                                   General Services Administration Use of
                                    Government Funds for Advertising
             Section 632 of the Treasury, Postal Service, Executive Office of the President, and General Govern-
               ment Appropriations Act of 2000, which prohibits the use of appropriated funds for “publicity or
               propaganda purposes,” does not prohibit the General Services Administration from using appropri-
               ated funds to support a reasonable and carefully-controlled advertising campaign that serves the goal
               of informing other federal agencies about the products and services it offers.
             The principles set forth in some opinions of the Comptroller General addressing limitations on
               advertising by federal agencies beyond the “publicity or propaganda” rider would not prohibit the
               GSA’s advertisements to other agencies.

                                                                                                  January 19, 2001

                            MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL
                                    GENERAL SERVICES ADMINISTRATION

                You have asked whether section 632 of the Treasury, Postal Service, Executive
             Office of the President, and General Government Appropriations Act of 2000,
             Pub. L. No. 106-58, § 632, 113 Stat. 430, 473 (1999) (“General Government
             Appropriations Act of 2000”), which prohibits the use of appropriated funds for
             “publicity or propaganda purposes,” disables the General Services Administration
             (“GSA”) from expending money for advertising and promoting the services and
             programs it offers to other federal agencies. We believe that GSA may use
             appropriated funds for such advertising. The advertisements, however, must be
             aimed at providing information about GSA’s offerings rather than aggrandizing or
             unduly emphasizing GSA’s importance. 1 You have also asked whether, even apart
             from the “publicity or propaganda” rider, principles identified in opinions of the
             Comptroller General limiting advertising by federal agencies would prohibit the
             GSA’s advertisements.

                                                                 I.

                We understand that the advertisements in question give information to other
             federal agencies about the services and products that GSA offers. GSA “provides
             Federal agencies a myriad of supplies and services ranging from building con-
             struction and leasing of office space to providing personal property for virtually all
             agency needs.” Letter for Randolph Moss, Acting Assistant Attorney General,
             Office of Legal Counsel, from George N. Barclay, Acting General Counsel, GSA
             at 2 (Nov. 12, 1998) (“GSA Letter”). In addition, the Federal Property and
             Administrative Services Act (“FPASA”) charges GSA with the responsibility for

                 1
                     We do not address the legality of any specific advertisements, which must be evaluated individu-
             ally.




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         procuring services and supplies for federal agencies in a manner it determines to
         be “advantageous to the Government in terms of economy, efficiency, or service,
         and with due regard to the program activities of the agencies concerned.” 40
         U.S.C. § 481(a) (1994). These statutory duties include overseeing the provision of
         information technology services, id. § 757, procuring federal property, id. § 756,
         operating the federal motor vehicle fleet, id. § 491, and disposing of surplus
         property, id. § 484. GSA asserts that “[i]n order to demonstrate to Federal agencies
         the benefits of a single, centralized procurement activity and to fulfill the mandate
         expressed in the [FPASA], GSA believes that it is necessary and appropriate to
         educate, promote and advertise its activities to its federal customers.” GSA Letter
         at 2. GSA argues, therefore, that

                  the Administrator of General Services has the discretion to determine
                  if advertising will further any of these statutorily authorized mis-
                  sions, thereby constituting a necessary and proper use of appropriat-
                  ed funds. . . . If the Administrator determines that certain forms of
                  advertising or publicity are reasonable, necessary and proper in
                  communicating the availability and advantages of GSA’s programs,
                  appropriated funds should be available for this purpose.

         Letter for Emily C. Hewitt, General Counsel, General Services Administration,
         from George Barclay, Associate General Counsel, Personal Property Division, and
         Eugenia D. Ellison, Associate General Counsel, General Law Division, General
         Services Administration, Re: Publicity and Propaganda Prohibition Clause
         Contained in Agency Appropriations Acts at 2 (Nov. 6, 1998) (“GSA General
         Counsel Memorandum”).

                                                        II.

