Expenditure of Appropriated Funds for
                     Informational Video News Releases
Informational video news releases produced by the Department of Health and Human Services
   regarding the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 do not
   constitute impermissible “covert propaganda” in violation of the Consolidated Appropriations
   Resolution, 2003, which forbids the expenditure of appropriated funds for “publicity or propaganda
   purposes.”

                                                                                       July 30, 2004

                  MEMORANDUM OPINION FOR THE GENERAL COUNSEL
                   DEPARTMENT OF HEALTH AND HUMAN SERVICES

   On May 19, 2004, the General Accounting Office (“GAO”)1 opined that certain
informational video news releases produced by the Department of Health and
Human Services regarding the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003 constitute impermissible “covert propaganda” in
violation of the Consolidated Appropriations Resolution, 2003, which forbids the
expenditure of appropriated funds for “publicity or propaganda purposes.” You
have asked for our views on the issue addressed in the GAO decision. We
conclude, contrary to the GAO decision, that the expenditure of appropriated funds
to produce and distribute the informational video news releases in question does
not violate the prohibition on “propaganda.”*

                                                  I.

   The Department of Health and Human Services (“HHS”) and the Centers for
Medicare and Medicaid Services (“CMS”), an agency within HHS, have produced
three video news releases (“VNRs”) to inform potential beneficiaries about the
prescription drug benefits recently added to the Medicare program by the Medicare
Prescription Drug, Improvement, and Modernization Act of 2003 (“MMA”), Pub.
L. No. 108-173, 117 Stat. 2066. The Consolidated Appropriations Resolution,
2003 (“CAR”) provides that “[n]o part of any appropriation contained in this or
any other Act shall be used for publicity or propaganda purposes within the United

    1
      On July 7, 2004, the General Accounting Office was renamed the Government Accountability
Office. GAO Human Capital Reform Act of 2004, Pub. L. No. 108-271, 118 Stat. 811.
    *
      Editor’s Note: Congress subsequently enacted a statute that supersedes this opinion. See Emergen-
cy Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005,
Pub. L. No. 109-13, tit. VI, § 6076, 119 Stat. 231, 301 (“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.”).




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                      Opinions of the Office of Legal Counsel in Volume 28


States not heretofore authorized by the Congress.” Pub. L. No. 108-7, tit. VI,
§ 626, 117 Stat. 11, 470.2 GAO recently opined that portions of the VNRs pro-
duced by HHS and CMS—the “story packages”—constitute so-called “covert
propaganda” proscribed by the “publicity or propaganda” rider because they do not
identify “HHS or CMS as the source [of the VNRs] to the targeted television
audience, and the content of the news reports was attributed to individuals
purporting to be reporters, but actually hired by an HHS subcontractor.” Depart-
ment of Health and Human Services, Centers for Medicare & Medicaid Services—
Video News Releases, B-302710, at 16, 

, at *11 (Comp. Gen.
May 19, 2004) (“GAO VNR Decision”).
   VNRs have become “‘the television version of the printed press release.’”
Letter for Gary Kepplinger, Deputy General Counsel, General Accounting Office,
from Dennis G. Smith, Director, Centers for Medicare and Medicaid Services,
Encl. 2 (Apr. 2, 2004) (“Smith Letter”) (internal citation omitted). VNRs ordinari-
ly consist of several segments that may be used in whole or in part by television
stations and networks in producing their news programs: (i) slates (paper or video
summaries of the VNR); (ii) B-roll film (video clips without sound or narration);
and (iii) story packages (completed news stories, often combining the B-roll film
with the information on the slates). See GAO VNR Decision at 2–3, 5–6, 

at *2–*3; Smith Letter, Encl. 1. Television stations, which receive VNRs
via satellite feed or mail, may draw on those segments as they see fit, and “most
news organizations using VNR[s] . . . often use only a portion or edited versions of
the materials provided.” GAO VNR Decision at 4, 

, at *2.3 It is
estimated that between 78 and 100 percent of all television stations incorporate
VNRs into their newscasts. 

n.2, 

at *2 n.2; Smith Letter,
Encl. 1.
   The use of VNRs has become widespread, in part because they provide “a more
effective and targeted means to get news and information into the hands of broadcast
professionals in an appropriate format” than do more traditional methods. Smith
Letter, Encl. 1. They provide an especially convenient and cost-effective program-
ming option for local news stations, many of which face budget constraints and may
lack the resources to produce their own news report on a given topic. GAO VNR
Decision at 4, 

, at *2. Since the early 1990s, VNRs have been

    2
      Most appropriations statutes since 1951 have contained similar “publicity or propaganda” riders,
which, as the language of this rider indicates, apply to all governmental entities receiving appropriated
funds. See generally Medicare Prescription Drug, Improvement, and Modernization Act of 2003—Use
of Appropriated Funds for Flyer and Print and Television Advertisements, B-302504, 

(Comp Gen. Mar. 10, 2004) (“GAO March 2004 Decision”) (discussing history of “publicity or propa-
ganda” riders). The identical appropriations rider appears in the Consolidated Appropriations Act,
2004, Pub. L. No. 108-199, tit. VI, § 624, 118 Stat. 3, 356.
    3
      Some journalistic codes of ethics call upon television stations to label and disclose the origin of all
material provided by outsiders. GAO VNR Decision at 5 & nn. 17–19, 

, at *3 & nn.
17–19.




