b'Reimbursement for Detail of Judge Advocate General\nCorps Personnel to a United States Attorney\xe2\x80\x99s Office\nThe Economy Act requires the Department of Defense to be reimbursed for the detail of\nJudge Advocate General Corps attorneys to a United States Attorney\xe2\x80\x99s Office.\nThe authonty of the Director of National Drug Control Policy temporarily to reassign fed\xc2\xad\neral personnel under the Anti-Drug Abuse Act of 1988 does not displace the requirements\nof the Economy Act.\n\nJune 27, 1989\nM e m o r a n d u m O p in io n fo r t h e A c t in g A s s o c ia t e A t t o r n e y G e n e r a l\n\nYou have asked for our opinion whether the United States Attorney\xe2\x80\x99s\nOffice for the District of Columbia ( \xe2\x80\x9cDCUSA\xe2\x80\x9d) must reimburse the\nDepartment o f Defense (\xe2\x80\x9cDOD\xe2\x80\x9d) for costs associated with the detail o f\nten lawyers from the Judge Advocate General Corps ( \xe2\x80\x9cJAGC\xe2\x80\x9d) to the\nDCUSA for one year pursuant to an official request by the Director o f\nNational Drug Control Policy William Bennett ( \xe2\x80\x9cDirector\xe2\x80\x9d), under sec\xc2\xad\ntions 1003(d)(2) or 1005(c)(1)(A) o f the Anti-Drug Abuse Act o f 1988\n( \xe2\x80\x9cthe 1988 Act\xe2\x80\x9d), Pub. L. No. 100-690, 102 Stat. 4181 (codified at 21 U.S.C.\n\xc2\xa7\xc2\xa7 1502(d)(2), 1504(c)(1)(A).1 DOD contends that DCUSA must reim\xc2\xad\nburse the various departments from which JAGC personnel would be\ndetailed for salaries and expenses, at an estimated cost o f $300,000.\nFor the reasons stated below, we conclude that the Economy Act, 31\nU.S.C. \xc2\xa7 1301,* requires reimbursement for the detailed JAGC personnel,\nand that the Director\xe2\x80\x99s authority temporarily to reassign federal person\xc2\xad\nnel under the 1988 Act does not displace the requirements o f the\nEconomy Act. However, the 1988 Act provides for the Director to report\nto the Congress regarding the need for any transfer o f appropriated funds\nfor National Drug Control Program activities. 21 U.S.C. \xc2\xa7 1502(c)(6). To\nthe extent this situation may be deemed to present a need for such a\n1\n\nMemorandum fo r William P. Barr, Assistant Attorney General, Office o f Legal Counsel, from Joe D.\n\nWhitley, Acting Associate Attorney General (May 12, 1989) See Letter for Joe D Whitley, Acting\nAssociate Attorney General, from Jay B Stephens, United States Attorney fo r the District o f Columbia\n(M ay 9, 1989).\n* Editor\xe2\x80\x99s Note: This opinion incorrectly refers to 31 U S.C \xc2\xa7 1301 as the Economy Act, when that A ct\nis actually codified at 31 U.S.C. \xc2\xa7 1535. This mistake in term inology does not affect the conclusions or\nessential analysis o f the opinion\n\n188\n\n\x0ctransfer, the Director\xe2\x80\x99s report is the appropriate vehicle for seeking such\na transfer o f funds.\n\nAnalysis\n1. The Economy Act\n\nUnder the Economy Act, a federal agency must spend its funds on the\nobjects for which they were appropriated. 31 U.S.C. \xc2\xa7 1301(a). A corollary\nto this statutory rule is that an agency may not augment its appropria\xc2\xad\ntions from outside sources without specific statutory authority. See gen\xc2\xad\nerally United States General Accounting Office, Office o f General\nCounsel, Principles of Federal Appropriations Law 5-62 to 5-63 (1st ed.\n1982) (explaining the non-augmentation theory). In combination, these\nrules require an agency to spend its appropriated funds \xe2\x80\x94 and only its\nappropriated funds \xe2\x80\x94 as directed by its relevant appropriation legisla\xc2\xad\ntion. These dual requirements consistently have been interpreted as gen\xc2\xad\nerally prohibiting the detail o f employees from one federal agency to\nanother on a nonreimbursable basis. As the Comptroller General has\nheld, \xe2\x80\x9c[t]o the extent that agencies detail employees on a nonreim\xc2\xad\nbursable basis ... they may be avoiding congressional limitations on the\namount o f moneys appropriated to the receiving agency for particular\nprograms.\xe2\x80\x9d 64 Comp. Gen. 370, 380 (1985).2\nThree exceptions to the general rule against nonreimbursable details\nhave been recognized. First, Congress may, o f course, specifically autho\xc2\xad\nrize nonreimbursable details by statute. See, e.g., 5 U.S.C. \xc2\xa7 3343 (autho\xc2\xad\nrizing nonreimbursable details to international organizations). Second, a\nloaning agency may authorize nonreimbursable details involving \xe2\x80\x9ca mat\xc2\xad\nter [that is] similar or related to matters ordinarily handled by the loaning\nagency and will aid the loaning agency in accomplishing a purpose for\nwhich its appropriations are provided.\xe2\x80\x9d 64 Comp. Gen. 370, 380 (1985)\n(concluding that nonreimbursable detail o f employees to other agencies\nor to different programs within the same agency is unlawful; opinion\ngiven prospective application only); see also 65 Comp. Gen. 635, 637\n\n2\n\nThe Comptroller General is an officer o f the legislative branch, see Bowsher v Synar , 478 U S 714,\n\n727-32 (1986), and historically, the executive branch has not considered itself bound by the Com ptroller\nGeneral\xe2\x80\x99s legal opinions if they conflict with the legal opinions o f the Attorney Genera] and the O ffice o f\nLegal Counsel. Under som e circumstances the opjruons supply vaJuable guidance, however, and this\nOffice generally has found these opinions persuasive on the application o f the Economy A ct to the ques\xc2\xad\ntion o f nonreimbursable details See Memorandum for Arthur B. Culvahouse, Jr., Counsel to the\nPresident, from Douglas W Kmiec, Assistant Attorney General, Office o f Legal Counsel, Re Executive\nAgency Assistance to the Presidential Transition at 3 (Jan 3, 1989) ( \xe2\x80\x9cKmiec M em o\xe2\x80\x9d); Reimbursement\no f the Internal Revenue Seivicc f o r Investigative Sei\'viccs Provided to the Independent Counsel, 12 Op\nO .L C 233 (1988); Assignment o f Army lawyers to the Department o f Justice, 10 Op. O L.C 115, 118\n(1986) With one exception desenbed in footnote 3 below, the Com ptroller General\xe2\x80\x99s construction o f\nappropriations law is consistent with our interpretation here\n\n189\n\n\x0c(1986) (detail o f administrative law judges from National Labor Relations\nBoard to Department of Labor to hear black lung cases is not directly\nrelated to the objects of NLRB\xe2\x80\x99s appropriations and therefore must be\nreimbursed). Third, the Comptroller General would recognize a de min\xc2\xad\nimis exception for details that have a negligible effect on the loaning\nagency\xe2\x80\x99s appropriations. Cf. 65 Comp. Gen. 635, 637 (1985) ($674,250 for\ncosts o f detail o f 15-20 NLRB employees to Department o f Labor not de\nminimis).3\nNeither o f the latter two exceptions applies here. Even assuming that\nthe de minimis exception is lawful, we would not regard this detail, which\nwould cost DOD approximately $300,000, as having a negligible effect on\nDOD\xe2\x80\x99s appropriations. The exception for details involving matters relat\xc2\xad\ned to the loaning agency\xe2\x80\x99s appropriations also does not appear applicable\nhere. JAGC lawyers ordinarily do not engage in civilian litigation.4 A case\ncan be made that nonreimbursable details should be allowed when the\nloaning agency is the \xe2\x80\x9cclient\xe2\x80\x9d on whose behalf litigation is undertaken,\nsuch as if the JAGC attorneys were to be used for military matters or mil\xc2\xad\nitary prosecutions. In such cases, the detailed personnel would provide\nspecialized knowledge or assistance related to the objects o f their\nagency\xe2\x80\x99s appropriations. The reassignment o f JAGC attorneys to DCUSA\npursuant to the 1988 Act does not meet these criteria, however. Rather,\nthe apparent purpose of the reassignment is to provide additional per\xc2\xad\nsonnel for prosecution of civilians for narcotics and narcotics-related\noffenses committed in the District o f Columbia.\nIn U.S. Attorney Jay B. Stephens\xe2\x80\x99 letter o f May 9, 1989, to Acting\nAssociate Attorney General Joe D. Whitley, reference is made to the\nDCUSA\xe2\x80\x99s \xe2\x80\x9c lon g history o f maintaining a nonreimbursable Specials\nProgram which involves the assignment o f attorney personnel from vari\xc2\xad\nous federal agencies to this Office for a period o f four to six months.\xe2\x80\x9d\nHowever, we understand those short-term details to have had a different\npurpose \xe2\x80\x94 the training of inexperienced trial attorneys. Details for such\npurposes might well fall within the exception for details involving mat\xc2\xad\nters related to the loaning agency\xe2\x80\x99s appropriation, in that intensive train\xc2\xad\ning in litigation skills may assist the loaning agency by improving the abil\xc2\xad\nities and performance of its attorney personnel.5 While the DCUSA\ndoubtless also receives a benefit from the detail o f attorneys under the\nSpecials Program, the primary purpose o f the program appears to be for\nthe training o f the detailed attorneys.\n\n3 P n o r opinions o f this O ffice have regarded the \xe2\x80\x9cde mjrumis exception\xe2\x80\x9d with some caution. See Kmiec\nM em o at 7 n 8 The Com ptroller General\xe2\x80\x99s opinions acknowledge that the de minimis exception actually\nviolates 31 U S C \xc2\xa7 1301(a). See 65 Comp Gen. at 638; 64 Comp. Gen at 381.\n4 We have reached this conclusion in a p n o r memorandum. See 10 Op O L.C. at 118 & n.4 (discussing\ncircumstances under which JAGC attorneys may be detailed to Department o f Justice to assist in litiga\xc2\xad\ntion).\n5 We do not here address the validity o f the Specials Program at the DCUSA\n\n190\n\n\x0cIn contrast, the reassignment o f JAGC attorneys pursuant to the 1988\nAct does not appear to be for the purpose o f training. Rather, we under\xc2\xad\nstand the proposed detail to involve the reassignment o f relatively expe\xc2\xad\nrienced attorneys to supplement the DCUSA\xe2\x80\x99s resources for combatting\nnarcotics offenses. Moreover, the training o f JAGC attorneys for special\xc2\xad\nized civilian narcotics prosecutions in civilian courts would not appear to\nbe directly related to more than a small fraction o f the work customarily\ndone by JAGC attorneys for their military departments.6\nIn sum, we conclude that the Economy Act does not permit the pro\xc2\xad\nposed detail on a nonreimbursable basis, unless the 1988 Act specifically\nauthorizes nonreimbursable details.\n2. The 1988 Act\n\nThe 1988 Act gives the Director o f National Drug Control Policy broad\npowers to reassign federal personnel to further the National Drug Control\nProgram. Section 1502(d)(2) empowers the Director to\ndirect, with the concurrence o f the Secretary o f a depart\xc2\xad\nment or head o f an agency, the temporary reassignment\nwithin the Federal Government o f personnel employed by\nsuch department or agency, in order to implement United\nStates drug control policy.