An Unethical Solicitation

Sebelius under fire for asking health care execs for Obamacare advertising money

HHS Secretary Kathleen Sebelius / AP
May 17, 2013

The former chief ethics lawyer for President George W. Bush said that Health and Human Services Secretary Kathleen Sebelius appears to have violated federal ethics rules when she asked health care executives to contribute to the campaign to implement Obamacare.

Sebelius personally called health industry executives asking them to contribute to nonprofits that are working to enroll uninsured Americans under President Barack Obama’s health care reform law, the Washington Post first reported last week.

HHS confirmed that administration officials had been involved in fundraising in a capacity despite initially denying the reports, according to the New York Times. The administration says it was done in a personal, not official, capacity.

Richard Painter, who served as Bush’s ethics counsel from 2005 to 2007, said this type of fundraising still appears to violate Office of Government Ethics rules, which prohibit federal officials from soliciting money from sources over which they have regulatory authority.

"To me it’s a clear violation of the rules if you’re asking insurance companies to put money in," Painter said.

According to ethics rules, federal employees cannot solicit money from a source that "does business or seeks to do business with the employee's agency," "conducts activities regulated by the employee’s agency," or "has interests that may be substantially affected by performance or nonperformance of the employee’s official duties."

Painter called Sebelius’ health care fundraising "an end run around the Hatch Act," the law prohibiting federal employees from engaging in political activity under their official capacity.

With violations of the Hatch Act, "the presumptive penalty is firing," Painter said. "There could even be criminal charges. But with this, it’s really just you violated the ethics rule, and then the president gets to decide what to do."

Because the Office of Government Ethics does not conduct investigations, any inquiries into Sebelius’ actions would likely be handled by the HHS inspector general’s office or a congressional oversight committee.

Republicans on the Senate Finance Committee, the House Energy and Commerce Committee, and the House Ways and Means Committee have written letters to Sebelius requesting more information and called on the Government Accountability Office to investigate.

It is not clear whether the House Oversight and Government Reform Committee will hold hearings into the matter. Chairman Darrell Issa’s  (R., Calif.) office did not respond to a request for comment. The committee is juggling several high-profile investigations at the moment, including inquiries into the IRS targeting conservative organizations and the events surrounding the Benghazi terrorist attack.

"It’s all a question about whether Congressman Issa’s team, whether they want to move [the Sebelius issue] to the front burner," Painter said.

House Minority Leader Nancy Pelosi (D., Calif.) defended Sebelius Thursday, saying "I don't have any problem with her doing that."

This is not the first time Sebelius has come under scrutiny for alleged ethics violations.

The Office of Special Counsel concluded in 2012 that Sebelius violated the Hatch Act, after she gave a speech supporting Obama’s reelection at an official event. Obama declined to take disciplinary action against her.

Painter said he does not recall any Bush administration officials engaging in similar fundraising during his time in the White House.

"[I told them] ‘Don’t even think of asking anybody for money until you’ve left the White House,’" Painter said. "I don’t remember anybody violating that. ...The question was asked, yeah, but I don’t remember anybody doing it."