United States Government Accountability Office

Washington, DC 20548 

B-319075 

April 23, 2010 

The Honorable Charles E. Grassley 

United States Senate 

The Honorable John Boehner 

The Honorable Jerry Lewis 

The Honorable Dave Camp 

The Honorable Joe Barton 

The Honorable John Kline 

The Honorable Todd Tiahrt 

The Honorable Greg Walden 

House of Representatives 

Subject: Department of Health and Human Services—Use of Appropriated Funds for 

 “HealthReform.gov” Web site and “State Your Support” Web page 

This responds to your request for a legal opinion regarding the Department of Health 

and Human Services’s (HHS’s) use of appropriated funds for the HealthReform.gov

Web site and a Web page within that site, the State Your Support Web page.1 

Specifically, you asked whether the opportunity for the public to sign electronic form 

letters stating support for the Administration’s health care reform initiative violated 

 

1

 We received three letters from Members of Congress requesting our legal opinion 

regarding the State Your Support Web page. Letter from Senator Grassley, Senate 

Finance Committee, to Acting Comptroller General of the United States, Nov. 17, 

2009; Letter from Minority Leader and Ranking Members of various House 

committees and subcommittees to Acting Comptroller General of the United States, 

Nov. 19, 2009; Letter from Ranking Member of House Committee on Energy and 

Commerce and Ranking Member of Subcommittee on Oversight and Investigations, 

House Committee on Energy and Commerce, to Acting Comptroller General of the 

United States, Dec. 1, 2009. The December 1 letter also asked for our opinion 

regarding the HealthReform.gov Web site and posed some factual questions regarding 

the formation and operation of the HealthReform.gov Web site, which are answered 

in the Background section of our opinion. 
the prohibitions on the use of appropriations for grassroots lobbying, including 

18 U.S.C. § 1913,2 and for publicity or propaganda activities, as contained in the 

Omnibus Appropriations Act, 2009.3

 As explained below, we conclude that HHS did 

not violate the grassroots lobbying prohibitions nor did it violate the publicity or 

propaganda prohibition. 

Our practice when rendering legal opinions is to obtain the views of the relevant 

agency to establish a factual record and to elicit the agency’s legal position on the 

subject matter of the request. GAO, Procedures and Practices for Legal Decisions 

and Opinions, GAO-06-1064SP (Washington, D.C.: Sept. 2006). By letter of 

January 27, 2010, the Acting General Counsel for HHS supplied relevant information 

and the department’s legal justification for the HealthReform.gov Web site and State 

Your Support Web page. Letter from Acting General Counsel, HHS, to Assistant 

General Counsel for Appropriations Law, GAO, Jan. 27, 2010 (HHS Response). 

BACKGROUND 

In March 2009, at a time when Congress was considering several bills related to 

health care reform, HHS launched a new Web site dedicated to the Administration’s 

position on health care reform. This Web site, HealthReform.gov, found at 

www.healthreform.gov, contained information regarding the Administration’s stance 

on health care reform, reports and articles supporting this position, statements made 

by President Obama and HHS officials, and a forum for the public to provide 

comments and opinions. Prior to the enactment of the Patient Protection and 

Affordable Care Act, HealthReform.gov contained the State Your Support Web page, 

which offered Web users an opportunity to state their support for the 

Administration’s position on health reform by signing a form letter addressed to the 

 

2

 In addition to 18 U.S.C. § 1913, the prohibitions on use of appropriated funds for 

grassroots lobbying are contained in the Financial Services and General Government 

Appropriations Act, 2009, Pub. L. No. 111-8, div. D, title VII, § 717, 123 Stat. 524, 685 

(Mar. 11, 2009) (section 717), and the Departments of Labor, Health and Human 

Services, and Education, and Related Agencies Appropriation Act, 2009, Pub. L. 

No. 111-8, div. F, title V, § 503(a) (section 503). Congress enacted similar prohibitions 

for fiscal year 2010. See Financial Services and General Government Appropriations 

Act, 2010, Pub. L. No. 111-117, div. C, title VII, § 717, 123 Stat. 3034, 3210 (Dec. 16, 

2009); Departments of Labor, Health and Human Services, and Education, and 

Related Agencies Appropriations Act, Pub. L. No. 111-117, div. D, title V, § 503(a). 