\n21 U.S.C. \xc2\xa7 1502(d)(2). In addition, section 1504(c)(1) permits the tempo\xc2\xad\nrary assignment o f personnel to provide assistance where the Director has\ndesignated a specific locale as a \xe2\x80\x9chigh intensity drug trafficking area.\xe2\x80\x9d7\nNeither o f these provisions addresses directly whether the temporary\nreassignment o f personnel should be on a reimbursable basis. In addi\xc2\xad\ntion, nothing in the legislative history o f the 1988 Act suggests that\nCongress intended for details made pursuant to the Director\xe2\x80\x99s reassign\xc2\xad\nment authority to be on a nonreimbursable basis. There are no commit\xc2\xad\ntee reports on the 1988 Act, and statements o f individual legislators\nspeak only in general terms o f the need for a \xe2\x80\x9cdrug czar\xe2\x80\x9d who would have\n\n\xc2\xb0In addition, a substantial question would be presented concerning the Director\xe2\x80\x99s authonty to order\nreassignment fo r "training" purposes The 1988 Act authorizes the Director to direct, with agency con\xc2\xad\ncurrence, temporary reassignment o f personnel \xe2\x80\x9cin order to implement United States drug control poli\xc2\xad\nc y \xe2\x80\x9d 21 U.SC \xc2\xa7 1502(d)(3). See also id. \xc2\xa7 1504(c)(1)(A). It is unclear whether the ordering o f training\ndetails falls within the Director\xe2\x80\x99s powers to reassign personnel in order to implement drug control poli\xc2\xad\ncy It could be argued that details specifically fo r training in narcotics prosecutions would be within the\nDirector\xe2\x80\x99s statutory authority; however, the more narrow the focus o f the training, the weaker the argu\xc2\xad\nment that the detail would further the objects o f the loaning agency\xe2\x80\x99s appropnations, so as to be permit\xc2\xad\nted on a nonreimbursable basis.\n7\n\nWe are informed by Chuck WexJer, Special Assistant to the Director, that as o f this date the Director\n\nhas not designated the Distnct o f Columbia as a \xe2\x80\x9chigh intensity drug trafficking area,\xe2\x80\x9d though he may do\nso in the future\n\n191\n\n\x0cbroad powers to coordinate action within the federal government relat\xc2\xad\ned to the drug problem.8\nThe only reference to the issue o f reimbursement occurs in section\n1502(d)(3), which authorizes the Director to use services, equipment, or\npersonnel o f other agencies for administrative purposes on a reim\xc2\xad\nbursable basis. It could be argued by negative inference from this provi\xc2\xad\nsion that Congress intended the Director\xe2\x80\x99s reassignment authority under\nsection 1502(d)(2) to be exercised on a nonreimbursable basis because\nCongress failed to provide specifically for reimbursement, as in section\n1502(d)(3). This construction fails, however, for two reasons.\nFirst, the structure o f the 1988 Act cuts against the negative inference\no f nonreimbursable details. To read the 1988 Act as authorizing nonre\xc2\xad\nimbursable details would create a tension between section 1502(d)(2)\nand section 1502(c)(6), which requires the Director \xe2\x80\x9cto report to the\nCongress on a quarterly basis regarding the need for any reprogramming\nor transfer o f appropriated funds for National Drug Control Program\nactivities.\xe2\x80\x9d Section 1502(c)(6) suggests that Congress intended to\nreserve for itself the decision whether National Drug Control Program\npolicies require changes in appropriations, including any transfer o f\nappropriated funds necessary to accomplish temporary personnel reas\xc2\xad\nsignments.9 Reserving this pow er would be consistent with the Economy\nAct and Congressional retention o f control over its constitutional power\no f the purse.\n\ny A recent Com ptroller General decision held that the Econom y A ct prohibits nonreimbursable details\nunder circumstances in which there w ere far stronger indications o f legislative intent to permit such\ndetails. 65 Comp. Gen 635 (1986) There, the National Labor Relations Board planned to detail 15-20\nadministrative law judges to the Department o f Labor to handle a backlog o f 20,000 black lung cases. The\nlegislative history o f both a 1985 Supplemental Appropriations A ct and the fiscal year 1986 Department\no f Labor Appropriations A ct reflected\ncongressional concern about the backlog and provide[dJ suggestions about how to resolve it\nThe Senate report accompanying the 1985 Supplemental directed the Department (o f Labor],\nto the extent practical, to increase its efforts to temporarily borrow ALJs from other agen\xc2\xad\ncies with less pressing workloads F o r fiscal year 1986, aside from recommending an addi\xc2\xad\ntional $4 4 m illion for 15 new AU s, and a substantial number o f attorneys and support posi\xc2\xad\ntions, the Senate again directed the Department to actively pursue borrowing ALJs from\nother agencies Both congressional debate and hearings accompanying the 1986 appropria\xc2\xad\ntions act contain similar comments\n65 Comp. Gen. at 636 (citations and footn ote om itted) Despite this legislative history, the Comptroller\nGeneral concluded that, because the statute itself did not specifically authorize nonreimbursable details,\nthe concerns expressed m the legislative history remained merely generalized concerns that w ere left\nunaddressed in the actual legislation. Id. at 639 ( \xe2\x80\x9c[I]t is well settled that suggestions or expressions o f\ncongressional intent in comm ittee reports, flo o r debates and hearings are not legally binding unless they\nare incorporated either expressly or by reference in an appropriations act itself or in some other\nstatute.\xe2\x80\x9d). Accord Train v City of New York, 420 U.S 35, 45 (1975) (involving issue o f Executive com \xc2\xad\npliance with appropriations laws and noting that \xe2\x80\x9c legislative intention, without more, is not legislation\xe2\x80\x9d)\n9 This inference is also supported by changes made from earlier versions o f the legislation S 2852,\n100th Cong., 2d Sess. (1988) (the \xe2\x80\x9cOmnibus Anti-Substance Abuse A ct o f 1988\xe2\x80\x9d) at one point provided m\nsections 1006(d)(2) and (3).\n(2 ) The D irector may reprogram funds within National Drug Control Programs\nContinued\n\n192\n\n\x0cMoreover, title X, chapter I o f the 1988 Act provides specific supple\xc2\xad\nmental appropriations for United States Attorney\xe2\x80\x99s Offices for salaries\nand expenses for increased narcotics prosecution efforts. It reasonably\ncan be inferred that further enhancements o f funding, such as by detail\xc2\xad\ning additional personnel pursuant to the Director\xe2\x80\x99s temporary reassign\xc2\xad\nment authority, were not intended. See 31 U.S.C. \xc2\xa7 1301(d) (rule of con\xc2\xad\nstruction against implied appropriations) (discussed below). Cf. United\nStates General Accounting Office, Office o f General Counsel, Principles\nof Federal Appropriations Law, supra, at 5-62 to 5-63 (non-augmentation\ntheory);\nSecond, reading the 1988 Act as authorizing nonreimbursable details\nrequires the conclusion that Congress made an \xe2\x80\x9cimplied appropriation\xe2\x80\x9d\nthrough the Director\xe2\x80\x99s reassignment authority. The Economy Act pro\xc2\xad\nvides, however, that \xe2\x80\x9c[a] law may be construed to make an appropriation\nout o f the Treasury or to authorize making a contract for the payment o f\nmoney in excess o f an appropriation only if the law specifically states\nthat an appropriation is made or that such a contract may be made.\xe2\x80\x9d 31\nU.S.C. \xc2\xa7 1301(d). Thus, reading the 1988 Act to require nonreimbursable\ndetails would be inconsistent with the Economy Act. Statutes ordinarily\nare to be read as consistent with one another, where possible. See\nRuckelshaus v. Monsanto, 467 U.S. 986, 1017, 1018 (1984) (repeals by\nimplication are disfavored).\nUnder these circumstances, the 1988 Act should not be read to autho\xc2\xad\nrize nonreimbursable details. If nonreimbursable details are necessary to\naccomplish the Director\xe2\x80\x99s goals o f implementing national drug control\npolicy, he can report to Congress under section 1502(c)(6) on the need\nfor a transfer o f appropriated funds to accomplish the detail o f the JAGC\nattorneys.\n9(\n\ncontinued)\n(3 ) The Director may transfer, after providing notification to the Committees on Appro\xc2\xad\npriations o f the Senate and the House o f Representatives, an amount not to exceed 5 per cen\xc2\xad\n\ntum of the funds appropriated fo r one such program to another such program within the\nsame National Drug Control Program agency.\n134 Cong Rec 27,467 (1988) (emphasis added). This provision was deleted In its place, the 1988 Act, as\nenacted into law, provides\nThe Director shall report to the Congress on a quarterly basis regarding the need f o r any\n\nreprogramming or tmnsfer o f appropriated funds for National Drug Control Program activ\xc2\xad\nities.\n21 U.S C. \xc2\xa7 1502(c)(6) (emphasis added).\nThe same, early version o f S 2852 provided in section 1010(a), with respect to the D irector\xe2\x80\x99s pow ers\nto designate \xe2\x80\x9cHigh Intensity Drug Areas,\xe2\x80\x9d that:\nUpon making such a designation and in order to provide Federal assistance to such area, the\nDirector may \xe2\x80\x94\n(2 ) transfer, after providing notification to the Committees on Appropriations o f the Senate\nand the House o f Representatives, an amount not to exceed 5 per centum o f the funds appro\xc2\xad\npriated for one such program to another such program, ..\n134 Cong Rec. 27,468 (1988). See also id. at 27,414, 27,416 (statement o f Sen Nunn, including sectionby-section analysis o f bill) As passed, the 1988 A ct contains no such provision\n\n193\n\n\x0cConclusion\nWe believe that the Economy Act prevents the detail o f JAGC attorneys\nto the DCUSA on a nonreimbursable basis, absent clear language in the\n1988 Act that provides for such details. We conclude that no such clear\nintent is expressed in sections 1502(d)(2) and 1504(c)(1)(A) o f the 1988\nAct. If the Director determines that the inability to direct the detail of\nJAGC attorneys to the DCUSA on a nonreimbursable basis impedes his\nability to further national drug control policy, section 1502(d)(6) o f the\n1988 Act provides an appropriate mechanism for seeking a remedy from\nCongress.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice o f Legal Counsel\n\n194\n\n\x0c'


