Public Relations and Propaganda: Restrictions on Executive Agency Activities
Public Relations and Propaganda:
Restrictions on Executive Agency Activities
Updated May 24, 2005
Kevin R. Kosar
Analyst in American National Government
Government and Finance Division
Public Relations and Propaganda: Restrictions on
Executive Agency Activities
Controversies recently have arisen over certain executive branch agencies’
expenditures of appropriated funds on public relations activities, some of which have
been characterized as propagandistic. Generally speaking, there are two legal
restrictions on agency public relations activities and propaganda. 5 U.S.C. 3107
prohibits the use of appropriated funds to hire publicity experts. Appropriations law
“publicity and propaganda” clauses restrict the use of funds for puffery of an agency,
purely partisan communications, and covert propaganda. No federal agency monitors
federal public relations activities, but a Member or Committee of Congress may ask
the Government Accountability Office (GAO) to examine an agency’s expenditures
on public relations activities with a view to their legality. Any effort to reform
current statutory restrictions on agency public relations activities will face three
challenges: tracking public relations activities by agencies, defining “propaganda,”
and enforcing laws against agency use of funds for publicity experts and propaganda.
On January 26, 2005, H.R. 373 was introduced in the House of Representatives.
The bill would require a federal agency to notify the Congress no later than 30 days
after entering into a public relations contract, codify the publicity and propaganda
clause and provide penalties for violations of it, and require federal agencies to label
their communications as having been paid for with appropriated funds.
On February 2, 2005, S. 266 was introduced in the Senate. The bill would
define “publicity and propaganda,” codify the types of communications that
constitute publicity and propaganda, provide financial penalties for executive agency
officials who authorize the use of appropriated funds for publicity and propaganda,
empower both the Attorney General and private citizens to bring civil actions against
agency officials who authorize the use of appropriated funds for publicity and
propaganda, and provide “whistleblower protection” from agency retribution for
employees who take actions in support of this law.
S. 967 was introduced on April 28, 2005. The bill would amend Part I of Title
III of the Communications Act of 1934 (47 U.S.C. 301 et seq.) to require audio and
video news releases to contain announcements that inform viewers that the media
segment they are viewing was “produced by the U.S. government.” S. 967 was
referred to the Senate Committee on Commerce, Science, and Transportation.
This report will be updated as events warrant.
Publicity Experts and Publicity and Propaganda......................5
Recent Administrative Action........................................8
The Challenges of Reform..........................................11
Enforcement and the Separation of Powers.........................14
Public Relations and Propaganda:
Restrictions on Executive Agency Activities
Recently, a number of promotional and public outreach actions by executive1
branch agencies have provoked controversy. Some salient examples follow below.
!The Department of Education hired Armstrong Williams, a
television commentator and syndicated columnist, to promote the No2
Child Left Behind Act on his television program.
!The Federal Communications Commission (FCC) launched a high
profile public relations campaign (DTV — Get It!) to encourage
consumers to purchase digital television sets. As part of this effort,
former Chairman Michael K. Powell appeared on Monday Night
Football, and the FCC created a website [http://www.dtv.gov] that
promotes digital television (DTV) and includes hyperlinks to the
websites of a number of large corporations with significant financial
interests in DTV.3
!The Division for Human Resources Products and Services of the
Office of Personnel Management (OPM) reportedly issued
1 Of course, the current Administration is not the only one that has engaged in public
relations activities that provoke criticism. For example, the Department of Health and
Human Services during the Presidency of William J. Clinton produced video news releases
(VNRs) to promote its Medicare reform proposal. Indeed, government public relations
activities have raised concerns for at least a century. See, respectively, CRS Report
RS21811, Medicare Advertising: Current Controversies, by Kevin R. Kosar; and James L.
McCamy, Government Publicity (Chicago: The University of Chicago Press, 1939).
2 The Department of Education (ED) contracted with Ketchum Communications, which then
subcontracted with a public relations firm co-owned by Williams. The subcontract with
specified the promotional activities Williams was to provide, and ED signed this contract.
Michelle R. Davis, “Department’s PR Activities Scrutinized,” Education Week, Jan. 19,
2005, p. 1. The Department of Health and Human Services paid columnist Maggie
Gallagher to write brochures on the benefits of marriage, to ghost-write an essay — for
publication in a magazine — for an HHS assistant director, and to produce a training
presentation on the benefits of marriage. Reportedly, while under contract, she promoted
the Bush Administration’s marriage initiative in some of her columns. Howard Kurtz,
“Writer Backing Bush Plan Had Gotten Federal Contract,” Washington Post, Jan. 26, 2005,
p. C1; and Maggie Gallagher, “Statement of Maggie Gallagher,” Jan. 26, 2005, retrieved at
[ h t t p : / / www.ma r r i a ge d e b a t e . c o m/ ] .