            Section 632 of the General Government Appropriations Act of 2000, provides
         that “[n]o part of any appropriation contained in this or any other Act shall be used
         for publicity or propaganda purposes within the United States not heretofore
         authorized by Congress.” A similar provision, in essentially the same form, has
         applied to GSA since 1989. See, e.g., Treasury, Postal Service, Executive Office of
         the President, and Certain Independent Agencies Appropriations Act, 1989, Pub.
         L. No. 100-440, § 513, 102 Stat. 1721 (Sept. 22, 1988). 2




             2
               The analogous statutory provision in the 1998 GSA appropriations act was section 601 of the
         Omnibus Consolidated and Emergency Supplemental Appropriations Act, Pub. L. No. 105-277, 112
         Stat. 2681 (1998). A similar provision has been in other appropriations acts since 1952. See, e.g.,
         Labor-Federal Security Appropriation Act, Pub. L. No. 82-134, § 702, 65 Stat. 209, 223 (1951).




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                Congress has enacted a number of statutes that restrict agencies’ authority to
             spend funds for “publicity or propaganda” or lobbying. 3 All of these statutes raise
             substantial difficulties of interpretation. A “publicity or propaganda” rider such as
             section 632 creates the special difficulty that its language gives scant guidance
             about the line between what is permitted and what is forbidden. The Comptroller
             General, for example, has “consistently expressed [the] belief” that the language
             used in such riders “does not provide adequate guidelines under which to judge the
             activities of an agency, especially when balanced against the agency’s legitimate
             interest in communicating with the public and with members of Congress for
             permissible purposes.” Rep. Benjamin S. Rosenthal, B-184,648, 1975 WL 9457, at
             *6 (Comp. Gen. Dec. 3, 1975). The principal sources of guidance for construing
             this rider and other “publicity or propaganda” provisions are prior administrative
             interpretations, which are based largely upon general concepts about the structure
             of government.
                Our Office’s work in this general area has primarily focused on the Anti-
             Lobbying Act, 18 U.S.C. § 1913 (1994), and our “published opinions do not set
             out a detailed, independent analysis of ‘publicity or propaganda’ riders” in the
             appropriations statutes. See Memorandum for the Attorney General, from Walter
             Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Anti-Lobby-
             ing Act Guidelines at 3 (Apr. 14, 1995). Nevertheless, one distinction that runs
             through our Office’s opinions in this general field bears particularly on the
             question you have asked. We have “sought to draw a distinction . . . between
             activities that are intended to ‘give . . . information as to the work of [a] depart-
             ment,’ and activities that seek to ‘extol and exploit the virtues of [a] department.’”
             Establishment of the President’s Council for International Youth Exchange, 6 Op.
             O.L.C. 541, 547 (1982) (“International Youth Exchange”) (quoting 50 Cong. Rec.
             4411 (1913) (remarks of Rep. Lever on precursor to 5 U.S.C. § 3107)). We have
             focused on whether the activity in question provides important information about
             the agency and the discharge of its statutory mandate or instead serves to aggran-
             dize the agency or its officials. See, e.g., Memorandum for the Deputy Attorney
             General from Ralph W. Tarr, Acting Assistant Attorney General, Office of Legal
             Counsel, Re: Hiring of Media Consultants to Advise Department Attorneys With
             Respect to Their Dealings with the Press at 3 (Jan. 24, 1985) (“Media Consult-
             ants”) (approving use of appropriated funds to support hiring media consultants if
             reasonably necessary to assist agency in performing its legitimate functions with


                 3
                   See, e.g., Pub. L. No. 106-58, § 627, 113 Stat. 430, 472 (1999) (“No part of any funds appropriat-
             ed in this or any other Act shall be used . . . for publicity or propaganda purposes . . . designed to
             support or defeat legislation pending before the Congress, except in presentation to the Congress
             itself.”); 5 U.S.C. § 3107 (1994) (“Appropriated funds may not be used to pay a publicity expert unless
             specifically appropriated for that purpose.”); 18 U.S.C. § 1913 (1994) (“No part of the money
             appropriated by any enactment of Congress shall . . . be used . . . to favor or oppose, by vote or
             otherwise, any legislation or appropriation by Congress . . . .”).




