Smith-Mundt Modernization Act of 2010 (Updated)

On July 13, US Congressmen Mac Thornberry (TX-13) and Adam Smith (D-WA), both members of the House Intelligence and Armed Services Committees, introduced "The Smith-Mundt Modernization Act of 2010" (H.R. 5729), a bipartisan bill to revise an outdated restriction that interferes with the United States' diplomatic and military efforts. The Smith-Mundt Act, formally known as the United States Information and Educational Exchange Act of 1948, was intended to improve and institutionalize information and exchange activities to counter Communist activities around the world that America's ambassador to Russia described in 1946 as a "war of ideology... a war unto death." Today, however, the Smith-Mundt Act is invoked not to enable engagement but to limit it. The Smith-Mundt Modernization Act of 2010 by Reps. Thornberry and Smith seeks to update the so-called "firewall" of the Act to bring it up to date with the modern environment where people, ideas, and information move through porous or non-existent borders with increasing ease.

The impact of the current "firewall" is decreased accountability of what is said and done in the name of the taxpayer and with taxpayer's money, reduced transparency and scrutiny in the conduct, purpose, and effectiveness of foreign policy, reduced awareness of global affairs, limited understanding of the State Department in general inhibiting the development of constituency.

Recently, the law prohibited a Minneapolis-based radio station that provides programming for the Somali-American community from replaying a Voice of America-produced piece rebutting terrorist propaganda. A letter by Rep. Thornberry to House colleagues notes a 2009 House Armed Services Committee report in which the Committee said it perceived "an overly cautious approach in the Department of Defense and its partners' military messaging operations partially as a result of misinterpretation of the [Smith-Mundt] Act of 1948 (Public Law 80-402)." On July 15, 2010, the USA Today reported that a "Gordian knot of law, regulation, procedure and risk aversion" is affecting strategic communication by our military.

According to Thornberry and Smith, the Smith-Mundt Modernization Act of 2010 solves these problems. It updates legal authorities for the State Department to communicate in the global information environment, while maintaining a ban on government propaganda targeted at Americans. It also ends the practice of military lawyers and other from using State Department authorities to inform their operations (in other words, using Title XXII to regulate Title X activities).

The Smith-Mundt Modernization Act of 2010 updates existing law by acknowledging the Internet as an information medium, ensures the State Department shall make material available and distributed upon request, states the Act applies only to the State Department. The State Department has long been prevented from providing material to domestic audiences due to the Act, even to US middle school children writing term papers seeking copyright permission of a State Department book called "Outline of American Literature."

A reason to for the change is the clear need to provide news and analysis of activities beyond our borders for global audiences. Chinese, Russian, Iranian, British, and other government broadcasters may freely inform people within the United States (yes, "people" and not "citizens" as the law discriminates not by nationality but geography), but the US Government may not? Well, ok the US Government can, but only if it does not use the same words, pictures, or channels used to communicate to audiences outside of our borders. For example, an image or video used in a public diplomacy product must be "scrubbed" through public affairs to be available to an American audience, even if the image is part of a PowerPoint presentation to college students. That is an absurd and undue burden on the State Department that prevents awareness, accountability, and support of State's activities.

Background. In its original, amended or proposed form, the Smith-Mundt Act never defines nor uses the word "propaganda." Despite popular belief, it was not an "anti-propaganda" law nor was it ever intended for or ever applied to the whole of the US Government.

Smith-Mundt of 1948 began as an idea in 1943 when the State Department sought to make its foreign information programs permanent after the war's end. Momentum for this permanence picked up with State's 1944 self-reorganization that created the Office of Cultural and Public Affairs and the position of Assistant Secretary of State for Cultural and Public Affairs. In 1945, "Cultural" was dropped to focus on information activities and to remove the lightening rod of cultural diplomacy Congress disapproved of. In October 1945, the Bloom Bill, named after the chairman of the House Foreign Affairs Committee, was introduced at the request of the State Department and encouraged by the President who had just moved the wartime information offices into State.

The prophylactic to prevent Nazi-style propaganda and activities like those of President Wilson's Committee for Public Information was the June 1946 amendment to the bill by Representative John M. Vorys (R-OH) "to remove the stigma of propaganda" and to address the principle objections to the information activities it was authorizing. The amendment directed that:

  • Information activities should only be conducted if needed to supplement international information dissemination of private agencies;
  • The State Department was not to acquire a monopoly of broadcasting or any other information medium; and,
  • Private sector leaders should be invited to review and advise the State Department in this work. (The advisory panel was assembled before the bill became law as the Advisory Committee on Radio Programming, which did include private sector leaders. The Smith-Mundt Act changed the name to the Advisory Commission on Information, which is now the Advisory Commission on Public Diplomacy.)