3

 Pub. L. No. 111-8, div. D, title VII, § 720 (section 720). Congress enacted a similar 

prohibition for fiscal year 2010. See Pub. L. No. 111-117, div. C, title VII, § 720. 

Page 2 B-319075 
President.4

 To “sign” this letter, the Web user was asked to submit contact 

information and to attest that the Web user was at least 13 years of age. 

The letter to the President said, “We strongly support your commitment to 

comprehensive health reform.” The letter also stated support for eight “principles” of 

health reform, including protecting families’ financial health, improving the quality of 

patient safety and care, and reducing long-term growth of health care costs for 

businesses and government. Those who signed the letter pledged to support the 

President’s “budget with its reserve fund dedicated to achieving health care reform in 

a fiscally responsible manner.” The letter concluded with the following: “By signing 

this statement we affirm our commitment to work with you and our Congressional 

leaders to enact legislation this year which provides affordable, high quality coverage 

for all Americans.” There was no opportunity for Web users to amend or revise any 

of the statements in the letter. Under the caption “Show Your Support,” supporters 

were directed to provide their name, zip code, and e-mail address in the required 

fields.5

 

According to HHS officials, HHS employees, with the aid of HHS contractors,6

 

designed and operated the HealthReform.gov Web site and the State Your Support 

Web page. The department told us that no other parties were involved in the design 

or are currently involved in the operation of the site.7

 The department told us that it 

stores the contact information provided by Web users in a secure electronic file on 

HHS’s e-mail system and only two technology specialists in the Office of the Assistant 

Secretary for Public Affairs have direct access to this information. HHS Response, 

Attachment at 1–2. HHS stated that it used this information to contact individuals 

when it updated the HealthReform.gov Web site with new information. Id. at 2. On 

occasion, some of the information was provided to the Special Assistant for Events 

 

4

 On March 23, 2010, the President signed the Patient Protection and Affordable Care 

Act, Pub. L. No. 111-148, 124 Stat. 119 (Mar. 23, 2010). Since the enactment of this 

legislation, the HealthReform.gov Web site no longer contains a State your Support 

Web page. This opinion analyzes the Web site and Web page that appeared on the 

World Wide Web prior to March 23, 2010. 

5

 Other fields requested a mailing address and a telephone number. Supporters were 

not required to complete these fields, however. 

6

 The department engages a private service provider to assist the department with all 

Web-related efforts. The contract provides for a broad range of services within the 

department, including activities related to the design, operation, and maintenance of 

the State Your Support Web page. HHS Response, Attachment at 2. 

 

7

 Telephone Conservation between Assistant General Counsel and Senior Attorney, 

GAO, and HHS Acting General Counsel, HHS, Feb. 4, 2010 (Telephone Conversation, 

Feb. 4, 2010). 

Page 3 B-319075 
and Special Projects to notify individuals regarding upcoming events sponsored by 

HHS related to health reform in their geographical area.8 In an effort to contact the 

individuals, HHS utilized e-mail subscription services provided by the Federal 

Consulting Group9 pursuant to an interagency agreement. Id. 

The department believes that the Web site was a valuable form of communication 

allowing the department “to gauge public opinion on its ongoing work and maintain 

connections with those citizens interested in further participation.” HHS Response 

at 1. It asserts that the State Your Support Web page engaged in no activity that is 

prohibited by the restrictions on the use of appropriated funds. Id. According to the 

department, the State Your Support Web page employed an important 

communications tool in an “e-environment” and such forms of communication should 

be encouraged as a means of enhancing public participation in government and 

policy matters. Id. at 5–6. 

DISCUSSION 

GAO case law addressing government communications reflects the legitimate 

objectives served by a robust exchange of information and ideas between the 

government and the public. See B-302504, Mar. 10, 2004. While often an agency’s 

responsibility to communicate and disseminate information may be associated with a 

statutory direction that an agency inform the public about its programs and activities, 

agencies have a general responsibility, even in the absence of specific direction, to 

inform the public of the agency’s policies. Id., citing B-130961, Oct. 26, 1972. In this 

regard, policy-making officials may use government resources to explain and defend 

those policies. Id. 

In the past, we have addressed communications in a number of forms, from televised 

public announcements to editorials written by public officials on behalf of the agency 

to public speeches emphasizing the virtues of the Administration’s policies. 