b'Expenditure of Appropriated Funds for\nInformational Video News Releases\nInformational video news releases produced by the Department of Health and Human Services\nregarding the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 do not\nconstitute impermissible \xe2\x80\x9ccovert propaganda\xe2\x80\x9d in violation of the Consolidated Appropriations\nResolution, 2003, which forbids the expenditure of appropriated funds for \xe2\x80\x9cpublicity or propaganda\npurposes.\xe2\x80\x9d\n\nJuly 30, 2004\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF HEALTH AND HUMAN SERVICES\nOn May 19, 2004, the General Accounting Office (\xe2\x80\x9cGAO\xe2\x80\x9d)1 opined that certain\ninformational video news releases produced by the Department of Health and\nHuman Services regarding the Medicare Prescription Drug, Improvement, and\nModernization Act of 2003 constitute impermissible \xe2\x80\x9ccovert propaganda\xe2\x80\x9d in\nviolation of the Consolidated Appropriations Resolution, 2003, which forbids the\nexpenditure of appropriated funds for \xe2\x80\x9cpublicity or propaganda purposes.\xe2\x80\x9d You\nhave asked for our views on the issue addressed in the GAO decision. We\nconclude, contrary to the GAO decision, that the expenditure of appropriated funds\nto produce and distribute the informational video news releases in question does\nnot violate the prohibition on \xe2\x80\x9cpropaganda.\xe2\x80\x9d*\nI.\nThe Department of Health and Human Services (\xe2\x80\x9cHHS\xe2\x80\x9d) and the Centers for\nMedicare and Medicaid Services (\xe2\x80\x9cCMS\xe2\x80\x9d), an agency within HHS, have produced\nthree video news releases (\xe2\x80\x9cVNRs\xe2\x80\x9d) to inform potential beneficiaries about the\nprescription drug benefits recently added to the Medicare program by the Medicare\nPrescription Drug, Improvement, and Modernization Act of 2003 (\xe2\x80\x9cMMA\xe2\x80\x9d), Pub.\nL. No. 108-173, 117 Stat. 2066. The Consolidated Appropriations Resolution,\n2003 (\xe2\x80\x9cCAR\xe2\x80\x9d) provides that \xe2\x80\x9c[n]o part of any appropriation contained in this or\nany other Act shall be used for publicity or propaganda purposes within the United\n1\nOn July 7, 2004, the General Accounting Office was renamed the Government Accountability\nOffice. GAO Human Capital Reform Act of 2004, Pub. L. No. 108-271, 118 Stat. 811.\n*\nEditor\xe2\x80\x99s Note: Congress subsequently enacted a statute that supersedes this opinion. See Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005,\nPub. L. No. 109-13, tit. VI, \xc2\xa7 6076, 119 Stat. 231, 301 (\xe2\x80\x9cUnless otherwise authorized by existing law,\nnone of the funds provided in this Act or any other Act, may be used by an executive branch agency to\nproduce any prepackaged news story intended for broadcast or distribution in the United States unless\nthe story includes a clear notification within the text or audio of the prepackaged news story that the\nprepackaged news story was prepared or funded by that executive branch agency.\xe2\x80\x9d).\n\n109\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nStates not heretofore authorized by the Congress.\xe2\x80\x9d Pub. L. No. 108-7, tit. VI,\n\xc2\xa7 626, 117 Stat. 11, 470.2 GAO recently opined that portions of the VNRs produced by HHS and CMS\xe2\x80\x94the \xe2\x80\x9cstory packages\xe2\x80\x9d\xe2\x80\x94constitute so-called \xe2\x80\x9ccovert\npropaganda\xe2\x80\x9d proscribed by the \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d rider because they do not\nidentify \xe2\x80\x9cHHS or CMS as the source [of the VNRs] to the targeted television\naudience, and the content of the news reports was attributed to individuals\npurporting to be reporters, but actually hired by an HHS subcontractor.\xe2\x80\x9d Department of Health and Human Services, Centers for Medicare & Medicaid Services\xe2\x80\x94\nVideo News Releases, B-302710, at 16, 2004 WL 1114403, at *11 (Comp. Gen.\nMay 19, 2004) (\xe2\x80\x9cGAO VNR Decision\xe2\x80\x9d).\nVNRs have become \xe2\x80\x9c\xe2\x80\x98the television version of the printed press release.\xe2\x80\x99\xe2\x80\x9d\nLetter for Gary Kepplinger, Deputy General Counsel, General Accounting Office,\nfrom Dennis G. Smith, Director, Centers for Medicare and Medicaid Services,\nEncl. 2 (Apr. 2, 2004) (\xe2\x80\x9cSmith Letter\xe2\x80\x9d) (internal citation omitted). VNRs ordinarily consist of several segments that may be used in whole or in part by television\nstations and networks in producing their news programs: (i) slates (paper or video\nsummaries of the VNR); (ii) B-roll film (video clips without sound or narration);\nand (iii) story packages (completed news stories, often combining the B-roll film\nwith the information on the slates). See GAO VNR Decision at 2\xe2\x80\x933, 5\xe2\x80\x936, 2004 WL\n1114403 at *2\xe2\x80\x93*3; Smith Letter, Encl. 1. Television stations, which receive VNRs\nvia satellite feed or mail, may draw on those segments as they see fit, and \xe2\x80\x9cmost\nnews organizations using VNR[s] . . . often use only a portion or edited versions of\nthe materials provided.\xe2\x80\x9d GAO VNR Decision at 4, 2004 WL 1114403, at *2.3 It is\nestimated that between 78 and 100 percent of all television stations incorporate\nVNRs into their newscasts. Id. at 3 n.2, 2004 WL 1114403 at *2 n.2; Smith Letter,\nEncl. 1.\nThe use of VNRs has become widespread, in part because they provide \xe2\x80\x9ca more\neffective and targeted means to get news and information into the hands of broadcast\nprofessionals in an appropriate format\xe2\x80\x9d than do more traditional methods. Smith\nLetter, Encl. 1. They provide an especially convenient and cost-effective programming option for local news stations, many of which face budget constraints and may\nlack the resources to produce their own news report on a given topic. GAO VNR\nDecision at 4, 2004 WL 1114403, at *2. Since the early 1990s, VNRs have been\n2\nMost appropriations statutes since 1951 have contained similar \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d riders,\nwhich, as the language of this rider indicates, apply to all governmental entities receiving appropriated\nfunds. See generally Medicare Prescription Drug, Improvement, and Modernization Act of 2003\xe2\x80\x94Use\nof Appropriated Funds for Flyer and Print and Television Advertisements, B-302504, 2004 WL 523435\n(Comp Gen. Mar. 10, 2004) (\xe2\x80\x9cGAO March 2004 Decision\xe2\x80\x9d) (discussing history of \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d riders). The identical appropriations rider appears in the Consolidated Appropriations Act,\n2004, Pub. L. No. 108-199, tit. VI, \xc2\xa7 624, 118 Stat. 3, 356.\n3\nSome journalistic codes of ethics call upon television stations to label and disclose the origin of all\nmaterial provided by outsiders. GAO VNR Decision at 5 & nn. 17\xe2\x80\x9319, 2004 WL 1114403, at *3 & nn.\n17\xe2\x80\x9319.\n\n110\n\n\x0cExpenditure of Appropriated Funds for Informational Video News Releases\n\nregularly produced by \xe2\x80\x9cprivate corporations, nonprofit organizations and government\nentities.\xe2\x80\x9d Id. at 2, 2004 WL 1114403 at *2. The use of VNRs by federal agencies\nsubject to the \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d appropriations riders appears to be the rule\nrather than the exception. From the Department of Agriculture to the Census Bureau\nto the Environmental Protection Agency, information is frequently made public\nthrough VNRs. See Website of Department of Agriculture, http://www.usda.gov/\nagency/oc/vtr/vnrframe.htm (last visited July 30, 2004) (providing over 100 VNRs\nproduced by agency since 2001); Website of Census Bureau, http://www.census.\ngov/pubinfo/www/video/promote.html (last visited July 30, 2004) (providing \xe2\x80\x9cinformative videos that reflect Census Bureau operations\xe2\x80\x9d); Website of Environmental\nProtection Agency, http://www.epa.gov/epahome/headline_011802.htm (last visited\nJuly 30, 2004) (providing VNR regarding home radon screening that features\ninterviews with the Secretary, doctors, contractors, and homeowners).4\nMembers of Congress\xe2\x80\x94who are bound by the same \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d\nprohibition in annual congressional appropriations riders5\xe2\x80\x94also have relied upon\nVNRs. Representative Frost, for example, issued a VNR describing his participation in a Congressional Business Summit. See Website of Rep. Frost, http://www.\nhouse.gov/frost/pr00/pr000508.htm (last visited July 30, 2004). In addition, members of Congress routinely release \xe2\x80\x9cradio actualities,\xe2\x80\x9d which, like VNRs, address\nvarious issues and include interview clips. See, e.g., Website of Sen. Stabenow,\nhttp://stabenow.senate.gov/press/actualities.htm (last visited July 30, 2004) (describing \xe2\x80\x9cradio actualities\xe2\x80\x9d as \xe2\x80\x9cgroup[s] of sound bites sent out to radio stations to\nbe used in news reports\xe2\x80\x9d and providing eleven radio actualities); Website of Sen.\nConrad, http://conrad.senate.gov/press/press.html (last visited July 30, 2004) (providing several \xe2\x80\x9cradio actualities,\xe2\x80\x9d including audio clips of the senator being\ninterviewed by an unidentified interviewer).\n4\nSee also, e.g., Website of Consumer Product Safety Commission, http://www.cpsc.gov/mpeg.\nhtml (last visited July 30, 2004) (providing more than 140 VNRs regarding product safety recalls and\nrelated issues); Website of Transportation Security Administration, http://www.tsa.gov/public/display?\ntheme=8&content=0900051980058a7d (last visited July 30, 2004) (providing VNRs on transportation\nsecurity); Website of Food and Drug Administration, http://www.foodsafety.gov/~fsg/vlibrary.html\n(last visited July 30, 2004) (providing VNRs regarding issues related to food safety); Website of\nSelective Service System, http://www.sss.gov/News_Conferences/press-5-22-01.htm (last visited July\n30, 2004) (providing VNR regarding increase in selective service registration after years of steady\ndecline); Website of National Science Foundation, http://www.\xcc\xb7nsf.gov/od/lpa/news/press/01/lasik_\nvideo.htm (last visited July 30, 2004) (providing VNR about advances in Lasik eye surgery techniques\nresulting from agency-funded research programs); Website of Library of Congress, http://www.loc.gov/\nloc/lcib/00089/bi_press.html (last visited July 30, 2004) (noting that \xe2\x80\x9c[a] special video news release on\nthe Library\xe2\x80\x99s April 24th celebration aired on more than 55 television stations across the nation\xe2\x80\x9d).\n5\nIn this fiscal year, for example, members of Congress received appropriated funds through the\nLegislative Branch Appropriations Act, 2004, Pub. L. No. 108-83, 117 Stat. 1007 (2003), and those\nfunds are subject to the \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d prohibition contained in the Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, tit. VI, \xc2\xa7 624, 118 Stat. at 356 (\xe2\x80\x9cNo part of any appropriation\ncontained in this or any other Act shall be used for publicity or propaganda purposes within the United\nStates not heretofore authorized by the Congress.