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         Expenditure of Appropriated Funds for Informational Video News Releases


regularly produced by “private corporations, nonprofit organizations and government
entities.” 

at *2. The use of VNRs by federal agencies
subject to the “publicity or propaganda” appropriations riders appears to be the rule
rather than the exception. From the Department of Agriculture to the Census Bureau
to the Environmental Protection Agency, information is frequently made public
through VNRs. See Website of Department of Agriculture, http://www.usda.gov/
agency/oc/vtr/vnrframe.htm (last visited July 30, 2004) (providing over 100 VNRs
produced by agency since 2001); Website of Census Bureau, http://www.census.
gov/pubinfo/www/video/promote.html (last visited July 30, 2004) (providing “in-
formative videos that reflect Census Bureau operations”); Website of Environmental
Protection Agency, http://www.epa.gov/epahome/headline_011802.htm (last visited
July 30, 2004) (providing VNR regarding home radon screening that features
interviews with the Secretary, doctors, contractors, and homeowners).4
   Members of Congress—who are bound by the same “publicity or propaganda”
prohibition in annual congressional appropriations riders5—also have relied upon
VNRs. Representative Frost, for example, issued a VNR describing his participa-
tion in a Congressional Business Summit. See Website of Rep. Frost, http://www.
house.gov/frost/pr00/pr000508.htm (last visited July 30, 2004). In addition, mem-
bers of Congress routinely release “radio actualities,” which, like VNRs, address
various issues and include interview clips. See, e.g., Website of Sen. Stabenow,
http://stabenow.senate.gov/press/actualities.htm (last visited July 30, 2004) (de-
scribing “radio actualities” as “group[s] of sound bites sent out to radio stations to
be used in news reports” and providing eleven radio actualities); Website of Sen.
Conrad, http://conrad.senate.gov/press/press.html (last visited July 30, 2004) (pro-
viding several “radio actualities,” including audio clips of the senator being
interviewed by an unidentified interviewer).

    4
      See also, e.g., Website of Consumer Product Safety Commission, http://www.cpsc.gov/mpeg.
html (last visited July 30, 2004) (providing more than 140 VNRs regarding product safety recalls and
related issues); Website of Transportation Security Administration, http://www.tsa.gov/public/display?
theme=8&content=0900051980058a7d (last visited July 30, 2004) (providing VNRs on transportation
security); Website of Food and Drug Administration, http://www.foodsafety.gov/~fsg/vlibrary.html
(last visited July 30, 2004) (providing VNRs regarding issues related to food safety); Website of
Selective Service System, http://www.sss.gov/News_Conferences/press-5-22-01.htm (last visited July
30, 2004) (providing VNR regarding increase in selective service registration after years of steady
decline); Website of National Science Foundation, http://www.̷nsf.gov/od/lpa/news/press/01/lasik_
video.htm (last visited July 30, 2004) (providing VNR about advances in Lasik eye surgery techniques
resulting from agency-funded research programs); Website of Library of Congress, http://www.loc.gov/
loc/lcib/00089/bi_press.html (last visited July 30, 2004) (noting that “[a] special video news release on
the Library’s April 24th celebration aired on more than 55 television stations across the nation”).
    5
      In this fiscal year, for example, members of Congress received appropriated funds through the
Legislative Branch Appropriations Act, 2004, Pub. L. No. 108-83, 117 Stat. 1007 (2003), and those
funds are subject to the “publicity or propaganda” prohibition contained in the Consolidated Appropria-
tions Act, 2004, Pub. L. No. 108-199, tit. VI, § 624, 118 Stat. at 356 (“No part of any appropriation
contained in this or any other Act shall be used for publicity or propaganda purposes within the United
States not heretofore authorized by the Congress.”) (emphasis added).




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                     Opinions of the Office of Legal Counsel in Volume 28


    These governmental VNRs have not been limited to slates and B-roll film—
they have routinely included story packages that could be aired without further
editing. The Agency for International Development, for example, issued a VNR
story package in 2003 discussing its programs in Afghanistan that included the
coda “this is Mary Lou Galyo reporting.” See Website of Agency for International
Development, http://www.usaid.gov/press/releases/2003/vnr030226.html (last vi-
sited July 30, 2004). The Centers for Disease Control broadcast a VNR story
package in 2000 regarding the dangers of smoking that included an interview with
the Surgeon General, did not identify the agency as the source, and ended with
“this is Sarah Vetter reporting.” See Website of Centers for Disease Control, http://
www.cdc.gov/tobacco/sgr_tobacco_use_trailer.htm (last visited July 30, 2004).
And HHS created two VNR story packages in 1999 setting forth the Clinton
Administration’s position on prescription drug benefits and preventive health. See
GAO VNR Decision at 8, 

, at *5.6
    The MMA, passed on December 8, 2003, makes several amendments to title
XVIII of the Social Security Act, the Medicare federal health insurance program.
See generally GAO March 2004 Decision at 3, 

, at *2. In the text
of the Act, Congress specifically requires HHS and CMS to “broadly disseminate
information” regarding the MMA’s prescription drug coverage, discount card
program, and transitional assistance for low-income individuals. Pub. L. No. 108-
173, § 101(a), 117 Stat. at 2075; see also GAO March 2004 Decision at 9, 

, at *7. The Conference Report reiterates that HHS and CMS are to
“conduct a significant public information campaign to educate beneficiaries about
the new Medicare drug benefit,” including a “concerted effort to . . . ensur[e] that
the lower income seniors are aware of the additional benefits available to them.”
H.R. Conf. Rep. No. 108-391, at 432–33 (2003).
    The three VNRs (two in English; one in Spanish) at issue here have been pro-
duced by HHS and CMS in conjunction with Ketchum Public Relations and Home
Front Communications to provide information about certain Medicare benefits
under the MMA. See Smith Letter, Encl. 1. A cover page accompanying the
VNRs—entitled “Government Answers Questions about New Medicare Law”—
identifies key facts about the MMA and includes a description of the available
video news feed. 

Each VNR contains B-roll film of President Bush
signing the MMA in the presence of members of Congress, a senior citizen at a


    6
      See also, e.g., Website of Federal Trade Commission, http://www.ftc.gov/opa/2002/10/vnrma.htm
(last visited July 30, 2004) (providing VNR story package discussing agency efforts to improve cyber-
security in the private sector); Website of Census Bureau, http://www.census.gov/pubinfo/www/
multimedia/adoption.html (last visited July 30, 2004) (providing VNR story package addressing
adoption programs in Congress, including footage of Senators promoting those programs); Website of
State Department, http://www.state.gov/r/pa/obs/vid/30246.htm (last visited July 30, 2004) (providing
VNR story package addressing issues facing women abroad with narration and footage of the
Secretary).




                                                112
       Expenditure of Appropriated Funds for Informational Video News Releases


pharmacy, a pharmacist filling a prescription, senior citizens receiving blood
pressure tests, and senior citizens enjoying various activities. See GAO VNR
Decision at 6, 

, at *3. The Spanish version contains video state-
ments regarding the changes to Medicare under the MMA by Dr. Christina Beato
of CMS; the English versions contain similar video statements by Tommy Thomp-
son, Secretary of HHS, and Leslie Norwalk, Acting Deputy Administrator and
Chief Operating Officer of CMS. 

