What rules govern agency publicity?

A reader asked the following question: Are there any limits on agencies' advertising campaigns to promote their contracting capabilities? What rules govern agency publicity and advertising efforts?

Advertising of the sort discussed in this question has become rampant in recent years. Many people think that this sort of self-aggrandizement is unseemly for federal agencies and wastes taxpayers' money.

Interestingly, there are a number of laws in this area, although enforcement has been spotty.

In general, whether an agency's appropriations may be spent on advertising depends on the specific statutory authority that Congress has granted to the agency. Thus, the General Accounting Office has decided cases in this area based on the specific statutory language before it. [See, for example,

B-229732, Dec. 22, 1988, in which it was ruled that the Department of Housing and Urban Development had no authority to incur promotional expenses for a trade show in the Soviet Union to promote the sale of American products. Compare 69 Comp. Gen. 583 (1989), in which it was ruled that the Bureau of the Mint was authorized to expend funds to promote the sales of commemorative coins.]

A related, more general rule is found in 44 U.S.C. & Sect; 3702, which states, "Advertisements, notices, or proposals for an executive department of the government or for a bureau or office connected with it, may not be published in a newspaper except under written authority from the head of the department; and a bill for advertising or publication may not be paid unless there is presented with the bill a copy of the written authority."

According to GAO, this law does not preclude advertising in newspapers per se, but only prohibits agencies from paying for the advertisements unless the requisite written approval is provided in advance and presented with the bill for payment. [See, for example, claim of the Atlanta Journal (B-208091-O.M., Sept. 24, 1982).]

Another general rule found in 5 U.S.C. & Sect; 3107 states, "Appropriated funds may not be used to pay a publicity expert unless specifically appropriated for that purpose." In its decisions interpreting this statute, GAO has been troubled by the absence of a definition for a "publicity expert" and as a result has had trouble applying the statute. However, GAO found that the Chemical Warfare Commission, an agency whose only role was to advise other agencies, violated the statute when it hired a public affairs consultant. (See B-222758, June 25, 1986.)

For at least 50 years, Congress routinely has included within specific agency annual appropriations acts a prohibition on the use of funds "for publicity or propaganda purposes not authorized by the Congress." As interpreted by GAO, such provisions preclude two distinct types of activities. First, such provisions prohibit "self-aggrandizement" activities by a federal agency. Self-aggrandizement activities have been defined by GAO as publicity activities of a nature tending to emphasize the importance of the agency or activity in question. Second, these provisions prohibit covert propaganda activities by an agency. [See, for example, 66 Comp. Gen. 707 (1987).]

For example, GAO has ruled that the production of opinion papers by the Small Business Administration for submission to newspapers as "suggested editorials" were misleading as to their origin and constituted propaganda as the term ordinarily is understood. (See B-223098, Oct. 10, 1986.)

Another law that sometimes is invoked in this area is 18 U.S.C. & Sect; 1913. This law makes it a federal crime to use appropriations directly or indirectly to pay for any personal service, advertisement or other communication designed to influence in any manner a member of Congress either before or after the introduction of a legislative action. The Justice Department, as the chief federal law enforcement organization, has responsibility for interpreting this statute. As a matter of policy, Justice has decided that it would apply this prohibition only to "substantial" efforts, which it defines as those costing more than $50,000, in which an agency asks members of the public to contact their congressional representatives directly. (See B-270875, July 5, 1996.)

A parallel noncriminal prohibition frequently is included in specific agency appropriations acts. GAO has found that the Forest Service violated a provision of this type when it urged members of the public to contact Congress in support of road funding initiatives. (See B-281637, May 14, 1999, and B-262234, Dec. 21, 1995.)

Enforcement of these laws is left primarily to the agency comptrollers, who are supposed to ensure that agency funds are spent only in accordance with applicable laws. Sometimes the issue may be addressed by an agency inspector general or by GAO. However, in the absence of a uniform system of rules, or a coherent and meaningful oversight mechanism, abuses of these laws are going to occur.

Peckinpaugh is a member of the government contracts section of the law firm Winston & Strawn, Washington, D.C. He can be reached at carl@carl.com. This column addresses legal topics that arise in government acquisition and management of ADP resources.