[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 266 Introduced in Senate (IS)]
109th CONGRESS
1st Session
S. 266
To stop taxpayer funded Government propaganda.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 2, 2005
Mr. Lautenberg (for himself, Mr. Kennedy, Mr. Durbin, Mr. Corzine, Mrs.
Clinton, Mr. Dorgan, Mrs. Murray, Mr. Johnson, Mr. Reed, Mr. Lieberman,
and Mr. Leahy) introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To stop taxpayer funded Government propaganda.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Stop Government Propaganda Act''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) Since 1951, the following prohibition on the use of
appropriated funds for propaganda purposes has been enacted
annually: ``No part of any appropriation contained in this or
any other Act shall be used for publicity or propaganda
purposes within the United States not heretofore authorized by
Congress.''.
(2) On May 19, 2004, the Government Accountability Office
(GAO) ruled that the Department of Health and Human Services
violated the publicity and propaganda prohibitions by creating
fake television new stories for distribution to broadcast
stations across the country.
(3) On January 4, 2005, the GAO ruled that the Office of
National drug Control Policy violated the publicity and
propaganda prohibitions by distributing fake television news
stories to broadcast stations from 2002 to 2004.
(4) In 2003, the Department of Education violated publicity
and propaganda prohibitions by using of taxpayer funds to
create fake television news stories promoting the ``No Child
Left Behind'' program violated the propaganda prohibition.
(5) An analysis of individual journalists, paid for by the
Department of Education in 2003, which ranked reporters on how
positive their articles portrayed the Administration and the
Republican Party, constituted a gross violation of the law
prohibiting propaganda and the use of taxpayer funds for
partisan purposes.
(6) The payment of taxpayer funds to journalist Armstrong
Williams in 2003 to promote Administration education policies
violated the ban on covert propaganda.
(7) The payment of taxpayer funds to journalist Maggie
Gallagher in 2002 to promote Administration welfare and family
policies violated the ban on covert propaganda.
(8) Payment for and construction of 8 little red
schoolhouse facades at the entranceways to the Department of
Education headquarters in Washington, DC to boost the image of
the ``No Child Left Behind'' program was an inappropriate use
of taxpayer dollars.
(9) Messages inserted into Social Security Administration
materials in 2004 and 2005 intended to further grassroots
lobbying efforts in favor of President Bush's Social Security
privatization plan is an inappropriate use of taxpayer funds.
(10) The Department of Health and Human Services ignored
the Government Accountability Office's legal decision of May
19, 2004, and failed to follow the GAO's directive to report
its Anti-Deficiency Act violation to Congress and the
President, as provided by section 1351 of title 31, United
States Code.
(11) Despite numerous violations of the propaganda law, the
Department of Justice has not acted to enforce the law or
follow the requirements of the Anti-Deficiency Act.
(12) In order to protect taxpayer funds, stronger measures
must be enacted into law to require actual enforcement of the
ban on the use of taxpayer funds for propaganda purposes.
SEC. 3. DEFINITION.
In this Act, the term ``publicity'' or ``propaganda'' includes--
(1) a news release or other publication that does not
clearly identify the Government agency directly or indirectly
(through a contractor) financially responsible for the message;
(2) any audio or visual presentation that does not
continuously and clearly identify the Government agency
directly or indirectly financially responsible for the message;
(3) an Internet message that does not continuously and
clearly identify the Government agency directly or indirectly
financially responsible for the message;
(4) any attempt to manipulate the news media by payment to
any journalist, reporter, columnist, commentator, editor, or
news organization;
(5) any message designed to aid a political party or
candidate;
(6) any message with the purpose of self-aggrandizement or
puffery of the Administration, agency, Executive branch
programs or policies, or pending congressional legislation;
(7) a message of a nature tending to emphasize the
importance of the agency or its activities;
(8) a message that is so misleading or inaccurate that it
constitutes propaganda; and
(9) the preparation, distribution, or use of any kit,
pamphlet, booklet, publication, radio, television, or video
presentation designed to support or defeat legislation pending
before Congress or any State legislature, except in
presentation to Congress or any State legislature itself.
SEC. 4. PROHIBITION ON PUBLICITY OR PROPAGANDA AND ENFORCEMENT.
(a) In General.--The senior official of an Executive branch agency
who authorizes or directs funds appropriated to such Executive branch
agency for publicity or propaganda purposes within the United States,
unless authorized by law, is liable to the United States Government for
a civil penalty of not less than $5,000 and not more than $10,000, plus
3 times the amount of funds appropriated.