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         respect to press; cautioning, however, that consultants “should not and cannot be
         employed in any effort to emphasize unduly or aggrandize the accomplishments of
         the Department or its officials. . . . [W]hether a particular activity falls within this
         general area can be determined only on the facts of each case.”). 4
            To be sure, “[t]he line between information and ‘publicity’ is almost impossible
         to draw, since any information about an agency’s activity will publicize the
         agency, and almost all publicity will contain information about the government or
         about government programs.” Memorandum for Joseph F. Dolan, Assistant
         Deputy Attorney General, from Norbert A. Schlei, Assistant Attorney General,
         Office of Legal Counsel, Re: Request of House Subcommittee for Interpretation of
         5 U.S.C. § 54 at 3 (Mar. 1, 1963) (discussing predecessor to 5 U.S.C. § 3107).
         “Publicity or propaganda” riders, however, require attempts at drawing that line.
            In attempting to do so here, we can take some guidance from the opinions of
         the Comptroller General and the General Accounting Office (“GAO”). 5 Noting the
         vagueness of the language of “publicity or propaganda” riders in appropriations
         acts and the absence of legislative history shedding much light on their meaning,
         see, e.g., Rep. Jack Brooks, 66 Comp. Gen. 707, 709 (1987); Sen. David Pryor,
         B-229,257, 1988 WL 227903, at *4 (Comp. Gen. June 10, 1988); Sen. Lowell
         Weicker, Jr., B-223,098, 1986 WL 64325, at *6 (Comp. Gen. Oct. 10, 1986);


             4
               See also Memorandum for the Attorney General from Theodore B. Olson, Assistant Attorney
         General, Office of Legal Counsel, Re: Proposed Television Pilot/Series on the Drug Enforcement
         Administration at 5-6 (Sept. 14, 1984) (upholding use of appropriated funds to cooperate with
         development of television series on Drug Enforcement Administration (“DEA”), in part because
         agency’s activities “would be limited to the provision of accurate information concerning the DEA’s
         activities, reviewing the accuracy and fairness of any subsequent dramatization of these stories,
         guarding against the misuse of the Department’s seals or identity, and safeguarding, to the extent
         necessary, information in Department files,” activities which would not “amount to the aggrandizement
         that is prohibited by statute.”); Memorandum for Theodore B. Olson, Assistant Attorney General,
         Office of Legal Counsel, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal
         Counsel, Re: Authority of the Office of Justice Assistance, Research, and Statistics at 3 (Jan. 6, 1983)
         (permitting agency to use appropriated funds to support crime prevention advertising campaign but
         deeming significant the fact that advertisements in question would not make reference to the Federal
         government or its activities; therefore, advertisements were not produced “for the purpose of reflecting
         credit upon an activity or upon the officials charged with its administration.”); International Youth
         Exchange, 6 Op. O.L.C. at 548, 549 (concluding that a “limited use of appropriated funds [by the
         United States Information Agency (“USIA”)] to support a reasonable and carefully controlled
         advertising campaign by the [President’s Council on International Youth Exchange]” in support of
         youth exchange programs was proper in part because USIA has specific statutory authority to promote
         such activities by the private sector, but “the proposed USIA advertising campaign should be carefully
         tailored and scrutinized so that it does not unduly emphasize the accomplishments of the USIA or
         aggrandize the agency or its officials.”).
             5
               The Comptroller General is an officer of the Legislative Branch, see Bowsher v. Synar, 478 U.S.
         714, 727-32 (1986), and, historically, the Executive Branch has not considered itself bound by the
         Comptroller General’s legal opinions if they conflict with the legal opinions of the Attorney General or
         this Office. Nonetheless, the Comptroller General’s opinions can provide guidance on certain technical
         matters.




