By Joseph Lord
Sen. Bill Hagerty (R-Tenn.) has denounced the Biden administration’s plan to start a “Disinformation Governance Board,” saying that the plan is likely illegal.
Department of Homeland Security Secretary Alejandro Mayorkas announced the creation of the board in April, days after Elon Musk secured a $44 billion deal to buy Twitter. The idea of the new agency was immediately criticized by lawmakers and social media users alike, with many comparing it to George Orwell’s “Ministry of Truth” in the novel “1984.”
“It’s an awful idea, and you ought to disband it,” Sen. Mitt Romney (R-Utah) told Mayorkas during a May 4 Senate hearing.
In an April 29 letter (pdf) letter to Mayorkas, Hagerty contended that the DHS chief’s “actions merit review by Congress, both as a general matter, as well as under the Congressional Review Act and because the actions may be in violation of provisions of the Antideficiency Act.”
Hagerty tied his own opposition to the board to provisions of the Antideficiency Act, a 1982 law designed to prevent the executive branch from appropriating funds that exceed those previously approved by Congress, as well as the Congressional Review Act (CRA), a 1996 law that permits Congress to overrule internal regulations from executive agencies with a simple majority vote in the House and Senate.
If Mayorkas were to create the board without congressional approval, Hagerty added, he would be knowingly and willfully violating the law, an offense that could land him in federal prison for up to two years and a $5,000 fine.
“You will comply with the requirements” of the CRA board, including requirements that “any agency action that falls within the definition of a ‘rule’ must be submitted to Congress for review before it can take effect,” Hagerty told Mayorkas.
Mayorkas’s decision to create the board and hire Nina Jankowicz as its new director “may also be a direct violation of provisions of the Antideficiency Act,” Hagerty asserted.
That law prohibits “making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law.”
Citing the 2022 Omnibus Appropriations Act, Hagerty said that congressionally approved funding for the board and Jankowicz’s salary “is none,” because “Congress explicitly defunded it, just weeks ago.”
Under the most recent federal funding bill, Hagerty said, the law “specifically prohibits the Secretary of Homeland Security from using any funds provided by Congress to carry out Section 872 of the Homeland Security Act of 2002, which means it defunded any action to ‘allocate or reallocate functions among the officers of the Department of Homeland Security or to establish, consolidate, or alter organizational units within the Department of Homeland Security.’”
Restating his warning that the creation of the board could make Mayorkas liable for legal consequences, he wrote, “As you know, an officer or employee, including you, who violates the Antideficiency Act ‘shall be subject to appropriate administrative discipline,’ and, for willful violations, faces a criminal fine, imprisonment, or both.”
Under the provisions of the Antideficiency Act, Congress ruled that any federal employee or officeholder who “knowingly and willfully” violates its provisions “shall be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office” and “shall be fined not more than $5,000, imprisoned for not more than 2 years, or both.”
“Plainly, this DHS Disinformation Governance Board imposing significant constraints on the bedrock of American values and freedoms and new costs on the American people requires congressional review and may be a violation of the Antideficiency Act,” Hagerty concludes.
“So that Americans’ elected representatives may timely review the rules and policies implementing this action as required under federal law, please confirm by Monday, May 16, that you will submit it to Congress before it purports to take effect.”
After the plan started an online and media firestorm, Mayorkas went before the Senate on May 4 to testify about the new office.
“We don’t have definitions of what the Disinformation Governance Board is. We don’t have boundaries on what it does,” Sen. James Lankford (R-Okla.) said during the hearing, echoing common Republican concerns about the plan. “Why should we not have suspicions on this?”
“This is not the truth police,” Mayorkas said. “Our work in addressing disinformation that threatens the security of the homeland has been going on for almost 10 years. I asked the question—and we asked the question within the Department of Homeland Security—what efforts do we have underway?
“What policies, procedures, and standards of conduct do we have in place to ensure that that vitally important homeland security work … does not infringe on fundamental rights?”
Mayorkas has also claimed that the board won’t censor information or have “operational authority.”
However, information on what the board actually is and what it will do remains sparse, so it remains unclear how exactly the board will function.