Publicity or propaganda

The term "publicity or propaganda" is a term of art found in the omnibus appropriations bill passed by Congress every year: “No part of any appropriation . . . shall be used for publicity or propaganda purposes within the United States not heretofore authorized by the Congress.”[1] The statutory language does not define “publicity or propaganda,” nor did the first statute in which the prohibition appeared, the Labor-Federal Security Appropriation Act of 1952.[2] There is no definition of “publicity or propaganda” in the legislative history of that statute, either.[3] What the legislative history does reveal is that the provision’s sponsor, Rep. Lawrence H. Smith, introduced it in response to a series of speeches given by the administrator of the Federal Security Agency (the precursor to the Department of Health and Human Services).[4] The floor debate evinced recognition that a vaguely defined propaganda provision could interfere with legitimate educational efforts, but also a strong interest in precluding the use of appropriations for “individual glorification of bureaucrats.”[5] The primary source material on the provision, scant as it is, suggests that Congress did not intend the provision to impair the government’s duty to keep citizens “fully and accurately informed.”[6]

With these concerns in mind, the Government Accountability Office takes a flexible, deferential approach to adjudicating suspected violations: “Application of the prohibition is necessarily balanced against an agency’s responsibility to inform the public about its activities and programs, explain its policies and priorities, and defend its policies, priorities, and point of view.”[7] Efforts by federal agencies to explain or defend their policies are in general not propaganda. More specifically, activities such as “meetings, conference calls, luncheons with agency leadership, and travel” do not constitute propaganda as long as they are “reasonably related to the agency duty to inform the public of agency actions, programs, and policies, or justify and rebut attacks upon its policies.”[8] GAO guidelines state that it will “rely heavily on the agency’s administrative justification.”[9] One opinion says that violations should be found only if the agency’s justifications are “palpably erroneous.”[10] History has borne out this deferential mindset; GAO has found only a handful of violations.[11] Similarly, the handful of court decisions on propaganda have taken the pragmatic view that government agencies do not break the law when spending money on political advocacy.[12] The courts also agree with GAO that, by including the provision, Congress has indicated that at least the obvious cases of propaganda should be prohibited.[13]

Over 50 years construing the provision,[14] GAO has cultivated a doctrine that separates “publicity or propaganda” into three types of inappropriate activity: 1) “self-aggrandizement,” 2) “purely partisan purposes,” and 3) “covert propaganda.” Self-aggrandizement (also known as “puffery”) refers to an agency’s efforts to overstate its own importance.[15] Purely partisan purposes include efforts solely dedicated to the electoral success of a political party or candidates.[16] Recognizing the difficulties in separating permissible explanation from impermissible partisan politicking, GAO has taken an extremely deferential view.[17] In its own words, political activities by government agencies are fine unless they are “completely devoid of any connection with official functions.”[18] Covert propaganda refers to media materials prepared by a government agency and then disseminated by a non-government outlet with the source undisclosed.[19]

[1] E.g., Pub. L. No. 108-199, div. F, title VI, § 624, 118 Stat. at 356. See also 22 U.S.C. §§ 1461, 1461-1a (restricting the domestic dissemination of news reports originally created by the government for broadcast abroad).
[2] Pub. L. No. 134, ch. 373, § 702, 65 Stat. 209, 223 (Aug. 31, 1951).
[3] 97 Cong. Rec. 4098 (1951).
[4] Id.
[5] 97 Cong. Rec. 6734 (1951).
[6] Id. See also 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).
[7] Government Accountability Office, Department of Defense—Retired Military Officers as Media Analysts, B-316443 (Jul. 21, 2009).
[8] Government Accountability Office, Department of Defense—Retired Military Officers as Media Analysts, B-316443 (Jul. 21, 2009), at 8.
[9] Government Accountability Office, Principles of Federal Appropriations Law: Third Edition, Volume I (Sept. 28, 2004).
[10] Medicare Prescription Drug, Improvement, and Modernization Act of 2003—Use of Appropriated Funds for Flyer and Print and Television Advertisements, B-302504 (U.S. Gen. Accounting Office Mar. 10, 2004).
[11] See Government Accountability Office, Department of Defense—Retired Military Officers as Media Analysts, B-316443 (Jul. 21, 2009), at 7 (“Although the prohibition on the use of appropriated funds for publicity or propaganda has been in effect, in one form or another, for decades, we have rarely found violations of the prohibition.”) .
[12] See Joyner v. Whiting, 477 F.2d 456, 461 (4th Cir. 1973); Donaggio v. Arlington County, Virginia, 880 F. Supp. 446, 454-56 (E.D. Va. 1995); Arrington v. Taylor, 380 F. Supp. 1348, 1364 (M.D. N.C. 1974).
[13] National Association for Community Development v. Hodgson, 356 F. Supp. 1399 (D.D.C. 1973).
[14] While GAO often cites previous opinions, they have no formal precedential value.
[15] Government Accountability Office, Restriction Violations on the Use of Appropriations in a Press Release by the Office of Personnel Management, B-212069 (Oct. 6, 1983) (finding unobjectionable OPM press releases informing the public of the Administration’s position on pending legislation); See also Government Accountability Office, Application of Anti-Lobbying Restrictions to HUD Report Losing Ground, B-284226.2 (Aug. 17, 2000) (HUD brochure that was deeply critical of proposed HUD budget reductions not “self-aggrandizement” because the brochure included “important and timely information about the impact of the reductions to HUD’s programs.”).
[16] Government Accountability Office, Letter to Senate Chairman William Dawson, B-147578 (Nov. 8, 1962).
[17] Government Accountability Office, Social Security Administration—Grassroots Lobbying Allegation, B-304715, April 27, 2005 (finding permissible the Social Security Administration’s inclusion in regular mailings to 140 million Americans a warning that Social Security was facing a funding crisis at the same time that President Bush was stumping for his privatization program).
[18] Government Accountability Office, Letter to Senate Chairman William Dawson, B-147578 (Nov. 8, 1962).
[19] E.g., Government Accounting Office, Letter to Senate Committee on Postal Services, B-229257 (Jun. 10, 1988).