See, e.g., B-303495, Jan. 4, 2005; B-284226.2, Aug. 17, 2000; B-118638, Aug. 2, 1974. We 

 

8

 HHS kept track of the number of Web users who visited the HealthReform.gov Web 

site and who signed up on the State Your Support Web page. Some HHS personnel 

expressed concern regarding the accuracy of the number of Web users signing 

statements because the database could not filter out false names and e-mail 

addresses. See, e.g., HHS E-mail, Subject: Statement of Support-4,013 10 am 3/13

(Mar. 13, 2009); HHS E-mail, Subject: Small Issue with pledge numbers for health 

reform “State Your Support” (Apr. 3, 2009). 

9

 The Federal Consulting Group is part of the National Business Center, a franchise 

fund of the Department of the Interior, which provides business consulting services 

to federal agencies pursuant to authority under the Government Management Reform 

Act of 1994, Pub. L. No. 103-356, § 403, 108 Stat. 3410, 3413–14 (Oct. 13, 1994). 

Page 4 B-319075 
historically afford agencies wide discretion in their informational activities. See

B-302504, citing B-178528, July 27, 1973. The use of public funds to communicate and 

defend agency policies is not without limitation, however. While the plain language 

of neither the grassroots lobbying nor the publicity or propaganda prohibitions gives 

clear definitions as to the reach of the prohibitions, our case law has sought to 

provide guidance in a way to balance agency informational activities with the 

importance of transparency in government. See, e.g., B-302504. 

Lobbying Prohibition

Sections 717 and 50310 and 18 U.S.C. § 191311 prohibit the use of appropriated funds 

for a certain type of lobbying activity. GAO interprets these provisions as prohibiting 

indirect or “grassroots” lobbying aimed at defeating or supporting legislation 

 

10 Sections 717 and 503 contain similar language concerning communications 

regarding legislation that is pending before Congress. Section 717 is a 

governmentwide prohibition on the use of appropriations: 

“No part of any funds appropriated in this or any other Act shall be used 

by an agency of the executive branch, other than for normal and 

recognized executive-legislative relationships, for publicity or 

propaganda purposes, and for the preparation, distribution or use of 

any kit, pamphlet, booklet, publication, radio, television, or film 

presentation designed to support or defeat legislation pending before 

the Congress, except in presentation to the Congress itself.” 

Section 503 applies only to the amounts appropriated in the Departments of Labor, 

Health and Human Services, and Education, and Related Agencies Appropriations 

Act. 

11 Section 1913 provides in relevant part the following: 

“No part of the money appropriated by any enactment of Congress 

shall, in the absence of express authorization by Congress, be used 

directly or indirectly to pay for any personal service, advertisement, 

telegram, telephone, letter, printed or written matter, or other device, 

intended or designed to influence in any manner a Member of 

Congress, a jurisdiction, or an official of any government, to favor, 

adopt, or oppose, by vote or otherwise, any legislation, law, 

ratification, policy, or appropriation . . .” 

Although section 1913 was originally enacted as a criminal statute, Congress 

amended it in 2002 by replacing the criminal sanctions with civil penalties. 

The Department of Justice continues to have enforcement responsibility for 

actions under this statute. 

Page 5 B-319075 
currently pending before Congress. See B-270875, July 5, 1996; B-229257, June 10, 

1988. GAO has articulated a bright-line rule in determining whether an agency’s 

communication violates these prohibitions, that is, evidence that the agency made a 

clear, explicit appeal to the public to contact Members of Congress in support of the 

agency’s position on legislation pending before Congress. B-304715, Apr. 27, 2005.12

The rule balances the activity that the prohibitions are intended to address with an 

agency’s responsibility to communicate with the American people on policy and 

priorities.

 

13

 

Our review of the HealthReform.gov Web site, State Your Support Web page, and the 

materials provided by HHS regarding subsequent contacts with Web users found no 

explicit or direct appeal to the public to contact Members of Congress in support of 

pending legislation. The form letter that Web users were asked to “sign” was 

addressed to the President solely and only briefly mentions Members of Congress in 

the last sentence. In that sentence the Web user affirmed “to work with 

Congressional leaders and the President to enact health care” reform legislation. 

