[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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