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             Rosenthal, B-184,648, 1975 WL 9457, at *6, the Comptroller General has
             construed the language to prohibit (among other things) “publicity of a nature
             tending to emphasize an agency’s own importance, which [he has] labeled as ‘self-
             aggrandizement.’” Pryor, B-229,257, 1988 WL 227903, at *5. 6 His interpretations
             of “publicity or propaganda” riders have acknowledged, however, that agencies
             have significant legitimate interests in publicizing their activities and programs.
             Recognizing that “every agency has a legitimate interest in communicating with
             the public and with the Congress regarding its functions, policies, and activities,”
             1 General Accounting Office, Principles of Federal Appropriations Law at 4-162
             (2d ed. 1991) (“Federal Appropriations Law”), the GAO has stated that it is
             “reluctant to find a violation where the agency can provide a reasonable justifica-
             tion for its activities,” id. at 4-165; see also Sen. Thomas F. Eagleton, B-178,528,
             1978 WL 10850, at *2 (Comp. Gen. July 27, 1978). As the GAO’s Federal
             Appropriations Law textbook states, “[i]n evaluating whether a given action
             violates a ‘publicity or propaganda’ provision, GAO will rely heavily on the
             agency’s administrative justification. In other words, the agency gets the benefit of
             any legitimate doubt.” 1 Federal Appropriations Law at 4-163.
                Accordingly, in its most recent construction of such an appropriations rider, the
             Comptroller General determined that a report issued by the Department of
             Housing and Urban Development (“HUD”) criticizing proposed congressional
             cuts in HUD programs did not violate the rider. See Application of Anti-Lobbying
             Restrictions to HUD Report Losing Ground, B-284,226.2, 2000 WL 1193462, at
             *3 (Comp. Gen. Aug. 17, 2000) (noting that “[p]ublic officials may report on the
             activities and programs of their agencies, may justify those policies to the public,
             and may rebut attacks on those policies.”). Similarly, in its first construction of the
             ban, the Comptroller General concluded that some press releases issued by the
             National Labor Relations Board Division of Information (“NLRB”) did not violate
             the rider because the rider does not prohibit “those functions [of the NLRB press
             office] which deal with dissemination to the general public, or to particular
             inquirers, of information reasonably necessary for the proper administration of the
             laws the duty for the enforcement of which falls upon [the NLRB],” Appropria-
             tions—Limitations—Publicity And Propaganda Prohibition—Labor—Federal
             Security Appropriation Act, 1952, 31 Comp. Gen. 311, 314 (1952), but rather was
             intended, like other statutory provisions similarly limiting appropriations expendi-
             tures, “to prevent publicity of a nature tending to emphasize the importance of the
             agency or activity in question,” id. at 313; Sen. Barry Goldwater, B-194,776, 1979
             WL 12361, at *1 (Comp. Gen. June 4, 1979) (“[T]his provision prohibits agency

                 6
                   The Comptroller General has also construed the language to prohibit “covert propaganda activities
             carried on by covered agencies,” Pryor, B-229,257, 1988 WL 227903, at *4, and certain grass-roots
             activities clearly designed to enlist the public in efforts to lobby Congress, see, e.g., Rep. Glenard P.
             Lipscomb, B-136,762, 1958 WL 2169, at *2 (Comp. Gen. Aug. 18, 1958). Neither of these interpreta-
             tions is at issue here.




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         officials from using funds, subject to this restriction, solely for publicity of a
         nature tending to emphasize the importance of the agency or a particular agency
         activity.”); see also HUD Report Losing Ground, B-284,226.2, 2000 WL 119346,
         at *3 (“The restriction is directed typically toward activities whose obvious
         purpose is ‘self-aggrandizement’ and ‘puffery.’”); Eagleton, B-178,528, 1978 WL
         10850, at *3 (finding that mass mailing by Republican National Committee of
         excerpts from newspapers praising president, transmitted with letter prepared by
         member of White House staff on State Department letterhead, did not violate
         similar prohibition, because “[i]n this case the expenditure of appropriated funds
         was not for the aggrandizement of the Department of State.”). 7

                                                          III.

            In light of the interpretation given to “publicity or propaganda” riders by our
         Office as well as by the Comptroller General, we believe that GSA would not be
         prohibited from using appropriated funds to support a reasonable and carefully-
         controlled advertising campaign that serves the goal of informing other federal
         agencies about the products and services available from GSA. The “publicity or
         propaganda” rider does not forbid an agency from providing information about its
         programs and activities, as long as the agency is not aggrandizing itself. Providing
         information is one means by which an agency achieves its mission. In this
         instance, moreover, the mission of the agency justifies presenting information in
         the form of advertising. Because of GSA’s statutory mandate to procure services