, at *3–*4.
   Each of the VNRs also includes a story package with a lead-in script that may
be read by a news anchor. 

packages are narrated by Alberto Garcia
(Spanish) and Karen Ryan (English), and each story package ends with the
narrator stating: “In Washington, I’m Alberto Garcia [or Karen Ryan] reporting.”

, at *4–*5. Two of the story packages (one in
English; one in Spanish) specifically address prescription drug benefits under the
MMA and include statements such as “millions of people who are covered by
Medicare [are] asking how [it] will help them” and “[the reporter] helps sort
through the details.” 

, at *4. The interviews and narra-
tion of these story packages also indicate that the primary focus of the MMA is on
the 2006 prescription drug benefit; that savings of up to twenty-five percent will be
available with temporary discount cards in 2004; that preventive benefits will be
offered; that low-income individuals may qualify for a $600 credit on certain drug
discount cards; and that no Medicare recipient will be forced to sign up for any of
the new benefits. 

story package (only in English) specifically
addresses CMS’s advertising campaign and includes statements such as “the
Federal Government is launching a new, nationwide campaign to educate 41
million people with Medicare about improvements to Medicare” and “the same
Medicare you’ve always counted on plus more benefits . . . . [is] the main message
Medicare’s advertising campaign drives home about the new law.” 

, at *4. The narration of this story package also “indicat[es] that the
campaign helps beneficiaries answer their questions about the new law, the
administration is emphasizing that seniors can keep their Medicare the same, and
the campaign is part of a larger effort to educate people with Medicare about the
new law.” 

, at *4. “CMS [has] clearly identified itself
as the source of these materials to the television stations receiving them,” and the
last slate informs the receiving news stations to contact CMS for information about
the VNRs. 

12, 

, at *3, *8.
   In response to a request from GAO regarding the production, filming, and
distribution of the VNRs, HHS and CMS stated:

      [T]he VNR was not produced as a purported editorial, advocacy
      piece, or commentary. The purpose of this media effort was to con-
      vey factual information concerning changes to Medicare under the
      [MMA]. Karen Ryan, who narrates the English language VNR, does




                                        113
                 Opinions of the Office of Legal Counsel in Volume 28


      not take any position whatsoever on the MMA. Instead, she merely
      reports what she specifically states are explanations of the new law
      by HHS and CMS officials. Secretary Thompson’s and Acting Depu-
      ty Administrator Norwalk’s statements about the MMA are directly
      attributed to them, in their official capacities. Ms. Ryan states fur-
      ther, and accurately, “Medicare officials emphasized that no one will
      be forced to sign up for any of the new benefits.” She never states
      that this is her, or anyone else’s, statement or view. Likewise, she
      adds, “The new law, say officials, simply offers people with Medi-
      care ways to make their health care coverage more affordable.”
      Again, it is made clear to the viewer that this is a statement from
      Medicare officials, rather than a party outside the agency. Similarly,
      in the Spanish language VNR, reporter Alberto Garcia interviews an
      identified Administration official about that official’s statements re-
      garding MMA. The narrator’s statements are not editorials and do
      not advocate a position, and the officials’ statements are not attribut-
      ed to anyone outside Government.

Smith Letter, Encl. 1.
    On May 19, 2004, GAO issued an opinion concluding that the VNR story
packages violate the prohibition in the CAR on the use of appropriated funds for
“publicity or propaganda” because they do not identify “HHS or CMS as the
source to the targeted television audience, and the content of the news reports was
attributed to individuals purporting to be reporters, but actually hired by an HHS
subcontractor.” GAO VNR Decision at 16, 

, at *11. That deci-
sion marks the “first occasion” GAO has had to examine VNRs for consistency
with the “publicity or propaganda” prohibition. 

, at *6.
GAO noted that it had historically interpreted such riders to preclude funding for
agency materials that were (i) self-aggrandizing, (ii) purely partisan in nature, or
(iii) covert propaganda. 

, at *7. It determined that the
VNRs only implicated the third prohibition. 

the VNRs for “covert
propaganda,” GAO refused to place any significance upon the fact “that the use of
VNR materials, with already prepared story packages, is a common practice in the
public relations industry and utilized . . . by government entities.” 

, at *6. It also discounted Congress’s statutory requirement that
HHS and CMS “broadly disseminate information” regarding the MMA, conclud-
ing that “[w]hile CMS may have authority to use appropriated funds to dissemi-
nate information regarding the changes to Medicare pursuant to MMA, this
authority is subject to the publicity or propaganda prohibition appearing in the
annual appropriation act.” 

, at *7.
    GAO stated that, in its prior decisions, “findings of propaganda [we]re predi-
cated upon the fact that the target audience could not ascertain the information




                                         114
       Expenditure of Appropriated Funds for Informational Video News Releases


source.” GAO VNR Decision at 11, 

, at *7. It cited a 1986 GAO
decision in which “government-prepared editorials” supporting “President Rea-
gan’s proposal to transfer the Small Business Administration [(“SBA”)] to the
Department of Commerce” were deemed “covert propaganda” because they did
not “disclos[e] to the readers of those editorials that SBA was the source of the
information.” 

for Lowell Weicker, Jr., Chairman, Committee
on Small Business, U.S. Senate, B-223098, B-223098.2, 

(Comp.
Gen. Oct. 10, 1986) (“GAO SBA Decision”)). It also cited a 1987 decision in
which GAO determined that a program in which the State Department’s Office of
Public Diplomacy for Latin America paid consultants “to write op-ed pieces in
support of the Administration’s policy on Central America for distribution to
newspapers” was “covert propaganda” because “[t]hese materials were ‘propagan-
da’ within the ‘common understanding’ of the term . . . designed to influence the
media and public to support the Administration’s Latin American policies.” Id.,

, at *8 (discussing To the Honorable Jack Brooks, 66 Comp.
Gen. 707 (Sept. 30, 1987) (“GAO State Department Decision”)). In the GAO SBA
Decision, the newspapers, but not the readers, were made aware of SBA’s
involvement; in the GAO State Department Decision, neither the newspapers nor
the readers were made aware of the State Department’s involvement.
    Based upon its reading of those decisions, GAO determined that the VNR story
packages—but not the slates or the B-roll film—constitute “covert propaganda.”
GAO VNR Decision at 16, 

, at *11. GAO separated out the
slates and the B-roll film on the basis that they are intended for use by the
television stations themselves, which are made aware of the role of HHS and
CMS. 

