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BY DON ALLEN RESNIKOFF

Matt Long / CC BY-NC-ND 2.0Matt Long / CC BY-NC-ND 2.0U.S. publicly funded broadcasting should be protected from ever being turned into a narrow partisan or ideological tool. This caution applies to the Voice of America (VOA) and other broadcasters to overseas audiences, and to domestic broadcasters, the Corporation for Public Broadcasting (CPB) and the Public Broadcasting Service (PBS).

Concern about possible partisan misuse of domestic public broadcasting in the future is suggested by the past partisan misuse of the Voice of America and other overseas broadcasters during the Trump administration.

In June 2020 the Trump administration installed political ally Michael Pack as head of the Agency for Global Media (USAGM), which has a supervisory role over the Voice of America and other publicly funded broadcasters that serve overseas audiences.1 Prior to his VOA appointment, Pack ran the conservative Claremont Institute2 and was a colleague of the right-wing political strategist Steve Bannon.3

Shortly after Pack took on his Global Media position, the director and the deputy director of Voice of America resigned, and Pack fired the heads of three other networks managed by Global Media—Radio Free Asia, Radio Free Europe/Radio Liberty and the Middle East Broadcasting Networks—as well as the head of the Open Technology Fund. Pack dissolved the networks’ bipartisan advisory boards and replaced them with panels composed of people widely considered to be Trump loyalists.4

In the final days of the Trump administration more than two dozen VOA newsroom employees signed a petition demanding the immediate resignation of their director and the top deputy. Staff complained that the director and deputy had failed in their responsibility to remain independent of government influence. The Washington Post reported that the VOA managers had ordered staff to broadcast a speech by the Secretary of State Mike Pompeo that was delivered at VOA headquarters. Staffers called it a “propaganda event.” Staff also criticized the VOA managers for disciplining a reporter who sought to question Pompeo after his speech.5

Anne Applebaum’s article in The Atlantic of June 2020 explains that the Voice of America “was never meant to be the tool of one political party, but rather to present America from a broad, nonpartisan perspective.”6 The Guardian newspaper warned against allowing the government “to turn the US Agency for Global Media (USAGM) into a loyal state broadcaster of the kind normally found in authoritarian societies.”7

The domestic publicly funded broadcasters CPB and PBS have also been the targets of complaints alleging partisan control. In 2005 an internal investigation at PBS charged the board chair Kenneth Tomlinson with engaging in politically motivated meddling in programming decisions, and injecting politics into hiring. Among other things, a report by the agency inspector general found that Tomlinson’s campaign against perceived liberal bias included hiring a content monitor to review NOW with Bill Moyers and other public broadcasting shows. Tomlinson was charged with exceeding “the oversight role of a board member in making procurement and programming decisions.”8 Media reports suggest that NOW with Bill Moyers particularly angered Tomlinson because Tomlinson believed that Moyers was unfair to President Bush.9

The steps taken to limit Tomlinson’s actions were effective. Tomlinson left the PBS board on November 3, 2005, after the inspector general had presented his preliminary adverse findings on Tomlinson to the board.10

The preceding anecdotes focus on efforts by politicians to make public broadcasting a mouthpiece for their partisan views. The problem of politicians making public broadcasting a mouthpiece for partisan views is distinct from the problem of perceived bias of particular programs. The following examples illustrate this distinction.

The Ken Burns PBS series on the Roosevelts includes points reflecting a particular political point of view, such as praise for the New Deal bureaucracy and regulation. In part 5 of the series, “The Rising Road, 1933-1939,” Burns focused on the New Deal and Franklin Delano Roosevelt’s “massive response to the Great Depression that put millions of people back to work and transformed the relationship of Americans to their government.”11

Burns’ PBS programs are particularly interesting, because they are typically co-produced and partly funded by Washington, D.C., station WETA, which means that WETA has some editorial control. In a short WETA video,12 Burns emphasizes that WETA allows him great creative freedom.

Those who disagree with the New Deal’s bureaucracy and regulation might prefer the recent PBS program about the U.S. Constitution, “A More or Less Perfect Union, A Personal Exploration,” featuring federal Judge Douglas Ginsburg. The Ginsburg PBS show is intelligently presented and interesting, but it is also an advocacy piece. It supports a political point of view that includes a narrow “originalist” view of the Constitution, and strong condemnation of aggressive government action (such as government action in support of labor unions).

