TITLE: B-304228, Department of Education--No Child Left Behind Act Video News Release and Media Analysis, September 30, 2005
BNUMBER: B-304228
DATE: September 30, 2005
*********************************************************************************************************************
B-304228, Department of Education--No Child Left Behind Act Video News Release and Media Analysis, September 30, 2005
B-304228
September 30, 2005
The Honorable Frank R. Lautenberg
United States Senate
The Honorable Edward M. Kennedy
United States Senate
Subject: Department of Education--No Child Left Behind Act Video News
Release and Media Analysis
In a letter dated October 14, 2004, you requested our opinion on the
Department of Education's (Department) use of appropriated funds to hire
Ketchum, Inc. (Ketchum), to conduct a media analysis and to produce and
distribute a video news release (VNR) regarding programs available under
the No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425
(Jan. 8, 2002)(NCLB Act). You asked whether these activities violated the
governmentwide prohibition against using appropriated funds for publicity
or propaganda not authorized by Congress. See Consolidated Appropriations
Act of 2004, Pub. L. No. 108-199, div. F, title VI, sect. 624, 118 Stat.
3, 356 (Jan. 23, 2004); Consolidated Appropriations Resolution, 2003, Pub.
L. No. 108-7, div. J, title VI, sect. 626, 117 Stat. 470 (Feb. 20, 2003).
We have applied the publicity or propaganda prohibition to forbid the use
of appropriations for (1) covert propaganda, (2) purely partisan
activities, or (3) self-aggrandizing activities. B-302504, Mar. 10, 2004.
The VNR on supplemental education services under the NCLB Act at issue
here contains a prepackaged news story that fails to identify the
Department as the source of the news story. See id. Because the
Department's role in the production and distribution of the prepackaged
news story is not revealed to the target audience, the prepackaged news
story constitutes covert propaganda. We disagree with the Department's
contention that the prepackaged news stories are not covert propaganda
because they contain only factual information. To constitute a legitimate
information dissemination activity that does not violate the publicity or
propaganda prohibition, the Department must inform the viewing public that
the government is the source of the information disseminated.[1]
With respect to the media analysis, the Department directed Ketchum to
assess whether its messages were reaching target audiences and were being
mentioned in a positive way. While we question the usefulness of the
Department's methodology in achieving its stated objective, we recognize
that a media analysis similar to the one conducted by the Department is
within its authority. As part of this media analysis, however, Ketchum
evaluated the media perception that the "Bush Administration/the GOP is
committed to education." Appropriated funds are not available to evaluate
the Republican Party's (or any other political party's) commitment to
education, and the Department should take appropriate steps to ensure that
no such use of its appropriations occurs in the future.
BACKGROUND
On January 8, 2002, President Bush signed into law the NCLB Act, with the
stated purpose "to close the achievement gap with accountability,
flexibility, and choice, so that no child is left behind." Pub. L. No.
107-110, 115 Stat. 1425 (Jan. 8, 2002). In addition to reauthorizing
funding for education programs, the Act establishes new testing and
accountability requirements for public schools designed to ensure that
public school students achieve a level of proficiency in reading and
mathematics. See Pub. L. No. 107-110, title I, sect. 1001, 115 Stat. at
1439-40. The Act authorizes, among other things, federal funding for
supplemental educational services directed at assisting economically
disadvantaged schools and their students. See Pub. L. No. 107-110, title
I, pt. A, sect. 1116, 115 Stat. 1478 (codified in 20 U.S.C. sect. 6316).
These supplemental services are available to eligible students of schools
identified by local agencies as failing to make adequate yearly progress
as identified by each state's plan for three consecutive years. 20 U.S.C.
sect. 6316(e)(1). In addition to establishing requirements for
identification by local education agencies, 20 U.S.C. sect. 6316(b)(1),
the Act requires that school districts provide parents with appropriate
notice of the availability of supplemental educational services, among
other information, 20 U.S.C. sect. 6316(b)(6).