, at *8. But because the story packages are
intended for the television viewing audience, and because the story packages do
not make the television audience aware of the role of HHS and CMS, GAO
determined that the story packages constitute “covert propaganda.” 

GAO explained, “CMS included no statement or other reference in either the
story package or the anchor lead-in script to ensure that the viewing audience
would be aware that CMS [wa]s the source of the purported news story.” 

to identify the source was dispositive, GAO concluded: “While we agree
that the story packages may not be characterized as editorials, explicit advocacy is
not necessary to find a violation of the prohibition.” 

,
at *10. Although GAO stated in a footnote that “[o]n balance, the contents of the
story packages consist of a favorable report on effects on Medicare beneficiaries,
containing the same notable omissions and weaknesses as the [HHS and CMS]
flyer and advertisements that we reviewed in our March 2004 opinion,” 

n.34, 

, at *11-*12 n.34, it made clear that “the content of the
story packages themselves would not violate the publicity or propaganda prohibi-
tion if identifying the source to the target audience were not at issue,” 

,




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                      Opinions of the Office of Legal Counsel in Volume 28

, at *10.7 GAO therefore concluded that HHS and CMS have
violated the “publicity or propaganda” prohibition in the CAR and, for that reason,
also have violated the Anti-Deficiency Act, 31 U.S.C. § 1341 (2000), which
prohibits making or authorizing an expenditure that exceeds available budget
authority. GAO VNR Decision at 16, 

, at *11.
   You have asked us to review GAO’s VNR Decision and to provide our opinion
on whether the expenditure of appropriated funds for production and distribution
of the VNRs in question violates the “propaganda” prohibition in the CAR. For
purposes of this memorandum, we take as a given that the VNRs produced by
HHS and CMS are purely informational in content. As noted above, HHS and
CMS maintained to GAO that the VNRs are “factual and accurate” and intended to
“help TV stations and their audiences understand the basic provisions of the new
Medicare law.” Smith Letter at 2. GAO also stated that it “agree[d] that the story
packages may not be characterized as editorials” and that “the content of the story
packages themselves would not violate the publicity or propaganda prohibition if
identifying the source to the target audience were not at issue.” GAO VNR
Decision at 14 & n.34, 

, at *10 & n.34. The VNRs communi-
cate information to the public about the new prescription drug benefits added by
the MMA to the Medicare program administered by CMS. The VNRs are designed
to assist in fulfilling Congress’s statutory mandate that HHS and CMS “broadly
disseminate information” about the new Medicare benefits to the forty-one million
potential beneficiaries. Pub. L. No. 108-173, § 101(c)(1), 117 Stat. at 2075. We
understand that VNR story packages—as their widespread use by public and
private entities attests—are highly effective at disseminating information: By
providing video and audio in a pre-packaged and easily accessible format, VNR
story packages significantly increase the likelihood that news programs will
broadcast at least part of the provided information. CMS and HHS accordingly
have chosen to use such story packages as part of their larger effort, pursuant to
the requirements of the MMA, to inform the public of the significant changes

   7
     In the referenced March 2004 decision, GAO concluded that the content of certain HHS and CMS
advertisements regarding the MMA did not constitute a “purely partisan message” for purposes of the
“publicity or propaganda” prohibition:
        The flyer and advertisements do not provide beneficiaries with comprehensive infor-
        mation about the benefits available as a result of MMA, or comparative details about
        those benefits. In addition, they do not address the impact of MMA on those eligible
        for both Medicaid and Medicare and those with Medicare supplemental policies. They
        do, however, identify the new benefits, note when they will become available, and . . .
        provide some information describing the new benefits. Notably, the materials refer
        beneficiaries to other sources for further information . . . .
GAO March 2004 Decision at 10, 

, at *8. The “favorable” nature of the VNRs would
seem to be a function of their exclusive focus on the new prescription drug benefits available to seniors;
and any “notable omissions and weaknesses”—as GAO acknowledged, see GAO VNR Decision at 14
& n.34, 

, at *10 & n.34—seem to be a product of the VNRs’ necessarily limited
scope.




                                                  116
       Expenditure of Appropriated Funds for Informational Video News Releases


wrought to Medicare benefits by the MMA. Although it is true that facts can be
presented in a biased or selective manner in order to advocate a particular view,
the VNRs in question do not editorialize about proposed legislation or otherwise
advocate a position on a question of public policy. HHS and CMS, through the
VNRs, are simply reporting about the new Medicare benefits provided under the
duly-enacted MMA. With that understanding, and for the reasons discussed below,
we conclude that the expenditure by HHS and CMS of appropriated funds for the
production and distribution of the VNRs does not violate the CAR’s prohibition on
“propaganda.”

                                         II.

    We have not heretofore “set out a detailed, independent analysis of ‘publicity or
propaganda’ riders.” Memorandum for the Attorney General from Walter
Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Anti-Lobbying
Act Guidelines at 3 (Apr. 14, 1995). However, based upon the analysis set forth
below, including a review of the text and history of those riders, as well as GAO’s
own earlier decisions interpreting them, we conclude, consistent with those earlier
decisions, that the prohibition on “covert propaganda” applies to the advocacy of a
particular viewpoint, not to the legitimate provision of information concerning the
existing programs administered by the agency. We therefore determine—in light
of the fact recognized by GAO that “the content of the story packages” at issue
here is not editorial in nature, GAO VNR Decision at 14, 

, at
*10—that the VNRs do not constitute “covert propaganda.”
    Although GAO is part of the Legislative Branch, see Bowsher v. Synar, 

, 727–32 (1986), and we are therefore not bound by its legal opinions, see
General Services Administration Use of Government Funds for Advertising, 

, 94 & n.5 (2001) (“GSA Advertising”), we have historically found
GAO’s decisions in this area helpful, see, e.g., Establishment of the President’s
Council for International Youth Exchange, 

, 547–48 (1982).
GAO has interpreted the “publicity or propaganda” riders to prohibit three types of
agency publications: those that are (i) self-aggrandizing, (ii) purely partisan in
nature, or (iii) covert propaganda. GAO VNR Decision at 10, 