An article describing the Ginsburg video program for the American Bar Association Journal explains that “Ginsburg, who is an originalist in his interpretation of the Constitution, points out how the balance of powers has shifted over the years. He contends elected officials have degraded the Constitution.”13 Ginsburg’s thought is that since the time of the New Deal, regulatory agencies have often acted inappropriately by, for example, taking private property by eminent domain for insufficiently defined public purposes.

Some people may find the views endorsed by either the Ginsburg program or the Burns Roosevelt New Deal program to be ideologically narrow and partisan. However, that is different from suggesting that either the Burns’ New Deal program or the Ginsburg program on the Constitution was the result of pressure by high level politicians for a PBS station to be a tool of a particular partisan or narrow ideological point of view.

An analogous distinction in the case of the Voice of America and other publicly funded overseas broadcasters is the difference between programs that reflect the mission goal of projecting American thought and institutions to the world in a positive way, and programs that simply parrot political content supplied by high level government officials. Even if particular projections of American thought by independently operating managers are controversial or are perceived by some as unrealistic, that is different from the content being dictated by partisan politicians. An example of content that is most objectionable is partisan advocacy for someone running for political office.

Additional laws should be considered to protect public broadcasting from political pressure and partisan or narrow ideological points of view. Following is a brief review of the current laws.

The Voice of America was created in 1942 to rally the troops fighting in World War II.14

A Voice of America Charter defining the organization’s mission was adopted in 1960, and later signed into law (Public Law 94-350) on July 12, 1976, by President Gerald Ford. It provides, in part, that “ VOA news will be accurate, objective, and comprehensive . . . [and] present a balanced and comprehensive projection of significant American thought and institutions. 15

The 1994 International Broadcasting Act,16 signed by President Bill Clinton, consolidated authority over non-military U.S. international broadcasting under the U.S. Information Agency and the new Broadcasting Board of Governors. (In 2018, the Broadcasting Board of Governors changed its name to the United States Agency for Global Media.) The consolidated broadcasters included: the Voice of America, the Office of Cuba Broadcasting, Radio Free Europe/Radio Liberty, Middle East Broadcasting Networks, Radio Free Asia, and the Open Technology Fund. Two of these networks are federal organizations: the Voice of America and the Office of Cuba Broadcasting. The remaining broadcast networks, Radio Free Europe/Radio Liberty, Radio Free Asia, and Middle East Broadcasting Networks, are non-profit organizations that receive annual grants from the USAGM.17

Congress amended the International Broadcasting Act in 2016.18 The amendments gave the President of the U.S. the power to appoint the chief executive officer (CEO) of the Agency for Global Media’s board of governors (formerly the Broadcasting Board of Governors), subject to the advice and control of the Senate. Previously the CEO had been selected by the USAGM’s board of governors. The amendments also increased the managerial authority of the CEO.

Section 6204(b) of Title 22 of the United States Code provides that the chief executive officer of the USAGM “shall respect the professional independence and integrity of” Voice of America and the other USAGM units, and Section 531.3(c) of Title 22 of the Code of Federal Regulations provides for a “firewall” that prohibits “any person within the Executive Branch or a Network, but outside the newsroom” from even “attempt[ing] to direct, pressure, coerce, threaten, interfere with, or otherwise impermissibly influence any of the USAGM networks . . . in the performance of their journalistic and broadcasting duties and activities.” Trump appointee Pack argued that the firewall rule improperly prohibited the CEO from engaging in managerial and editorial oversight, so he ignored it.19

Turning to the statute and regulations that control U.S. public broadcasting for domestic audiences, the Public Broadcasting Act of 1967 established the CPB. A board of directors governs the CPB, sets policy, and establishes programming priorities. The U.S. President appoints each board member, and each, after confirmation by the Senate, serves a six-year term. The board, in turn, selects its chair and appoints the president of the board and the chief executive officer, who then names the other corporate officers. (This is in contrast to the situation for the overseas broadcasting umbrella agency USAGM, whose CEO has, since 2016, been chosen by the U.S. President.)