\xe2\x80\x9d) (emphasis added).\n\n111\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nThese governmental VNRs have not been limited to slates and B-roll film\xe2\x80\x94\nthey have routinely included story packages that could be aired without further\nediting. The Agency for International Development, for example, issued a VNR\nstory package in 2003 discussing its programs in Afghanistan that included the\ncoda \xe2\x80\x9cthis is Mary Lou Galyo reporting.\xe2\x80\x9d See Website of Agency for International\nDevelopment, http://www.usaid.gov/press/releases/2003/vnr030226.html (last visited July 30, 2004). The Centers for Disease Control broadcast a VNR story\npackage in 2000 regarding the dangers of smoking that included an interview with\nthe Surgeon General, did not identify the agency as the source, and ended with\n\xe2\x80\x9cthis is Sarah Vetter reporting.\xe2\x80\x9d See Website of Centers for Disease Control, http://\nwww.cdc.gov/tobacco/sgr_tobacco_use_trailer.htm (last visited July 30, 2004).\nAnd HHS created two VNR story packages in 1999 setting forth the Clinton\nAdministration\xe2\x80\x99s position on prescription drug benefits and preventive health. See\nGAO VNR Decision at 8, 2004 WL 1114403, at *5.6\nThe MMA, passed on December 8, 2003, makes several amendments to title\nXVIII of the Social Security Act, the Medicare federal health insurance program.\nSee generally GAO March 2004 Decision at 3, 2004 WL 523435, at *2. In the text\nof the Act, Congress specifically requires HHS and CMS to \xe2\x80\x9cbroadly disseminate\ninformation\xe2\x80\x9d regarding the MMA\xe2\x80\x99s prescription drug coverage, discount card\nprogram, and transitional assistance for low-income individuals. Pub. L. No. 108173, \xc2\xa7 101(a), 117 Stat. at 2075; see also GAO March 2004 Decision at 9, 2004\nWL 523435, at *7. The Conference Report reiterates that HHS and CMS are to\n\xe2\x80\x9cconduct a significant public information campaign to educate beneficiaries about\nthe new Medicare drug benefit,\xe2\x80\x9d including a \xe2\x80\x9cconcerted effort to . . . ensur[e] that\nthe lower income seniors are aware of the additional benefits available to them.\xe2\x80\x9d\nH.R. Conf. Rep. No. 108-391, at 432\xe2\x80\x9333 (2003).\nThe three VNRs (two in English; one in Spanish) at issue here have been produced by HHS and CMS in conjunction with Ketchum Public Relations and Home\nFront Communications to provide information about certain Medicare benefits\nunder the MMA. See Smith Letter, Encl. 1. A cover page accompanying the\nVNRs\xe2\x80\x94entitled \xe2\x80\x9cGovernment Answers Questions about New Medicare Law\xe2\x80\x9d\xe2\x80\x94\nidentifies key facts about the MMA and includes a description of the available\nvideo news feed. Id., Encl. 2. Each VNR contains B-roll film of President Bush\nsigning the MMA in the presence of members of Congress, a senior citizen at a\n\n6\nSee also, e.g., Website of Federal Trade Commission, http://www.ftc.gov/opa/2002/10/vnrma.htm\n(last visited July 30, 2004) (providing VNR story package discussing agency efforts to improve cybersecurity in the private sector); Website of Census Bureau, http://www.census.gov/pubinfo/www/\nmultimedia/adoption.html (last visited July 30, 2004) (providing VNR story package addressing\nadoption programs in Congress, including footage of Senators promoting those programs); Website of\nState Department, http://www.state.gov/r/pa/obs/vid/30246.htm (last visited July 30, 2004) (providing\nVNR story package addressing issues facing women abroad with narration and footage of the\nSecretary).\n\n112\n\n\x0cExpenditure of Appropriated Funds for Informational Video News Releases\n\npharmacy, a pharmacist filling a prescription, senior citizens receiving blood\npressure tests, and senior citizens enjoying various activities. See GAO VNR\nDecision at 6, 2004 WL 1114403, at *3. The Spanish version contains video statements regarding the changes to Medicare under the MMA by Dr. Christina Beato\nof CMS; the English versions contain similar video statements by Tommy Thompson, Secretary of HHS, and Leslie Norwalk, Acting Deputy Administrator and\nChief Operating Officer of CMS. Id. at 6\xe2\x80\x937, 2004 WL 1114403, at *3\xe2\x80\x93*4.\nEach of the VNRs also includes a story package with a lead-in script that may\nbe read by a news anchor. Id. The story packages are narrated by Alberto Garcia\n(Spanish) and Karen Ryan (English), and each story package ends with the\nnarrator stating: \xe2\x80\x9cIn Washington, I\xe2\x80\x99m Alberto Garcia [or Karen Ryan] reporting.\xe2\x80\x9d\nId. at 7\xe2\x80\x938, 2004 WL 1114403, at *4\xe2\x80\x93*5. Two of the story packages (one in\nEnglish; one in Spanish) specifically address prescription drug benefits under the\nMMA and include statements such as \xe2\x80\x9cmillions of people who are covered by\nMedicare [are] asking how [it] will help them\xe2\x80\x9d and \xe2\x80\x9c[the reporter] helps sort\nthrough the details.\xe2\x80\x9d Id. at 7, 2004 WL 1114403, at *4. The interviews and narration of these story packages also indicate that the primary focus of the MMA is on\nthe 2006 prescription drug benefit; that savings of up to twenty-five percent will be\navailable with temporary discount cards in 2004; that preventive benefits will be\noffered; that low-income individuals may qualify for a $600 credit on certain drug\ndiscount cards; and that no Medicare recipient will be forced to sign up for any of\nthe new benefits. Id. The other story package (only in English) specifically\naddresses CMS\xe2\x80\x99s advertising campaign and includes statements such as \xe2\x80\x9cthe\nFederal Government is launching a new, nationwide campaign to educate 41\nmillion people with Medicare about improvements to Medicare\xe2\x80\x9d and \xe2\x80\x9cthe same\nMedicare you\xe2\x80\x99ve always counted on plus more benefits . . . . [is] the main message\nMedicare\xe2\x80\x99s advertising campaign drives home about the new law.\xe2\x80\x9d Id. at 6, 2004\nWL 1114403, at *4. The narration of this story package also \xe2\x80\x9cindicat[es] that the\ncampaign helps beneficiaries answer their questions about the new law, the\nadministration is emphasizing that seniors can keep their Medicare the same, and\nthe campaign is part of a larger effort to educate people with Medicare about the\nnew law.\xe2\x80\x9d Id. at 6\xe2\x80\x937, 2004 WL 1114403, at *4. \xe2\x80\x9cCMS [has] clearly identified itself\nas the source of these materials to the television stations receiving them,\xe2\x80\x9d and the\nlast slate informs the receiving news stations to contact CMS for information about\nthe VNRs. Id. at 6, 12, 2004 WL 1114403, at *3, *8.\nIn response to a request from GAO regarding the production, filming, and\ndistribution of the VNRs, HHS and CMS stated:\n[T]he VNR was not produced as a purported editorial, advocacy\npiece, or commentary. The purpose of this media effort was to convey factual information concerning changes to Medicare under the\n[MMA]. Karen Ryan, who narrates the English language VNR, does\n\n113\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nnot take any position whatsoever on the MMA. Instead, she merely\nreports what she specifically states are explanations of the new law\nby HHS and CMS officials. Secretary Thompson\xe2\x80\x99s and Acting Deputy Administrator Norwalk\xe2\x80\x99s statements about the MMA are directly\nattributed to them, in their official capacities. Ms. Ryan states further, and accurately, \xe2\x80\x9cMedicare officials emphasized that no one will\nbe forced to sign up for any of the new benefits.\xe2\x80\x9d She never states\nthat this is her, or anyone else\xe2\x80\x99s, statement or view. Likewise, she\nadds, \xe2\x80\x9cThe new law, say officials, simply offers people with Medicare ways to make their health care coverage more affordable.\xe2\x80\x9d\nAgain, it is made clear to the viewer that this is a statement from\nMedicare officials, rather than a party outside the agency. Similarly,\nin the Spanish language VNR, reporter Alberto Garcia interviews an\nidentified Administration official about that official\xe2\x80\x99s statements regarding MMA. The narrator\xe2\x80\x99s statements are not editorials and do\nnot advocate a position, and the officials\xe2\x80\x99 statements are not attributed to anyone outside Government.\nSmith Letter, Encl. 1.\nOn May 19, 2004, GAO issued an opinion concluding that the VNR story\npackages violate the prohibition in the CAR on the use of appropriated funds for\n\xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d because they do not identify \xe2\x80\x9cHHS or CMS as the\nsource to the targeted television audience, and the content of the news reports was\nattributed to individuals purporting to be reporters, but actually hired by an HHS\nsubcontractor.\xe2\x80\x9d GAO VNR Decision at 16, 2004 WL 1114403, at *11. That decision marks the \xe2\x80\x9cfirst occasion\xe2\x80\x9d GAO has had to examine VNRs for consistency\nwith the \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d prohibition. Id. at 9, 2004 WL 1114403, at *6.\nGAO noted that it had historically interpreted such riders to preclude funding for\nagency materials that were (i) self-aggrandizing, (ii) purely partisan in nature, or\n(iii) covert propaganda. Id. at 10, 2004 WL 1114403, at *7. It determined that the\nVNRs only implicated the third prohibition. Id. In reviewing the VNRs for \xe2\x80\x9ccovert\npropaganda,\xe2\x80\x9d GAO refused to place any significance upon the fact \xe2\x80\x9cthat the use of\nVNR materials, with already prepared story packages, is a common practice in the\npublic relations industry and utilized . . . by government entities.\xe2\x80\x9d Id. at 9\xe2\x80\x9310,\n2004 WL 1114403, at *6. It also discounted Congress\xe2\x80\x99s statutory requirement that\nHHS and CMS \xe2\x80\x9cbroadly disseminate information\xe2\x80\x9d regarding the MMA, concluding that \xe2\x80\x9c[w]hile CMS may have authority to use appropriated funds to disseminate information regarding the changes to Medicare pursuant to MMA, this\nauthority is subject to the publicity or propaganda prohibition appearing in the\nannual appropriation act.\xe2\x80\x9d Id. at 10, 2004 WL 1114403, at *7.\nGAO stated that, in its prior decisions, \xe2\x80\x9cfindings of propaganda [we]re predicated upon the fact that the target audience could not ascertain the information\n\n114\n\n\x0cExpenditure of Appropriated Funds for Informational Video News Releases\n\nsource.