The Trump administration yesterday sued three Corporation for Public Broadcasting (CPB) board members who refused to leave their offices after President Trump fired them.
On April 28, the White House informed Democratic board members Laura Ross, Thomas Rothman, and Diane Kaplan that their board positions were "terminated effective immediately." Their departures would have left the board with only two members, both Republicans, but the CPB defied the president and continued with five board members.
The US government's lawsuit against Ross, Rothman, and Kaplan alleged that they "have been usurping and purporting to exercise unlawfully the office of board member of the Corporation for Public Broadcasting... As recent Supreme Court orders have recognized, the President cannot meaningfully exercise his executive power under Article II of the Constitution without the power to select—and, when necessary, remove—those who hold federal office."
The Justice Department issued a statement saying the defendants "have continued to operate in office despite their removal and subsequent failure to obtain legal relief protecting their old positions." The DOJ urged the court "to declare that the former members have not lawfully served on the board since their removals, to enjoin the former members from serving on the board, and to order the former members to refund any compensation during their unlawful terms of service."
The Trump administration is separately asking Congress to rescind funding previously allocated to the CPB, which distributes money to PBS and NPR. The Senate is debating the plan.
CPB sued Trump, failed to obtain injunction
The CPB and the fired board members sued Trump and several administration officials and offices on April 29, saying that the president has no power to fire board members. The CPB is not a federal agency but instead a private corporation whose "board members cannot be affected, controlled, or disturbed by the actions of the government," the lawsuit said.
Congress created the CPB with these protections to "ensure that CPB was insulated from partisan governmental interference and control and ensure its autonomy," the lawsuit said. The CPB told the court that the only provision specifically discussing how board members can lose their seats before a six-year term expires applies when members fail to attend at least half of the board meetings in a calendar year.
The CPB lawsuit against Trump and the US lawsuit against the board members were both filed in US District Court for the District of Columbia. Judge Randolph Moss, an Obama appointee, is handling both cases.
On June 8, Moss denied the CPB's motion for a preliminary injunction that would have blocked the firings. Moss said he found it "difficult to fathom that Congress intended to provide the members of the Corporation's Board with essentially irrevocable tenure."
The Trump administration's lawsuit pointed to Moss's order, saying the board members "are defiantly acting as if the Court granted the relief the Court denied."
"Despite the Court's denial of their request for preliminary relief, Defendants have continued to usurp the office of board member of the CPB, including by participating in board meetings, voting on resolutions and other business that comes before the board, and presenting themselves to the public as board members. All of this is manifestly unlawful," the lawsuit said.
Judge: CPB didn’t amend rules in time to prevent firings
As noted in Moss's ruling, a District of Columbia law on nonprofit corporations says that "Except as otherwise provided in the articles of incorporation or bylaws, a director who is appointed by persons other than the members may be removed with or without cause by those persons." While this means the CPB could have amended its own rules to prevent board directors from being removed, the CPB did not do so before the firings.
"Thus, assuming that DC corporate law is controlling, the President (as the appointing person) was authorized to remove the three directors at the time he acted, but the Corporation was authorized to provide otherwise in its articles of incorporation or bylaws, which it has now done (but had not done before the three director-plaintiffs were purportedly removed)," Moss wrote.
That leaves the question of whether the DC law is consistent with the US Public Broadcasting Act of 1967, but the judge wasn't persuaded that the laws conflict. While Moss found that plaintiffs did not show they were "likely to prevail on the merits of their claim for injunctive relief," he said the CPB could renew its motion if the defendants "take steps to interfere in the independence of the Corporation."
When contacted by Ars today, the CPB did not offer any comment on the Trump administration's lawsuit but referred us to its June 8 statement on Moss's ruling. "We are very pleased that the Court recognized CPB is an independent, nonprofit corporation, free from governmental control or influence," CPB CEO Patricia Harrison said at the time.
Although Moss denied the request for an injunction, the CPB said the board members would continue in their offices. "Consistent with the Court's decision and the authority provided under the governing statute, Harrison has today taken steps to affirm that the three individuals whom the President purported to remove, Laura G. Ross, Thomas E. Rothman, and Diane Kaplan, are, remain, and shall continue to be directors of the Board of the Corporation for Public Broadcasting," the June 8 statement said.
Senate debates Trump budget cut
This week, the Senate is debating Trump's rescission requests, including one to rescind $1.1 billion previously allocated to the CPB. The White House has claimed that NPR and PBS "spread radical, woke propaganda disguised as 'news.'" The $1.1 billion is two years' worth of funding.
"More than 70 percent of CPB's annual appropriation goes directly to more than 1,500 public television and public radio stations... The annual appropriation also funds TV and radio programming, as well as projects that benefit the entire public media system," the CPB said in a statement in May.
Sen. Maria Cantwell (D-Wash.), ranking member of the Senate Committee on Commerce, Science and Transportation, last week released a report detailing the potential effects that approving Trump's funding cut could have on public safety.
"The operations of 79 public radio and 33 TV stations across 34 states and territories are considered vulnerable to federal funding cuts," the report summary said. "Nearly 13 million Americans live in communities under threat of losing their local public broadcast stations. What's worse, these stations serve large swaths of the Western, Midwestern, and Southeastern United States at risk of wildfires, tornadoes, hurricanes, and other public safety emergencies."
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