3 Anne Marie Squeo, “FCC Tries to Sell Consumers on Digital TVs,” The Wall Street
Journal, Oct. 5, 2004, p. D10.
guidelines to OPM staff who were preparing presentations and
promotional materials for a conference. Staff were instructed to
include a “picture” of President George W. Bush in slide shows and
to make the President’s presence “prevalent.”4
!The White House has reportedly expended public funds to create and
maintain Barney.gov, a child-friendly website that celebrates the
President’s Scottish Terriers, Barney and Miss Beazley. The site
features photographs and videos of the dogs, along with their
biographies and “answers” letters from children.5
!As part of a $1 million public education campaign, the
Environmental Protection Agency hired a public relations firm to
produce a public service announcement (PSA) urging home owners
to help reduce pollution.6 The PSA, which came in video format,
spoofed one man’s effort to reduce pollution by decreasing the
quantity of gasoline required to run his automobile. The video told
viewers that a home “can cause twice the green house gases of a
car,” and directed consumers to a webpage, available online at
[http://www.energystar.gov/], that listed energy-efficient household
appliances; it did not provide information on the varying levels of
emissions produced by different automobiles.7
!In early April 2004, the Internal Revenue Service issued four press
releases to remind taxpayers of the looming filing deadline. The
press releases also included a policy assertion — “America has a
choice: It can continue to grow the economy and create new jobs as
the president’s policies are doing, or it can raise taxes on American
families and small businesses, hurting economic recovery and future
4 As quoted in Al Kamen, “The Electric Slide, OPM Style,” Washington Post, Sept. 10,
5 Dan Froomkin, “White House Launches Barney.gov,” WashingtonPost.com, May 14,
6 Environmental Protection Agency, “Five-Step Energy Star Campaign Can Save Energy,
Money, Environment,” press release, June 16, 2004, retrieved via [http://www.nexis.com];
Editorial, “Not a Laughing Matter: The New E.P.A. TV Ad Is Neither Funny Nor
Effective,” The Miami Herald, July 2, 2004, p. A18.
7 The difference between vehicles can be dramatic: the 2005 Ford Explorer SUV releases
Automobile emission rates can be found at [http://www.fueleconomy.gov].
8 Jeannine Aversa, “Treasury News Releases on Taxes Attacked,” Associated Press, Apr.
9, 2004, retrieved at [http://www.nexis.com]. Critics were especially incensed because these
same words were reportedly found on a fact sheet issued two days earlier by the Republican
National Committee. Al Kamen, “A Weak Too Late,” Washington Post, Apr. 26, 2004, p.
!The Forest Service hired a public relations firm to produce a
brochure which promoted increased logging in the Sierra Nevada
forest.9 The brochure argued that the forest had grown too dense and
that tree removal was a tool in the “campaign against catastrophic
wildfires” that would be beneficial to the forest and its fauna. The
brochure included photographs that purported to show that the forest
had become overgrown in the past century. However, the
photograph showing low forest density in 1909 was taken after the
forest had been logged.10
!The Social Security Administration (SSA) has reportedly drawn up
a “strategic communications plan” that urges SSA employees to
disseminate the message that “Social Security’s long-term financing
problems are serious and need to be addressed soon” through
speeches, public events, and mass media, and by other means.11
President Bush has undertaken a “60 stops in 60 days” tour of the
United States in which he and a number of government officials are
promoting the President’s plan for reforming social security.12
!Reportedly, the Department of Agriculture has a “Broadcast Media
and Technology Center” that produces news-like segments that it
distributes to local television stations, which have aired them.13
USDA reportedly also hired a freelance writer to produce articles
that speak well of agency conservation programs and to attempt to
place these articles in magazines aimed at outdoors enthusiasts.14
In other cases, GAO has stated that certain public relations activities were
illegal, as the following examples illustrate.
!The Office of National Drug Control Policy produced video news
releases (VNRs) that looked like evening news segments and
strongly discouraged the use of illegal drugs. These VNRs were
distributed to local news stations which, mistakenly, aired them as
9 OneWorld Communications also created a video, which generated less controversy.
10 U.S. Government Accountability Office, Forest Service — Sierra Nevada Forest Plan
Amendment brochure and video materials, B-302992, Sept. 10, 2004.
11 Robert Pear, “Social Security Is Enlisted to Push Its Own Revision,” New York Times, Jan.
12 SSA also has set up a “Social Security Information Center” and website
[http://www.strengtheningsocialsecurity.gov] that touts the President’s proposed reforms.
Jonathan Weisman, “Cost of Social Security Drive Cited,”Washington Post, Apr. 7, 2005,
13 David Barstow and Robin Stein, “Under Bush, a New Age of Prepackaged News,” New
York Times, Mar. 13, 2005, pp. A1, A18-A19.
