Experts: CNO nominee erred, but didn't break lobbying rules
By David B. Larter
WASHINGTON (Nov. 2, 2012) Adm. John Richardson makes his opening remarks as the Director of Naval Reactors at a change of command ceremony after assuming command from Adm. Kirk Donald. Donald served as the director for eight years. (U.S. Navy photo by Mass Communication Specialist 1st Class Peter D. Lawlor/Released)
The president's nominee to be the Navy's top officer is under scrutiny after a government watchdog group alleged he and another senior Navy official inappropriately lobbied for billions to bankroll the next fleet of ballistic missile submarines.
Adm. John Richardson, tapped who was nominated in May to become the next CNO, and Rear Adm. Joe Tofalo, head of the Pentagon's undersea warfare division, ran afoul of broke anti-lobbying laws when hethey appealed to members of a submarine special interest groups to contact their congressmen about supporting the nearly $80-billion Ohio-class ballistic missile submarine replacement program, according to the independent Project on Government Oversight.
But analysts and military law experts say who spoke to Navy Times saythat Richardson and Rear Adm. Joe Tofalo, who also urged attendees at a submarine symposium to contact lawmakers, likely did not break the law and, at worst, overreached out of enthusiasm for a program that both men have advocated publically for and view as critical to national security.
"It's a case of a very distinguished officer making a misstep," said Eugene Fidell, a noted military lawegal expert who teaches it at Yale's Law School. "He thought he was doing the right thing — and he may have been doing the right thing given the merits of what he was arguing for — but it's a no-no."
The allegations of improper lobbying, first reported by Politico, stem from At issue are comments made by Richardson and Tofalo made at the annual public meeting of the Naval Submarine League in October. Richardson told the audience that despite momentum towards getting the Ohio replacement funded, he foresaw the potential for failure and that audience members needed to drive home their case for more money. work their circles to get the funding for it.
"Inform those in your sphere of influence: everyone from your congressmen to your local PTA," Richardson said. "Look for ways to make people aware of how vital this is to the nation's security; the stakes are extremely high. Don't assume that somebody else will do this; we all need to do it."
Tofalo followed up Richardson's comments by saying that if anyone had questions on how to talk about the program, they could call his office for guidance.
To POGO head Danielle Brian called the comments amount to a violation of the 1913 Anti-Lobbying Act that "prohibits the use of taxpayer funds by federal agencies to conduct grassroots lobbying efforts to pressure Congress to support 'any legislation or appropriation by Congress.'"
"Taken together, these remarks seem to indicate a troubling coordinated campaign by Navy leadership to engage in grassroots lobbying to secure support for the Ohio Replacement Program," Brian said in a June 8 letter to U.S. Comptroller General Gene Dodaro.
POGO contends that goes on to say that using public funds to lobby for the next-generation boomers program is a "violation of public trust," and said the comments were an example of senior leaders seeking to manipulate public opinion. Brian called on the comptroller to initiate an investigation into the lobbying effort by the Navy.
The Navy, however, is not investigating Richardson or Tofalo, and its legal advisers have ruled that each officer's comments were appropriately advocating for the huge submarine building project, said a that the service's legal experts believe that the officers were well within their rights to advocate for the programA Defense Department official source with knowledge of the situation, who asked for anonymity to discuss internal deliberations. spoke on background to discuss sensitive internal matters, said the Navy .
It is the latest debate about Richardson, 55, whose nomination has proven more controversial than some had expected. A former Navy secretary warned in the Wall Street Journal that selecting Richardson, who's in an eight-year post as head of the Naval Nuclear Propulsion, could "torpedoes" undermine the nuclear Navy's extraordinary safety record.
But Legal experts and observers say the admirals' remarks at the symposium do not constitute a clear-cut case of violating the anti-lobbying lawdisagree. David Sheldon, a prominent D.C. attorney who handlesdeals with military law casesissues, said that the comments weren't specific enough for Richardson and Tofalo to have violated the law.
"The admirals have certainly entered a gray area when speaking, but I do not think it was specific enough to be categorized as indirect lobbying, such as suggesting an individual lobby a particular senator or congressman."
A 1989 Justice Department memorandum on the official duties of senior officials in the government, seen as authoritative in legal circles, would seem to support Sheldon's positionargument.
"The (Anti-Lobbying) Act does not apply to public speeches, appearances and writings," the memo reads. "Consequently, department officials are free to publicly advance administration and department positions, even to the extent of calling on the public to encourage Members of Congress to support Administration positions."
Sheldon also suggested there is a degree of false naiveté in suggesting that admirals don't seek to influence Congress through their constituents on a regular basis.
"Frankly that's laughable," he said. "Can you see Adm. [Hyman] Rickover, the father of the nuclear Navy, taking a back seat on this? I don't think so."
Bryan Clark, a former aide to current CNO Adm. Jon Greenert and an analyst atnd the Center for Strategic and Budgetary Assessments, said that POGO didn't make its case for a violation of the law.
"Overall, this is an administration official advocating for the administration's position possession on a particular program," Clark said. "The fact that he recommended these members of the public contact their congressperson does not change the fact giving a public speech does not violate the Anti-Lobbying Act."
About David B. Larter
David B. Larter was the naval warfare reporter for Defense News.