                 Whether Appropriations May Be Used for
                   Informational Video News Releases
The “covert propaganda” prohibition in appropriations statutes does not apply where there is no
  advocacy of a particular viewpoint, and therefore it does not apply to the legitimate provision of
  information concerning the programs administered by an agency, such as through an informational
  video news release.
A recent, contrary opinion of the Comptroller General is not binding on the Executive Branch.

                                                                                    March 11, 2005

                        MEMORANDUM OPINION FOR THE GENERAL
                         COUNSELS OF THE EXECUTIVE BRANCH

    The Comptroller General, the head of the Government Accountability Office
(“GAO”), recently circulated a memorandum to Executive Branch departments
and agencies purporting “to remind agencies of the constraints imposed by the
publicity or propaganda prohibition [contained in appropriations laws] on the use
of prepackaged news stories.” See Prepackaged News Stories, B-304272, 2005
WL 608427 (Comp Gen.). This memorandum is being distributed to ensure that
general counsels of the Executive Branch are aware that the Office of Legal
Counsel (“OLC”) has interpreted this same appropriations law in a manner
contrary to the views of GAO, and to provide a reminder that it is OLC that
provides authoritative interpretations of law for the Executive Branch.
    Because GAO is part of the Legislative Branch, Executive Branch agencies are
not bound by GAO’s legal advice. See Bowsher v. Synar, 478 U.S. 714, 727–32
(1986). We refer you instead to an opinion issued by OLC in July 2004, which
provides the definitive Executive Branch position on the issues addressed in the
GAO memorandum. See Expenditure of Appropriated Funds for Informational
Video News Releases, 28 Op. O.L.C. 109 (2004).
    As we explain in our July 2004 opinion, most appropriations statutes enacted
since 1951 have contained general prohibitions on the use of appropriated funds
for “publicity or propaganda purposes.” Over the years, GAO has interpreted
“publicity or propaganda” restrictions to preclude use of appropriated funds for,
among other things, so-called “covert propaganda.” GAO has explained that
publications that are “misleading as to their origin and reasonably constitute[]
‘propaganda’ within the common understanding of that term” are forbidden
“covert propaganda.” 66 Comp. Gen. 707, 709 (1987) (emphasis added). Con-
sistent with that view, OLC determined in 1988 that a statutory prohibition on
using appropriated funds for “publicity or propaganda” precluded undisclosed
agency funding of advocacy by third-party groups. We stated that “covert attempts
to mold opinion through the undisclosed use of third parties” would run afoul of
restrictions on using appropriated funds for “propaganda.” Legal Constraints on




                                                 74
      Whether Appropriations May Be Used for Informational Video News Releases


Lobbying Efforts in Support of Contra Aid and Ratification of the lNF Treaty,
12 Op. O.L.C. 30, 40 (1988).
   In our July 2004 opinion, we examined whether informational video news
releases (“VNRs”) prepared by the Department of Health and Human Services
constituted “propaganda.” VNRs are the television equivalent of the printed press
release. They can be a cost-effective means to distribute information through local
news outlets, and their use by private and public entities has been widespread
since the early 1990s, including by numerous federal agencies. We concluded in
our opinion that the prohibition on using funds for “propaganda” did not extend to
VNRs that did not constitute advocacy for any particular position or view. The
opinion reasoned that the purely informational nature of the VNRs at issue
distinguished them from the undisclosed advocacy that OLC had discouraged in
our 1988 opinion. Our 2004 opinion disagreed with a May 2004 GAO legal
opinion (cited in the recent GAO memorandum), in which GAO had concluded
that the same VNRs constituted impermissible “covert propaganda” even though,
as GAO recognized, the VNRs were informational in content and did not involve
advocacy.
   OLC does not agree with GAO that the “covert propaganda” prohibition applies
simply because an agency’s role in producing and disseminating information is
undisclosed or “covert,” regardless of whether the content of the message is
“propaganda.” Our view is that the prohibition does not apply where there is no
advocacy of a particular viewpoint, and therefore it does not apply to the legiti-
mate provision of information concerning the programs administered by an
agency. This view is supported by the legislative history, which indicates that
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. Thus, OLC disagrees with the Comptroller General’s conclusion, as stated
in his recent memorandum, that “agencies may not use appropriated funds to
produce or distribute prepackaged news stories intended to be viewed by television
audiences that conceal or do not clearly identify for the television viewing
audience that the agency was the source of those materials. It is not enough that
the contents of an agency’s communication may be unobjectionable.” Prepack-
aged News Stories, 2005 WL 608427, at *2.
   The Comptroller General’s conclusion fails to recognize the distinction be-
tween “covert propaganda” and purely informational VNRs, which do not
constitute “propaganda” within the common meaning of that term and therefore
are not subject to the appropriations restriction. Agencies are responsible for
reviewing their VNRs to ensure that they do not cross the line between legitimate
governmental information and improper government-funded advocacy.

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



                                        75
