The Honorable Kent Talbert
Department of Education
Subject: Department of Education—No Child Left Behind
Newspaper Article Entitled “Parents Want Science Classes That Make the Grade”
Dear Mr. Talbert:
Thank you for your letter dated May 25, 2006, transmitting the
Department’s Antideficiency Act report for No Child Left Behind Act promotional
activities, including a prepackaged news story and the Armstrong Williams
subcontract. We will include your report
in our Antideficiency Act database.
We understand that the
Department disagrees with GAO’s conclusions that the prepackaged news story and
Armstrong Williams subcontract resulted in Antideficiency Act violations. We do not find persuasive the reason you
offer in your report to justify these two actions and, in fact, already
addressed them in our September 30, 2005, opinions.
See B-305368, Sept.
30, 2005; B-304228, Sept.
30, 2005. We stand by our conclusions in those two
Also, we want to advise you of our concern with your Office’s
conclusion that the Department’s use of appropriated funds for the newspaper
article, entitled “Parents Want Science Classes that Make the Grade,” was
proper. We disagree with your view that
section 6076 of Public Law 109-13 created new law not in effect at the time
that the Department contracted for the newspaper article. See
Pub. L. No. 109-13, sect. 6076, 110 Stat. 231, 301 (May 11, 2005).
Congress clearly rejected the view that section 6076 imposed a new
requirement. In a conference report adopted by both
Houses, the conferees specifically stated that section 6076 “confirms the opinion of the Government
Accountability Office dated February
17, 2005 (B-304272).” H.R.
Conf. Rep. No. 109-72, at 158–59 (2005) (emphasis added). The opinion to which this language refers
explains that the critical element in determining whether the promotional
materials constitute covert propaganda is whether the intended audience is informed
of the source of the materials. See B-304272, Feb. 17, 2005.
We disagree with the Department’s interpretation that section 6076
created a new restriction not already imposed by the publicity or propaganda
prohibition. Indeed, it was because the
Justice Department’s Office of Legal Counsel
and the Office of Management and Budget
refused to recognize the requirement for source attribution that Congress
enacted section 6076 to emphasize that the publicity or propaganda prohibition
always restricted the use of appropriations to disseminate information without
proper source attribution.
Again, we thank you for your response. If you have any questions regarding this
matter or wish to discuss the applicability of section 6076 further, please
feel free to contact Thomas H. Armstrong, Assistant General Counsel for
Appropriations Law, at (202) 512- 8257.
Gary L. Kepplinger
Senator Edward Kennedy
The Honorable John P. Higgins, Jr.
Inspector General, Department of Education