The Bloom Bill passed the House in July 1946 but was blocked by a single Senator, Robert Taft. A reason was never given, but Taft opposed much of President Truman's foreign policy. In March 1947, the legislation resurfaced in the 80th Congress as the Smith-Mundt Bill. Again, it was State who requested it. Pressure to pass the legislation increased substantially following the increased volume and tempo of Communist propaganda following the June 1947 announcement of the Marshall Plan. Following a Congressional fact finding trip to Europe, both bill was reconciled and sent to the President, who signed it on January 27, 1948.

The first two points of the Vorys 1946 amendment are largely forgotten but remain and address domestic influence issue too often aimed at the dissemination provision. Section 1437 (as it appears in Title 22 of the United States Code) requires the State Department to maximize its use of "private agencies." Section 1462 requires "reducing Government information activities whenever corresponding private information dissemination is found to be adequate" and prohibits the State Department from having monopoly in any "medium of information" (a prescient phrase from the past). Combined, these provide not only protection against government's domination of domestic discourse, but interestingly a "sunset clause" for governmental activities that Rep. Karl Mundt (R-SD) and Assistant Secretary of State for Public Affairs William Benton stated clearly: as private media stood up, government media would stand down. (This by itself should create an interesting argument today as private media retreats from around the globe. There were several inquiries into privatizing the entire information program but private media pushed back saying they could not do it.)

Congress was more concerned the State Department's proposed peacetime information activities would destabilize the Government than anything else. Congress frequently described the department as "chock full of Reds," full of "loafers", "drones", "incompetents" and the "lousiest outfit in town" and in need of a "house cleaning" to "keep only those people whose first loyalty is to the United States." The Chairman of the House Appropriations Committee proposed loyalty checks (today known as security clearances) that were included the bill that were described as equal to the protection US atomic secr ets during World War II.

The modern Smith-Mundt Act comes from amendments to the Act in 1972, 1985, and 1990 that reflected the Cold War's departure from the "struggle for minds and wills" (a phrase used by both Presidents Truman and Eisenhower) to closed-door diplomacy and an increasingly tactical use of public diplomacy. The Act originally read that the Secretary of State is "authorized...to provide for the preparation, and dissemination abroad, of information" about the U.S. through various mediums and means. This material was to be available "for examination" in the U.S. by the media and Congress (P.L. 80-402 Sec. 501). In 1967, the Advisory Commission on Information (later the Advisory Commission on Public Diplomacy) recommended the de facto prohibition on domestic distribution be removed noting that there is "nothing in the statues specifically forbidding making USIA materials available to American audiences. Rather, what began as caution has hardened into policy." (A 1948 Brookings Institute report also recommended changing the restriction on domestic access.) This changed in 1972 when Senator J. William Fulbright (D-AR) argued America's international broadcasting should take its "rightful place in the graveyard of Cold War relics" as he successfully amended the Act to read that any program material "shall not be disseminated" within the U.S. and that material shall be available "for examination only" to the media, academia, and Congress (P.L. 95-352 Sec. 204). In 1985, Senator Edward Zorinsky (D-NE) declared USIA would be no different than an organ of Soviet propaganda if its products were to be available domestically. The Act was amended to read: "no program material prepared by the United States Information Agency shall be distributed within the United States" (P.L. 99-93). At least one court interpreted this language to mean USIA products were to be exempt from Freedom of Information Act requests. In response, the Act was amended again in 1990 the Act to permit domestic distribution of program material "12 years after the initial dissemination" abroad (P.L. 101-246 Sec 202).

It is time we revisit the existing restrictions in the Smith-Mundt Act and their implications on America's engagement with the world. We need a more effective, agile, and transparent communication and engagement programs, call them "public diplomacy programs" if you want, in an environment where the Internet, satellite communications, 24/7 news, and cheap international travel enable and foster dynamic diasporas that may or may not be based one's ethnicity, language, or passport. The Smith-Mundt Modernization Act by Reps. Thornberry and Smith will help move us in that direction.

H.R. 5729 has bipartisan support. Besides co-sponsorship by a Republican (Thornberry) and a Democrat (Smith), it was introduced with eight other sponsors, including  Reps. Dan Boren (D-OK), Gabrielle Giffords (D-AZ), James Langevin (D-RI), Jeff Miller (R-FL), Ted Poe (R-TX), Dennis Rehberg (R-MT), and John Tanner (D-TN).

On a related note, the Advisory Commission on Public Diplomacy will have a public hearing on July 20, 2010, from 9a - 11a in Washington, DC, in the conference room of the International Foundation for Electoral Systems (IFES) located at 1850 K Street, NW., Fifth Floor, Washington, DC 20006.

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