Managing the problem: VOA, Smith-Mundt, and oversight

Public Law 80-402 opening

The White House, in typical fashion, very publicly lashed out at reporting it did not like. In this case, it was reporting from the Voice of America, a government-funded and managed news service, on Wuhan in China. The White House was triggered by a story published by VOA that did not come from the network, or its sister operation covering China, Radio Free Asia. VOA had republished a story from the Associated Press which VOA distributes under contract. Yesterday, I framed the situation as a failure of VOA’s leadership, and by extension a failure of VOA’s parent organization, the US Agency for Global Media, to focus on the mission and parameters of VOA. That mission and those parameters do not include providing coverage that is redundant to commercial media and does include focusing on audiences relevant to US foreign policy. Below, I continue the conversation by focusing on the “safeguards” Congress implemented around VOA to prevent and correct such failures, safeguards ignored by Congress and the White House abdicating their responsibilities.

The Voice of America is an international news operation funded by the US government. While the employees work for the government, what VOA’s reporters cover and write is insulated from influence from the executive and legislative branches. However, VOA’s broader aims, often expressed through audience selection generally expressed as a combination of language and geography, are dictated by the executive branch with the overarching goal of supporting US foreign policy. These conversations included the State Department, the Office of Management of Budget, the National Security Council, and others. Think of VOA as a kind of firehose: the White House and Congress do not manage the water flowing from the hose but they do point the hose. In this case, the “water” is news and information intended to empower foreign audiences living under disinformation or are challenged in accessing any information about the US or their own worlds.

The VOA Director is a non-career Senior Executive Service appointment, which means the White House, through the Office of Personnel and Management, effectively hires and fires the Director. Other top leadership positions at VOA are mostly career SES or General Service (GS) employees.

The apparent failure here of VOA operating in apparent competition with US media, at the very least, redundant to commercial US media activities, was a situation anticipated by Congress. Accordingly, Congress included “important controls and safeguards contained in” the Smith-Mundt Act of 1948. The Smith-Mundt Act provides the basic legislative authority for VOA, and many other of the US government’s international information operations typically described as “public diplomacy.”

It is common to read assertions that the safeguard was the instruction to “disseminate abroad” information about the US. Despite this argument appearing various law review journals, academic papers, think tank articles, and amateur punditry, this language was requested by the State Department as an explicit authority to overcome a patchwork of pre-war legislation, all of which constrained the department to operate only in the Western Hemisphere, plus, in some cases, the Philippines and Liberia. At the time Smith-Mundt was being discussed in Congress, there was a question that relative to the short-wave radio operation known as VOA that the department did not require this explicit authority to broadcast abroad as “disseminate abroad” was included to overcome geographic limitations in place from multiple laws from the 1930s covering the other information programs.

The original legislation, even with the shall “disseminate abroad” language, did not restrict domestic access to VOA. Amendments by Senators Fulbright (1972) and Zorinsky (1985) altered the act to limit access inside the US. The former did so to shut down USIA and VOA and Radio Free Europe and Radio Liberty. The latter because he was upset at USIA’s management for a variety of reasons, and arguably also because he confused USIA’s public diplomacy with Otto Reich’s Office of Public Diplomacy. Zorinsky’s amendment even led a US federal court to rule USIA material was exempt from FOIA requests. Regardless, Congress passed, and the president signed, the Smith-Mundt Modernization Act of 2013 to effectively undo the Fulbright and Zorinsky amendments. The act did not “repeal” Smith-Mundt, but clarified what it covered and importantly what the original legislation did not, specifically the Defense Department.

(The Defense Department imagined, continues to pretend, the Smith-Mundt Act covers them despite the legislation applying only to Title 22, Foreign Affairs, activities and not Title 10 or 50, DOD and intelligence activities, and never mentions DOD or any federal agency other than the State Department, the United States Information Service, or the Broadcasting Board of Governors. The only senior legal analysis of Smith-Mundt’s applicability to the Defense Department argued that since DOD was conducting some programs with the intended effect of programs State would otherwise do, laws covering State must apply to DOD unless Congress indicates otherwise. This pick-and-choose your legislative authorities trick did not fly well with Congress and to make their point clear, the House Armed Services Committee introduced and passed the Smith-Mundt Modernization Act. I am familiar with this legislation as I helped cause it and provided advice on the text, which included an emphasis on the importance of 22 USC 1437 and 22 USC 1462, described below.)