On May 14, 2003, the Department entered into a contract with Ketchum to
"develop a comprehensive long-range communications strategy for the
Department to communicate to the public information on the No Child Left
Behind" Act. Contract at 5. The contract specified that the intended work
products include "audio products, videos and some print materials that
present clear, coherent, targeted messages regarding ED's programs and
that relate to the Department's legislative initiatives . . ." Id. at 6.
The contract specified that Ketchum was to produce audio and video
programs focusing on the Department initiatives, including but not limited
to the NCLB Act. Id. at 9.
The contract also required "[a]ssessment of the [NCLB Act] knowledge level
of diverse audiences and development of targeted communications strategies
to reach those who most need the information." Under the contract, Ketchum
was required to "[e]valuate effectiveness of the strategies and provide
analyses" and "[c]onduct media analysis, focus groups, and other market
research." Id. at 7.
The Department issued 21 work requests as part of its contract with
Ketchum. Pursuant to these work requests, Ketchum delivered various
written, audio, and video products, including but not limited to focus
group reports, radio public service announcements, brochures, posters, and
public polling results. Work Requests 2-21. In September 2003, the
Department issued a work order for a VNR regarding supplemental
educational services. Work Request 6 at 2. The statement of work specified
that Ketchum was to "create a localized video news feed that features a
spokesperson with a localized `message' for each of the 30-target
markets." Statement of Work 6 at 2.[2] The Department paid $38,421.06 for
the production and distribution of the Supplemental Educational Services
VNR. Talbert Letter, at 2.
The Department also issued two work requests for media analyses of a
random selection of news stories published from April 2003 through January
2004. The Department requested that this "benchmark" analysis contain
quantitative and qualitative components to determine the current
effectiveness of the "messages" reaching the public about the Act. Work
Requests 2, 8; Statements of Work 2, 8. The purpose of these analyses was
to provide the Department with information to determine "if the public is
gaining an understanding of the law . . ." and to understand "the most
appropriate media strategy and help in shaping and designing media
activities." Statement of Work 2, Benchmarking. The Department paid
$96,850.99 for the benchmark media analyses. Talbert Letter, at 2.
THE SUPPLEMENTAL EDUCATIONAL SERVICES VNR
The VNR at issue here begins with a slate[3] announcing the topic of the
VNR: "Tutoring and Remedial Classes Available to Thousands of Students."
This title slate is followed by a series of slates with statements and
"key facts" regarding the NCLB Act, contact information directing viewers
to a Web site and toll-free number operated by the Department, and
contents of the remaining VNR segments. B-roll film follows the slates and
contains statements from Roderick R. Paige, Secretary, U.S. Department of
Education; Valerie Garland, a parent of a student receiving supplemental
educational services; and Alberta Paul, Program Coordinator for
Supplemental Services.
A prepackaged news story, referred to as a story package, appears after
the b-roll. It begins with a suggested anchor lead-in script, indicating
that Karen Ryan has a report on how some students may be eligible for
after-school free tutoring services. As the prepackaged news story begins,
a female narrator reports on a predicament facing Valerie Garland and her
son, who will be repeating the 11^th grade due to poor grades. The
narrator tells us that Ms. Garland knows that her son could do better if
he had some extra help. At this point, the story package includes a
statement from Ms. Garland describing her struggle to find help for her
son through the school system. The narrator explains that under the NCLB
Act, children who attend schools that do not meet federal standards can
enroll in the tutoring programs. The story continues with statements from
Secretary Paige and Alberta Paul, indicating that the tutoring is
available at no cost and these services are having a positive impact on
its participants. The narrator completes the prepackaged story as follows:
"For Valerie and many other parents of children with poor grades, this is
a program that gets an A Plus. In Washington, I'm Karen Ryan reporting."
The prepackaged news story does not inform the audience that the
Department produced and distributed the news story.[4]
The VNR continues with additional b-roll film, including video with
Valerie and her children at home, children at school, Secretary Paige
visiting a school, Alberta Paul in her office, and the exterior of the
Department's building in Washington, D.C. The VNR concludes with b-roll
film of statements from Secretary Paige and Nina Rees, Deputy Under
Secretary of Education, Innovation and Improvement, regarding specific
geographic areas and the deadlines for enrolling for supplemental
educational services.
