she is doing is different than what [Reagan administration official] Oliver North did, and his actions and some others nearly sank the Reagan administration.”

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(After Congress denied funding for the Contra rebels in Nicaragua, Colonel North raised money privately for the effort. It is illegal for a government official to raise money for an effort if Congress has denied funding for it.)

House Republicans are already buzzing about the issue, which the Washington Post broke last week. Republicans on the House Energy and Commerce Committee announced Monday that they would initiate an investigation into Sebelius’s actions. They are requesting that HHS supply the names of companies, organizations, and individuals that were contacted by Sebelius, along with a summary of those conversations.

In addition, Republicans on the Senate Finance Committee are requesting that HHS answer a series of questions related to the calls. “Our initial reaction is that this appears at best to be an inherent conflict of interest and at worst a potentially illegal augmentation of appropriation,” wrote the senators in the letter sent to HHS Tuesday. HHS spokesman Jason Young says the department will comply with both committees’ requests.

Young also defends Sebelius’s actions, saying they are legally permissible. “The Public Health Service Act allows the secretary to support and to encourage others to support non-profit organizations conducting public-health activities,” Young remarks. “This provision has been in place since 1976, and has been used by previous secretaries, including around the launches of Medicare Part D [and] the Children’s Health Insurance Program, among many other examples. The Secretary has made no fundraising requests to entities regulated by HHS.”

The clause Young is referring to reads:

The Secretary is authorized to support by grant or contract (and to encourage others to support) private nonprofit entities working in health information and health promotion, preventive health services, and education in the appropriate use of health care.

In Sebelius’s case, she was sometimes soliciting donations for Enroll America, according to reports. Anne Filipic, Enroll’s president, has worked for the Obama administration and on Obama’s 2008 campaign.

Alexander dismisses the idea that the clause allows Sebelius to reach out to the health industry to support Obamacare. “I don’t think [the clause] ever envisioned allowing the executive branch to become the Congress,” he rejoins. “The constitution has an Article II, which gives authority to the elected Congress. We don’t have a king.”

The congressional committee formed in response to Iran-Contra, Alexander adds, stressed that “the Congress [has] the power of the purse and the executive cannot create its own legislative agenda.” That committee found that the Iran-Contra deal “violated the anti-deficiency law, so I can’t imagine that this provision in the public-health law, which is in parentheses [and] allows her to encourage support for research, overrides the Constitution and the anti-deficiency law.”

Also at stake is whether Sebelius sought donations from any entities HHS regulates. Young says she did not, but some Republicans are skeptical.

As media attention focuses on the Benghazi talking points and the IRS scandal, Republicans are working quietly to ensure that if Sebelius violated any laws, she will be held accountable.

— Katrina Trinko is an NRO reporter.



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