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Law Cautions Against Outside PR Spending -- Sort Of

Rarely Applied Provision Has Been Interpreted in a Way That Condones Many Agency Public Relations Efforts

By Christopher Lee
Washington Post Staff Writer
Monday, January 31, 2005; Page A19

There is a 17-word, one-sentence provision in federal law that appears to warn federal agencies away from hiring public relations firms -- the sort of arrangement that recently landed the Education Department in hot water with Congress.

"Appropriated funds may not be used to pay a publicity expert unless specifically appropriated for that purpose," states the provision in the U.S. Code.

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Such language seemingly would have put the kibosh on the Education Department's $1 million-plus contract with the public relations firm Ketchum Inc. to promote President Bush's No Child Left Behind law, an effort roundly criticized by some in Congress as propaganda. After all, the Education Department is not like, say, the Defense Department, to which Congress grants millions of dollars each year specifically for military advertising and recruiting.

Alas, it is not that simple.

The statute, which dates to 1913, has been difficult to enforce, rarely applied and interpreted in such a way that many agency public relations efforts are considered acceptable.

To the extent that agencies have gotten into trouble for such efforts lately, it has been for running afoul of laws that prohibit the use of appropriated funds for "covert propaganda." That is, agencies or contractors cannot produce materials, including editorials or news stories, that are distributed so that they appear to have come from an independent third party, according to "Principles of Federal Appropriations Law." The four-volume reference, known as the "Red Book," is maintained by the Government Accountability Office and is a guide to areas of the law in which the comptroller general renders opinions.

"A critical element of the violation is concealment of the agency's role in sponsoring the material," the guidebook notes.

So it was that in May the GAO said the Centers for Medicare & Medicaid Services violated "publicity and propaganda" prohibitions by producing a "video news release" regarding changes to Medicare benefits. The video package, complete with lead-in scripts, did not identify CMS as the source, resembled a television news story and was used by some TV stations as if it were independently reported news.

"In a modest but meaningful way, the publicity or propaganda restriction helps to mark the boundary between an agency making information available to the public and agencies creating news reports unbeknownst to the receiving audience," GAO General Counsel Anthony H. Gamboa wrote in his May 19 report.

Violations can bring administrative sanctions such as letters of reprimand, but criminal charges are rare or unheard of, according to GAO officials. The GAO has no enforcement power; Congress or the administration imposes sanctions.

Now the GAO is looking into whether the Education Department broke any laws in its contracts with Ketchum, the PR firm that was separately contracted to produce the CMS video package. Among other things, the department's arrangement with Ketchum involved the production of a video news release on No Child Left Behind and $240,000 in payments to Armstrong Williams, a black conservative commentator, to promote the law in radio and television appearances. Williams did not disclose the contract.

Critics of the deal in Congress assert that it violated the ban on covert propaganda. None has cited the prohibition on hiring "publicity experts," however.

The intent of that provision, according to the GAO manual, is to prevent the use of publicity experts to bring acclaim to an agency activity or to officials, rather than to advance the real work of the agency. The law acknowledges, however, that "the effective implementation of the duties of some agencies requires the acquisition and dissemination of information."

The GAO cites two cases to illustrate how the prohibition works. In the 1970s, the Federal Energy Administration launched a media campaign to tout the need for energy conservation. That was all right, the GAO found, because the agency had "statutory authority to disseminate information and to promote energy conservation." But the Chemical Warfare Commission, a presidential advisory committee, was deemed to have violated the statute in the 1980s by hiring a public affairs consultant. The GAO said the commission's duties were "solely advisory," and "it had no authority to engage in promotional activities or to maintain a public affairs program."

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