14 Christopher Lee, “USDA Paid Freelance Writer $7,500 for Articles,” Washington Post,
May 11, 2005, p. A15.
actual news. GAO reviewed the videos and judged that they violated
!Home Front Communications, a public relations firm, produced
VNRs for the Department of Health and Human Services’ (HHS)
Centers for Medicare & Medicaid Services (CMMS). A GAO
opinion on the VNRs — which contained newscast-like interviews
and reports — found them to be a violation of the publicity or
propaganda prohibition of the Consolidated Appropriations
Resolution of 2003 (P.L. 108-199) and the Anti-Deficiency Act (31
Generally, critics have complained that these public relations activities are
inappropriate, are a waste of taxpayers’ dollars, and constitute a form of propaganda
aimed at selling the policies of President George W. Bush. Critics also have
complained that federal dollars are being used to influence media coverage.17
Proponents of these activities argue that there is nothing wrong with agencies
educating the public about their programs, activities, and positions on policies.
Moreover, proponents argue that utilizing communications techniques and media
commonly found in the private sector, such as video news releases, direct mail, and
advertisements, makes sense because they are effective communications tools.18
In part, the division between these viewpoints is rooted in longstanding
competing notions over the nature of federal executive agencies: should agencies be
apolitical and semi-autonomous, or should they be politically responsive? Should
they serve first the President, Congress, the public, or the law? And, should federal
agencies behave cautiously, taking their cues for action from federal law, regulations,
and rules, or should they be entrepreneurial and risk-taking like private sector
com p ani es? 19
15 U.S. Government Accountability Office, Office of National Drug Control Policy — Video
News Release, B-303495, Jan. 4, 2005.
16 HHS contracted with Ketchum, Inc., which hired Home Front Communications; the VNRs
were then distributed by CMMS. CRS Report RS21811, Medicare Advertising: Current
Controversies, by Kevin R. Kosar.
17 Some argue that reporters, columnists, and editors and government employees should
maintain a professional distance from one another. Historically, though, this has not always
occurred. See, for example, John F. Stacks, Scotty: James B. Reston and the Rise and Fall
of American Journalism (Boston: Little Brown, 2002).
18 A Department of Education (ED) spokeswoman, Susan Aspey, said the congressional
request for a GAO examination of VNRs produced for ED was just “politics and an attempt
to distract attention from President Bush’s great record on improving education.” Ben
Feller, “Two Democrats Request Probe of Spending as Propaganda,” Associated Press, Oct.
14, 2004, retrieved from [http://www.nexis.com]. On government advertising and its
controversial aspects, see CRS Report RS21746, Government Advertising Expenditures: An
Overview, by Kevin R. Kosar.
19 See, for example, Louis Fisher, The Politics of Shared Power: Congress and the Executive
(College Station: Texas A&M University Press, 1998), chapter 4; William F. West and
Publicity Experts and Publicity and Propaganda
The diverse activities described above share one basic feature ; they involve the
expenditure of federal funds on agency communications with the public. Article I,
Section 7, clause 7 of the U.S. Constitution requires that “No Money shall be drawn
from the Treasury, but in Consequence of Appropriations made by Law.” Statutory
restrictions on agency communications with the public are limited to one nearly
century-old statute and prohibitions in annual appropriations laws.20
!5 U.S.C. 3107 — passed in 1913 — prohibits the use of appropriated
funds “to pay a publicity expert unless specifically appropriated for
!Annual appropriations laws, such as the 2004 omnibus statute,
usually provide a standard prohibition that funds may not be used
“for publicity or propaganda purposes within the United States not
heretofor authorized by Congress.”21 These restrictions have
appeared in appropriations laws for over a half-century, and are little
commented on by Congress in the accompanying reports.22
It would appear that agency freedom to expend appropriated funds for public
relations and propaganda is quite limited. However, this is not the case, for the
following two reasons.
Joseph Cooper, “Legislative Influence v. Presidential Dominance: Competing Models of
Bureaucratic Control,” Political Science Quarterly, vol.104, no. 4, winter 1989-1990, pp.
581-606; and Ronald C. Moe, “The Importance of Public Law: New and Old Paradigms of
Governmental Management,” in Phillip J. Cooper and Chester A. Newland, eds., Handbook
of Public Law and Management (San Francisco: Jossey-Bass Publishers, 1997), pp. 41-57.
20 Two addenda are warranted. First, the Hatch Act prohibits employees from engaging in
partisan campaign activity on federal property on official duty time. See CRS Report
98-885, “Hatch Act” and Other Restrictions in Federal Law on Political Activities of
Government Employees, by Jack Maskell. Second, the Anti-Deficiency Act (31 U.S.C.
§1341(a)) also limits these activities, but only as a consequence of violating the publicity
and propaganda restrictions — which forbid expenditures that exceed available budget
authority. CRS Report RL30795, General Management Laws: A Compendium, Clinton T.