In B-302710, May 19, 2004, we examined VNRs produced and distributed by
the Department of Health and Human Services (HHS) containing similar
prepackaged news stories that failed to identify HHS as the source of the
news story. At no point in the news story did HHS identify itself as the
source of the story. We concluded that these prepackaged news stories
violated the publicity or propaganda prohibition because they constituted
covert propaganda. Id. The obvious, "critical element" of covert
propaganda is concealment of the agency's role in preparing the material
from the target audience. [5] B-229257, June 10, 1988. See also B-303495,
Jan. 4, 2005; B-302710, May 19, 2004. In January 2005, we examined VNRs
containing unattributed prepackaged news stories, similar to the HHS VNRs,
that the Office of National Drug Control Policy (ONDCP) produced and
distributed. B-303495, Jan. 4, 2005. Applying the same standard set forth
in B-302710, we concluded that the prepackaged news stories of the ONDCP
VNRs also violated the publicity or propaganda prohibition.
The VNR at issue here is not materially different from the HHS and ONDCP
VNRs. It contains a prepackaged news story that fails to identify the
Department to the targeted audience as the source of the prepackaged news
story. Consistent with our HHS and ONDCP opinions, the Department's
prepackaged news story constitutes covert propaganda and violates the
publicity or propaganda prohibition. The Department contends that its
prepackaged news story is not covert propaganda because it contains only
"factual information," Talbert Letter, at 8, and it is not required to
disclose the source of only factual information. In support of this view,
the Department cites a July 30, 2004, opinion of the Office of Legal
Counsel (OLC) of the Department of Justice. The OLC opinion disagreed with
our May 2004 conclusion that HHS's prepackaged news stories violated the
publicity or propaganda prohibition. OLC believes that if the content of
the news stories is factual, the government need not disclose itself as
the source of the news story; disclosure is only necessary if the news
story or other communication advocates a point of view. See July 30, 2004,
OLC Opinion at 7, 13.
We disagree. The failure of an agency to identify itself as the source of
a prepackaged news story misleads the viewing public by encouraging the
viewing audience to believe that the broadcasting news organization
developed the information. The prepackaged news stories are purposefully
designed to be indistinguishable from news segments broadcast to the
public. When the television viewing public does not know that the stories
they watched on television news programs about the government were in fact
prepared by the government, the stories are, in this sense, no longer
purely factual--the essential fact of attribution is missing.
Source identification is essential in assessing the credibility and
utility of any communication. See Garth S. Jowett and Victoria O'Donnell,
Propaganda and Persuasion, 215, 221-28 (1992) (noting the importance of
source identification in analyzing information). OLC failed to recognize
that withholding the source of information by the agency removes the
prepackaged news story from the realm of "purely factual," since it
severely inhibits the capability of the reader or listener to assess the
credibility of the information proffered and its utility to the reader or
listener.[6]
For nearly 20 years, the Comptroller General has found source
identification to be an essential element of government communications and
has found agencies in violation of the prohibition when they failed to
identify the government as the source. See, e.g., B-223098, B-223098.2,
Oct. 10, 1986 (Small Business Administration violated the prohibition when
it prepared suggested editorials for placement in newspapers around the
country, and did not disclose to the readers that the government was the
source of the editorials); see also 66 Comp. Gen. 707, 708-9 (1987) (State
Department violated prohibition by paying others to write op-ed pieces for
publication in newspapers without revealing that the writer was paid by
the State Department).[7] Over this same time period, Congress continued
to re-enact the prohibition with little change and without criticism.
This year, Congress enacted section 6076 of the Emergency Supplemental
Appropriations Act for Defense, the Global War on Terror, and Tsunami
Relief, 2005, Pub. L. No. 109-13, 110 Stat. 231, 301 (May 11, 2005), which
affirmatively rejected OLC's opinion. Section 6076 provides that no
appropriations "may be used by an executive branch agency to produce any
prepackaged news story intended for broadcast or distribution unless the
story includes a clear notification within the text or audio of the
prepackaged news story that the prepackaged news story was prepared or
funded by that executive branch agency." Pub. L. No. 109-13, title VI,
sect. 6076, 119 Stat. 231, 301 (May 11, 2005). The conference report
accompanying Public Law 109-13 states that section 6076 "confirms the
opinion of the Government Accountability Office dated February 17,
2005."[8] H.R. Conf. Rep. No. 109-72, at 158-59 (2005).
