II 109th CONGRESS 1st Session S. 266 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.

1.

Short title

This Act may be cited as the Stop Government Propaganda Act.

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.

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.

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.

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.

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.