Brass, coordinator, pp. 93-97.
21 P.L. 108-447, Div. H, Sec. 624. Note also that these restrictions apply only to agency
communications directed at a U.S. audience. Thus, for example, the Department of State
may legally publish and distribute Hi, a glossy magazine aimed at improving the image of
the United States in Middle Eastern states.
22 For example, H.Rept. 108-671 on the 2005 appropriation for the Departments of
Transportation and Treasury and Independent Agencies (P.L. 108-447, Div. H, Sec. 624)
states, “Section 624. The Committee continues the provision prohibiting the use of funds
for propaganda and publicity purposes not authorized by Congress.”
(1) No federal entity is required to monitor agency compliance with the publicity
and propaganda statutes. At present, the federal government has what has been
termed “fire alarm oversight” of agency expenditures on communications.23 Scrutiny
typically occurs when a Member of Congress is alerted by the media or some other
source that an agency’s spending on communications may be cause for concern. A
Member then sends a written request to the Government Accountability Office asking
for a legal opinion on the activities in question.
(2) The terms “publicity,” “propaganda,” and “publicity expert” have been
interpreted to forbid a very limited number of activities. Congress has not defined
the terms “publicity,” “propaganda,” and “publicity expert.” Thus, to GAO has gone
the task of delineating what these terms encompass. GAO has done this on a case-
by-case basis over the past half-century.24 Generally speaking, GAO has narrowly
defined these terms. It has held that the “publicity or propaganda” prohibition in
appropriations laws forbids any public relations activity that:
!involves “self-aggrandizement” or “puffery” of the agency, its
personnel, or activities;
!is “purely partisan in nature” (i.e., it is “designed to aid a political
party or candidate”); or,
!is “covert propaganda” (i.e., the communication does not reveal that
government appropriations were expended to produce it).25
GAO has interpreted “publicity expert” to mean someone who “extols or advertises”
an agency, “an activity quite different from disseminating information to the citizenry
about the agency, its policies, practices, and products.”26
Thus construed, the laws prohibiting the hiring of publicity experts and the
expenditure of appropriated funds on publicity and propaganda place very few limits
on agency public relations activities. GAO findings of agency wrongdoing have been
infrequent. It has said that the public relations and propaganda laws did not forbid,
to cite three examples, the hiring of public relations companies or the expenditure of
appropriated funds on:
23 Mathew D. McCubbins and Thomas Schwartz, “Congressional Oversight Overlooked:
Police Patrols versus Fire Alarms,”American Journal of Political Science, vol. 28, no. 1,
Feb., 1984, pp. 165-179.
24 For a dated, but useful, introduction to this topic, see U.S. General Accounting Office,
Principles of Federal Appropriations Law, Volume 1, GAO/OGC-91-5, July, 1991, pp. 4-
25 See U.S. General Accounting Office, Decision of the Comptroller General, B-223098,
Oct. 10, 1986, pp. 8-9; and GAO, Application of Anti-Lobbying Laws to the Office of
National Drug Control Policy’s Open Letter to State Level Prosecutors, B-301022, Mar. 10,
26 U.S. Government Accountability Office, Forest Service, B-302992, p. 12. Apparently,
only once has GAO judged that an agency illegally hired a publicity expert. GAO,
Principles of Federal Appropriations Law, Volume 1, pp. 4-191 - 4-192.
!promotional materials that did “not present both the negative and
positive consequences” of increased logging of forests and that
contained inaccuracies that might have deceived the public;27
!CMMS brochures that included “several noteworthy omissions [of
fact]” and that “overstate[d] the access beneficiaries will have to the
prescription drug program”;28 or
!an Office of Personnel Management (OPM) press release
denouncing some Members of Congress who desired to delay a civil
service policy that OPM favored.29
Additionally, GAO’s definition of “propaganda” — as government
communications that fail to disclose that they are paid for with appropriated funds
(i.e., “covert propaganda”) — only prohibits executive agencies from attempting to
persuade or deceive the public through surreptitious means. It does not prevent
executive agencies from propagandizing in obviously public communications. Under
GAO’s definition of propaganda, executive agencies appear to remain free to use
appropriated funds to issue communications that are impossible to verify (e.g., “this
policy promotes liberty”) and engage in activities that attempt to manipulate the
emotions of the domestic public (e.g., placing a revered symbol, such as the flag of
the United States, behind a government spokesperson delivering a speech).
OMB announced its “Guidelines for Ensuring and Maximizing the Quality,
Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies”
on January 3, 2002 (herein Guidelines). The Guidelines were required by Section
515 of the Treasury and General Government Appropriations Act for Fiscal Year
2001 (P.L. 106-554), also known as the Information Quality Act.30 The Guidelines
were designed to assist agencies to develop and “issue their own information quality
guidelines” that shall ensure and maximize the “quality, objectivity, utility, and
integrity” of information disseminated to the public (67 Federal Register 34489).
