[Congressional Record Volume 157, Number 152 (Wednesday, October 12, 2011)]
[Extensions of Remarks]
[Pages E1820-E1821]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




GOVERNMENT ACCOUNTABILITY OFFICE OPINION THAT THE WHITE HOUSE OFFICE OF 
    SCIENCE AND TECHNOLOGY POLICY HAS VIOLATED THE LAW AND THE ANTI-
  DEFICIENCY ACT IN ITS BILATERAL DEALINGS WITH THE CHINESE GOVERNMENT

                                 ______
                                 

                           HON. FRANK R. WOLF

                              of virginia

                    in the house of representatives

                      Wednesday, October 12, 2011

  Mr. WOLF. Mr. Speaker, I submit an opinion that I have received from 
the Government Accountability Office that White House Office of Science 
and Technology Policy, led by Dr. John Holdren, is in violation of the 
law and the Anti-Deficiency Act due to its continued dealings with the 
Chinese government.

                                                     United States


                             Government Accountability Office,

                                 Washington, DC, October 11, 2011.
     Hon. Frank R. Wolf,
     Chairman, Subcommittee on Commerce, Justice, Science, and 
         Related Agencies, Committee on Appropriations, House of 
         Representatives.
       Subject: Office of Science and Technology Policy--Bilateral 
     Activities with China
       This responds to your request for our opinion on the 
     propriety of activities undertaken in May 2011 by the Office 
     of Science and Technology Policy (OSTP) with representatives 
     of the government of the People's Republic of China. Letter 
     from Representative Wolf to the Comptroller General (May 11, 
     2011) (Request Letter). Specifically, you point to meetings 
     with Chinese representatives during the U.S.-China Dialogue 
     on Innovation Policy (Innovation Dialogue) and the U.S.-China 
     Strategic and Economic Dialogue (S&ED) held in Washington, 
     D.C., in May 2011. You ask whether OSTP violated section 1340 
     of the Department of Defense and Full-Year Continuing 
     Appropriations Act, 2011. Section 1340 prohibits the use of 
     OSTP appropriations for bilateral activities between OSTP and 
     China, or Chinese-owned companies, unless specifically 
     authorized by laws enacted after the date of the 
     appropriations act. Pub. L. No. 112-10, div. B, title III, 
     125 Stat. 38, 123 (Apr. 15, 2011).
       As explained below, we conclude that OSTP's use of 
     appropriations to fund its participation in the Innovation 
     Dialogue and the S&ED violated the prohibition in section 
     1340. In addition, because section 1340 prohibited the use of 
     OSTP's appropriations for this purpose, OSTP's involvement in 
     the Innovation Dialogue and the S&ED resulted in obligations 
     in excess of appropriated funds available to OSTP; as such, 
     OSTP violated the Antideficiency Act, 31 U.S.C. 
     Sec. 1341(a)(1)(A).
       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), available at www.gao.gov/legal/resources
.html. In this case, OSTP provided us with its legal views 
     and relevant supporting materials. Letter from General 
     Counsel, OSTP to Assistant General Counsel, GAO, Re: B-
     321982, Office of Science and Technology Policy--Bilateral 
     Activities with China (June 23, 2011) (OSTP Response). We 
     also spoke by telephone with OSTP's General Counsel to ask 
     questions about OSTP's June letter. Telephone Conversation 
     with General Counsel, OSTP (Aug. 4, 2011) (August 
     Conversation). See also Letter from General Counsel, OSTP to 
     Senior Attorney, GAO, Re: Follow-up to August 4, 2011, 
     Telephone Call (Aug. 29, 2011) (OSTP August Letter).


