Last week, Representatives Mac Thornberry (R-TX) and Adam Smith (D-WA) introduced a bill to amend the United States Information and Educational Exchange Act of 1948 to “authorize the domestic dissemination of information and material about the United States intended primarily for foreign audiences, and for other purposes.” The bill, H.R.5736 — Smith-Mundt Modernization Act of 2012 (Introduced in House – IH), removes the prohibition on public diplomacy material from being available to people within the United States and thus eliminates an artificial handicap to U.S. global engagement while creating domestic awareness of international affairs and oversight and accountability of the same. This bill also specifies Smith-Mundt only applies to the Department of State and the Broadcasting Board of Governors, eliminating an ambiguity creatively over the last three decades.

The Modernization Act was approved by the Rules Committee last night for inclusion in the House’s version of the National Defense Authorization Act now being debated. Adding this to the NDAA, which is sure to pass soon, rather than as a stand-alone foreign affairs bill, reflects the House’s imperative to change the Smith-Mundt Act to better enable and support America’s national security and foreign policy writ large. A State Department authorization bill, which this would normally be attached to, has not passed the Congress in years.

Below are highlights of the bill:

Specifies Smith-Mundt applies only to the State Department and the BBG, in doing doing so extends the Act over the entire department instead of just the public diplomacy side of the Office of the Under Secretary for Public Diplomacy and Public Affairs.

The bill applies to material produced after the bill is passed into law. The existing regime for making content available remains intact to limit the burden on the agencies.

the bill is passed into law. The existing regime for making content available remains intact to limit the burden on the agencies. The bill emphasizes, in legislative language, existing law (that remain untouched since 1948) requiring the State Department and the Broadcasting Board of Governors to maximize the use of private resources and to not have a monopoly (22 USC 1462 and 22 USC 1437, respectively), the real “anti-propaganda” protections in the law.

Applying the Law to State and BBG

Specifying the Smith-Mundt Act only applies to the BBG and the State Department counters a myth that has grown over recent decades that the law applies to the whole of government. Even a 2006 Defense Department review of Smith-Mundt found that while the law did not apply to Defense, the legal advice was that in the absence of an explicit instruction from Congress, the Defense Department should consider the Smith-Mundt restriction as applicable to its activities. This is equal to Defense making law but more accurately reflects an inaccurate reading of the legislation, its language, and the past intent. (The legislatively minded will note Smith-Mundt is found in Title 22 of U.S. Code, covering State Department activities, and not Title 10 of U.S. Code covering Defense Department activities.)

This particular myth was generally part of the false characterization of the Smith-Mundt Act as an anti-propaganda law. This label likely stems from 1985 when Senator Zorinsky labeled USIA material as propaganda if it were to be available inside the U.S. An amendment by Zorinsky led a federal court to block Freedom of Information Act requests on USIA material for a time (during which time the Congress removed the propaganda label from foreign government material disseminated within the U.S.).

Removing this restriction will allow departments to engage globally. There is and remains “anti-propaganda” language in (seemingly) all appropriation bills, and many authorization bills, passed by the Congress.

The Modernization Act extends coverage of the Smith-Mundt Act over the entire Department of State. Previously it arguably applied only to the public diplomacy side of the Office of the Under Secretary of State of Public Diplomacy and Public Affairs. Other bureaus in State restricted their engagement according to their own individual view of the law.

Removing the restriction of domestic access to content — the law never specified someone in the U.S. could not use the material, just that it should not be available to a person inside the U.S. — eliminates virtual restraints on global engagement. Legally, the American public is not supposed to know what Michelle Kwon, for example, does when she is traveling abroad on behalf of the State Department as that is a public diplomacy trip. The concern of violating Smith-Mundt permeates not just State, even coming up in a conversation on whether to put an American on a foreign government radio program, but other departments as well.

The result will be greater awareness of and oversight over what is said and done with taxpayer money. This was a strong recommendation of the 1967 Advisory Commission on Information, predecessor to the recently closed Advisory Commission on Public Diplomacy:

The American taxpayer should no longer be prohibited from seeing and studying the product a government agency produces with public funds for overseas audiences. Students in schools and colleges all over this country who are interested in government, foreign affairs and international relations should not be denied access to what the U.S. government is saying about itself and the rest of the world.