The Antideficiency Act prohibits authorizing an expenditure that exceeds
available budget authority. See B-300325, Dec. 13, 2002. We have
interpreted agency violations of explicit prohibitions on the use of
appropriated funds as a violation of the Antideficiency Act. See B-302710,
May 19, 2004; see also B-303495, Jan. 4, 2005. Accordingly, the Department
violated the Antideficiency Act because no appropriations are available
for the production of materials that violate the publicity or propaganda
prohibition. The Antideficiency Act requires the Department to report
immediately an Antideficiency Act violation to the President and Congress.
See 31 U.S.C. sections 1351, 1517(b). On the same day that the Department
transmits reports of its violations to the President and Congress, the
Department must also send copies of those reports to the Comptroller
General.[9] See id.
THE MEDIA ANALYSIS
Your letter also raised concerns about the use of appropriated funds to
conduct the media analysis. In particular, you expressed concern that the
Department may have violated the law by asking Ketchum to assess media
reports to determine whether the media reports, among other things,
included the message that "The Bush Administration/the GOP is committed to
education."
In a work request, the Department directed Ketchum to "conduct baseline
research to benchmark the media coverage for the messages associated with
the No Child Left Behind Act . . . in trade and consumer media outlets."
Work Request 2, Statement of Work; Work Request 8, Statement of Work. The
Department also directed Ketchum to "use a combination of quantitative and
qualitative media analyses . . . [to] help determine if the desired
messages are reaching the target audiences; if the issue is being
mentioned in a positive way as part of the editorial content; and if
spokespeople are effectively referencing the issue in news articles." Id.
The stated purpose for the work request was to assist the Department "in
determining if the public is gaining an understanding of the law . . .
[and] in shaping and designing media activities." Id.
Ketchum delivered several reports to the Department, covering the time
period of April 2003 through January 2004.[10] Talbert Letter, at 4. To
compile these reports, Ketchum analyzed a random sample of news articles
from trade publications, newspapers, magazines, and television and radio
programs that referenced the NCLB Act in the text or headline and were
published in the relevant time period. See, e.g., No Child Left Behind
Benchmark Analysis, April-June 2003 at 3. Ketchum then assigned a value or
algorithm to each article based on four criteria, including (1) the type
of publication or media outlet publishing the article, assigning higher
points to publications that are more widely read; (2) inclusion of
positive and negative messages, noting that key messages were determined
jointly by the Department and Ketchum; (3) inclusion of expert quotes in
support of NCLB; and (4) tonality of the article. Id. at 4.
In order to determine whether an article had a positive or negative
message, Ketchum looked for the presence of 23 different themes within an
article. The positive messages that Ketchum looked for in news articles
were:
. NCLB supports learning in the early years, helping to prevent
learning difficulties that arise later;
. NCLB provides more information for parents about their child's
progress;
. NCLB alerts parents to important information on the performance
of their child's school;
. NCLB is working to close the achievement gap between "haves" and
"have nots";
. NCLB improves teaching and learning by providing better
information to teachers and principals/fairer standards for testing;
. NCLB ensures teacher quality is a high priority;
. NCLB gives more resources to schools, such as tutoring services;
. NCLB allows parents more choice (transfer option);
. NCLB makes schools accountable for students' success;
. The Bush Administration/the GOP is committed to education;[11]
and
. NCLB is based on scientific methods/proven research to achieve
results.