Agencies would also be required to create procedures for reviewing information
before it is disseminated and to establish “administrative mechanisms” that permit
parties affected by the information to “seek and obtain correction of information.”
27 U.S. Government Accountability Office, Forest Service, B-302992, p. 13.
28 U.S. Government Accountability Office, Medicare Prescription Drug, Improvement, and
Modernization Act of 2003 — Use of Appropriated Funds for Flyer and Print and Television
Advertisements, B-302504, Mar. 10, 2004. For more information on the Medicare
advertising controversies, see CRS Report RS21811, Medicare Advertising: Current
Controversies, by Kevin R. Kosar.
29 U.S. Government Accountability Office, Principles of Federal Appropriations Law, p.
30 CRS Report RL32532, The Information Quality Act: OMB’s Guidance and Initial
Implementation, by Curtis W. Copeland and Michael Simpson.
The Guidelines require agencies to provide reports to the Director of the Office of
Management and Budget on agency activities and resolutions of complaints.
Prima facie, the Guidelines appear to place strong limits on agencies
communications. Terms such as “quality,” “objectivity,” “utility,” and “integrity” are
defined at length. The Guidelines apply to all “information,” which is defined as
“any communication or representation of knowledge such as facts, or data, in an
medium or form” (67 Federal Register 8460). However, the Guidelines’ definition
of “dissemination” does omit a broad range of communications. “Dissemination”
does not encompass
distribution limited to government employees or agency contractors or grantees;
intra- or intra-agency use or sharing of government information; and responses
to requests for agency records under the Freedom of Information Act, the Federal
Advisory Committee Act, or similar law. This definition also does not include
distribution limited to correspondence with individuals or persons, press releases,
archival records, public filings, subpoenas or adjudicative processes. (67
Federal Register 8460)
That said, agency public relations communications that are not exempted by the
Guidelines — such as the creation of a publicly accessible website that offers an
analysis of the condition of a federal program — may need to be subjected to the pre-
dissemination agency review (as outlined by the Guidelines) and persons affected by
the publication thereof — such as the recipient of aid from said program — may be
permitted administrative redress.
Recent Administrative Action
In response to “a large number of requests,” the Federal Communications issued
a public notice on April 13, 2005, that informed broadcasters and cable operators of
their disclosure responsibilities under federal “sponsorship identification rules.”31
These rules (47 U.S.C. 317, 508 and 47 C.F.R. 73.1212, 76.1615), the FCC stated,
require broadcasters and cable operators to “inform their audience at the time of
airing: (1) that such matter is sponsored, paid for or furnished, either in whole or in
part; and (2) by whom or on whose behalf such consideration was supplied.”32 The
FCC declares that it “will take appropriate enforcement action against entities that
do not comply with these rules.”33
31 Federal Communications Commission, “Commission Reminds Broadcast Licensees,
Cable Operators and Others of Requirements Applicable to Video News releases and Seeks
Comment on the Use of Video News Releases by Broadcast Licensees and Cable
Operators,” Public Notice, FCC 05-84/MB Docket No. 05-171, April 13, 2005, p. 1.
32 Ibid., p. 3.
33 Ibid., p. 2. The FCC also has filed a request for comments on the use of VNRs. Federal
Communications Commission, “Request for Comments on the Use of Video News Releases
by broadcast Licensees and Cable Operators,” Federal Register, vol. 70, no. 90, p. 24791,
May 11, 2005.
Should radio and television stations faithfully follow the FCC’s recent
admonition regarding sponsorship disclosure, there may be fewer controversies
regarding government-produced VNRs being run as news. However, the reach of
federal sponsorship rules is limited. For one, these sponsorship rules are aimed
solely at broadcasters; they do not forbid federal agencies from attempting to use
these media for public relations or covert propaganda. Second, the federal
sponsorship identification rules do not apply to all media; they cover broadcast radio,
broadcast television, and cable television. They do not apply to satellite television
and radio, the Internet, direct mail, and other forms of media. Finally, the
sponsorship identification rules do not forbid all covert government public service
messages (propaganda, some say). Thus, for example, in 2000, the FCC investigated
a complaint against major television broadcasters. The networks had, the FCC
determined, included anti-drug and anti-alcohol abuse messages in their
programming under an arrangement with the Office of National Drug Control Policy
(ONDCP) without informing viewers.34 The FCC concluded that the networks had
not knowingly violated federal identification sponsorship rules and therefore did not
deserve to be fined. The broadcasters, moreover, were deemed free to enter such
relationships with the government provided they were not clearly promised
compensation (i.e., “consideration”) by the federal government.35
Congress has enacted legislation that provides some limitation on activities that
might be construed as propaganda. P.L. 109-13, an emergency supplemental
appropriations measure enacted on May 11, 2005, includes a prohibition against
SEC. 6076. Unless otherwise authorized by existing law, none of the funds
provided in this Act or any other Act, may be used by an executive branch
agency to produce any prepackaged news story intended for broadcast or
distribution in the United States unless the story includes a clear notification
within the text or audio of the prepackaged news story that the prepackaged news
story was prepared or funded by that executive branch agency.