,
at *7.
    The “self-aggrandizing” interpretation stems from GAO’s cardinal decision
addressing the “publicity or propaganda” restrictions, which were first enacted in
1951. See Appropriations—Limitations—Publicity and Propaganda Prohibition—
Labor-Federal Security Appropriation Act, 1952, 31 Comp. Gen. 311 (1952)
(“GAO 1952 Decision”). GAO determined that the intent of the riders was “to
prevent publicity of a nature tending to emphasize the importance of the agency or
activity in question,” 

and it has since considered such gratuitous self-
aggrandizement or puffery to be unauthorized “publicity,” GAO March 2004




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                     Opinions of the Office of Legal Counsel in Volume 28


Decision, supra note 2, at 7-8, 

, at *6. The “purely partisan in
nature” interpretation, which may be traced to a 1960 GAO decision, posits that a
publication may be so political in nature that it is not in furtherance of the purposes
for which Government funds were appropriated. See 

, at
*7 (discussing Letter for Joseph S. Clark, United States Senate, B-144323 (Comp.
Gen. Nov. 4, 1960), available at http://www.gao.gov/legal/index.̣html (last visited
June 3, 2013)). GAO thus considers publications that are “completely devoid of
any connection with official functions” or “completely ‘political in nature’” to be
barred as “propaganda” under the appropriations riders. 

for
William L. Dawson, Chairman, Committee on Government Operations, House of
Representatives, B-147578 (Comp. Gen. Nov. 8, 1962) (“GAO 1962 Letter”),
available at http://www.gao.gov/legal/index.̣html (last visited June 3, 2013)). We
have recognized the categories of “self-aggrandizing” and “purely partisan in
nature” as reasonable and valid interpretations of the “publicity or propaganda”
riders, GSA Advertising at 94–95 & n.6, and we agree with GAO that neither of
those categories is implicated by the VNRs at issue here, see GAO VNR Decision
at 10, 

, at *7.8
    That leaves the “covert propaganda” interpretation, which appears to stem from
a 1978 decision in which GAO determined that a similarly worded appropriations
rider—which prohibited the expenditure of funds on “publicity or propaganda . . .
designed to support or defeat legislation pending before Congress”—prevented the
Office of Consumer Affairs (“OCA”) from preparing “canned editorial materials”
designed to make “public support for a particular point of view . . . appear greater
than it actually is.” Letter for John M. Ashbrook, U.S. House of Represenatives, B-
129874, at 3, 9, 

, *3, *7 (Comp. Gen. Sept. 11, 1978) (“GAO
OCA Decision”). As noted above, GAO applied this interpretation in its 1986 SBA
Decision and its 1987 State Department Decision. In the latter, addressing an
appropriations prohibition materially identical to the one at issue here, GAO
explained that publications that were “misleading as to their origin and reasonably
constituted ‘propaganda’ within the common understanding of that term” were
forbidden “covert propaganda.” GAO State Department Decision, 66 Comp Gen.
at 709. This Office has previously recognized the “covert propaganda” interpreta-
tion in terms similar to those articulated by GAO in its State Department Decision;
we have stated that “covert attempts to mold opinion through the undisclosed use

    8
      The prohibition in the CAR refers, in the disjunctive, to “publicity” or “propaganda.” Pub. L. No.
108-7, § 626, 117 Stat. at 470. GAO has interpreted the term “publicity” to prohibit gratuitous “self-
aggrandizement,” GAO 1952 Decision, 31 Comp. Gen. at 313 (riders “prevent publicity of a nature
tending to emphasize the importance of the agency or activity in question”) (emphasis added), and the
term “propaganda” to prohibit “purely partisan” activity, GAO March 2004 Decision at 8, 

, at *7 (riders prevent “general propaganda effort[s] designed to aid a political party or
candidates”) (quoting GAO 1962 Letter) (emphasis added; internal quotation marks and citation
omitted), as well as “covert propaganda.” Because only the “covert propaganda” interpretation is at
issue here, we focus in this memorandum on the term “propaganda.”




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of third parties” can constitute an illegal use of funds. Legal Constraints on
Lobbying Efforts in Support of Contra Aid and Ratification of the INF Treaty, 

, 40 (1988) (emphasis added). In addressing the VNRs at issue here,
we adhere to that understanding of the “covert propaganda” prohibition. We
believe, however, that the articulation now adopted by GAO in its VNR Decision
does not represent a reasonable application of that prohibition or a fair interpreta-
tion of the CAR.
    In all previous instances in which GAO has found “covert propaganda,” the
publications at issue were both (i) “misleading as to their origin” (i.e., “covert”)
and (ii) “constituted ‘propaganda’ within the common understanding of that term.”
GAO State Department Decision, 66 Comp. Gen. at 709; see also GAO SBA
Decision at 9, 

, at *6 (publications deemed “misleading as to their
origin and reasonably constitute[d] ‘propaganda’ within the common understand-
ing of that term”); cf. GAO OCA Decision at 9, 

, at *7 (“canned
editorial material and sample letter to the editor” were similar to “high-powered
lobbying campaigns in which public support for a particular view is made to
appear greater than it actually is”). In its VNR Decision, however, GAO dispensed
with the “propaganda” requirement and focused solely on the “covert” nature of
the communication. That interpretation, in our view, is improperly removed from
the plain text of the CAR appropriations rider, which in relevant part proscribes
“propaganda.”
    “‘Statutory construction must begin with the language employed by Congress
and the assumption that the ordinary meaning of that language accurately express-
es the legislative purpose.’” Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt.
Dist., 