\xe2\x80\x9d GAO VNR Decision at 11, 2004 WL 1114403, at *7. It cited a 1986 GAO\ndecision in which \xe2\x80\x9cgovernment-prepared editorials\xe2\x80\x9d supporting \xe2\x80\x9cPresident Reagan\xe2\x80\x99s proposal to transfer the Small Business Administration [(\xe2\x80\x9cSBA\xe2\x80\x9d)] to the\nDepartment of Commerce\xe2\x80\x9d were deemed \xe2\x80\x9ccovert propaganda\xe2\x80\x9d because they did\nnot \xe2\x80\x9cdisclos[e] to the readers of those editorials that SBA was the source of the\ninformation.\xe2\x80\x9d Id. (discussing Letter for Lowell Weicker, Jr., Chairman, Committee\non Small Business, U.S. Senate, B-223098, B-223098.2, 1986 WL 64325 (Comp.\nGen. Oct. 10, 1986) (\xe2\x80\x9cGAO SBA Decision\xe2\x80\x9d)). It also cited a 1987 decision in\nwhich GAO determined that a program in which the State Department\xe2\x80\x99s Office of\nPublic Diplomacy for Latin America paid consultants \xe2\x80\x9cto write op-ed pieces in\nsupport of the Administration\xe2\x80\x99s policy on Central America for distribution to\nnewspapers\xe2\x80\x9d was \xe2\x80\x9ccovert propaganda\xe2\x80\x9d because \xe2\x80\x9c[t]hese materials were \xe2\x80\x98propaganda\xe2\x80\x99 within the \xe2\x80\x98common understanding\xe2\x80\x99 of the term . . . designed to influence the\nmedia and public to support the Administration\xe2\x80\x99s Latin American policies.\xe2\x80\x9d Id.,\n2004 WL 1114403, at *8 (discussing To the Honorable Jack Brooks, 66 Comp.\nGen. 707 (Sept. 30, 1987) (\xe2\x80\x9cGAO State Department Decision\xe2\x80\x9d)). In the GAO SBA\nDecision, the newspapers, but not the readers, were made aware of SBA\xe2\x80\x99s\ninvolvement; in the GAO State Department Decision, neither the newspapers nor\nthe readers were made aware of the State Department\xe2\x80\x99s involvement.\nBased upon its reading of those decisions, GAO determined that the VNR story\npackages\xe2\x80\x94but not the slates or the B-roll film\xe2\x80\x94constitute \xe2\x80\x9ccovert propaganda.\xe2\x80\x9d\nGAO VNR Decision at 16, 2004 WL 1114403, at *11. GAO separated out the\nslates and the B-roll film on the basis that they are intended for use by the\ntelevision stations themselves, which are made aware of the role of HHS and\nCMS. Id. at 12, 2004 WL 1114403, at *8. But because the story packages are\nintended for the television viewing audience, and because the story packages do\nnot make the television audience aware of the role of HHS and CMS, GAO\ndetermined that the story packages constitute \xe2\x80\x9ccovert propaganda.\xe2\x80\x9d id. \xe2\x80\x9cImportantly,\xe2\x80\x9d GAO explained, \xe2\x80\x9cCMS included no statement or other reference in either the\nstory package or the anchor lead-in script to ensure that the viewing audience\nwould be aware that CMS [wa]s the source of the purported news story.\xe2\x80\x9d Id. That\nfailure to identify the source was dispositive, GAO concluded: \xe2\x80\x9cWhile we agree\nthat the story packages may not be characterized as editorials, explicit advocacy is\nnot necessary to find a violation of the prohibition.\xe2\x80\x9d Id. at 14, 2004 WL 1114403,\nat *10. Although GAO stated in a footnote that \xe2\x80\x9c[o]n balance, the contents of the\nstory packages consist of a favorable report on effects on Medicare beneficiaries,\ncontaining the same notable omissions and weaknesses as the [HHS and CMS]\nflyer and advertisements that we reviewed in our March 2004 opinion,\xe2\x80\x9d id. at 14\nn.34, 2004 WL 1114403, at *11-*12 n.34, it made clear that \xe2\x80\x9cthe content of the\nstory packages themselves would not violate the publicity or propaganda prohibition if identifying the source to the target audience were not at issue,\xe2\x80\x9d id. at 14,\n\n115\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\n2004 WL 1114403, at *10.7 GAO therefore concluded that HHS and CMS have\nviolated the \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d prohibition in the CAR and, for that reason,\nalso have violated the Anti-Deficiency Act, 31 U.S.C. \xc2\xa7 1341 (2000), which\nprohibits making or authorizing an expenditure that exceeds available budget\nauthority. GAO VNR Decision at 16, 2004 WL 1114403, at *11.\nYou have asked us to review GAO\xe2\x80\x99s VNR Decision and to provide our opinion\non whether the expenditure of appropriated funds for production and distribution\nof the VNRs in question violates the \xe2\x80\x9cpropaganda\xe2\x80\x9d prohibition in the CAR. For\npurposes of this memorandum, we take as a given that the VNRs produced by\nHHS and CMS are purely informational in content. As noted above, HHS and\nCMS maintained to GAO that the VNRs are \xe2\x80\x9cfactual and accurate\xe2\x80\x9d and intended to\n\xe2\x80\x9chelp TV stations and their audiences understand the basic provisions of the new\nMedicare law.\xe2\x80\x9d Smith Letter at 2. GAO also stated that it \xe2\x80\x9cagree[d] that the story\npackages may not be characterized as editorials\xe2\x80\x9d and that \xe2\x80\x9cthe content of the story\npackages themselves would not violate the publicity or propaganda prohibition if\nidentifying the source to the target audience were not at issue.\xe2\x80\x9d GAO VNR\nDecision at 14 & n.34, 2004 WL 1114403, at *10 & n.34. The VNRs communicate information to the public about the new prescription drug benefits added by\nthe MMA to the Medicare program administered by CMS. The VNRs are designed\nto assist in fulfilling Congress\xe2\x80\x99s statutory mandate that HHS and CMS \xe2\x80\x9cbroadly\ndisseminate information\xe2\x80\x9d about the new Medicare benefits to the forty-one million\npotential beneficiaries. Pub. L. No. 108-173, \xc2\xa7 101(c)(1), 117 Stat. at 2075. We\nunderstand that VNR story packages\xe2\x80\x94as their widespread use by public and\nprivate entities attests\xe2\x80\x94are highly effective at disseminating information: By\nproviding video and audio in a pre-packaged and easily accessible format, VNR\nstory packages significantly increase the likelihood that news programs will\nbroadcast at least part of the provided information. CMS and HHS accordingly\nhave chosen to use such story packages as part of their larger effort, pursuant to\nthe requirements of the MMA, to inform the public of the significant changes\n7\nIn the referenced March 2004 decision, GAO concluded that the content of certain HHS and CMS\nadvertisements regarding the MMA did not constitute a \xe2\x80\x9cpurely partisan message\xe2\x80\x9d for purposes of the\n\xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d prohibition:\n\nThe flyer and advertisements do not provide beneficiaries with comprehensive information about the benefits available as a result of MMA, or comparative details about\nthose benefits. In addition, they do not address the impact of MMA on those eligible\nfor both Medicaid and Medicare and those with Medicare supplemental policies. They\ndo, however, identify the new benefits, note when they will become available, and . . .\nprovide some information describing the new benefits. Notably, the materials refer\nbeneficiaries to other sources for further information . . . .\nGAO March 2004 Decision at 10, 2004 WL 523435, at *8. The \xe2\x80\x9cfavorable\xe2\x80\x9d nature of the VNRs would\nseem to be a function of their exclusive focus on the new prescription drug benefits available to seniors;\nand any \xe2\x80\x9cnotable omissions and weaknesses\xe2\x80\x9d\xe2\x80\x94as GAO acknowledged, see GAO VNR Decision at 14\n& n.34, 2004 WL 1114403, at *10 & n.34\xe2\x80\x94seem to be a product of the VNRs\xe2\x80\x99 necessarily limited\nscope.\n\n116\n\n\x0cExpenditure of Appropriated Funds for Informational Video News Releases\n\nwrought to Medicare benefits by the MMA. Although it is true that facts can be\npresented in a biased or selective manner in order to advocate a particular view,\nthe VNRs in question do not editorialize about proposed legislation or otherwise\nadvocate a position on a question of public policy. HHS and CMS, through the\nVNRs, are simply reporting about the new Medicare benefits provided under the\nduly-enacted MMA. With that understanding, and for the reasons discussed below,\nwe conclude that the expenditure by HHS and CMS of appropriated funds for the\nproduction and distribution of the VNRs does not violate the CAR\xe2\x80\x99s prohibition on\n\xe2\x80\x9cpropaganda.\xe2\x80\x9d\nII.\nWe have not heretofore \xe2\x80\x9cset out a detailed, independent analysis of \xe2\x80\x98publicity or\npropaganda\xe2\x80\x99 riders.\xe2\x80\x9d Memorandum for the Attorney General from Walter\nDellinger, Assistant Attorney General, Office of Legal Counsel, Re: Anti-Lobbying\nAct Guidelines at 3 (Apr. 14, 1995). However, based upon the analysis set forth\nbelow, including a review of the text and history of those riders, as well as GAO\xe2\x80\x99s\nown earlier decisions interpreting them, we conclude, consistent with those earlier\ndecisions, that the prohibition on \xe2\x80\x9ccovert propaganda\xe2\x80\x9d applies to the advocacy of a\nparticular viewpoint, not to the legitimate provision of information concerning the\nexisting programs administered by the agency. We therefore determine\xe2\x80\x94in light\nof the fact recognized by GAO that \xe2\x80\x9cthe content of the story packages\xe2\x80\x9d at issue\nhere is not editorial in nature, GAO VNR Decision at 14, 2004 WL 1114403, at\n*10\xe2\x80\x94that the VNRs do not constitute \xe2\x80\x9ccovert propaganda.\xe2\x80\x9d\nAlthough GAO is part of the Legislative Branch, see Bowsher v. Synar, 478\nU.S. 714, 727\xe2\x80\x9332 (1986), and we are therefore not bound by its legal opinions, see\nGeneral Services Administration Use of Government Funds for Advertising, 25\nOp. O.L.C. 91, 94 & n.5 (2001) (\xe2\x80\x9cGSA Advertising\xe2\x80\x9d), we have historically found\nGAO\xe2\x80\x99s decisions in this area helpful, see, e.g., Establishment of the President\xe2\x80\x99s\nCouncil for International Youth Exchange, 6 Op. O.L.C. 541, 547\xe2\x80\x9348 (1982).\nGAO has interpreted the \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d riders to prohibit three types of\nagency publications: those that are (i) self-aggrandizing, (ii) purely partisan in\nnature, or (iii) covert propaganda. GAO VNR Decision at 10, 2004 WL 1114403,\nat *7.\nThe \xe2\x80\x9cself-aggrandizing\xe2\x80\x9d interpretation stems from GAO\xe2\x80\x99s cardinal decision\naddressing the \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d restrictions, which were first enacted in\n1951. See Appropriations\xe2\x80\x94Limitations\xe2\x80\x94Publicity and Propaganda Prohibition\xe2\x80\x94\nLabor-Federal Security Appropriation Act, 1952, 31 Comp. Gen. 311 (1952)\n(\xe2\x80\x9cGAO 1952 Decision\xe2\x80\x9d). GAO determined that the intent of the riders was \xe2\x80\x9cto\nprevent publicity of a nature tending to emphasize the importance of the agency or\nactivity in question,\xe2\x80\x9d id. at 313, and it has since considered such gratuitous selfaggrandizement or puffery to be unauthorized \xe2\x80\x9cpublicity,\xe2\x80\x9d GAO March 2004\n\n117\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nDecision, supra note 2, at 7-8, 2004 WL 523435, at *6. The \xe2\x80\x9cpurely partisan in\nnature\xe2\x80\x9d interpretation, which may be traced to a 1960 GAO decision, posits that a\npublication may be so political in nature that it is not in furtherance of the purposes\nfor which Government funds were appropriated. See id. at 8, 2004 WL 523435, at\n*7 (discussing Letter for Joseph S. Clark, United States Senate, B-144323 (Comp.