             7
               Our 1985 Media Consultants opinion cited only two cases in which the Comptroller General had
         found agency activity to violate a ban on unauthorized publicity. Id. at 4. In the first case, the
         Comptroller General concluded that because a speech by the Deputy Assistant Secretary of Defense
         was “clearly designed to enlist the aid” of an industry association in lobbying for defense programs, it
         went “far beyond the established practice of government agencies to keep the public informed of the
         aims and achievements of authorized government programs,” and therefore violated the publicity and
         propaganda restriction. Lipscomb, B-136,762, 1958 WL 2169, at *2. The second case, Federal Housing
         Administration—Conventions and Gatherings—Statutory Construction, 14 Comp. Gen. 638 (1935),
         predated the inclusion of the rider in general appropriations statutes. In that case, the Comptroller
         General found that a campaign by the Federal Housing Authority to promote home owner improve-
         ments violated a specific statutory provision prohibiting it from sponsoring campaigns and conventions
         not otherwise authorized. Id. at 641. See also Weicker, B-223,098, 1986 WL 64325, at *1, *6 (noting
         that “suggested editorials” supporting Administration policies prepared by Small Business Administra-
         tion for distribution to newspapers violate rider because they “are misleading as to their origin and
         reasonably constitute ‘propaganda’ within the common understanding of that term”); 1 Federal
         Appropriations Law at 4-161 to 4-179 (citing additional examples).
             Editor’s Note: The version of this opinion originally published online stated that the Federal
         Appropriations Law textbook cited only two cases in which the Comptroller General found activity to
         violate a ban on unauthorized publicity. Strictly speaking, it was the Media Consultants opinion that
         made this representation, regarding an outdated version of the GAO textbook, and not the second
         edition of Federal Appropriations Law that is discussed in the text of the opinion. This footnote has
         accordingly been revised to make clear that there are more examples than just the two identified in the
         Media Consultants opinion.




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             and supplies for federal agencies in a manner that it determines is “advantageous
             to the Government in terms of economy, efficiency, or service,” 40 U.S.C.
             § 481(a), GSA’s mission includes being a provider of goods and services to
             federal agencies. GSA advertisements that reasonably deal with the efficiency,
             economy, or quality of GSA products would carry out that mission and would not
             violate the “publicity or propaganda” ban. However, like the USIA advertising
             campaign, see International Youth Exchange, 6 Op. O.L.C. at 549, the proposed
             GSA advertising campaign should be carefully tailored so that it does not unduly
             emphasize the accomplishments of GSA or aggrandize the agency, its functions, or
             its officials, but rather provides information reasonably within GSA’s statutory
             mandate. Proposed advertisements should inform potential customers about the
             qualities of GSA’s products and services and offer the sort of information about
             GSA’s capabilities that could affect potential customers’ decisions regarding
             suppliers. 8

                                                              IV.

                Finally, we do not believe that the principles set forth in some opinions of the
             Comptroller General addressing limitations on advertising by federal agencies
             beyond the “publicity or propaganda” rider would prohibit the GSA’s advertise-
             ments to other federal agencies. The available opinions concern the use of
             appropriations to advertise to the general public, not to other agencies. Even
             assuming the standards set forth in these opinions would apply, GSA would
             apparently be permitted to advertise in order to inform other federal agencies
             about its products and services. The GAO has stated generally that

                      [w]hether an agency’s appropriations are available for advertising,
                      like any other expenditure, depends on the agency’s statutory author-
                      ity. Whether to advertise and, if so, how far to go with it are deter-
                      mined by the precise terms of the agency’s program authority in con-
                      junction with the necessary expense doctrine and general restrictions
                      on the use of public funds such as the various anti-lobbying statutes.

             1 Federal Appropriations Law at 4-188; see also Mr. Byrne A. Bowman,
             B-114,874.30, 1976 WL 10445, at *2 (Comp. Gen. Mar. 3, 1976) (concluding that
             U.S. Postal Service’s statutory mandate to “‘provide philatelic services’” and
             “‘promote[] and provide adequate and efficient postal services at fair and reasona-
             ble rates’” implies authority to advertise sale of stamps) (quoting 39 U.S.C.
             §§ 404(5) & 403(a)). Given GSA’s statutory responsibility to ensure the procure-

                8
                  Even if GSA would get the benefit of any legitimate doubt about whether its advertisements are
             consistent with this limitation, the Administrator, as shown above, would not have unfettered discretion
             over the content of these advertisements.




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         ment of products and services for federal agencies in an economical and efficient
         manner, advertisements that inform other federal agencies of these products and
         services would seem to be a “necessary expense,” as long as they do not violate
         other statutory limitations, such as the “publicity or propaganda” bar.

                                                            DANIEL L. KOFFSKY
                                                    Acting Deputy Assistant Attorney General
                                                            Office of Legal Counsel




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