Not Retroactive

To prevent a potentially significant burden on State and BBG to make all past material immediately available, the Modernization Act applies only to material produced after it becomes law and restates the 12-yr rule for all past material.

This rule of making USIA, and not State and BBG, material available after 12-years was intended to prevent access to the material in slower times as scholarly research wasn’t down for many years after an event. The Modernization Act should revert the availability of past material to the original language: a reasonable time.

Maximize the Use of Private Resources

The Modernization Act emphasizes the original “anti-propaganda” sections of the Smith-Mundt Act. These were put in place to “remove the stigma of propaganda” and as a response to the contemporary Freedom of Information movement that both caused Smith-Mundt and was part of the resistance to Smith-Mundt in 1943 through 1947. (Shameless plug: details on this in my forthcoming book on Smith-Mundt.)

The section “Policies Governing Information Activities” (22 USC 1462, or Section 502 in the original legislation) is not only intended to prevent government propaganda by ensuring other voices are heard, but it was also intended to be a “sunset” clause of international information activities:

In authorizing international information activities under this chapter, it is the sense of the Congress (1) that the Secretary shall reduce such Government information activities whenever corresponding private information dissemination is found to be adequate; …

22 USC 1462 should be read as a guiding principle today: the information provided by the Government should not be otherwise available to the target audience. In other words, material produced by State and the BBG should be exceptional.

Advisory Commission on Public Diplomacy

sThe Modernization Act does not refer to, or reauthorize, the Advisory Commission on Public Diplomacy that was in the original legislation to provide oversight over and advocacy of public diplomacy by the Government for the Secretary of State, the President, and the Congress. For more on the Commission, see https://mountainrunner.us/pdcommission.

Republican AND Democratic Sponsorship

This bill is a bipartisan effort between Republicans (Thornberry) and Democrats (Smith) at the front. This mirrors the passage of the original Act. In December 1945, the House Foreign Affairs Committee referred the Bloom Bill to the floor. Named after the chair of the Foreign Affairs Committee, a Democrat, it gained bipartisan support in a Democratic House where opposition tended to fall along with divisions of geography and cosmopolitanism. It passed the House but failed in the Senate, blocked by the Republican Senator Taft, a proponent of a contemporary “Freedom of Information” movement, who believed in freedom of information and felt the Government should stay out of the information business. The bill thus died in the 79th Congress.

The bill was picked up in the 80th Congress by the Republicans Congressman Karl Mundt and Senator Alexander Smith. The 80th Congress, with both chambers under Republican control fought President Truman on nearly everything and was nicknamed the “Do Nothing Congress.” Nevertheless, it recognized the importance of the U.S. becoming actively engaged in the global struggle for minds and wills and it passed the Smith-Mundt Act with substantial bipartisan support, including Taft’s. Congress recognized the increasing importance of information and public opinion. On January 7, 1948, the Senate Foreign Relations Committee recommended passing the legislation, stating that propaganda campaigns against the U.S. called for “urgent, forthright, and dynamic measures to disseminate truth.” The committee report said:

The enactment of the bill is essential if we are to have mutual understanding between the people of the United States and the people of other nations which will serve a fair and lasting foundation for world peace. Today that peace is endangered by the weapons of false propaganda and misinformation and the inability on the part of the United States to deal adequately with those weapons. Truth can be a power weapon on behalf of peace. It is the firm belief of the Committee that HR 3342 [the Smith-Mundt Bill], with all the safeguards included in the bill, will constitute an important step in the right direction toward the adequate dissemination of the truth about America; our ideals, and our people

The Smith-Mundt Modernization Act of 2012 should have similar bipartisan support at a time when public opinion has an even greater role than over six decades ago.

This update to the Smith-Mundt Act of 1948 removes restraints imposed by Senators in 1972 and 1985 that reflect the changing nature of international politics where public opinion mattered relatively little. It was zero-sum bipolar politics with the substantial negotiations done behind closed doors rather than in the minds of people. Smith-Mundt was created and passed in a time when the struggle for minds and wills of people mattered. We are again in such an era.