                               BACKGROUND

       The Presidential Science and Technology Advisory 
     Organization Act of 1976 established OSTP to ``serve as a 
     source of scientific and technological analysis and judgment 
     for the President with respect to major policies, plans, and 
     programs of the Federal Government.'' 42 U.S.C. 6614(a). Part 
     of the agency's mission is to ``advise the President of 
     scientific and technological considerations involved in areas 
     of national concern including . . . foreign relations. . . 
     .'' 42 U.S.C. 6613(b)(1).
       Between May 6 and 10, 2011, OSTP ``led and participated in 
     a series of meetings with Chinese officials'' as part of the 
     Innovation Dialogue and the S&ED. OSTP Response, at 3. On May 
     6, 2011, the OSTP Director and Chinese Minister of Science 
     and Technology participated in the Innovation Dialogue. 
     According to OSTP, a goal of the Innovation Dialogue was to 
     ``serve as a forum for persuading the rollback of 
     discriminatory, counterproductive Chinese procurement and 
     intellectual property policies. . . .'' OSTP Response, at 3. 
     Among the topics discussed were ``market access and 
     technology transfer; innovation funding and incentives; 
     standards and intellectual property; and government 
     intervention.'' OSTP Response, at 4. OSTP informed our office 
     that the OSTP Director opened and closed the Innovation 
     Dialogue and served on discussion panels. OSTP August Letter, 
     at 1. OSTP staff helped the Director prepare for and 
     participate during the meetings. Id. See OSTP Response, at 5.
       On May 8, 2011, OSTP hosted a dinner to honor Chinese 
     dignitaries. Six U.S. participants attended the dinner, along 
     with an unidentified number of ``staff-level employees from 
     other federal agencies.'' OSTP Response, at 4, n.13. The 
     Director is the only listed dinner attendee from OSTP. There 
     were six Chinese invitees. Id.
       On May 9 and 10, 2011, OSTP participated in the S&ED. The 
     purpose of the S&ED was to bring together various U.S. and 
     Chinese government officials to ``discuss a broad range of 
     issues between the two nations,'' including on matters 
     regarding trade and economic cooperation. U.S. Department of 
     the Treasury, U.S.-China Strategic and Economic Dialogue, 
     available at www.treasury.gov/initiatives/Pages/china.aspx 
     (last visited Oct. 4, 2011). The Secretary of the Treasury 
     and the Secretary of State co-chaired the S&ED along with the 
     Vice Premier and State Councilor of the People's Republic of 
     China. Id. Topics of discussion included ``enhancement of 
     trade and investment cooperation; an overview of bilateral 
     relations; military-to-military relationships; cooperation 
     on clean energy, energy security, climate change, and 
     environment; customs cooperation; and energy security.'' 
     OSTP Response, at 4. The OSTP Director spoke many times 
     during the various sessions, including on U.S.-China 
     cooperation on climate science. August Conversation. OSTP 
     also had at least one staff member attend the S&ED in 
     addition to the Director. Id.
       The Full-Year Continuing Appropriations Act, 2011, enacted 
     into law on April 15, 2011, included appropriations for OSTP 
     for fiscal year 2011 in title Ill of division B. Pub. L. No. 
     112-10, div. B. Section 1340 of title III provides:
       ``None of the funds made available by this division may be 
     used for the National Aeronautics and Space Administration or 
     the Office of Science and Technology Policy to develop, 
     design, plan, promulgate, implement,

[[Page E1821]]

     or execute a bilateral policy, program, order, or contract of 
     any kind to participate, collaborate, or coordinate 
     bilaterally in any way with China or any Chinese-owned 
     company unless such activities are specifically authorized by 
     a law enacted after the date of enactment of this division.''
       Pub. L. No. 112-10, 1340.
       OSTP informed us that it incurred costs of approximately 
     $3,500 to participate in the week's activities, including the 
     cost of staff time for nine employees preparing for and 
     participating in the discussions, as well as the cost of the 
     dinner OSTP hosted on May 8. OSTP Response, at 5.