There was no direct appeal to the public to contact Members on behalf of pending 

legislation. Cf. B-116331, May 29, 1961 (editorials asking public to contact Members 

of Congress to urge opposition to a bill violated restrictions on lobbying). 

Arguably, some Web users may have inferred from this sentence a suggestion to 

contact Members of Congress. As recently as 2005, we considered whether we 

should relax the bright-line rule and apply the prohibition to statements from which a 

reader might infer a direction to contact Members of Congress. See B-304715, 

Apr. 27, 2005. Congressional requesters, referring to materials distributed by the 

Social Security Administration (SSA) regarding the Social Security program, asked 

whether a violation of the lobbying prohibitions would occur if the agency’s 

communications would likely influence the public to contact Congress in support the 

agency’s position. The materials in question made several statements that 

12 The Department of Justice’s Office of Legal Counsel (OLC) has also interpreted 

section 1913 and provisions in the annual appropriations acts that are similar to 

sections 717 and 503 as prohibiting indirect or “grassroots” lobbying aimed at 

defeating legislation currently pending before Congress, and has articulated the same 

bright-line rule for determining a violation. See Application of 18 U.S.C. § 1913 to 

“Grass roots Lobbying” by Union Representatives, Office of Legal Counsel, Nov. 23, 

2005 (2005 OLC Memo). 

13 In 2002, Congress amended section 1913 to cover activity aimed at influencing “a 

jurisdiction, or an official of any government” to support or defeat pending matters, 

including, for example, policy ratifications and appropriations legislation. While 

there is no case law addressing the 2002 amendment, GAO and OLC case law since 

2002 have continued to find violations of section 1913 only when communications 

contain an explicit appeal to the public to contact Members of Congress in support of 

or in opposition to pending legislation. See B-304715; 2005 OLC Memo. 

Page 6 B-319075 
collectively asserted that, without some congressional action, the Social Security 

Trust Fund was in jeopardy of being exhausted by 2042. While recognizing that the 

materials did not include an explicit, direct plea to the public to contact Members of 

Congress, the requestors believed that the materials evidenced a larger SSA campaign 

to build public support for the President’s initiative to reform the Social Security 

program. Id. We concluded that the plain language of the lobbying prohibitions and 

their legislative history do not support a more relaxed standard. Additionally, 

adopting a more subjective standard could restrict legitimate public discussion on 

issues of public policy. Id. Although some might infer from the last sentence of the 

form letter a suggestion to contact Members of Congress, the sentence is not a direct 

appeal and, therefore, does not violate the prohibition. As we concluded in 2005, the 

language of the prohibition, as well as public policy considerations, do not permit us 

to apply a more relaxed standard to the sentence. 

 

We also reviewed copies of two e-mails that HHS sent to Web users who provided 

contact information on the State Your Support Web page.14 We found no evidence of 

a direct, explicit appeal for supporters to contact Members. According to HHS, the 

e-mails sent to recipients served only two purposes: to alert the recipient when HHS 

posted new information on HealthReform.gov Web site and to provide information 

regarding agency-sponsored events regarding health reform. The e-mails provided to 

us did not contain a clear, direct appeal for Web users to contact Members of 

Congress regarding pending health care reform legislation, and therefore did not 

violate the lobbying prohibitions. 

Publicity or Propaganda Prohibition

You also asked about section 720, the governmentwide prohibition on using 

appropriated funds for publicity or propaganda purposes.15 Our case law has 

identified three categories of agency communications that are restricted by this 

prohibition: (1) covert propaganda, (2) purely-partisan materials, and (3) selfaggrandizement. B-316443, July 21, 2009. Communications are considered covert 

propaganda and violate the prohibition if they fail to disclose the agency’s role as the 

source of information. See, e.g., B-302710, May 19, 2004 (failure to identify agency as 

the source of prepackaged news stories to the target audience violated the 

 

14 HHS stated that these e-mails are representative of the e-mails provided to Web 

users who signed statements of support. See HHS Response, Attachment 1 at 1. Our 

requesters provided us copies of similar e-mails. See, e.g., E-mail from HHS/ASPA, 

Subject: Health Reform Discussion with Secretary Sebelius, June 10, 2009; E-mail 

from HHS/ASPA, Subject Health Reform Event in NJ, June 18, 2009; E-mail from HHS, 

Subject: Health Reform Pledge Submission Update, Sept. 10, 2009. 