\nGen. Nov. 4, 1960), available at http://www.gao.gov/legal/index.\xcc\xa3html (last visited\nJune 3, 2013)). GAO thus considers publications that are \xe2\x80\x9ccompletely devoid of\nany connection with official functions\xe2\x80\x9d or \xe2\x80\x9ccompletely \xe2\x80\x98political in nature\xe2\x80\x99\xe2\x80\x9d to be\nbarred as \xe2\x80\x9cpropaganda\xe2\x80\x9d under the appropriations riders. Id. (quoting Letter for\nWilliam L. Dawson, Chairman, Committee on Government Operations, House of\nRepresentatives, B-147578 (Comp. Gen. Nov. 8, 1962) (\xe2\x80\x9cGAO 1962 Letter\xe2\x80\x9d),\navailable at http://www.gao.gov/legal/index.\xcc\xa3html (last visited June 3, 2013)). We\nhave recognized the categories of \xe2\x80\x9cself-aggrandizing\xe2\x80\x9d and \xe2\x80\x9cpurely partisan in\nnature\xe2\x80\x9d as reasonable and valid interpretations of the \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d\nriders, GSA Advertising at 94\xe2\x80\x9395 & n.6, and we agree with GAO that neither of\nthose categories is implicated by the VNRs at issue here, see GAO VNR Decision\nat 10, 2004 WL 1114403, at *7.8\nThat leaves the \xe2\x80\x9ccovert propaganda\xe2\x80\x9d interpretation, which appears to stem from\na 1978 decision in which GAO determined that a similarly worded appropriations\nrider\xe2\x80\x94which prohibited the expenditure of funds on \xe2\x80\x9cpublicity or propaganda . . .\ndesigned to support or defeat legislation pending before Congress\xe2\x80\x9d\xe2\x80\x94prevented the\nOffice of Consumer Affairs (\xe2\x80\x9cOCA\xe2\x80\x9d) from preparing \xe2\x80\x9ccanned editorial materials\xe2\x80\x9d\ndesigned to make \xe2\x80\x9cpublic support for a particular point of view . . . appear greater\nthan it actually is.\xe2\x80\x9d Letter for John M. Ashbrook, U.S. House of Represenatives, B129874, at 3, 9, 1978 WL 10700, *3, *7 (Comp. Gen. Sept. 11, 1978) (\xe2\x80\x9cGAO\nOCA Decision\xe2\x80\x9d). As noted above, GAO applied this interpretation in its 1986 SBA\nDecision and its 1987 State Department Decision. In the latter, addressing an\nappropriations prohibition materially identical to the one at issue here, GAO\nexplained that publications that were \xe2\x80\x9cmisleading as to their origin and reasonably\nconstituted \xe2\x80\x98propaganda\xe2\x80\x99 within the common understanding of that term\xe2\x80\x9d were\nforbidden \xe2\x80\x9ccovert propaganda.\xe2\x80\x9d GAO State Department Decision, 66 Comp Gen.\nat 709. This Office has previously recognized the \xe2\x80\x9ccovert propaganda\xe2\x80\x9d interpretation in terms similar to those articulated by GAO in its State Department Decision;\nwe have stated that \xe2\x80\x9ccovert attempts to mold opinion through the undisclosed use\n8\nThe prohibition in the CAR refers, in the disjunctive, to \xe2\x80\x9cpublicity\xe2\x80\x9d or \xe2\x80\x9cpropaganda.\xe2\x80\x9d Pub. L. No.\n108-7, \xc2\xa7 626, 117 Stat. at 470. GAO has interpreted the term \xe2\x80\x9cpublicity\xe2\x80\x9d to prohibit gratuitous \xe2\x80\x9cselfaggrandizement,\xe2\x80\x9d GAO 1952 Decision, 31 Comp. Gen. at 313 (riders \xe2\x80\x9cprevent publicity of a nature\ntending to emphasize the importance of the agency or activity in question\xe2\x80\x9d) (emphasis added), and the\nterm \xe2\x80\x9cpropaganda\xe2\x80\x9d to prohibit \xe2\x80\x9cpurely partisan\xe2\x80\x9d activity, GAO March 2004 Decision at 8, 2004 WL\n523435, at *7 (riders prevent \xe2\x80\x9cgeneral propaganda effort[s] designed to aid a political party or\ncandidates\xe2\x80\x9d) (quoting GAO 1962 Letter) (emphasis added; internal quotation marks and citation\nomitted), as well as \xe2\x80\x9ccovert propaganda.\xe2\x80\x9d Because only the \xe2\x80\x9ccovert propaganda\xe2\x80\x9d interpretation is at\nissue here, we focus in this memorandum on the term \xe2\x80\x9cpropaganda.\xe2\x80\x9d\n\n118\n\n\x0cExpenditure of Appropriated Funds for Informational Video News Releases\n\nof third parties\xe2\x80\x9d can constitute an illegal use of funds. Legal Constraints on\nLobbying Efforts in Support of Contra Aid and Ratification of the INF Treaty, 12\nOp. O.L.C. 30, 40 (1988) (emphasis added). In addressing the VNRs at issue here,\nwe adhere to that understanding of the \xe2\x80\x9ccovert propaganda\xe2\x80\x9d prohibition. We\nbelieve, however, that the articulation now adopted by GAO in its VNR Decision\ndoes not represent a reasonable application of that prohibition or a fair interpretation of the CAR.\nIn all previous instances in which GAO has found \xe2\x80\x9ccovert propaganda,\xe2\x80\x9d the\npublications at issue were both (i) \xe2\x80\x9cmisleading as to their origin\xe2\x80\x9d (i.e., \xe2\x80\x9ccovert\xe2\x80\x9d)\nand (ii) \xe2\x80\x9cconstituted \xe2\x80\x98propaganda\xe2\x80\x99 within the common understanding of that term.\xe2\x80\x9d\nGAO State Department Decision, 66 Comp. Gen. at 709; see also GAO SBA\nDecision at 9, 1986 WL 64325, at *6 (publications deemed \xe2\x80\x9cmisleading as to their\norigin and reasonably constitute[d] \xe2\x80\x98propaganda\xe2\x80\x99 within the common understanding of that term\xe2\x80\x9d); cf. GAO OCA Decision at 9, 1978 WL 10700, at *7 (\xe2\x80\x9ccanned\neditorial material and sample letter to the editor\xe2\x80\x9d were similar to \xe2\x80\x9chigh-powered\nlobbying campaigns in which public support for a particular view is made to\nappear greater than it actually is\xe2\x80\x9d). In its VNR Decision, however, GAO dispensed\nwith the \xe2\x80\x9cpropaganda\xe2\x80\x9d requirement and focused solely on the \xe2\x80\x9ccovert\xe2\x80\x9d nature of\nthe communication. That interpretation, in our view, is improperly removed from\nthe plain text of the CAR appropriations rider, which in relevant part proscribes\n\xe2\x80\x9cpropaganda.\xe2\x80\x9d\n\xe2\x80\x9c\xe2\x80\x98Statutory construction must begin with the language employed by Congress\nand the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.\xe2\x80\x99\xe2\x80\x9d Engine Mfrs. Ass\xe2\x80\x99n v. S. Coast Air Quality Mgmt.\nDist., 541 U.S. 246, 252 (2004) (quoting Park \xe2\x80\x98N Fly, Inc. v. Dollar Park & Fly,\nInc., 469 U.S. 189, 194 (1985)). The dictionary definition of \xe2\x80\x9cpropaganda\xe2\x80\x9d is\n\xe2\x80\x9c[t]he systematic dissemination of doctrine, rumor, or selected information to\npromote or injure a particular doctrine, view, or cause.\xe2\x80\x9d Black\xe2\x80\x99s Law Dictionary\n1232 (7th ed. 1999) (emphasis added); see also 12 Oxford English Dictionary 632\n(2d ed. 1989) (defining \xe2\x80\x9cpropaganda\xe2\x80\x9d to mean \xe2\x80\x9c[t]he systematic propagation of\ninformation or ideas by an interested party, esp. in a tendentious way in order to\nencourage or instill a particular attitude or response\xe2\x80\x9d) (emphasis added);\nWebster\xe2\x80\x99s Third New International Dictionary 1817 (2002) (defining \xe2\x80\x9cpropaganda\xe2\x80\x9d to mean \xe2\x80\x9cdissemination of ideas, information, or rumor for the purpose of\nhelping or injuring an institution, a cause, or a person\xe2\x80\x9d or \xe2\x80\x9cdoctrines, ideas, arguments, facts, or allegations spread by deliberate effort through any medium of\ncommunication in order to further one\xe2\x80\x99s cause or to damage an opposing cause\xe2\x80\x9d)\n(emphasis added). As commonly understood, to propagandize is not simply to provide information\xe2\x80\x94it is to advocate, disseminate, and encourage a particular view,\ndoctrine, or cause.\nThat was also evidently the understanding in 1951, when Congress first included restrictions on the use of funds for \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d in appropriations\n\n119\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nstatutes. See, e.g., Labor-Federal Security Appropriation Act, 1952, Pub. L. No.\n82-134, 65 Stat. 209 (1951).9 The contemporaneous dictionary definitions of\n\xe2\x80\x9cpropaganda\xe2\x80\x9d\xe2\x80\x94like the modern definitions noted above\xe2\x80\x94indicated a systematic\neffort at indoctrination to a particular viewpoint, as opposed to a mere promulgation of information. See, e.g., Funk & Wagnalls New Standard Dictionary of the\nEnglish Language 1985 (1946) (defining \xe2\x80\x9cpropaganda\xe2\x80\x9d as \xe2\x80\x9c[e]ffort directed systematically toward the gaining of support for an opinion or course of action\xe2\x80\x9d or\n\xe2\x80\x9cany institution or systematic scheme for propagating a doctrine or system\xe2\x80\x9d)\n(emphasis added); Webster\xe2\x80\x99s New International Dictionary 1983 (2d ed. 1958)\n(defining \xe2\x80\x9cpropaganda\xe2\x80\x9d as \xe2\x80\x9c[a]ny organized or concerted group, effort, or movement to spread a particular doctrine or system of doctrines or principles,\xe2\x80\x9d \xe2\x80\x9cdissemination of ideas, information, or gossip, or the like, for the purpose of helping\nor injuring a person, an institution, a cause, etc.,\xe2\x80\x9d or \xe2\x80\x9ca scheme or plan for the\npropagation of a doctrine or a system of principles\xe2\x80\x9d) (emphasis added). Consistent\nwith those definitions, the legislative history of the original enactment of the\n\xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d prohibitions indicates that Congress intended to\neradicate (i) agency efforts to direct and control public thinking on various issues\nof public debate, particularly through overt political action;10 (ii) useless, excessive, or frivolous agency publications;11 and (iii) agency self-promotion, aggran9\nThere was no legislative discussion regarding the \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d prohibition in the\nCAR at issue here. Although Congress has routinely included restrictions on \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d\nin appropriations acts for the past fifty years, the legislative record has been largely silent since their\noriginal enactment in 1951 and 1952. See, e.g., GAO State Department Decision, 66 Comp. Gen. at 709\n(\xe2\x80\x9cThe legislative history of [the current version] is silent as to the intended effect of the restriction.\xe2\x80\x9d);\nGAO SBA Decision at 8, 1986 WL 64325, at *6 (same); cf. GAO March 2004 Decision at 6, 2004 WL\n523435, at *5 (consulting the legislative history of the 1951 version to interpret the current version of\nthe prohibition).