Order Code RL32750
CRS Report for Congress
Received through the CRS Web
Public Relations and Propaganda:
Restrictions on Executive Agency Activities
Updated March 21, 2005
Kevin R. Kosar
Analyst in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress

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Public Relations and Propaganda: Restrictions on
Executive Agency Activities
Summary
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.
This report will be updated as events warrant.

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Contents
Recent Controversies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Legal Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Challenges of Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tracking Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Defining “Propaganda” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Enforcement and the Separation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Recent Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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Public Relations and Propaganda:
Restrictions on Executive Agency Activities
Recent Controversies
Recently, a number of promotional and public outreach actions by executive
branch agencies have provoked controversy.1 Some salient examples follow below.
! The Department of Education hired Armstrong Williams, a
television commentator and syndicated columnist, to promote the No
Child Left Behind Act on his television program.2
! 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
[http://www.marriagedebate.com/].
3 Anne Marie Squeo, “FCC Tries to Sell Consumers on Digital TVs,” The Wall Street
Journal, Oct. 5, 2004, p. D10.

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CRS-2
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
job creation.”8
4 As quoted in Al Kamen, “The Electric Slide, OPM Style,” Washington Post, Sept. 10,
2004, p. A27.
5 Dan Froomkin, “White House Launches Barney.gov,” WashingtonPost.com, May 14,
2004.
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
11.5 tons of “greenhouse gas emissions” each year; the 2005 Toyota Prius, just 3.5 tons.
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.
A21.

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CRS-3
! 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
In other cases, public relations activities have been judged to have been 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
discouraged the use of illegal drugs. These VNRs were distributed
to local news stations which, mistakenly, aired them as actual news.
GAO reviewed the videos and judged that they violated
appropriations laws.12
! 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
U.S.C. 1341).13
Generally, critics have complained that these public relations activities are
inappropriate, are a waste of taxpayers’ dollars, and constitute a form of propaganda
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.
16, 2005.
12 U.S. Government Accountability Office, Office of National Drug Control Policy — Video
News Release, B-303495, Jan. 4, 2005.
13 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.

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CRS-4
aimed at selling the policies of President George W. Bush. Critics also have
complained that federal dollars are being used to influence media coverage.14
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.15
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
companies?16
Legal Restrictions
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.17
14 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).
15 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.
16 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
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.
17 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
(continued...)

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CRS-5
! 5 U.S.C. 3107 — passed in 1913 — prohibits the use of appropriated
funds “to pay a publicity expert unless specifically appropriated for
that purpose.”
! 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.”18 These restrictions have
appeared in appropriations laws for over a half-century, and are little
commented on by Congress in the accompanying reports.19
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.
(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.20 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.21 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:
17 (...continued)
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.
18 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.
19 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.”
20 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.
21 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-
161 - 4-166.

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CRS-6
! 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).22
GAO has interpreted “publicity agent” 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.”23
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:
! 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;24
! CMMS brochures that included “several noteworthy omissions [of
fact]” and that “overstate[d] the access beneficiaries will have to the
prescription drug program”;25 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.26
22 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,
2004.
23 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.
24 U.S. Government Accountability Office, Forest Service, B-302992, p. 13.
25 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.
26 U.S. Government Accountability Office, Principles of Federal Appropriations Law, p.
4-167.

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CRS-7
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.
Executive agencies 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 public (e.g., placing a
revered symbol, such as the flag of the United States, behind a government
spokesperson delivering a speech).
The Challenges of Reform
Tracking Expenditures
There is nothing inherently inappropriate in an agency expending appropriated
funds to communicate with the public.27 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
of personal and administrative integrity. But of the basic obligation [to inform
the public] there can be little doubt.28
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 agency
expenditures on public communications.29 According to a minority staff report, the
27 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.
28 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.
29 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,
(continued...)

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CRS-8
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.30 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
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?
Defining “Propaganda”
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.”31 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
29 (...continued)
Government Advertising Expenditures: An Overview, by Kevin R. Kosar.
30 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
[http://www.democrats.reform.house.gov/Documents/20050126124833-88792.pdf]. On
FPDS, see CRS Report 98-79, Federal Funds: Tracking Their Geographic Distribution, by
James R. Riehl.
31 Oxford English Dictionary online, retrieved at [http://dictionary.oed.com/].

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CRS-9
wisdom and veracity of one’s ideas and positions, something that is part and parcel
of politics and governance.32
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.33
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-
twentieth 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.34
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
32 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.
33 The spokesperson also might have deceived the listener by defining the public policy
problem differently.
34 These are not the only forms of deception by conveyance of facts. Debra Stone, Policy
Paradox: The Art of Political Decisionmaking (New York: W. W. Norton, 2001).

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CRS-10
agencies need not heed GAO’s interpretations of appropriations law.35 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.36 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.”37 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.”38 DOJ
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
government-funded advocacy.”39
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
35 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 Bolton, 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.
36 David M. Walker, Comptroller General, Memorandum for Heads of Departments,
Agencies, and Others Concerned, Re: Prepackaged News Stories, B-304272, Feb. 17, 2005.
37 Bolton, Use of Government Funds for Video News Releases, p. 1.
38 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
(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.
39 Bradbury, Re: Whether Appropriations May Be Used for Informational Video News
Releases, Mar. 11, 2005, pp. 1-2.

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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.40
Recent Legislation
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)-
(2)); and
! 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
(Section 4(a));
! require the Attorney General to “diligently” investigate the use of
appropriated funds for publicity and propaganda (Section 4(b));
40 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.

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! 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.
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.

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