The negative messages that Ketchum looked for were:
. NCLB is not sufficiently funded;
. NCLB law is too vague and confusing and too difficult for states
to implement;
. Federal testing requirements contradict existing state
requirements; states will have to spend a lot to develop new tests;
. There are wide discrepancies between state criteria for
evaluating under performing schools;
. Teacher training programs do not have enough money to train
teachers to meet new requirements;
. Better schools will become too crowded/burdened as the school
transfer option progresses;
. In some districts, there are no better schools to which students
may transfer, or the better schools are already crowded;
. Spending money on transporting students to better schools means
taking money away from schools; parents have to spend extra time/money for
transportation;
. States do not have enough flexibility; federal government/Bush
administration is interfering;
. Increased testing is not a substitute for education reform;
"teaching to the test";
. The new law may cause a teacher shortage, as qualification
requirements are too rigid; teachers are set up to fail; and
. States are lowering their standards to avoid negative
labels/unfairly stigmatizing schools.
After scoring each article, Ketchum provided the Department with a list of
the highest and lowest scoring articles, an analysis of the most prevalent
positive and negative messages--both nationally and on an individual state
basis--and a summary of articles written by the most prevalent reporters.
As a general matter, an agency may use appropriations to engage in
information dissemination and related activity, such as the media
analysis, to further its legitimate interest of informing the public about
its policies and programs. See B-302504, Mar. 10, 2004 (quoting B-130961,
Oct. 26, 1972). Indeed, our decisions reflect societal values in favor of
a robust exchange of information between the government and the public it
serves. See, e.g., B-184648, Dec. 3, 1975 (discussing an agency's
"legitimate interest in communicating with the public").
After examining all the benchmark analysis reports, including two
quarterly reports, we found the assessment of one message that appeared in
the second quarter analysis to be inappropriate. Ketchum looked for the
positive message--"The Bush Administration/the GOP is committed to
education"--in a random sample of articles. The five other reports did not
analyze this factor or any other objectionable factor. Under the Purpose
Statute, 31 U.S.C. sect. 1301(a), appropriated funds may be used only for
purposes for which they were appropriated and for any expenses that are
reasonably necessary for the accomplishment of that purpose. B-303170,
Apr. 22, 2005. Stated differently, Congress appropriates funds for
official government functions, not for political activities of the
administration, B-302504, Mar. 10, 2004, or personal obligations of
federal employees, B-261720, Apr. 1, 1996. Appropriated funds are not
available to gather information concerning the media's perception of a
political party.
The Department used the "Departmental Management--Program Administration"
appropriation under the Consolidated Appropriations Resolution, 2003, to
contract for the media analysis. Talbert Letter, at 1. This appropriation
is available for carrying out the Department of Education Organization Act
of 1979, Pub. L. No. 96-88, 93 Stat. 668 (Oct. 17, 1979). See Pub. L. No.
108-7, div. G, tit. III, 117 Stat. 11, 331-2 (Feb. 20, 2003). This Act
requires that the Department "inform the public regarding federally
supported education programs. . . and . . . collect data and information
on applicable programs for the purpose of obtaining objective measurements
of the effectiveness of such programs in achieving the intended purposes
of such programs. " 20 U.S.C. sections 1231a(2), (3).
While the Department may use its funds for a media analysis consistent
with the Department's public information functions under section 1231a(2),
the gathering of information regarding the media and public's favorable
view of the Republican (or any other political) Party does not fall within
the information functions Congress authorized the Department to perform.
We see no use for such information except for partisan, political party
purposes. Engaging in a purely political activity such as this is not a
proper use of appropriated funds. See B-147578, Nov. 8, 1962 (noting that
appropriated funds are not available for purely partisan purposes or in an
effort to aid a political party). Cf. B-248991, Mar. 3, 1993 (examining
the apportionment of "mixed trips" involving official and political
business when determining what expenses were consistent with the
requirements of 31 U.S.C. sect. 1301).
The evaluation of the media's representation of the Republican Party
comprises, however, a small part of the entire analysis that Ketchum
conducted at the direction of the Department. It is virtually impossible
to separate and cost out the amount of funds associated with this factor.