15 Section 720 provides: “No part of any appropriation contained in this or any other 

Act shall be used directly or indirectly, including by private contractor, for publicity 

or propaganda purposes within the United States not heretofor authorized by 

Congress.” 

Page 7 B-319075 
prohibition). As discussed below, communications are considered purely partisan in 

nature if they were designed to aid a political candidate or party. See B-304228, 

Sept. 30, 2005 (media analysis to gauge whether the media had a favorable view of a 

particular political party was purely partisan in nature). Communications are 

considered self-aggrandizement or “puffery” if the materials emphasize the 

importance of the agency or one of its officials. See B-302504, Mar. 10, 2004. 

We reviewed the HealthReform.gov Web site, State Your Support Web page, and the 

supporting documentation that HHS provided to GAO. First, the HealthReform.gov

Web site and, in particular, the State Your Support Web page clearly state that HHS 

operates the Web site and is the source of the information provided within. As such, 

the Web site and Web page are not covert propaganda. Cf. B-316443 (providing 

special access to retired military officers working in the private sector as media 

analysts did not violate the prohibition where there was no evidence that the agency 

tried to conceal its role in providing information). Also, we find that neither the 

HealthReform.gov Web site nor the State Your Support Web page is selfaggrandizement. Nothing on the Web site or Web page appears to be designed to 

persuade the public as to the importance of HHS. 

Moreover, while the Web site and Web page contain statements that some have 

characterized as having political content, we found no statements that are purely 

partisan. In a 2004 decision, we examined whether HHS’s use of appropriated funds 

for a flyer and advertisements regarding changes to the Medicare program violated 

the publicity or propaganda prohibition. B-302504. Much like the debate on health 

care reform, the Medicare program is “subject to a highly spirited discussion and 

debate on the national level.” Id. Although the Medicare materials omitted some 

information regarding the impact of legislation on Medicare beneficiaries’ coverage 

and costs and may have highlighted some of the positive aspects of Medicare 

changes, we found that the materials were not purely partisan. The prohibition does 

not bar materials that have some political content or express a certain point of view 

on a topic of political importance. 

Agency communications are purely partisan where they are “completely devoid of 

any connection with official functions” or completely “political in nature.” B-147578, 

Nov. 8, 1962. In B-304228, we found that the Department of Education’s use of a 

media analysis to gather information to evaluate, among other things, media portrayal 

of a particular political party’s “commitment to education” as favorable or 

unfavorable violated the prohibition. Because the analysis focused solely on one 

political party, we could not determine any use for the information except for purely 

partisan reasons. While the HealthReform.gov Web site contains expressions of 

opinions from Members of both Democratic and Republican parties, we cannot say 

that such statements, unlike the materials in B-304228, are devoid of any connection 

with official agency functions or are completely political in nature. To find such 

statements of opinions restricted by the prohibition would severely curtail legitimate 

communications of an agency’s policies and its defense of those policies. See

B-302504. 

 

Page 8 B-319075 
CONCLUSION 

The use of appropriated funds to create and operate the HealthReform.gov Web site 

and the State your Support Web page did not violate the prohibitions on grassroots 

lobbying or publicity or propaganda. The Web site and Web page did not constitute 

grassroots lobbying because they contained no clear, direct appeal to the public to 

contact Members of Congress in support of or in opposition to health care reform. 

They also did not violate the publicity or propaganda prohibition because nothing 

within the Web site or Web page constituted communications that are purely 

partisan, self-aggrandizement, or covert. 

HHS views the form letter as similar to a survey to gauge public interest in the 

President’s policy proposals. HHS also asserts that the form letter was a more 

effective tool to communicate its policies because Web users, by signing the letter 

and submitting contact information, would be more likely to focus on the content of 

the message. HHS Response at 5. Asking Web users to sign a form letter may be an 

unorthodox tool to gauge public opinion or communicate policies, and we express no 

opinion as to the effectiveness of such a tool to achieve HHS’s stated goals. However, 

in light of our determination that the communications did not constitute a violation of 

the prohibitions on lobbying or publicity or propaganda, and in keeping with the 

discretion we have historically afforded agencies in their information activities (see

B-302504), we do not legally object to the department’s use of appropriated funds for 

this activity. 

Lynn H. Gibson 

Acting General Counsel 

Page 9 B-319075