Accept federal money, lose free speech?

Should private sector groups (e.g., behavioral health care providers) that receive Federal government funds (e.g., grants) to provide services or conduct research forfeit their right to comment on government programs or legislation? If Congressman Ernest Jim Istook, Jr., gets his way, the answer

will be a resounding "Yes!" His "Bill to Stop Taxpayer Funded Political Advocacy" would effectively force behavioral health care providers to choose between rejecting publicly-funded patients or accepting limits on their ability to influence government actions. The bill, already passed in the House version of the 1996 health and human services appropriation, would at least ration the ability of many behavioral health care providers to comment on legislation, administration regulations, and even certain types of litigation.

Although only in his second term in Washington, Istook is hardly a minor player in Congress. Amazingly, he is the most senior Republican member of Oklahoma's delegation to the House of Representatives and already vice-chair of the Appropriations Subcommittee on Labor, Health and Human Services, and Education. Istook is viewed as the likely successor to more moderate Illinois congressman John Porter as chair of the subcommittee, if the Republicans retain control of the House in next year's elections. As such, he is part of the inner circle of southern and western conservatives, led by Robert Livingston of Louisiana, who have pushed major cuts in Federal funding for behavioral health care.

Istook is not satisfied with merely cutting the Federal budget for behavioral health. He believes that grants to the behavioral health care and prevention field are used to fund liberal lobbying for even more government spending. "One large problem," Istook said, "is groups using Federal grants to cover their routine costs, and therefore freeing up their own money to lobby. In fact, it's doubtful that some groups would even exist without government funding."

In press releases, Istook claims to be angry only about groups that pose as charities but in fact conduct lobbying or policy advocacy. "Congress has the responsibility to separate true charities from political action groups," he explained. "Taxpayers shouldn't be forced to sponsor lobbying groups which disguise themselves as nonprofits." The legislation that Istook co-authored with congressmen David McIntosh (R-Indiana) and Bob Ehrlich (R-Maryland) does not, in fact, discriminate between nonprofits and profit-making firms. The proposed restrictions would apply to any organizations or individuals who receive revenue from the Federal government. The restrictions also would apply to vendors who provided services to state or local governments that were financed in part by a Federal block grant.

The only exceptions to Istook's amendment are state and local governments, students receiving educational grants and scholarships, and groups whose government revenue was limited to Medicaid and social security reimbursements or payment for goods and services to be used directly by the Federal government. In effect, a defense contractor selling billions of dollars of aircraft to the Air Force would be exempt, but a psychiatric practice that accepts a few county-funded patients may be included, because the county mental health budget receives money from a Federal block grant to the state.

The Istook amendment limits total spending for policy advocacy to 5% of all revenue received from any source other than the Federal government (it always has been illegal to use revenue from the Federal government for political advocacy). In effect, if a hospital collected revenue of $1.5 million from nongovernment sources in 1995, the formula in the Istook amendment would limit its total expenditures on policy advocacy to $100,000. Staff time and other resources, such as the use of an office copier or a fax machine, would be counted toward this limit. The limit would be applied to all salaries or expenses related to: * attempting to influence any legislation or administrative rule-making, including responding to public comment periods * membership in organizations such as the American Public Health Association or the National Association of Psychiatric Health Systems that attempt to influence policy * participating (except as a defendant) in a court action in which any branch of government is a party.

In addition, the bill prohibits private sector groups from using government income to purchase services from any organization that devotes more than 15% of its effort to influencing policy. For example, if the government decided that the American Psychological Association is a policy-influencing body, behavioral health care professionals and managers could not use funds from most Federal and state programs to purchase the DSM manual.

When groups or individuals covered by the Istook amendment are accused of spending more than the permitted limit on policy advocacy, the legislation would give them the burden of proving that they actually are in compliance. By the year 2000, if a group cannot prove that total spending on advocacy, both in cash and in donated time and resources, was within the Istook limits every year after 1995, they may be required to repay all revenue derived from Federal sources since then.

Although such conservative policy action groups as the John Locke Foundation and the Cato Institute have been important supporters for the Istook amendment, an August 14 article in the Wall Street Journal reported that the National Association of Beer Wholesalers provided much of the lobbying muscle behind it. The beverage distributors are allegedly angry that community mental health centers and nonprofit groups receiving federal funds for drug abuse prevention have lobbied for changing the minimum drinking age, placing legal restrictions on alcohol advertising, and other policy changes that might potentially reduce alcohol sales. The article quotes an Istook aide saying, "I don't know of any group that lobbied as hard as the beer wholesalers." Coors Brewing Company was reported to have been so pleased with the result that the firm sent two cases of their product to the Republican staff members of Istook's appropriations subcommittee.

Istook's legislation was adopted as an amendment to the Health and Human Services appropriations bill by a 28-to-20 vote 20 of the House Appropriations Committee on July 24th. The full House approved the bill in August, with the Istook amendment intact. Although President Clinton has threatened to veto any Health and Human Services appropriations that looks like the House-passed bill, the White House concern has been focused on spending levels rather than the Istook amendment. Istook and his allies are prepared to insist that a similar amendment must be included in any legislation that funds Federal health and human services, even on a temporary basis.

The Istook amendment ends with a disclaimer that "nothing in this act shall be deemed to abridge any rights guaranteed under the First Amendment of the United States Constitution, including freedom of speech ... or the right of the people to petition the Government for a redress of grievances." In other words, the bill doesn't prevent individual practitioners from exercising free speech, but they may have to prove that they used no organizational resources in doing so. Nevertheless, many constitutional scholars who have read the text suggest that the disclaimer shows that the author of the bill was aware that the legislation rests on very shaky legal grounds. For example, corporations and agencies are "people" under U.S. legal practice, and cannot lose their basic rights simply because they accept revenue from Federal government sources.

With probable court challenges in mind, Istook's amendment states, "If any provision of the Act ... is held invalid, the remainder of this Act shall not be affected." It may be that the bill's authors expect at least parts of the amendment to be declared unconstitutional, but plan to force each provision to be defended on a case-by-case basis.

There is irony in that the principal author of a bill designed to prevent behavioral health services from influencing government policy represents a district where Federally-funded emergency mental health care has had the greatest recent visibility. Congressman Istook's district is centered in Oklahoma City, where nonprofit agencies and the Republican governor combined forces to secure Federally-funded counseling in the aftermath of this spring's terrorist bombing. If Istook's amendment had been in place, the groups that provided the service may have been discouraged from asking the Federal government for help.