The Department incurred little if any additional expense by including the
improper factor in one of six analyses, and there is no evidence that the
Department otherwise spent funds to benefit the Republican Party. See
B-136762, Aug. 18, 1958 (finding that although no funds were available for
the Deputy Assistant Secretary of Defense's speech, no additional funds
were expended in delivering the speech). We caution that if the Department
chooses to conduct media analyses in the future, it should be more
diligent in its efforts to ensure that such analyses are free from
explicit partisan content.[12]
Although we question whether the media analysis as structured was an
effective means of determining where the public needs more information to
ensure that parents have "accurate information on which to base decisions
about their children's education,"[13] or to determine "if the public is
gaining an understanding of the law," we do not find that it violated the
publicity or propaganda prohibition. Generally, we will not object to an
agency's use of appropriated funds to engage in information functions if
the agency justifies its activity as "made in connection with official
duties" and there is a reasonable basis for that justification. B-302504,
Mar. 10, 2004; B-144323, Nov. 4, 1960.
As its justification for conducting a media analysis, the Department
contends that the purpose of the media analysis was to identify "where the
media, and therefore the public, needed more information or explanation of
how the law would benefit the public" and to ensure that parents would
have "accurate information upon which to base decisions about their
children's education." [14] Talbert Letter, at 6. Although we question the
efficacy of using a media analysis of positive and negative messages for
assessing the public's knowledge, we decline to find that this analysis is
improper. We have consistently held that an agency's information
dissemination functions include informing the public about the
administration's policies and the defense of those policies. See B-302992,
Sept. 10, 2004; B-302504, Mar. 10, 2004; B-223098, B-223098.2, Oct. 10,
1986. It is therefore not unreasonable for the Department to track the
messages reaching the public. To find otherwise would unduly restrain the
recognized and legitimate exercise of the Department's and the
Administration's ability to inform the public of its policies, to justify
those policies and to rebut attacks on those policies. Cf. B-302504, Mar.
10, 2004 (noting that restricting materials with some political content
would curtail the Administration's legitimate exercise of authority to
defend and explain its policies).
CONCLUSION
The Department's use of appropriated funds to produce a prepackaged news
story regarding Supplemental Educational Services that failed to inform
the viewing audience of the government source violates the publicity or
propaganda prohibition. As we have stated in previous opinions and as
recently affirmed by Congress, to avoid a violation of the publicity or
propaganda prohibition, an agency must inform the viewing public that the
government is the source of the information disseminated. Moreover,
because the Department had no appropriation available to produce and
distribute materials in violation of the publicity or propaganda
prohibition, the Department violated the Antideficiency Act, 31 U.S.C.
sect. 1341. In accordance with 31 U.S.C. sections 1351, 1517(b), the
Department must report immediately its Antideficiency Act violation to the
President and Congress and also send a copy of all reports to the
Comptroller General.
With regard to the media analysis, there were no appropriations available
for analyzing the media and public's opinion concerning the Republican
Party's (or any other political party's) commitment to education. However,
the media analysis as a whole was within the information functions
authorized to be performed and the inclusion of a partisan factor in one
of six media reports incurred little if any additional expense.
Nevertheless, we caution that, if the Department chooses to conduct media
analyses in the future, it be more diligent in its efforts to ensure that
such analyses be free from such explicit partisan content.
Anthony H. Gamboa
General Counsel
DIGEST
1. Consistent with prior case law, we conclude that the Department of
Education's (Department) use of appropriated funds to produce and
distribute a prepackaged news story regarding programs under the No
Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425
(Jan. 8, 2002), violated the publicity or propaganda prohibition, see,
e.g., Pub. L. No. 108-199, div. F, title, VI, sect. 624, 118 Stat. 3,
356 (Jan. 23, 2004). We disagree with the Department's contention that
the prepackaged new story is not covert propaganda because it
contained only factual information. To constitute legitimate
information dissemination activity, the Department must inform the
viewing public that the government is the source of the information
dissemination.
2. There are no appropriated funds available for the Department to
conduct a media analysis that gathers information regarding the media
and public's perception of the Republican Party's (or any other
political party's) commitment to education. Because the Department
incurred little if any expense by including this purely partisan
factor in an otherwise acceptable media analysis, we find that the
Department did not violate the publicity or propaganda prohibition.
However, we caution that if the Department conducts future media
analyses, it should be more diligent in its efforts to ensure that
such analyses are free from explicit partisan content.
