The Administration’s Hagiographic Advertisements

David Super

      Many people are discussing the Administration’s spending taxpayer funds to run partisan advertisements glorifying President Trump less than two months before a crucial election.  Most media coverage on this episode has been decent as far as it goes, but it has missed a few points that seem worth pointing out. 

      Most discussions of the legality of these expenditures have focused on statutory prohibitions on this sort of thing.  That is fine, I suppose, but to me the first question for any public expenditure is what statute allows it to be made.  After all, Article I, Section 9, provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”.  The burden should be on this Administration, or any administration, to identify the appropriation that justifies the expenditure. 

      The Administration has been rather elliptical about this, but social media posts from people on Capitol Hill suggest that the Administration is charging these advertisements to one of the large pools of money provided to the Department of Homeland Security by either the One Big Beautiful Bill Act of 2025 or this spring’s legislation funding immigration enforcement.  Both laws were enacted through budget reconciliation procedures that allowed Republicans to proceed immune from a filibuster despite the opposition of all Democrats.  Both laws give the immigration agencies startlingly broad discretion about how to spend the large sums provided.  Yet I cannot find anything in either law that could plausibly be said to allow these funds to be spent on advertisements glorifying the President. 

      This matters because a federal statute dating to the early days of the republic provides “Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.”  This is why, for example, Democratic presidents have been unable to switch resources from defense to domestic investments and why Republican presidents have been unable to liquidate human services programs in favor of aircraft carriers.  Indeed, as Justice Thomas has written for the Court, the very essence of an appropriation is that it directs funds to a particular purpose:

Based on the Constitution’s text, the history against which that text was enacted, and congressional practice immediately following ratification, we conclude that appropriations need only identify a source of public funds and authorize the expenditure of those funds for designated purposes to satisfy the Appropriations Clause. 

      If these advertisements do not fairly fall within any of the purposes specified in any appropriations, all officials involved in the production and placement of these advertisements may have “ma[d]e or authorize[d] an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation [or] involve[d the federal] government in a contract or obligation for the payment of money before an appropriation is made [without] authoriz[ation] by law”.  If so, they may have violated the Anti-Deficiency Act, which carries both criminal and other penalties. 

      Assuming an appropriation could be found whose purposes could fairly encompass these advertisements, they still may not be funded if an applicable restriction on the appropriated funds disallows the expenditure.  For example, the general terms of appropriations for Medicaid would clearly allow funds to be spent on abortions but that would nonetheless be unlawful because the Hyde Amendment forbids such expenditures except in very limited circumstances.  Appropriations restrictions may appear within the particular appropriation in question, within the appropriations act containing that appropriation, within the list of general prohibitions on all expenditures of federal funds that Congress customarily enacts every year, or in permanent non-appropriations legislation.  It often makes sense to consider restrictions in this order. 

      Because I am unaware of any particular appropriation that could support these advertisements, I cannot check that appropriation for relevant restrictions.  I do not immediately see any relevant restrictions in either of the two reconciliation acts the Administration reportedly may be tapping, although not knowing which appropriation it has in mind hampers my search. 

      Clearly applicable restrictions do appear in the restrictions enacted each year in one appropriations act but applicable to all federal funds.  In recent years, those have appeared in the Financial Services and General Government Appropriations Act (pronounced “FSGG” by appropriations experts and intoxicated persons the world over).  Last winter’s consolidated appropriation act included FSGG as its Division E, with Title VII containing government-wide restrictions on federal funds. 

      Section 715 provides “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.” 

      Section 718 similarly 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 heretofore authorized by Congress.” 

      Both of these restrictions reach all federal funds without regard to which legislation provided them.  (To see the difference, compare section 8001 of Division A, the Defense Appropriations Act, which also prohibits spending funds on propaganda but only applies to funds within that Act.) 

      Some accounts suggest the Administration is arguing that, by spending money from reconciliation acts rather than annual appropriations acts, it is somehow exempt from these restrictions.  That is absurd.  Any law allowing the spending of federal funds is an appropriation, whatever the title given to the law and whatever procedure Congress has adopted for its consideration.  This hypothetical argument also would prove too much:  if the reconciliation acts were not appropriations then any expenditure of any of the moneys they contain would violate the Appropriations Clause and the Anti-Deficiency Act.  Moreover, neither section 715 nor section 718 limit their reach to appropriations acts.  Therefore, sections 715 and 718 apply to the money spent on the advertisements and would seem to disallow this use.  Once again, spending federal funds without a valid appropriation violates the Appropriations Clause and the Anti-Deficiency Act. 

      Finally, we must consider restrictions on federal funds found in permanent law.  The most obvious starting point is the Hatch Act, which seeks to prevent federal resources from being applied to affect the outcome of elections.  The Act states that a federal “employee may not…

use his official authority or influence for the purpose of interfering with or affecting the result of an election”.  The Act also provides that “An employee may not engage in political activity—

(1) while the employee is on duty; [or] (2) in any room or building occupied in the discharge of official duties by an individual employed or holding office in the Government of the United States or any agency or instrumentality thereof”.  To make clear that this is a restriction on federal funds, the Act creates a narrow exception for limited situations where the employee reimburses the Treasury for any federal resources used.  The Hatch Act is enforceable through adverse employment consequences and civil penalties.  Any federal employee who used their authority or influence to produce these advertisements or to have them run at federal expense would seem to be in a difficult position. 

      Of course, the chances that the Department of Justice would enforce any of these laws against officials who spent taxpayer funds shortly before an election to glorify the President are nil.  One of many revelations from the current Administration is that the Attorney General may be an even more important fiscal officer than the Director of OMB or the Secretary of the Treasury.  In an environment where nobody will even consider enforcing laws that inconvenience the President, we have no laws.  A major task going forward will be redesigning our fiscal architecture so that it can have real effect even when the Justice Department is completely subservient to the White House and even when the pardon power is wielded for purely instrumental, partisan purposes.

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