, 252 (2004) (quoting Park ‘N Fly, Inc. v. Dollar Park & Fly,
Inc., 

, 194 (1985)). The dictionary definition of “propaganda” is
“[t]he systematic dissemination of doctrine, rumor, or selected information to
promote or injure a particular doctrine, view, or cause.” Black’s Law Dictionary
1232 (7th ed. 1999) (emphasis added); see also 12 Oxford English Dictionary 632
(2d ed. 1989) (defining “propaganda” to mean “[t]he systematic propagation of
information or ideas by an interested party, esp. in a tendentious way in order to
encourage or instill a particular attitude or response”) (emphasis added);
Webster’s Third New International Dictionary 1817 (2002) (defining “propagan-
da” to mean “dissemination of ideas, information, or rumor for the purpose of
helping or injuring an institution, a cause, or a person” or “doctrines, ideas, argu-
ments, facts, or allegations spread by deliberate effort through any medium of
communication in order to further one’s cause or to damage an opposing cause”)
(emphasis added). As commonly understood, to propagandize is not simply to pro-
vide information—it is to advocate, disseminate, and encourage a particular view,
doctrine, or cause.
    That was also evidently the understanding in 1951, when Congress first includ-
ed restrictions on the use of funds for “publicity or propaganda” in appropriations




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statutes. See, e.g., Labor-Federal Security Appropriation Act, 1952, Pub. L. No.
82-134, 65 Stat. 209 (1951).9 The contemporaneous dictionary definitions of
“propaganda”—like the modern definitions noted above—indicated a systematic
effort at indoctrination to a particular viewpoint, as opposed to a mere promulga-
tion of information. See, e.g., Funk & Wagnalls New Standard Dictionary of the
English Language 1985 (1946) (defining “propaganda” as “[e]ffort directed sys-
tematically toward the gaining of support for an opinion or course of action” or
“any institution or systematic scheme for propagating a doctrine or system”)
(emphasis added); Webster’s New International Dictionary 1983 (2d ed. 1958)
(defining “propaganda” as “[a]ny organized or concerted group, effort, or move-
ment to spread a particular doctrine or system of doctrines or principles,” “dis-
semination of ideas, information, or gossip, or the like, for the purpose of helping
or injuring a person, an institution, a cause, etc.,” or “a scheme or plan for the
propagation of a doctrine or a system of principles”) (emphasis added). Consistent
with those definitions, the legislative history of the original enactment of the
“publicity or propaganda” prohibitions indicates that Congress intended to
eradicate (i) agency efforts to direct and control public thinking on various issues
of public debate, particularly through overt political action;10 (ii) useless, exces-
sive, or frivolous agency publications;11 and (iii) agency self-promotion, aggran-

     9
       There was no legislative discussion regarding the “publicity or propaganda” prohibition in the
CAR at issue here. Although Congress has routinely included restrictions on “publicity or propaganda”
in appropriations acts for the past fifty years, the legislative record has been largely silent since their
original enactment in 1951 and 1952. See, e.g., GAO State Department Decision, 66 Comp. Gen. at 709
(“The legislative history of [the current version] is silent as to the intended effect of the restriction.”);
GAO SBA Decision at 8, 

, at *6 (same); cf. GAO March 2004 Decision at 6, 

, at *5 (consulting the legislative history of the 1951 version to interpret the current version of
the prohibition).
     10
        See, e.g., 97 Cong. Rec. 4099 (1951) (statement of Rep. Meader) (“It is wrong to have the execu-
tive branch of the Government spending the taxpayers’ funds to influence public thinking and to create
policy.”); 

(statement of Rep. Smith) (“I wonder why the Government is engaged in the
business of directing public thinking. This amendment is merely an effort to stop that practice.”); 

(statement of Rep. Vursell) (arguing that the amendment will “restrict propaganda, thought
control, and unnecessary expense of publicity”); 

(statement of Sen. Watkins) (introducing
into the record an article from Forbes Magazine and Reader’s Digest entitled “What Taxpayers Pay for
Federal Thought Control,” which criticized the use of taxpayer funds by the Social Security Admin-
istration to promote “socialized medicine” and by the Department of Agriculture to organize a rally in
favor of the Administration’s farm program); 

(statement of Rep. Bow) (objecting to efforts
by the Federal Security Agency to “organize local groups and then get those local groups to put the heat
on the Congress” regarding “socialized medicine”); 

(statement of Rep. Davis) (referring to
the “disgraceful experience” of bringing county farm representatives to Minneapolis at taxpayer
expense “to form a captive audience to let the Secretary of Agriculture expound his own personal strait-
jacket political farm plan” in hopes that “those people would go to their respective home communities
as disciples for that kind of a regimentation plan”).
     11
        See, e.g., 97 Cong. Rec. 5475 (statement of Rep. Meader) (describing federal pamphlets produced
by taxpayer funds about vagrant cats, mist netting of Japanese birds, and eating fish for breakfast); 

(statement of Sen. Byrd) (criticizing “useless[]” agency mailers such as “Raccoons of North
and Middle America” and “Can Elephants and Water Buffalos Outwork Machinery?”).




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dizement, or puffery.12 The overarching concern was the use of federal funds to
manipulate and control public opinion about policy issues: “[P]ublic opinion ought
not . . . be subjected to influence and direction by the executive agencies, the
administrative branch of the government, in the manner that it is today. . . . The
people should not finance use of these agencies to foster and perpetuate the
bureaucrats [sic] not the people’s objectives in national policy.” 97 Cong. Rec.
4099 (statement of Rep. Meader); see also 

(statement of Sen. Byrd)
(calling propaganda from the federal bureaucracy “one of the greatest abuses in
our [time]” and suggesting that riders would “result in more news and less ‘bull’
from the Federal publicity mill”).
   Just as clearly as Congress sought to stamp out government dissemination of
political, frivolous, and self-aggrandizing publications, Congress sought to protect
government dissemination of “legitimate informational work” or “facts about the
work of the[] departments to the public.” 97 Cong. Rec. 6734, 6735 (statements of
Sens. Aiken and Byrd). The chief objection to the appropriations riders was that
they did not define the phrase “publicity or propaganda” with any precision, and
thereby threatened public access to legitimate and necessary information.13
Representative Yates questioned whether the amendments would “jeopardize
publication by the Children’s Bureau of pamphlets pertaining to the training and
growth of children,” 

Senator Anderson objected to the amendments on
the ground that they might block the production of a film “by the Atomic Energy
Commission in order that school children may have an opportunity to become
acquainted with some of the very important facts in connection with atomic
activity,” 

The sponsors—Representative Smith in the House and
Senator Byrd in the Senate—responded that they intended to invoke the ordinary
understanding of the term “propaganda,” which they believed was sufficiently
limpid to distinguish true propaganda from legitimate information. Representative
Smith explained, “It seems to me that we can well distinguish between what is
propaganda and what is educational matter.” 