(b) Responsibilities of the Attorney General.--The Attorney General
diligently shall investigate a violation of subsection (a). If the
Attorney General finds that a person has violated or is violating
subsection (a), the Attorney General may bring a civil action under
this section against the person.
(c) Actions by Private Persons.--
(1) In general.--A person may bring a civil action for a
violation of subsection (a) for the person and for the United
States Government. The action shall be brought in the name of
the Government. The action may be dismissed only if the court
and the Attorney General give written consent to the dismissal
and their reasons for consenting.
(2) Notice.--A copy of the complaint and written disclosure
of substantially all material evidence and information the
person possesses shall be served on the Government pursuant to
Rule 4(d)(4) of the Federal Rules of Civil Procedure. The
complaint shall be filed in camera, shall remain under seal for
at least 60 days, and shall not be served on the defendant
until the court so orders. The Government may elect to
intervene and proceed with the action within 60 days after it
receives both the complaint and the material evidence and
information.
(3) Delay of notice.--The Government may, for good cause
shown, move the court for extensions of the time during which
the complaint remains under seal under paragraph (2). Any such
motions may be supported by affidavits or other submissions in
camera. The defendant shall not be required to respond to any
complaint filed under this section until 20 days after the
complaint is unsealed and served upon the defendant pursuant to
Rule 4 of the Federal Rules of Civil Procedure.
(4) Government action.--Before the expiration of the 60-day
period or any extensions obtained under paragraph (3), the
Government shall--
(A) proceed with the action, in which case the
action shall be conducted by the Government; or
(B) notify the court that it declines to take over
the action, in which case the person bringing the
action shall have the right to conduct the action.
(5) Limited intervention.--When a person brings an action
under this subsection, no person other than the Government may
intervene or bring a related action based on the facts
underlying the pending action.
(d) Rights of the Parties.--
(1) Government action.--If the Government proceeds with the
action, it shall have the primary responsibility for
prosecuting the action, and shall not be bound by an act of the
person bringing the action. Such person shall have the right to
continue as a party to the action, subject to the limitations
set forth in paragraph (2).
(2) Limitations.--
(A) Dismissal.--The Government may dismiss the
action notwithstanding the objections of the person
initiating the action if the person has been notified
by the Government of the filing of the motion and the
court has provided the person with an opportunity for a
hearing on the motion.
(B) Settlement.--The Government may settle the
action with the defendant notwithstanding the
objections of the person initiating the action if the
court determines, after a hearing, that the proposed
settlement is fair, adequate, and reasonable under all
the circumstances. Upon a showing of good cause, such
hearing may be held in camera.
(C) Proceedings.--Upon a showing by the Government
that unrestricted participation during the course of
the litigation by the person initiating the action
would interfere with or unduly delay the Government's
prosecution of the case, or would be repetitious,
irrelevant, or for purposes of harassment, the court
may, in its discretion, impose limitations on the
person's participation, such as--
(i) limiting the number of witnesses the
person may call;
(ii) limiting the length of the testimony
of such witnesses;
(iii) limiting the person's cross-
examination of witnesses; or
(iv) otherwise limiting the participation
by the person in the litigation.
(D) Limit participation.--Upon a showing by the
defendant that unrestricted participation during the
course of the litigation by the person initiating the
action would be for purposes of harassment or would
cause the defendant undue burden or unnecessary
expense, the court may limit the participation by the
person in the litigation.
(3) Action by person.--If the Government elects not to
proceed with the action, the person who initiated the action
shall have the right to conduct the action. If the Government
so requests, it shall be served with copies of all pleadings
filed in the action and shall be supplied with copies of all
deposition transcripts (at the Government's expense). When a
person proceeds with the action, the court, without limiting
the status and rights of the person initiating the action, may
nevertheless permit the Government to intervene at a later date
upon a showing of good cause.
(4) Interference.--Whether or not the Government proceeds
with the action, upon a showing by the Government that certain
actions of discovery by the person initiating the action would
interfere with the Government's investigation or prosecution of
a criminal or civil matter arising out of the same facts, the
court may stay such discovery for a period of not more than 60
days. Such a showing shall be conducted in camera. The court
may extend the 60-day period upon a further showing in camera
that the Government has pursued the criminal or civil
investigation or proceedings with reasonable diligence and any
proposed discovery in the civil action will interfere with the
ongoing criminal or civil investigation or proceedings.