However, this legislation only applies to appropriated funds and to video news
releases. During the 108th and 109th Congresses, legislators have proposed a number
of bills that take different approaches to curbing agency public relations activities.
34 The networks provided air time to match for ONDCP’s purchase of air time to show anti-
drug and anti-alcohol abuse public service announcements. Federal Communications
Commission, “Letter of David H. Solomon, Chief, Enforcement Bureau, FCC,” DA 00-
35 “While there is no doubt that there was an understanding between the Networks and the
ONDCP, it is difficult to find that such an understanding rose to the level of a promise to
compensate the Networks for programming that contained anti-drug or anti-alcohol
themes.... Even where the Networks or program producers sought the ONDCP’s ‘technical
advice,’ there does not appear to have been a promise of compensation.” Ibid., p. 5.
On January 26, 2005, H.R. 373 was introduced in the House of Representatives.
The bill would make four major changes to present law. It would:
!require a federal agency to notify the House Committee on
Government Reform, the Senate Committee on Homeland Security
and Governmental Affairs, and the appropriations committees of
both the House and the Senate no later than 30 days after entering
into a contract for public relations activities (Section 3(a));
!codify the publicity and propaganda clause so that “[a]n officer or
employee of the United States Government may not make or
authorize an expenditure or obligation of funds for publicity or
propaganda purposes within the United States unless authorized by
law” (Section 4(a));
!provide penalties for violations of the publicity and propaganda
clause by an officer or employee of the government (Section 4(b)(1)-
!require federal agencies to label their communications as having
been paid for with funds from the respective agencies (Section 5(a)).
H.R. 373 was referred to House Committee on Government Reform.
On February 2, 2005, a second bill was introduced. S. 266 would:
!codify the types of communications that constitute “publicity and
propaganda” (Section 3);
!provide financial penalties for executive agency officials who
authorize the use of appropriated funds for publicity and propaganda
!require the Attorney General to “diligently” investigate the use of
appropriated funds for publicity and propaganda (Section 4(b));
!permit both the Attorney General and private citizens to bring civil
actions against agency officials found to have violated the law;
!allow private citizens to collect financial damages against executive
agency officials found guilty of appropriating funds for publicity and
propaganda (Section 4(e)(1)); and
!provide “whistleblower protection” from agency retribution for
employees who take actions in support of this law (Section 4(h)).
S. 266 was referred to the Senate Committee on the Judiciary.
On April 28, 2005, S. 967 was introduced.36 The bill would amend Part I of
Title III of the Communications Act of 1934 (47 U.S.C. 301 et seq.) to require that
[a]ny prepackaged news story produced by or on behalf of a Federal agency that
is broadcast or distributed by a network organization, broadcast licensee or
permittee, or multichannel video programming distributor in the United States
shall contain [the] announcement [produced by the U.S. government].
This requirement would apply to all video and audio news segments “designed to be
indistinguishable from a news segment produced by an independent news
organization.” S. 967 would prohibit any person, such as a video editor at a local
television station, from removing the announcement from the news segment. S. 967
was referred to the Senate Committee on Commerce, Science, and Transportation,
which held a hearing on the bill on May 12, 2005.37
In the 108th Congress, S. 2416 was introduced in the Senate on May 13, 2004;
its companion bill, H.R. 4639, was introduced in the House on June 22, 2004. Both
bills would have required GAO to review any advertisement costing more than $10
million. Agencies would not have been allowed to expend appropriated funds on
advertisements deemed false, deceptive, or political. Both pieces of legislation
expired at the end of the 108th Congress.
The Challenges of Reform
There is nothing inherently inappropriate in an agency expending appropriated
funds to communicate with the public.38 As one of the Hoover Commission task
forces wrote a half-century ago:
Apart from his responsibility as spokesman, the department head has another
obligation in a democracy: to keep the public informed about the activities of his
agency. How far to go and what media to use in this effort present touchy issues
36 This bill was originally offered as an amendment to S. 714 on April 14, 2005. U.S.
Congress, Senate Committee on Commerce, Science, and Transportation, S. 714, The Junk
Fax Prevention Act of 2005: Trade, Tourism, and Economic Development Hearing, April
13, 2005, available online in video format at
37 U.S. Congress, Senate Committee on Commerce, Science, and Transportation, S. 967:
Pre-packaged News Stories, May 12, 2005, available online in video format at
38 Indeed, the federal courts have “indicated that it is not illegal for government agencies to
spend money advocating their positions, even on controversial issues.” Ibid., p. 4-163.
of personal and administrative integrity. But of the basic obligation [to inform39
the public] there can be little doubt.