Senator Byrd “recog-

    12
       See, e.g., 97 Cong. Rec. 6734 (statement of Sen. Byrd) (“Individual glorification of bureaucrats
and political propaganda constitute the press service problem which this amendment seeks to curtail.”);
98 Cong. Rec. 2304 (1952) (statement of Rep. Meader) (complaining about the continued use of
appropriated funds by federal agencies to engage in self-promotion, such as the dissemination of a “15-
minute [radio] transcript that you can use to promote the philosophy and interests of the National
Production Authority”).
    13
       See, e.g., 97 Cong. Rec. 4099–4100 (statement of Rep. Fogarty) (“We do not even know what the
gentleman calls propaganda. We do not know what he calls the right type of publicity or the wrong type
of publicity. That is the fault I find with this amendment. . . . [Y]ou do not define in the amendment
what propaganda is or what publicity is.”); 

(statement of Sen. Anderson) (arguing that
Department of Agriculture information specialists are not propagandists and serve an important
function of disseminating information to farmers); 

(statement of Sen. Benton) (objecting on
the grounds that the term “publicity” is loosely defined and the amendment did not distinguish between
forbidden publicity and “the general activities of the Department [of Agriculture] in the field of
education and instruction”).




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                       Opinions of the Office of Legal Counsel in Volume 28


nize[d] the need for disseminating information” and maintained that the amend-
ments “would not in any way affect the legitimate efforts of agencies in dissemi-
nating information and answering requests from Members of Congress and the
public generally.” 

In addition, informational programs otherwise
authorized by statute did not fall within the scope of the amendments, which
extended “only to matters which have not had the support or the approval of . . .
Congress.” 

(statement of Rep. Phillips). The legislative history of the
original appropriations riders thus suggests that Congress understood and em-
braced the distinction between true “propaganda” and legitimate “information”
about government programs, and did not intend for the appropriations riders to
restrict the latter.
    Prior GAO and OLC opinions in this area further support this understanding.
The “covert propaganda” interpretation may be traced, as noted above, to a 1978
GAO decision regarding efforts by the OCA to “engage in [a] political controversy
as a proponent of proposed legislation that would establish a Consumer Protection
Agency.” GAO OCA Decision at 6, 

, at *4 (emphasis added).
GAO stated that “[i]n interpreting ‘publicity or propaganda’ provisions . . . this
Office has consistently recognized that every Federal agency has a legitimate
interest in communicating with the public and with the Congress regarding its
policies and activities.” 

–4, 

, at *3.14 GAO condemned,
however, OCA’s preparation of “canned editorial materials and sample letters to
the editor,” explaining that “canned and sample propaganda materials have been
traditionally associated with high-powered lobbying campaigns in which public
support for a particular point of view is made to appear greater than it actually is.”

, at *7 (emphasis added). Similar reasoning was articulat-
ed in GAO’s 1986 opinion regarding SBA efforts to “put[] forth the Administra-
tion’s position regarding the proposed reorganization of SBA.” GAO SBA
Decision at 4, 

, at *3 (emphasis added). Although GAO reiterated
its longstanding view that the appropriations riders “do not prohibit an agency’s
legitimate informational activities,” it determined that SBA-prepared “editorials”
on the proposed reorganization were improper because they were “misleading as to
their origin and reasonably constitute[d] ‘propaganda’ within the common
understanding of that term.” 

, at *6 (emphasis added); see
also 

that the SBA ‘suggested editorials’ are beyond the range
of acceptable agency public information activities[.]”). GAO adhered to that
understanding in its 1987 opinion involving “articles, editorials, and op-ed pieces”
produced by the State Department’s Office of Public Diplomacy for Latin America
“in support of the Administration’s position” favoring the Contra forces in

    14
       Indeed, in its first opinion addressing the “publicity or propaganda” riders, GAO stated that “[i]t
appears clear . . . that the prohibition . . . would not be for application to those functions . . . which deal
with dissemination to the general public, or to particular inquirers, of information reasonably necessary
to the proper administration of the laws.” GAO 1952 Decision, 31 Comp. Gen. at 314.




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Nicaragua. GAO State Department Decision, 66 Comp. Gen. at 708 (emphasis
added). GAO concluded that the State Department publications “were misleading
as to their origin and reasonably constituted ‘propaganda’ within the common
understanding of that term.” 

(emphasis added). The essential factors in
the prior GAO opinions were (i) that the agency’s role in the publication was not
disclosed and (ii) that the content of the information published was “propaganda”
as that term is ordinarily understood.
    This Office, too, has previously noted that “[t]he role of the federal government
in providing ‘information’ has traditionally been recognized as proper,” Memo-
randum for Robert J. Lipshutz, Counsel to the President, from John M. Harmon,
Assistant Attorney General, Office of Legal Counsel, Re: Statutory Restraints on
Lobbying Activity By Federal Officials at 7 (Nov. 29, 1977) (“Lobbying Activi-
ty”),15 and has read the “covert propaganda” prohibition to target only “covert
attempts to mold opinion through undisclosed use of third 

(emphasis added). That understanding—faithful to the language in the
CAR—also comports with our recognition that the appropriations riders, if
construed broadly, would bring a halt to a number of activities in which Executive
officials have historically engaged, and would thus raise constitutional concerns.
See Memorandum for John R. Bolton, Assistant Attorney General, Office of
Legislative Affairs, from Charles J. Cooper, Assistant Attorney General, Office of
Legal Counsel, Re: Applicability of 18 U.S.C. 1913 to Contacts Between United
States Attorneys and Members of Congress in Support of Pending Legislation at 1
& n.3 (Oct. 27, 1987). We have accordingly determined that “the appropriation
rider should be read as principally designed to meet the immediate evil perceived
by Congress—the unchecked growth of a government public relations arm used to
disseminate agency [views] to the public at large—not as an effort to interfere
unduly with the normal and healthy functioning of the body politic.” Lobbying
Activity at 6.16
    We therefore do not agree with GAO that the “covert propaganda” prohibition
applies simply because an agency’s role in producing and disseminating infor-

    15
       Although the Lobbying Activity memorandum addressed an appropriations rider that prohibited
expenditures “for publicity or propaganda purposes designed to support or defeat legislation pending
before Congress,” that similarly worded provision also has been interpreted by GAO to allow the
dissemination of legitimate informational material. See GAO OCA Decision at 3–4, 