The Public Broadcasting Act requires that the CPB’s programs be “obtained from diverse sources” and follow “strict adherence to objectivity and balance in all programs or series of programs of a controversial nature.” The CPB distributes federal funds to local PBS affiliates such as New York’s WNET (Thirteen) and Washington D.C.’s WETA. The operations of the Corporation for Public Broadcasting and the Public Broadcasting Service are distinct, so CPB executives have no direct editorial control over PBS stations, and no control over the application of objectivity and balance standards. However, the objectivity and balance standards have a commonsense application to PBS and the broadcast stations that belong to the PBS network.

The published editorial standards for PBS follow an approach that includes some flexibility: “Fairness does not require that equal time be given to conflicting opinions or viewpoints.” However, producers are advised by PBS to provide “appropriate context to the audience, and producers must give those who are the subject of attack or criticism a reasonable opportunity to respond.” That language puts the burden of fairness on producers only, but common sense suggests that PBS and its stations retain a role with regard to objectivity and balance, particularly when a PBS station takes on the role of co-producer.

An important goal of legislative reform is protecting autonomy for public broadcasting managers, particularly in determining program content. With regard to the Voice of America and its sister agencies under the umbrella of the USAGM, probably the most important step Congress could take would be to reverse the legislative decision made in 2016 that gave new power to the U.S. President to choose the CEO of the USAGM and to exercise broad authority over the CEO. That reform is needed, even taking into account the fact that part of the rationale for allowing increased control by the President was to improve agency efficiency. The U.S. President’s currently wide power to hire and fire the CEO means that a President can fire the CEO simply because the President desires more partisan advocacy.

The problem with the presidential power to appoint the CEO does not apply to the CPB and the PBS. The CPB board, not the U.S. President, selects its own chair and appoints the president of the board and the chief executive officer. What would be a useful reform, for both overseas and domestic broadcasters, would be for Congress to limit the power of the U.S. President to remove board members. Agency autonomy would be enhanced by legislation limiting the removal of board members without cause.

The goal of protecting the autonomy of public broadcasters is complicated by a U.S. Supreme Court decision that reflects a shift to an “originalist” and “conservative” interpretation of the U.S. Constitution. In the case of Seila Law LLC v. Consumer Financial Protection Bureau,20 the Supreme Court determined that the structure of the Consumer Financial Protection Bureau (CFPB), with a single director who could be removed from office only “for cause,” violated the requirements of the Constitution for the separation of powers. The Court explained, in its 5-4 decision, that, as a general matter, leaders of federal agencies serve at the discretion of the President. The President can fire them at his/her discretion.

In interpreting the Constitution so as to clip the independence of the CFPB, the Supreme Court cast a dark constitutional cloud over the long-established idea that Congress has the power to allow agencies to operate independently of the President. Harvard Law professors Cass Sunstein and Adrian Vermeule wrote that “the court’s approach raises serious doubts about the legal status of the Federal Reserve Board, the Federal Trade Commission, the Nuclear Regulatory Commission and other such entities.”21

This constitutional cloud also applies to the independence of the CPB, the PBS, the VOA, and the other publicly funded broadcasters that serve overseas audiences. Despite that cloud, there is hope for legislative proposals to expand protection for public broadcasting autonomy.

The Seila decision mentions several exceptional circumstances in which Congress may effectively legislate to provide for the independence of an agency by blocking Presidential removal of executives other than for cause. One such exceptional circumstance is a politically balanced agency governance structure. Another is agency functioning that does not involve executive authority. Both exceptions are relevant to public broadcasting.22

Let us start with politically balanced agency governance structure.

In Seila, the court explained that case precedent allows Congress to grant for-cause removal protections to multi-member agency bodies that maintain some balance along partisan lines. The precedent involves the case of Humphrey’s Executor v. United States.23

In Humphrey’s Executor, the U.S. Supreme Court allowed Congress to grant for-cause removal protections to a multi-member body—in that instance, the Federal Trade Commission (FTC)—because membership was balanced along partisan lines. There is a strong rationale for this decision that suggests that it might be durable. The rationale is sympathy for the Congressional goal of making the FTC impartial. That goal is advanced by making control of the FTC bipartisan. The goal would be set back if the President could fire FTC commissioners at will.