Even government communications which attempt to persuade members of the public
to behave differently may not necessarily be inappropriate. For example, few would
likely criticize government-sponsored advertising that encourages citizens to wear
their seatbelts while driving motor vehicles or urges hikers and campers to avoid
inadvertently setting forest fires.
Any effort to curb agency expenditures on allegedly inappropriate
communications with the public will face two challenges: (1) tracking government
expenditures on communications, and (2) drafting language that distinguishes
legitimate agency communications with the public from puffery and propaganda.
At present, the federal government has little knowledge of the extent of agency40
expenditures on public communications. According to a minority staff report, the
federal government awarded over $88 million in public relations contracts in 2004.
Of course, this measure of public relations activities captures only those activities
that were contracted out — not those done in-house.41 Agencies’ budgets do not line-
item list public relations expenditures, and any effort to do so must grapple with the
question of what activities and costs are to be included. A seemingly simple and not
unusual example illustrates this point:
!An agency employee (GS-12) spends one hour drafting a one-page
press release; two other agency employees (one GS-14, one
appointee) spend 45 minutes each editing and proofreading the
piece. Another employee, a GS-8, is asked to make 200 copies of
the press release. These copies are to be handed out to members of
the press at a 30-minute press conference, where another agency
employee (an appointee) is to issue the release and take questions.
The room used for the press conference is prepared by three agency
employees (GS-9), who must bring in chairs, set up the podium and
sound system, and so forth. The agency’s webmaster (GS-12)
spends 15 minutes uploading a copy of the press release to the
39 The Commission on Organization of the Executive Branch of the Government, Report
of the Task Force on Departmental Management: Prepared for the Commission on
Organization of the Executive Branch of the Government (Washington: GPO, 1949),
Appendix E, p. 57.
40 A rough estimate of government expenditures on advertising, a subset of public relations
and communications, puts annual spending at over $1 billion. CRS Report RS21746,
Government Advertising Expenditures: An Overview, by Kevin R. Kosar.
41 Moreover, the methodology used by the authors of this report involved searching for
contracts in the Federal Procurement Data System (FPDS), which contains only records of
those contracts of $25,000 or more. U.S. Congress, House Committee on Government
Reform, Federal Public Relations Spending, Jan. 2005, which is available online at
FPDS, see CRS Report 98-79, Federal Funds: Tracking Their Geographic Distribution, by
James R. Riehl.
agency’s website. After the press conference, two agency employees
(GS-11), over the course of a few days, field occasional calls from
reporters seeking further information.
All of these diverse activities were part of this single, modest public relations effort.
Which ones should be counted? Who is to do the counting? And how are these
activities to be tracked?
Beyond accounting for public relations activities is the challenge of
distinguishing propaganda from appropriate agency communications with any
precision. The Oxford English Dictionary gives one definition of “propaganda” as,
“The systematic propagation of information or ideas by an interested party, especially
in a tendentious way in order to encourage or instil a particular attitude or
response.”42 This definition is quite broad and not especially helpful in the present
context, since it captures any coordinated activity aimed at persuading others of the
wisdom and veracity of one’s ideas and positions, something that is part and parcel
of politics and governance.43
Some might suggest that agencies should be permitted to convey only factual
information. This instruction, though, would not solve the problem. For example,
one can mislead another by communicating just facts but not all the facts. An agency
spokesperson might announce that thanks to his agency’s tireless efforts, public
policy problem X has been eradicated. On hearing this, the listener might think
highly of the agency and believe it to be effective. However, his opinion might be
less sanguine if he were informed that in the pursuit of eradicating this one public
policy problem, the agency had grossly exceeded its budget and neglected its
statutorily required duty to attend to a dozen other public policy problems.44
Furthermore, even the conveyance of pure facts can have persuasive effects on
an audience, depending on how the facts are presented. For example, a government
official might state, “5,000 persons are killed by lightning each year.” On hearing
this, a listener might become wary of venturing outside on cloudy days. If, on the
other hand, the same government official said, “On average, you have only a one-two
hundredth of one-percent chance of being killed by lightning this year,” the same
listener might feel the risk is so small as not to be worth changing his behavior.
However, assuming a population of 100 million, both of these statements are true.
The facts are the same; the inference drawn is quite different.45
42 Oxford English Dictionary online, retrieved at [http://dictionary.oed.com/].
43 And persuasion has been institutionalized; nearly all federal agencies along with
Members of Congress and the President have public relations offices or employees who
issue communications that provide, usually, positive reports on their activities.