                               DISCUSSION

       At issue in this opinion is whether OSTP violated section 
     1340's proscription, and, if so, whether the agency violated 
     the Antideficiency Act.
       As with any question involving the interpretation of 
     statutes, our analysis begins with the plain language of the 
     statute. Jimenez v. Quarterman, 555 U.S. 113 (2009). When the 
     language of a statute is ``clear and unambiguous on its face, 
     it is the plain meaning of that language that controls.'' B-
     307720, Sept. 27, 2007; B-306975, Feb. 27, 2006; see also 
     Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370 (1925).
       The plain meaning of section 1340 is clear. OSTP may not 
     use its appropriations to participate, collaborate, or 
     coordinate bilaterally in any way with China or any Chinese-
     owned companies. Here, OSTP's participation in the Innovation 
     Dialogue and S&ED contravened the appropriations restriction. 
     The Director opened the Innovation Dialogue and moderated 
     discussions therein. OSTP staff prepared materials for and 
     attended the discussions. OSTP then invited U.S. and Chinese 
     officials to a dinner that it paid for using its 
     appropriation. Finally, OSTP participated in the S&ED, during 
     which the Director spoke on multiple occasions, including on 
     climate science. OSTP did not identify, nor are we aware of, 
     any specific authority to do so that was enacted after the 
     date of the Continuing Appropriations Act, 2011.
       OSTP does not deny that it engaged in activities prohibited 
     by section 1340. OSTP Response; August Conversation. OSTP 
     argues, instead, that section 1340, as applied to the events 
     at issue here, is an unconstitutional infringement on the 
     President's constitutional prerogatives in foreign affairs. 
     OSTP Response, at 1; August Conversation; Letter from 
     Director, OSTP, to the Speaker of the House of 
     Representatives, Re: Section 1340 of the Department of 
     Defense and Full-Year Continuing Appropriations Act of 2011 
     (May 16, 2011) (OSTP May 16 Letter). OSTP claims that section 
     1340 is ``unconstitutional to the extent its restrictions on 
     OSTP's use of funds would bar the President from employing 
     his chosen agents for the conduct of international 
     diplomacy.'' OSTP Response, at 1. OSTP asserts that the 
     President has ``exclusive constitutional authority to 
     determine the time, place, manner, and content of diplomatic 
     communications and to select the agents who will represent 
     the President in diplomatic interactions with foreign 
     nations.'' OSTP May 16 Letter. OSTP argues that, for this 
     reason, Congress may not ``use its appropriations power to 
     infringe upon the President's exclusive constitutional 
     authority in this area.'' Id.
       It is not our role nor within our province to opine upon or 
     adjudicate the constitutionality of duly enacted statutes 
     such as section 1340. See B-300192, Nov. 13, 2002; see also 
     B-306475, Jan. 30, 2006. In our view, legislation that was 
     passed by Congress and signed by the President, thereby 
     satisfying the Constitution's bicameralism and presentment 
     requirements, is entitled to a heavy presumption in favor of 
     constitutionality. B-302911, Sept. 7, 2004. See Bowen v. 
     Kendrick, 487 U.S. 589, 617 (1988). Determining the 
     constitutionality of legislation is a province of the courts. 
     U.S. Const. art. III, Sec. 2. Cf. Fairbank v. United States, 
     181 U.S. 283, 285 (1901). Therefore, absent a judicial 
     opinion from a federal court of jurisdiction that a 
     particular provision is unconstitutional, we apply laws as 
     written to the facts presented. See B-114578, Nov. 9, 1973. 
     In 1955, for example, we stated that we ``accord full effect 
     to the clear meaning of an enactment by the Congress so long 
     as it remains unchanged by legislative action and unimpaired 
     by judicial determination.'' B-124985, Aug. 17, 1955. We see 
     no reason to deviate here. Indeed, we are unaware of any 
     court that has had occasion to review the provision, let 
     alone adjudicate its constitutionality, nor did OSTP advise 
     of any judicial determination or ongoing litigation.
       As a consequence of using its appropriations in violation 
     of section 1340, OSTP violated the Antideficiency Act. Under 
     the Antideficiency Act, an officer or employee of the U.S. 
     Government may not make or authorize an expenditure or 
     obligation exceeding an amount available in an appropriation. 
     31 U.S.C. Sec. 1341. See B-300192, Nov. 13, 2002. If Congress 
     specifically prohibits a particular use of appropriated 
     funds, any obligation for that purpose is in excess of the 
     amount available. 71 Comp. Gen. 402 (1992); 62 Comp. Gen. 692 
     (1983); 60 Comp. Gen. 440 (1981). By using its fiscal year 
     2011 appropriation in a manner specifically prohibited, OSTP 
     violated the Antideficiency Act. Accordingly, OSTP should 
     report the violation as required by the act.
           Sincerely,
                                                   Lynn H. Gibson,
     General Counsel.

                          ____________________