(5) Government action.--Notwithstanding subsection (b), the
Government may elect to pursue its claim through any alternate
remedy available to the Government, including any
administrative proceeding to determine a civil money penalty.
If any such alternate remedy is pursued in another proceeding,
the person initiating the action shall have the same rights in
such proceeding as such person would have had if the action had
continued under this section. Any finding of fact or conclusion
of law made in such other proceeding that has become final
shall be conclusive on all parties to an action under this
section. For purposes of the preceding sentence, a finding or
conclusion is final if it has been finally determined on appeal
to the appropriate court of the United States, if all time for
filing such an appeal with respect to the finding or conclusion
has expired, or if the finding or conclusion is not subject to
judicial review.
(e) Award to Private Plaintiff.--
(1) Government action.--If the Government proceeds with an
action brought by a person under subsection (c), such person
shall, subject to the second sentence of this paragraph,
receive at least 15 percent but not more than 25 percent of the
proceeds of the action or settlement of the claim, depending
upon the extent to which the person substantially contributed
to the prosecution of the action.
(2) No government action.--If the Government does not
proceed with an action under this section, the person bringing
the action or settling the claim shall receive an amount which
the court decides is reasonable for collecting the civil
penalty and damages. The amount shall be not less than 25
percent and not more than 30 percent of the proceeds of the
action or settlement and shall be paid out of such proceeds.
Such person shall also receive an amount for reasonable
expenses which the court finds to have been necessarily
incurred, plus reasonable attorneys' fees and costs. All such
expenses, fees, and costs shall be awarded against the
defendant.
(3) Frivolous claim.--If the Government does not proceed
with the action and the person bringing the action conducts the
action, the court may award to the defendant its reasonable
attorneys' fees and expenses if the defendant prevails in the
action and the court finds that the claim of the person
bringing the action was clearly frivolous, clearly vexatious,
or brought primarily for purposes of harassment.
(f) Government Not Liable for Certain Expenses.--The Government is
not liable for expenses which a person incurs in bringing an action
under this section.
(g) Fees and Expenses to Prevailing Defendant.--In civil actions
brought under this section by the United States, the provisions of
section 2412(d) of title 28 shall apply.
(h) Whistleblower Protection.--
(1) In general.--Any employee who is discharged, demoted,
suspended, threatened, harassed, or in any other manner
discriminated against in the terms and conditions of employment
by his or her employer because of lawful acts done by the
employee on behalf of the employee or others in furtherance of
an action under this section, including investigation for,
initiation of, testimony for, or assistance in an action filed
or to be filed under this section, shall be entitled to all
relief necessary to make the employee whole.
(2) Relief.--Relief under this subsection shall include
reinstatement with the same seniority status such employee
would have had but for the discrimination, 2 times the amount
of back pay, interest on the back pay, and compensation for any
special damages sustained as a result of the discrimination,
including litigation costs and reasonable attorneys' fees. An
employee may bring an action in the appropriate district court
of the United States for the relief provided in this
subsection.
SEC. 5. JUDICIAL NOTICE.
The courts of the United States shall take cognizance and notice of
any legal decision of the Government Accountability Office interpreting
the application of this Act.
SEC. 6. POINT OF ORDER.
(a) In General.--
(1) Reduction of salary.--It shall not be in order in the
House of Representatives or the Senate to consider a bill,
amendment, or resolution providing an appropriation for an
agency that the Government Accountability Office has found in
violation of this Act unless the appropriations for salary and
expenses for the head of the relevant agency contains a
provision reducing the salary of the head by an amount equal to
the illegal expenditure identified by the Government
Accountability Office. If the illegal expenditure exceeds the
annual salary of the agency head, then the point of order shall
continue until the remaining amount is subtracted from the
salary of the agency head.
(2) Compliance.--Paragraph (1) shall not apply if the
agency is complying with the decision of the Government
Accountability Office.
(b) Supermajority Waiver and Appeal.--This section may be waived or
suspended in the Senate only by an affirmative vote of \3/5\ of the
Members, duly chosen and sworn. An affirmative vote of \3/5\ of the
Members of the Senate, duly chosen and sworn, shall be required in the
Senate to sustain an appeal of the ruling of the Chair on a point of
order raised under this section.
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