44 The spokesperson also might have deceived the listener by defining the public policy
45 These are not the only forms of deception by conveyance of facts. Debra Stone, Policy
Enforcement and the Separation of Powers
The enforcement of restrictions against agency use of funds to employ publicity
agents or to produce propaganda faces hurdles rooted in the separate branches of
government established by the U.S. Constitution. In great part, the legislative branch
makes the law, but the executive branch administers and enforces it.
In this instance, the power to enforce the statutory restriction against the
employment of publicity experts rests with the Department of Justice (DOJ), an
executive agency. If DOJ does not find fault with an executive agency’s actions,
Congress has limited tools available to change the behavior of DOJ or the agency in
question. (See below for further discussion.)
But what of the enforcement of publicity and propaganda restrictions in
appropriations laws? In March 2005, the Department of Justice and Office of
Management and Budget (OMB) issued memoranda that stated that executive branch
agencies need not heed GAO’s interpretations of appropriations law.46 The DOJ and
OMB memoranda were issued in response to a GAO memorandum circulated to
executive branch departments and agencies providing guidance on the use of video
news releases for publicity purposes.47 The OMB memorandum agrees that executive
agencies must comply with applicable laws; however, it states, it is the “OLC [Office
of Legislative Counsel] ... not the GAO, that provides the controlling interpretations
of the law for the Executive Branch.”48 Those in the executive branch with questions
about the interpretation of appropriations laws are directed to contact the general
counsel of their respective departments or agencies.
The DOJ memorandum takes the same position. “Because GAO is part of the
Legislative Branch, Executive Branch agencies are not bound by GAO’s legal
advice.” The DOJ memorandum also contests GAO’s interpretation of what
constitutes propaganda. DOJ argues, against GAO, that it is not enough for an
executive branch communication to be covert as to the source. It also must contain
advocacy of a particular viewpoint. DOJ states that government communications that
are “purely informational” — even if they do not inform the audience that they are
government-produced — are not propaganda and, hence, are “legitimate.”49 DOJ
Paradox: The Art of Political Decisionmaking (New York: W. W. Norton, 2001).
46 Steven G. Bradbury, Principal Deputy Assistant Attorney General, Memorandum for the
General Counsels of the Executive Branch, Re: Whether Appropriations May Be Used for
Informational Video News Releases, Mar. 1, 2005; and Joshua Bolten, Director, Office of
Management and Budget, Memorandum for Heads of Departments and Agencies, Use of
Government Funds for Video News Releases, M-05-10, Mar. 11, 2005.
47 David M. Walker, Comptroller General, Memorandum for Heads of Departments,
Agencies, and Others Concerned, Re: Prepackaged News Stories, B-304272, Feb. 17, 2005.
48 Bolten, Use of Government Funds for Video News Releases, p. 1.
49 In its own opinion on the controversial Medicare VNRs, DOJ found “[t]he VNRs ... did
not advocate a particular policy or position of HHS and CMS, but rather provided accurate
then states that agencies “are responsible for reviewing their VNRs to ensure that
they do not cross the line between legitimate governmental information and improper
Thus, the enforcement of restrictions on executive agency spending on publicity
experts and propaganda encounters a separation of powers impediment. Congress,
however, does possess tools to compel changes in agency behavior. Congress may
threaten to reduce, or reduce, an agency’s appropriation or powers in order to
encourage an agency to follow congressional interpretation of the law. Alternatively,
Congress may pass new legislation that more sharply delineates its definition of legal
and illegal activities — an effort, as noted above, not without its own challenges —
which, then, would increase the probability that executive agencies — and DOJ,
especially — would agree with Congress’s interpretation of the law.51
(even if not comprehensive) information about the benefits provided under [the new
medicare program].” Steven G. Bradbury, Principal Deputy Assistant Attorney General,
Office of Legal Counsel, Memorandum for Alex M. Azar II, General Counsel, Department
of Health and Human Services, Re: Whether Appropriations May Be Used for Informational
Video News Releases, July 30, 2004. Nota bene: The DOJ memorandum of March 1, 2005.
refers to the DOJ memorandum of July 30, 2004, by the title, Re: Whether Appropriations
May Be Used for Informational Video News Releases, which is identical to the title of the
March 11, 2005, memorandum. However, the memorandum of July 30, 2004 — as found
on the DOJ website at [http://www.usdoj.gov/olc/opfinal.htm] — carries the title
Expenditure of Appropriated Funds for Informational Video News Releases.
50 Bradbury, Re: Whether Appropriations May Be Used for Informational Video News
Releases, Mar. 11, 2005, pp. 1-2.
51 These clarifications of the law might also be included in appropriations reports. On the
tools of oversight, see Louis Fisher, The Politics of Shared Power: Congress and the
Executive (College Station: Texas A&M University Press, 1998), pp. 68-105.