------------------------
[1] See also Pub. L. No. 109-13, title VI, sect. 6076, 119 Stat. 231, 301
(May 11, 2005).
[2] In addition to the VNR at issue here, the Department issued four other
work requests for VNRs. The Department issued two work requests after May
2004, when we issued B-304710, May 19, 2004, finding that a prepackaged
news story violated the publicity or propaganda prohibition. In the two
work requests subsequent to that decision, the Department specified that
Ketchum was to create a VNR with only a b-roll package and that would not
contain a prepackaged news story. The topics of the VNRs were financial
aid, Education Science Summit, back-to-school programs and school
improvement issues. While this opinion addresses only the VNR on
supplemental educational services, the standards that we apply in this
opinion should also be used to evaluate whether any of the other four VNRs
violate the prohibition.
[3] A slate is a visual feed containing title cards and other information
explaining key facts and other information contained on a VNR. See
B-302710, May 19, 2004.
[4] The Department's regulations require that contractors who are
publicizing the work of the Department contain the following disclosure:
"This project has been funded at least in part with Federal funds from the
U.S. Department of Education under contract number ______. The content of
this publication does not necessarily reflect the views or policies of the
U.S. Department of Education nor does mention of trade names, commercial
products, or organizations imply endorsement by the U.S. Government."
48 C.F.R. sect. 3452.227-70. The contract with Ketchum did not include
this disclosure language requirement.
[5] In addition to covert propaganda, our decisions have recognized two
other types of information activities that violate the publicity or
propaganda prohibition, including self-aggrandizement and materials
characterized as purely partisan materials. See B-302504, Mar. 10, 2004.
[6] OLC provides several dictionary definitions of propaganda in its
opinion. See, e.g., July 30, 2004, OLC Opinion at 9 (defining propaganda
as "to advocate, disseminate, and encourage a particular view, doctrine,
or cause"). Accepting, for the purposes of discussion, these definitional
measures of propaganda, both the HHS and the Department prepackaged news
stories "advocate, disseminate, and encourage a particular point of view."
The Department's prepackaged news story at issue "encourage[s] a
particular view" when Ms. Ryan, the putative news reporter, states at the
end of the story, "[T]his is a program that gets an A-Plus." The HHS
prepackaged news story also "advocate[ed] and encouraged a particular
point of view" through the selection of fact and perspectives highlighted
or omitted. Only the most innocent, or naive, would conclude that the
selection of facts and perspectives was not done to encourage the audience
to have a favorable view of new legislation. Thus, even under the OLC
analysis, these prepackaged news stories would be propaganda.
[7] We find no difference between explicit advocacy that may be contained
in an editorial piece and implicit advocacy of a news story that
purposefully reports certain facts and omits other facts to encourage
public support for its position.
[8] The conferees were referring to the Comptroller General's circular
letter to Heads of Agencies alerting the agencies to our analysis
concerning unattributed prepackaged news stories and referencing our HHS
and ONDCP opinions.
[9] An agency may send copies of its Antideficiency Act reports in
electronic form to [email protected]. B-304335, Mar. 8,
2005. In the alternative, an agency may send copies of reports to the
following address: Comptroller General of the United States, U.S.
Government Accountability Office, Antideficiency Act Reports, Room 7165,
441 G Street, NW, Washington, DC 20548.
[10] The Department provided us with copies of six benchmark analysis
reports, including two quarterly reports, analyzing articles published
from April through June 2003 and July through September 2003, and four
monthly reports, analyzing articles published during October 2003 through
January 2004.
[11] This positive factor appeared only in the second quarter report, July
2003-October 2003. In other reports the factor appeared as "The Bush
Administration is committed to education" or "The Bush
Administration/federal government is committed to education."
[12] The Department's stated purpose in the contract is to determine "if
the public is gaining an understanding of the law." Using an analysis of
positive and negative messages--all of which might be true--does not
further the Department's goal of understanding what the public knows about
the NCLB Act.
[13] Talbert Letter, at 6.
[14] Work Request 2, Statement of Work; Work Request 8, Statement of Work.