[Congressional Record Volume 151, Number 9 (Wednesday, February 2, 2005)]
[Senate]
[Pages S895-S898]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By 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):
  S. 266. A bill to stop taxpayer funded Government propaganda; to the 
Committee on the Judiciary.
  Mr. LAUTENBERG. Mr. President, I rise to introduce legislation to put 
an end to the spate of propaganda we are seeing across our government. 
In my view, it is a practice that is inconsistent with democracy, and 
we have to put a stop to it.
  That is why Senator Kennedy and I have drafted the ``Stop Government 
Propaganda Act'' which we are introducing today, along with our 
cosponsors, Senators Durbin, Corzine, Clinton, Dorgan, Murray, Johnson, 
Jack Reed, Lieberman and Leahy.

[[Page S896]]

  Our bill will shut down the Administration's propaganda mill once and 
for all.
  Propaganda had its place in Saddam's Iraq. Propaganda was a staple of 
the old Soviet Union. But covert government propaganda has no place in 
the United States Government.
  In the last few weeks, we have seen revelations that a number of 
conservative columnists are actually on the Bush Administration's 
payroll to push the President's agenda.
  Armstrong Williams was paid to improve the image of President Bush's 
education programs, and the columnists Maggie Gallagher and Mike 
McManus were paid to promote the President's ``marriage initiative.''
  Some have called it the ``pundit payola'' scandal. But this scandal 
goes well beyond these particular payments to journalists.
  In fact, these secret payments are only the latest in a series of 
covert propaganda activities conducted by this Administration.
  Last year, we discovered that the Administration was paying a public 
relations firm to creat fake television news stories. These fake news 
stories touting the new Medicare law made their way onto local news 
shows on forty television stations across the country.
  These fake news stories even featured a fake reporter--Karen Ryan 
``reporting from Washington.'' While Karen Ryan does exist, she's not a 
reporter. She is a public relations consultant based here in 
Washington.
  Worse, the viewers who watched these fake news stories thought they 
were hearing real news. But what they were watching was Government-
produced propaganda.
  The Government Accountability Office investigated the legality of 
these fake news stories and came back with a clear decision: it was 
illegal propaganda. The GAO also said that the Administration must 
officially report the misspent funds to Congress.
  But the Bush Administration simply ignored GAO's legal ruling. The 
Administration said that because of the separation of powers, the GAO 
can't tell them what to do.
  So, in other words, the Administration has said that they will ignore 
the current law on the books. That is why we are introducing new 
legislation today that will put real teeth in the anti-propaganda law.
  Our bill, the Stop Government Propaganda Act, does two major things:
  First, it makes the Anti-Propaganda law permanent.
  Right now, the anti-propaganda law is passed year to year as a 
``rider'' in our appropriations bills. Making the law permanent will 
show that we are serious about it and want it obeyed.
  Also, our bill has real consequences for violations by the 
Administration. The current law is enforced by GAO, and the 
Administration is obviously ignoring their rulings. That has to change.
  Our bill calls for the Justice Department to pursue these violations. 
But in cases where DOJ fails to act, our bill authorizes citizen 
lawsuits to enforce the law.
  And we also give added power to the GAO. Right now, the 
Administration ignores the GAO's legal decisions. But our bill will 
make it downright painful for the Administration to ignore the GAO.
  When the GAO finds that taxpayer funds are misspent for propaganda 
purposes, and the agency fails to follow the GAO's ordered actions, our 
bill would call for the head of that agency's salary to be withheld.
  Our bill establishes a point of order against any appropriations bill 
that fails to enforce the salary reduction.
  Last week, President Bush said he agrees that it is wrong to pay 
journalists and that the practice must stop. But at the same time, the 
Bush Administration continues to ignore GAO's rulings on their 
propaganda violations.
  And while the attention was on Armstrong Williams, the Administration 
has been ramping up propaganda efforts at the Social Security 
Administration. In fact, last week, the Democratic Policy Committee 
heard testimony from two Social Security employees who revealed how 
they are being forced to push the White House agenda on the public.
  Rather than concentrate on getting benefits out or servicing people 
on Social Security, the White House is using SSA employees to spread 
its false propaganda message of a ``crisis'' in Social Security.
  That is why we must act now to put a stop to all of these practices. 
I urge my colleagues to support our bill, the Stop Government 
Propaganda Act.
  As we seek to establish democracy in Iraq, let's first remove this 
taint from our own democracy.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 266

       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

[[Page S897]]

       (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

[[Page S898]]

     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.

  Mr. KENNEDY. Mr. President, we have to stop right now all the 
taxpayer-financed propaganda put out by our government to influence the 
American people. We need to expedite the investigations, begin 
congressional hearings, and pass specific new legislation to prevent 
the administration from using persons paid to pose as legitimate 
journalists to push for the Bush political agenda.
  Last week, we found out, according to the Washington Post, that 
another commentator, Maggie Gallagher, was paid $21,500 by the 
Department of Health and Human Services to promote the Bush 
administration's marriage agenda--a fact she didn't disclose to her 
readers while writing on the issue.
  As most of us now know, thanks to USA Today, the outgoing leadership 
of the Education Department secretly, and still unapologetically, paid 
$241,000 to commentator Armstrong Williams to influence his broadcasts. 
Mr. Williams was paid to comment favorably on the President's No Child 
Left Behind Act education reform plan, to conduct phony ``interviews'' 
with administration officials, and to encourage his colleagues in the 
media to do the same.
  The Gallagher and Williams payments were part of a multimillion 
dollar, taxpayer-funded public relations scheme to influence and 
undermine America's free press. Journalists were ranked on the 
favorability of their news coverage of President Bush on education. 
Phony video reports and interviews about the President's Medicare 
prescription drug law were broadcast as independent news on local 
television.
  All parties agree that this type of secret government paid journalism 
is wrong. Yet Ms. Gallagher and Mr. Williams continue to retain their 
$21,500 and $241,000 bribes.
  I am pleased to join Senator Lautenberg, who has been our leader on 
this issue, in introducing legislation to permanently prohibit the use 
of taxpayer funds for the type of manipulative payments that Ms. 
Gallagher and Mr. Williams received. Our legislation will prohibit 
agencies from issuing news releases, video news releases, and internet 
messages that do not clearly identify the government as financially 
responsible for the information.
  It will enforce these prohibitions by creating a mechanism to dock 
the pay of any Cabinet Secretary or agency head responsible, and by 
authorizing private citizens to bring a court action to recover 
taxpayer funds.
  Propaganda by the Department of Health and Human Services, the 
Department of Education, and the Office of Drug Control and Policy has 
to stop now, before the infection spreads. We cannot sit still in 
Congress while the administration corrupts the first amendment and 
freedom of the press.
                                 ______