\n10\nSee, e.g., 97 Cong. Rec. 4099 (1951) (statement of Rep. Meader) (\xe2\x80\x9cIt is wrong to have the executive branch of the Government spending the taxpayers\xe2\x80\x99 funds to influence public thinking and to create\npolicy.\xe2\x80\x9d); id. at 4741 (statement of Rep. Smith) (\xe2\x80\x9cI wonder why the Government is engaged in the\nbusiness of directing public thinking. This amendment is merely an effort to stop that practice.\xe2\x80\x9d); id. at\n4742 (statement of Rep. Vursell) (arguing that the amendment will \xe2\x80\x9crestrict propaganda, thought\ncontrol, and unnecessary expense of publicity\xe2\x80\x9d); id. at 347\xe2\x80\x9348 (statement of Sen. Watkins) (introducing\ninto the record an article from Forbes Magazine and Reader\xe2\x80\x99s Digest entitled \xe2\x80\x9cWhat Taxpayers Pay for\nFederal Thought Control,\xe2\x80\x9d which criticized the use of taxpayer funds by the Social Security Administration to promote \xe2\x80\x9csocialized medicine\xe2\x80\x9d and by the Department of Agriculture to organize a rally in\nfavor of the Administration\xe2\x80\x99s farm program); id. at 4099 (statement of Rep. Bow) (objecting to efforts\nby the Federal Security Agency to \xe2\x80\x9corganize local groups and then get those local groups to put the heat\non the Congress\xe2\x80\x9d regarding \xe2\x80\x9csocialized medicine\xe2\x80\x9d); id. at 5474 (statement of Rep. Davis) (referring to\nthe \xe2\x80\x9cdisgraceful experience\xe2\x80\x9d of bringing county farm representatives to Minneapolis at taxpayer\nexpense \xe2\x80\x9cto form a captive audience to let the Secretary of Agriculture expound his own personal straitjacket political farm plan\xe2\x80\x9d in hopes that \xe2\x80\x9cthose people would go to their respective home communities\nas disciples for that kind of a regimentation plan\xe2\x80\x9d).\n11\nSee, e.g., 97 Cong. Rec. 5475 (statement of Rep. Meader) (describing federal pamphlets produced\nby taxpayer funds about vagrant cats, mist netting of Japanese birds, and eating fish for breakfast); id.\nat 6735 (statement of Sen. Byrd) (criticizing \xe2\x80\x9cuseless[]\xe2\x80\x9d agency mailers such as \xe2\x80\x9cRaccoons of North\nand Middle America\xe2\x80\x9d and \xe2\x80\x9cCan Elephants and Water Buffalos Outwork Machinery?\xe2\x80\x9d).\n\n120\n\n\x0cExpenditure of Appropriated Funds for Informational Video News Releases\n\ndizement, or puffery.12 The overarching concern was the use of federal funds to\nmanipulate and control public opinion about policy issues: \xe2\x80\x9c[P]ublic opinion ought\nnot . . . be subjected to influence and direction by the executive agencies, the\nadministrative branch of the government, in the manner that it is today. . . . The\npeople should not finance use of these agencies to foster and perpetuate the\nbureaucrats [sic] not the people\xe2\x80\x99s objectives in national policy.\xe2\x80\x9d 97 Cong. Rec.\n4099 (statement of Rep. Meader); see also id. at 6733\xe2\x80\x9334 (statement of Sen. Byrd)\n(calling propaganda from the federal bureaucracy \xe2\x80\x9cone of the greatest abuses in\nour [time]\xe2\x80\x9d and suggesting that riders would \xe2\x80\x9cresult in more news and less \xe2\x80\x98bull\xe2\x80\x99\nfrom the Federal publicity mill\xe2\x80\x9d).\nJust as clearly as Congress sought to stamp out government dissemination of\npolitical, frivolous, and self-aggrandizing publications, Congress sought to protect\ngovernment dissemination of \xe2\x80\x9clegitimate informational work\xe2\x80\x9d or \xe2\x80\x9cfacts about the\nwork of the[] departments to the public.\xe2\x80\x9d 97 Cong. Rec. 6734, 6735 (statements of\nSens. Aiken and Byrd). The chief objection to the appropriations riders was that\nthey did not define the phrase \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d with any precision, and\nthereby threatened public access to legitimate and necessary information.13\nRepresentative Yates questioned whether the amendments would \xe2\x80\x9cjeopardize\npublication by the Children\xe2\x80\x99s Bureau of pamphlets pertaining to the training and\ngrowth of children,\xe2\x80\x9d id. at 4098; Senator Anderson objected to the amendments on\nthe ground that they might block the production of a film \xe2\x80\x9cby the Atomic Energy\nCommission in order that school children may have an opportunity to become\nacquainted with some of the very important facts in connection with atomic\nactivity,\xe2\x80\x9d id. at 6798. The sponsors\xe2\x80\x94Representative Smith in the House and\nSenator Byrd in the Senate\xe2\x80\x94responded that they intended to invoke the ordinary\nunderstanding of the term \xe2\x80\x9cpropaganda,\xe2\x80\x9d which they believed was sufficiently\nlimpid to distinguish true propaganda from legitimate information. Representative\nSmith explained, \xe2\x80\x9cIt seems to me that we can well distinguish between what is\npropaganda and what is educational matter.\xe2\x80\x9d Id. at 4098. Senator Byrd \xe2\x80\x9crecog12\nSee, e.g., 97 Cong. Rec. 6734 (statement of Sen. Byrd) (\xe2\x80\x9cIndividual glorification of bureaucrats\nand political propaganda constitute the press service problem which this amendment seeks to curtail.\xe2\x80\x9d);\n98 Cong. Rec. 2304 (1952) (statement of Rep. Meader) (complaining about the continued use of\nappropriated funds by federal agencies to engage in self-promotion, such as the dissemination of a \xe2\x80\x9c15minute [radio] transcript that you can use to promote the philosophy and interests of the National\nProduction Authority\xe2\x80\x9d).\n13\nSee, e.g., 97 Cong. Rec. 4099\xe2\x80\x934100 (statement of Rep. Fogarty) (\xe2\x80\x9cWe do not even know what the\ngentleman calls propaganda. We do not know what he calls the right type of publicity or the wrong type\nof publicity. That is the fault I find with this amendment. . . . [Y]ou do not define in the amendment\nwhat propaganda is or what publicity is.\xe2\x80\x9d); id. at 6798\xe2\x80\x9399 (statement of Sen. Anderson) (arguing that\nDepartment of Agriculture information specialists are not propagandists and serve an important\nfunction of disseminating information to farmers); id. at 6798 (statement of Sen. Benton) (objecting on\nthe grounds that the term \xe2\x80\x9cpublicity\xe2\x80\x9d is loosely defined and the amendment did not distinguish between\nforbidden publicity and \xe2\x80\x9cthe general activities of the Department [of Agriculture] in the field of\neducation and instruction\xe2\x80\x9d).\n\n121\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nnize[d] the need for disseminating information\xe2\x80\x9d and maintained that the amendments \xe2\x80\x9cwould not in any way affect the legitimate efforts of agencies in disseminating information and answering requests from Members of Congress and the\npublic generally.\xe2\x80\x9d Id. at 6796. In addition, informational programs otherwise\nauthorized by statute did not fall within the scope of the amendments, which\nextended \xe2\x80\x9conly to matters which have not had the support or the approval of . . .\nCongress.\xe2\x80\x9d Id. at 4098 (statement of Rep. Phillips). The legislative history of the\noriginal appropriations riders thus suggests that Congress understood and embraced the distinction between true \xe2\x80\x9cpropaganda\xe2\x80\x9d and legitimate \xe2\x80\x9cinformation\xe2\x80\x9d\nabout government programs, and did not intend for the appropriations riders to\nrestrict the latter.\nPrior GAO and OLC opinions in this area further support this understanding.\nThe \xe2\x80\x9ccovert propaganda\xe2\x80\x9d interpretation may be traced, as noted above, to a 1978\nGAO decision regarding efforts by the OCA to \xe2\x80\x9cengage in [a] political controversy\nas a proponent of proposed legislation that would establish a Consumer Protection\nAgency.\xe2\x80\x9d GAO OCA Decision at 6, 1978 WL 10700, at *4 (emphasis added).\nGAO stated that \xe2\x80\x9c[i]n interpreting \xe2\x80\x98publicity or propaganda\xe2\x80\x99 provisions . . . this\nOffice has consistently recognized that every Federal agency has a legitimate\ninterest in communicating with the public and with the Congress regarding its\npolicies and activities.\xe2\x80\x9d Id. at 3\xe2\x80\x934, 1978 WL 10700, at *3.14 GAO condemned,\nhowever, OCA\xe2\x80\x99s preparation of \xe2\x80\x9ccanned editorial materials and sample letters to\nthe editor,\xe2\x80\x9d explaining that \xe2\x80\x9ccanned and sample propaganda materials have been\ntraditionally associated with high-powered lobbying campaigns in which public\nsupport for a particular point of view is made to appear greater than it actually is.\xe2\x80\x9d\nId. at 9, 1978 WL 10700, at *7 (emphasis added). Similar reasoning was articulated in GAO\xe2\x80\x99s 1986 opinion regarding SBA efforts to \xe2\x80\x9cput[] forth the Administration\xe2\x80\x99s position regarding the proposed reorganization of SBA.\xe2\x80\x9d GAO SBA\nDecision at 4, 1986 WL 64325, at *3 (emphasis added). Although GAO reiterated\nits longstanding view that the appropriations riders \xe2\x80\x9cdo not prohibit an agency\xe2\x80\x99s\nlegitimate informational activities,\xe2\x80\x9d it determined that SBA-prepared \xe2\x80\x9ceditorials\xe2\x80\x9d\non the proposed reorganization were improper because they were \xe2\x80\x9cmisleading as to\ntheir origin and reasonably constitute[d] \xe2\x80\x98propaganda\xe2\x80\x99 within the common\nunderstanding of that term.\xe2\x80\x9d Id. at 9, 1986 WL 64325, at *6 (emphasis added); see\nalso id. (\xe2\x80\x9c[W]e conclude that the SBA \xe2\x80\x98suggested editorials\xe2\x80\x99 are beyond the range\nof acceptable agency public information activities[.]\xe2\x80\x9d). GAO adhered to that\nunderstanding in its 1987 opinion involving \xe2\x80\x9carticles, editorials, and op-ed pieces\xe2\x80\x9d\nproduced by the State Department\xe2\x80\x99s Office of Public Diplomacy for Latin America\n\xe2\x80\x9cin support of the Administration\xe2\x80\x99s position\xe2\x80\x9d favoring the Contra forces in\n14\nIndeed, in its first opinion addressing the \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d riders, GAO stated that \xe2\x80\x9c[i]t\nappears clear . . . that the prohibition . . . would not be for application to those functions . . . which deal\nwith dissemination to the general public, or to particular inquirers, of information reasonably necessary\nto the proper administration of the laws.\xe2\x80\x9d GAO 1952 Decision, 31 Comp. Gen. at 314.\n\n122\n\n\x0cExpenditure of Appropriated Funds for Informational Video News Releases\n\nNicaragua. GAO State Department Decision, 66 Comp. Gen. at 708 (emphasis\nadded). GAO concluded that the State Department publications \xe2\x80\x9cwere misleading\nas to their origin and reasonably constituted \xe2\x80\x98propaganda\xe2\x80\x99 within the common\nunderstanding of that term.