From the Winter 2005 issue of The News Media & The Law, page 31.
By Kirsten B. Mitchell
When news broke that the Bush administration paid prominent black pundit Armstrong Williams $240,000 to promote its controversial education reform law on his nationally syndicated television show, the journalism community howled.
The arrangement, first reported in January by USA Today after it obtained a copy of the contract through a Freedom of Information Act request, “is stupid, it is unseemly, and it is tacky,” Jonah Goldberg, a contributing editor at the conservative National Review told The New York Times.
Appearances aside, the deal may have broken several federal laws. The Government Accountability Office, the investigative arm of Congress, and the Federal Communications Commission are investigating whether Williams’ subsidized commentary violated federal propaganda, budgeting and communications laws.
Williams, host of “The Right Side,” was paid “to regularly comment on [No Child Left Behind] during the course of his broadcasts” and to interview then-Education Secretary Rod Paige for television and radio spots that aired during the show in 2004, according to his contract with Ketchum public relations. The contract was part of a $1 million deal to produce “video news releases” — publicity disguised as news reports — about the controversial education reform law, which requires minimum scores on reading and math tests in exchange for federal aid.
Congress could not have foreseen video news releases when it updated a 1913 law in1966 to bar such deals. “Appropriated funds may not be used to pay a publicity expert unless specifically appropriated for that purpose,” a provision in the U.S. Code reads.
It seems straightforward, but when the Government Accountability Office last year declared illegal the use of taxpayer money for fake news reports promoting the Bush administration’s Medicare prescription drug plan, it did not cite that provision.
Neither did Senate Minority Leader Harry Reid (D-Nev.) and other Democrats who wrote President Bush Jan. 14: “Because this case involves a serious violation of a law designed to protect taxpayer funds, namely the prohibition on the use of Federal funds for ‘publicity and propaganda’ included annually in Federal appropriations laws, we believe it is time for the White House to address this matter directly.”
The “publicity and propaganda” law is the same one Anthony H. Gamboa, GAO’s general counsel, cited in May when he ruled that government videos masquerading as news violate two other laws.
The Department of Health and Human Services violated laws restricting federal money from paying for “publicity and propaganda purposes” when it used taxpayer money for promoting its prescription drug plan through a video disguised as news, Gamboa wrote in a May 19 report. The video featured “reporter” Karen Ryan, leading viewers in the 33 markets where it aired to believe it was news.
Because the Centers for Medicare and Medicaid Services did not identify themsleves as the source of the report, “the story packages, including the lead-in script, violate the publicity or propaganda prohibition,” Gamboa wrote.
Congress, he noted, passed laws prohibiting propaganda — pro-U.S. government news reports designed for international audiences — from being broadcast domestically. “In limiting domestic dissemination of the U.S. government-produced news reports, Congress was reflecting concern that the availability of government news broadcasts may infringe upon the traditional freedom of the press and attempt to control public opinion,” Gamboa wrote.
He also cited the Antideficiency Act, which forbids government agencies from spending money on “publicity or propaganda” when Congress has earmarked no money for such activity.
Both laws were cited again by Gamboa in January when he ruled that the Office of National Drug Control Policy’s fake news reports on the dangers to teenagers of marijuana use were “covert propaganda.” The videos, featuring actor Mike Morris playing a reporter and broadcast by about 300 stations, would have been legal if they were clearly identified as coming from a federal agency.
Punishments for violating the laws are rare or unheard of, GAO officials told The Washington Post. GAO lacks enforcement power, though Congress or the administration could impose sanctions.
One week after the Williams story broke but before announcing his resignation as FCC chairman, Michael Powell ordered the agency to investigate whether the Williams deal violated the “payola” and sponsorship identification provisions of the Communications Act. The provisions require disclosure and sponsorship identification regarding payments in connection with broadcast programs.
Violating such provisions in the law could have greater consequences than violating the “publicity or propaganda” law. Williams — and potentially the local broadcasters who aired the show — could be fined as much as $11,000.
The use of fake news reports isn’t new. The GAO discovered after the fact that the Department of Health and Human Services used actors to produce two 1999 videos promoting the Clinton administration’s position on the benefits of prescription drugs and preventative health care. Both were disguised as news, with actors playing reporters.
In 1987, the State Department was found to have violated the law by paying consultants to write opinion pieces for newspapers endorsing the Reagan administration’s controversial support for anti-communist rebels in Nicaragua.
If Williams violated a federal law, it could have a more serious impact on the journalism profession than solely an ethical violation might have, said Bob Steele, an expert on media ethics at Poynter Institute.
“If a journalist violates a law, the consequences to that journalist, to that news organization and to the profession can be profound,” he said. “It can undermine and harm credibility. It can create legal standards or a chilling effect that can have long-term ramifications.”
One of those consequences can be eroding the trust between journalists and the public, Steele said.
After the Williams story broke, stories emerged about Maggie Gallagher and Michael J. McManus, two part-time columnists who were paid by the Bush administration but did not disclose the relationship in their columns.
Gallagher, a marriage expert and researcher, accepted $21,500 from the Department of Health and Human Services to write materials describing the benefits of marriage, The Washington Post first reported.
Her contract did not call for promoting Bush administration policies in her column.
McManus, a syndicated columnist for 30 small newspapers who also heads a group that promotes marriage, won a contract worth up to $10,000 for talking to religious and community groups about marriage counseling, the Los Angeles Times reported.