At no time did the list of “important controls and safeguards” ever include, or imply, anything about geography, such as shall “disseminate abroad.” The list of “important controls and safeguards” required attention by Congress, the White House, and an advisory body established by Congress through the Smith-Mundt Act to provide expert and constant vigilance to Congress, the White House, and the State Department. In every case, each of these safeguards failed due to the individual and combined failures of the White House and Congress.

The “important controls and safeguards contained” in the act were:

  • Rely on private industry as often as possible (Section 1005 of PL 80-402, 22 USC 1437 today)
  • Reduce government information activities whenever private information dissemination is found to be adequate (Section 502 of PL 80-402, 22 USC 1462 today)
  • Semiannual reports to Congress by the Advisory Commission on Information, inclusive of expenditures, activities, appraisals and measures of effectiveness (Section 1008 of PL 80-402, today it is 22 USC 1469 but it was 22 USC 1466-8)
  • Loyalty checks (today’s background checks) by the FBI on each person employed by or assigned to the information programs, which went beyond the radio programming (Section 1001 of PL 80-402, since repealed)
  • Requiring existing government resources and facilities be used to the fullest extent practicable before setting up new facilities (Section 803 of PL 80-402, today it is 22 USC 1473)
  • “Congress can terminate the entire act, or any portion of it, by concurrent resolution of Congress.” (Section 1006 of PL 80-402, reiterated in Senate and House reports on the bill, formerly 22 USC 1431 but the language was changed)

Each of these checks required active engagement by Congress, through its various oversight options (legislative authority, annual appropriations, simply inquires, hearings, etc), and the White House to provide adequate leadership and spend tax dollars in accordance with its policies and legislative requirements.

There is also the Advisory Commission. This continued a pattern of advisory committees created by the State Department to provide Congress expert advice on the radio and other information programs. Rep. Everett Dirksen (R-IL) introduced the amendment to establish an Advisory Commission on Information in the Mundt bill that became the Smith-Mundt Act. For the first several years, the commission was required to produce two reports a year on the effectiveness and structure of the information programs, including radio, as Congress’s expert eyes on the program. In recent years, the Advisory Commission has produced a broad inventory of questionable utility to Congress, though surely of value to academia. (The commission’s defenders today will cite legislation requiring this inventory, but I know what the intent was as I helped write the language, and what they produce is not the intended product.)

The undoing of the Fulbright and Zorinsky amendments by the Smith-Mundt Modernization Act helped bring the current situation to light. Such transparency was intended. Pursuant to this was a Congressional amendment to the Mundt bill to make all of the content of the information programs to be authorized, including radio, immediately available after use (or broadcast) in the English language in DC. When the State Department informed Congress the department would need more money to immediately translate, file, and presumably forward to Congress massive amounts of paper, Congress demurred. The language “by request” was inserted to provide translations on demand and to limit what was expected to be blanket requests by Members of Congress and the press.

A reasonable person can look at each of these safeguards and see where they are failing or succeeding today. On the issue of transparency, for example, because the VOA English material is easily available, we can question VOA’s execution of its mission. This is not as easily done with VOA’s Mandarin content, which may be better, or may in fact be worse, than the English language service we can easily access. (My experience is the non-US langauge services are well attuned to the needs of their audiences.)

If Fulbright, who declared in 1972 that VOA and Radio Free Europe and Radio Liberty should “take their rightful place in the graveyard of Cold War relics,” and Zorinsky still had their way, we would not be having this discussion and the dereliction of oversight would continue undetected. Nothing may change as a result of this issue, certainly won’t expect this administration to provide leadership after it abdicated any direction for the last three years, but at least hopefully you are more aware of the larger issues involved and the recourses available.

This article was updated on 16 April 2020 at 6:45a CET for clarity. A link to the Defense Department’s only known senior legal analysis of the applicability of the Smith-Mundt Act to the department was added.