The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Tuesday, March 15, 2005

Video news releases: some basic information

A NYT piece (discussed yesterday) mentioned an OMB/Justice Department memo opposing last year's opinion on the HHS VNRs (Karen Ryan reporting...) from the GAO.

I have now found the memo (PDF) which is a response to a memo dated February 17 (PDF) from the Comptroller-General on the subject of VNRs and the propaganda rider commonly attached to appropriations bills.

The OMB memo (March 11) is a covering note for a memo (March 1) from the DOJ's Office of Legal Counsel (of Bybee torture memo fame) referring Federal government agencies to an 8,500 word OLC opinion dated July 30 2004 (of whose existence I was unware) written in response to the original GAO rulings on the HHS VNRs.

The difference between the OLC and the GAO comes down to this:
  • the GAO says that government VNRs fall foul of the propaganda rider merely by virtue of not declaring their provenance to the viewers who see them.

  • the OLC says that only VNRs which are (I paraphrase) selling a message come within the rider: VNRs which provide information without seeking to change minds are not covered, whether they declare themselves as USG productions or not.

From an initial read-through, the OLC opinion on the scope of the rider seems preferable.

The opinion also points out that the GAO and the Comptroller-General, as parts of the legislative branch, have no jurisdiction over the executive branch (it cites Bowsher v Synar, a 1986 case arising out of the Gramm-Rudman-Hollings Act). Their views are welcome, but not binding.

Bolstering its legal case with a little partisan finger-pointing, the opinion refers to the use of VNRs by the Clinton Adminstration -
HHS created two VNR story packages in 1999 setting forth the Clinton Administration's position on prescription drug benefits and preventive health.
- and the use of VNRs and the audio equivalent of VNRs - radio actualities - by members of Congress (who are also subject to the propaganda rider).

(And who should be fingered as one of the radio actuality users but the Creditor's Friend, Stabenow of Michigan. Must be coming in handy right about now...)

To be fair, members of Congress would only be subject to the rider if they used taxpayers' money to pay for their VNRs or actualities; but, I'm thinking, use of other sources (brown envelopes from credit card companies, for instance) would be illegal under other statutes. I'm letting that one lie for the moment, though.

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