\xe2\x80\x9d Id. at 709 (emphasis added). The essential factors in\nthe prior GAO opinions were (i) that the agency\xe2\x80\x99s role in the publication was not\ndisclosed and (ii) that the content of the information published was \xe2\x80\x9cpropaganda\xe2\x80\x9d\nas that term is ordinarily understood.\nThis Office, too, has previously noted that \xe2\x80\x9c[t]he role of the federal government\nin providing \xe2\x80\x98information\xe2\x80\x99 has traditionally been recognized as proper,\xe2\x80\x9d Memorandum for Robert J. Lipshutz, Counsel to the President, from John M. Harmon,\nAssistant Attorney General, Office of Legal Counsel, Re: Statutory Restraints on\nLobbying Activity By Federal Officials at 7 (Nov. 29, 1977) (\xe2\x80\x9cLobbying Activity\xe2\x80\x9d),15 and has read the \xe2\x80\x9ccovert propaganda\xe2\x80\x9d prohibition to target only \xe2\x80\x9ccovert\nattempts to mold opinion through undisclosed use of third parties,\xe2\x80\x9d 12 Op. O.L.C.\nat 40 (emphasis added). That understanding\xe2\x80\x94faithful to the language in the\nCAR\xe2\x80\x94also comports with our recognition that the appropriations riders, if\nconstrued broadly, would bring a halt to a number of activities in which Executive\nofficials have historically engaged, and would thus raise constitutional concerns.\nSee Memorandum for John R. Bolton, Assistant Attorney General, Office of\nLegislative Affairs, from Charles J. Cooper, Assistant Attorney General, Office of\nLegal Counsel, Re: Applicability of 18 U.S.C. 1913 to Contacts Between United\nStates Attorneys and Members of Congress in Support of Pending Legislation at 1\n& n.3 (Oct. 27, 1987). We have accordingly determined that \xe2\x80\x9cthe appropriation\nrider should be read as principally designed to meet the immediate evil perceived\nby Congress\xe2\x80\x94the unchecked growth of a government public relations arm used to\ndisseminate agency [views] to the public at large\xe2\x80\x94not as an effort to interfere\nunduly with the normal and healthy functioning of the body politic.\xe2\x80\x9d Lobbying\nActivity at 6.16\nWe therefore do not agree with GAO that the \xe2\x80\x9ccovert propaganda\xe2\x80\x9d prohibition\napplies simply because an agency\xe2\x80\x99s role in producing and disseminating infor15\nAlthough the Lobbying Activity memorandum addressed an appropriations rider that prohibited\nexpenditures \xe2\x80\x9cfor publicity or propaganda purposes designed to support or defeat legislation pending\nbefore Congress,\xe2\x80\x9d that similarly worded provision also has been interpreted by GAO to allow the\ndissemination of legitimate informational material. See GAO OCA Decision at 3\xe2\x80\x934, 1978 WL 10700,\nat *3 (\xe2\x80\x9cIn interpreting \xe2\x80\x98publicity or propaganda\xe2\x80\x99 provisions such as section 607(a), this Office has\nconsistently recognized that every Federal agency has a legitimate interest in communicating with the\npublic and with the Congress regarding its policies and activities.\xe2\x80\x9d).\n16\nThere is little judicial case law addressing the various \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d appropriations\nriders, but what there is supports our textual reading. See Dist. of Columbia Common Cause v. Dist. of\nColumbia, 858 F.2d 1, 11 (D.C. Cir. 1988) (\xe2\x80\x9cPrinting pamphlets, flyers, and posters in connection with\nan initiative campaign constitutes publicity or propaganda within the meaning of the appropriations\nstatute.\xe2\x80\x9d) (emphasis added); Nat\xe2\x80\x99l Treas. Emps.\xe2\x80\x99 Union v. Campbell, 654 F.2d 784, 794 (D.C. Cir.\n1981) (\xe2\x80\x9cThe evident purpose of the anti-\xe2\x80\x98propaganda\xe2\x80\x99 limitations is to curtail bureaucratic aggrandizement at the taxpayers\xe2\x80\x99 expense.\xe2\x80\x9d) (emphasis added).\n\n123\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nmation is undisclosed or \xe2\x80\x9ccovert,\xe2\x80\x9d regardless of whether the content of the\nmessage is \xe2\x80\x9cpropaganda.\xe2\x80\x9d GAO VNR Decision at 14, 2004 WL 1114403, at *10.17\nCongress evidently intended for the appropriations riders to prevent agency\nadvocacy of particular opinions or views; the term \xe2\x80\x9cpropaganda\xe2\x80\x9d cannot fairly be\nread to encompass agency promulgation of legitimate governmental information\nabout the programs administered by an agency and in furtherance of that agency\xe2\x80\x99s\nstatutory goals. We are sensitive to GAO\xe2\x80\x99s concern about \xe2\x80\x9cagencies creating news\nreports unbeknownst to the receiving audience.\xe2\x80\x9d Id. at 13, 2004 WL 1114403,\nat *9. But we believe a line must be drawn to distinguish legitimate governmental\ninformation from improper governmental advocacy.18 The VNRs at issue here did\nnot advocate a particular policy or position of HHS and CMS, but rather provided\naccurate (even if not comprehensive) information about the benefits provided\nunder a recent Act of Congress: the MMA.19 Informing the public of the facts\nabout a federal program is not the type of evil with which Congress was concerned\nin enacting the \xe2\x80\x9cpublicity or propaganda\xe2\x80\x9d riders.\nNot only do members of Congress themselves use VNRs, as already noted, but\nCongress also has long been aware of the use of VNRs by federal agencies, which\nrely upon VNRs as highly effective and efficient tools for disseminating information. See, e.g., S. Rep. No. 106-229, vol. II, at 517 (2000) (\xe2\x80\x9c[Food and Drug\nAdministration] launched a public awareness campaign on the risk that unpasteurized or untreated juices may present to vulnerable populations, including the\nelderly. Educational materials including a press kit, consumer brochure, video\nnews release, and a public service announcement were distributed to senior citizen\ngroups, as well as day care centers, elementary schools, state PTA offices and\nmedia outlets. AARP and other organizations also assisted in distribution of the\ninformation.\xe2\x80\x9d); id. at 1320 (\xe2\x80\x9cThe [United States Postal] Inspection Service will\n17\nThe two statutory provisions GAO cited in support of its conclusion are inapposite. See GAO VNR\nDecision at 13, 2004 WL 1114403, at *9 (citing 22 U.S.C. \xc2\xa7 1461 and 47 U.S.C. \xc2\xa7 396(g)(3)(A)&(B)).\nThe first, 22 U.S.C. \xc2\xa7 1461 (2000 & Supp. III 2004), prevents the Board of Broadcasting Governors from\nbroadcasting pro-American news reports to domestic audiences. Such programs, however, would appear to\nconstitute \xe2\x80\x9cpropaganda\xe2\x80\x9d as commonly understood. The second, 47 U.S.C. \xc2\xa7 396(g)(3)(A)&(B) (2000),\nprevents the Corporation for Public Broadcasting from producing or disseminating programs to the public.\nBy its terms, however, that provision applies only to the Corporation for Public Broadcasting, which is not\n\xe2\x80\x9can agency or establishment of the United States Government.\xe2\x80\x9d 47 U.S.C. \xc2\xa7 396(b).\n18\nWe have no occasion to determine the threshold of \xe2\x80\x9cpropaganda\xe2\x80\x9d necessary to violate the appropriations riders where agency involvement is undisclosed, and it might well be lower than where\nagency involvement is acknowledged. We do not believe, however, that the \xe2\x80\x9ccovert propaganda\xe2\x80\x9d\nprohibition may be invoked without any finding of \xe2\x80\x9cpropaganda.\xe2\x80\x9d\n19\nBecause we conclude that the VNRs do not constitute \xe2\x80\x9ccovert propaganda,\xe2\x80\x9d we need not determine whether Congress\xe2\x80\x99s instruction that HHS and CMS \xe2\x80\x9cbroadly disseminate information\xe2\x80\x9d about the\nMMA, by itself, renders the CAR rider inapplicable. Pub. L. No. 108-7, \xc2\xa7 626, 117 Stat. at 470\n(banning publicity and propaganda \xe2\x80\x9cnot heretofore authorized by the Congress\xe2\x80\x9d). We note that GAO, in\nits March 2004 Decision, stated that because of the \xe2\x80\x9cexplicit authority\xe2\x80\x9d of HHS and CMS \xe2\x80\x9cto inform\nMedicare beneficiaries about changes to Medicare resulting from MMA,\xe2\x80\x9d the agencies\xe2\x80\x99 \xe2\x80\x9cjustification[s]\nfor the materials [were] afforded considerable deference.\xe2\x80\x9d Id. at 2\xe2\x80\x933, 2004 WL 523435, at *2.\n\n124\n\n\x0cExpenditure of Appropriated Funds for Informational Video News Releases\n\nissue three Video News Releases (VNRs) entitled, Conning Older Americans;\nHow They Scam Older Americans; and Fraud Fighters which will be sent to local\ntelevision stations via satellite for release during Consumer Protection Week. The\nVNRs correspond with the purpose of National Consumer Protection Week, which\nis to highlight consumer protection and education efforts around the country.\xe2\x80\x9d); S.\nRep. No. 105-36, vol. II, at 436\xe2\x80\x9337 (1997) (\xe2\x80\x9c\xe2\x80\x98How to Take the Scare Out of Auto\nRepair\xe2\x80\x99 is the print component of a multi-media education campaign conducted by\nthe [Federal Trade] Commission in conjunction with [National Association of\nAttorneys General] and the American Automobile Association . . . . This campaign\nalso included the production and distribution of a video news release by satellite to\ntelevision stations, and radio public service announcements to 425 radio stations\nnationwide.\xe2\x80\x9d).\nIndeed, Congress has expressly approved the use of VNRs that, under GAO\xe2\x80\x99s\nVNR Decision, might now be considered \xe2\x80\x9ccovert propaganda.\xe2\x80\x9d In 1994, the Senate\nCommittee on Appropriations supported the use of VNRs by the National\nHighway Traffic Safety Administration (\xe2\x80\x9cNHTSA\xe2\x80\x9d): \xe2\x80\x9cIn fiscal year 1994, NHTSA\nused funding provided by the Committee for the development of video news\nrelease and radio public service announcements . . . informing the car-buying\npublic as to how to purchase a new vehicle with attention to safety. . . . The\nCommittee continues to be supportive of these efforts and believes that enhanced\nfunding in fiscal year 1995 will better enable the agency to reach all segments of\nthe car-buying public[.]\xe2\x80\x9d S. Rep. No. 103-310, at 136 (1994); see also 138 Cong.\nRec. 1692 (1992) (statement of Rep. Slaughter) (introducing legislation that would\n\xe2\x80\x9cprovide for the wide dissemination of . . . critical information [about diethylstilbestrol] by authorizing an appropriation . . . to fund such activities as the production and distribution of . . . video news releases\xe2\x80\x9d). Given the widespread and\naccepted use of informational VNRs, we cannot conclude\xe2\x80\x94without clearer\ninstruction from Congress\xe2\x80\x94that informational government VNRs constitute\n\xe2\x80\x9ccovert propaganda.\xe2\x80\x9d\nSTEVEN G. BRADBURY\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n125\n\n\x0c'