,
at *3 (“In interpreting ‘publicity or propaganda’ provisions such as section 607(a), this Office has
consistently recognized that every Federal agency has a legitimate interest in communicating with the
public and with the Congress regarding its policies and activities.”).
    16
       There is little judicial case law addressing the various “publicity or propaganda” appropriations
riders, but what there is supports our textual reading. See Dist. of Columbia Common Cause v. Dist. of
Columbia, 

, 11 (D.C. Cir. 1988) (“Printing pamphlets, flyers, and posters in connection with
an initiative campaign constitutes publicity or propaganda within the meaning of the appropriations
statute.”) (emphasis added); Nat’l Treas. Emps.’ Union v. Campbell, 

, 794 (D.C. Cir.
1981) (“The evident purpose of the anti-‘propaganda’ limitations is to curtail bureaucratic aggrandize-
ment at the taxpayers’ expense.”) (emphasis added).




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mation is undisclosed or “covert,” regardless of whether the content of the
message is “propaganda.” GAO VNR Decision at 14, 

, at *10.17
Congress evidently intended for the appropriations riders to prevent agency
advocacy of particular opinions or views; the term “propaganda” cannot fairly be
read to encompass agency promulgation of legitimate governmental information
about the programs administered by an agency and in furtherance of that agency’s
statutory goals. We are sensitive to GAO’s concern about “agencies creating news
reports unbeknownst to the receiving audience.” 

,
at *9. But we believe a line must be drawn to distinguish legitimate governmental
information from improper governmental advocacy.18 The VNRs at issue here 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 a recent Act of Congress: the MMA.19 Informing the public of the facts
about a federal program is not the type of evil with which Congress was concerned
in enacting the “publicity or propaganda” riders.
    Not only do members of Congress themselves use VNRs, as already noted, but
Congress also has long been aware of the use of VNRs by federal agencies, which
rely upon VNRs as highly effective and efficient tools for disseminating infor-
mation. See, e.g., S. Rep. No. 106-229, vol. II, at 517 (2000) (“[Food and Drug
Administration] launched a public awareness campaign on the risk that unpasteur-
ized or untreated juices may present to vulnerable populations, including the
elderly. Educational materials including a press kit, consumer brochure, video
news release, and a public service announcement were distributed to senior citizen
groups, as well as day care centers, elementary schools, state PTA offices and
media outlets. AARP and other organizations also assisted in distribution of the
information.”); 

(“The [United States Postal] Inspection Service will

    17
       The two statutory provisions GAO cited in support of its conclusion are inapposite. See GAO VNR
Decision at 13, 

, at *9 (citing 22 U.S.C. § 1461 and 47 U.S.C. § 396(g)(3)(A)&(B)).
The first, 22 U.S.C. § 1461 (2000 & Supp. III 2004), prevents the Board of Broadcasting Governors from
broadcasting pro-American news reports to domestic audiences. Such programs, however, would appear to
constitute “propaganda” as commonly understood. The second, 47 U.S.C. § 396(g)(3)(A)&(B) (2000),
prevents the Corporation for Public Broadcasting from producing or disseminating programs to the public.
By its terms, however, that provision applies only to the Corporation for Public Broadcasting, which is not
“an agency or establishment of the United States Government.” 47 U.S.C. § 396(b).
    18
       We have no occasion to determine the threshold of “propaganda” necessary to violate the appro-
priations riders where agency involvement is undisclosed, and it might well be lower than where
agency involvement is acknowledged. We do not believe, however, that the “covert propaganda”
prohibition may be invoked without any finding of “propaganda.”
    19
       Because we conclude that the VNRs do not constitute “covert propaganda,” we need not deter-
mine whether Congress’s instruction that HHS and CMS “broadly disseminate information” about the
MMA, by itself, renders the CAR rider inapplicable. Pub. L. No. 108-7, § 626, 117 Stat. at 470
(banning publicity and propaganda “not heretofore authorized by the Congress”). We note that GAO, in
its March 2004 Decision, stated that because of the “explicit authority” of HHS and CMS “to inform
Medicare beneficiaries about changes to Medicare resulting from MMA,” the agencies’ “justification[s]
for the materials [were] afforded considerable deference.” 

, at *2.




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issue three Video News Releases (VNRs) entitled, Conning Older Americans;
How They Scam Older Americans; and Fraud Fighters which will be sent to local
television stations via satellite for release during Consumer Protection Week. The
VNRs correspond with the purpose of National Consumer Protection Week, which
is to highlight consumer protection and education efforts around the country.”); S.
Rep. No. 105-36, vol. II, at 436–37 (1997) (“‘How to Take the Scare Out of Auto
Repair’ is the print component of a multi-media education campaign conducted by
the [Federal Trade] Commission in conjunction with [National Association of
Attorneys General] and the American Automobile Association . . . . This campaign
also included the production and distribution of a video news release by satellite to
television stations, and radio public service announcements to 425 radio stations
nationwide.”).
    Indeed, Congress has expressly approved the use of VNRs that, under GAO’s
VNR Decision, might now be considered “covert propaganda.” In 1994, the Senate
Committee on Appropriations supported the use of VNRs by the National
Highway Traffic Safety Administration (“NHTSA”): “In fiscal year 1994, NHTSA
used funding provided by the Committee for the development of video news
release and radio public service announcements . . . informing the car-buying
public as to how to purchase a new vehicle with attention to safety. . . . The
Committee continues to be supportive of these efforts and believes that enhanced
funding in fiscal year 1995 will better enable the agency to reach all segments of
the car-buying public[.]” S. Rep. No. 103-310, at 136 (1994); see also 138 Cong.
Rec. 1692 (1992) (statement of Rep. Slaughter) (introducing legislation that would
“provide for the wide dissemination of . . . critical information [about diethylstil-
bestrol] by authorizing an appropriation . . . to fund such activities as the produc-
tion and distribution of . . . video news releases”). Given the widespread and
accepted use of informational VNRs, we cannot conclude—without clearer
instruction from Congress—that informational government VNRs constitute
“covert propaganda.”

                                            STEVEN G. BRADBURY
                                    Principal Deputy Assistant Attorney General
                                              Office of Legal Counsel




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