With regard to agency functioning that does not involve executive authority, the precedent cited in the Seila decision is Morrison v. Olson.24

In Morrison, the Court found that Congress can allow removal protections for “inferior officers,” a term used in the Constitution. These are generally officers who do not have policy making authority. In Morrison, the court said that Congress could provide protections from removal for a congressionally appointed independent counsel.

Applying the Supreme Court’s logic based on Morrison to public broadcasting, it is reasonable to think that legislation limiting the President’s right to remove executives and board members other than for cause would be effective in protecting the autonomy of both overseas and domestic public broadcasting. The broadcasting executives and board members do not have significant executive policy making authority.

As to what derelictions the Congress might decide are appropriate cause for removal, the FTC statute relevant to the Humphrey’s Executor case, supra, provides a model. That statute provides that the President’s removal powers cannot be exercised for a cause other than those listed, which are “inefficiency, neglect of duty, or malfeasance in office.”

There are some additional strategies available for enhancing the autonomy of public broadcasting.

Successful litigation by the D.C. Attorney General suggests that state law on not-for-profit corporations can provide a basis for limiting the federal executive power to interfere with the independence of public broadcasting, at least with regard to those USAGM units that are non-profit organizations and receive annual grants from the USAGM. In a case addressing the authority of USAGM executives to replace directors of the not-for-profit Open Technology Fund, D.C. Superior Court Judge Shana Frost Matini held that efforts by the executives to replace Fund board members were precluded by Fund bylaws, which contain “the only clear mechanism for removal of directors.”25

Another approach to protecting public broadcasting independence focuses on protecting the First Amendment right to free speech of journalists working for VOA and other public broadcasters. That is the approach of legislation proposed by Sen. Chris Murphy. The legislation would seek to preclude political pressure on journalists at VOA and other networks funded by the U.S. government.26

In 2020 U.S. District Court Judge Beryl Howell entered a preliminary injunction order protecting the right to free speech of VOA journalists. She ordered the USAGM CEO Michael Pack to stop interfering in the news service’s news coverage and editorial personnel matters. She limited Pack’s authority to force the news agency to cover President Trump more favorably. She said that the acts of Pack and his aides likely “violated and continue to violate First Amendment rights because, among other unconstitutional effects, they result in self-censorship and the chilling of First Amendment expression.”27

The most effective protections for the independence of public broadcasting would be the future support of U.S. Presidents, and a U.S. Supreme Court that does not unduly limit the permissible delegation of authority to government agencies.

Forcefully expressed public opinion can help public broadcasting retain its founding principles of objectivity and balance and avoid becoming a vehicle for partisan political propaganda.

References

1. Catie Edmondson & Edward Wong, With Push From Trump, Senate Moves to Install Contentious Filmmaker at U.S. Media Agency. The New York Times, May 8, 2020.

2. Michael Pack, https://www.claremont.org/scholar-bio/michael-pack/

3. Edmondson & Wong, supra note 1.

4. Madeleine Albright & Marc Nathanson, Op-Ed: Trump has pulled out of the global battle for hearts and minds, LOS ANGELES TIMES, August 4, 2020, https://www.latimes.com/opinion/story/2020-08-04/trump-voice-of-america-independence.

5. Paul Farhi, Voice of America journalists demand resignation of news agency’s top leadership, The Washington Post, January 14, 2021, https://www.washingtonpost.com/lifestyle/media/voice-of-america-demand-director-resign/2021/01/14/d06c7e8a-567b-11eb-a817-e5e7f8a406d6_story.html

6. Anne Applebaum, The Voice of America Will Sound Like Trump, The Atlantic, June 22, 2020, https://www.theatlantic.com/ideas/archive/2020/06/voice-america-will-sound-like-trump/613321/

7. Julian Borger, Voice of America: independence fears after Trump ally purges senior officials, The Guardian, June 18, 2020, https://www.theguardian.com/media/2020/jun/18/voice-of-america-independence-fears-after-trump-ally-purges-senior-officials?CMP=share_btn_tw

8. Reporters’ Committee for the Freedom of the Press, Ex-CPB chair violated law by interfering with programming, November 16, 2005, https://www.rcfp.org/ex-cpb-chair-violated-law-interfering-programming/

9. David Folkenflik, CPB Memos Indicate Level of Monitoring, NPR, June 30, 2005, https://www.npr.org/templates/story/story.php?storyId=4724317

10. Reporters’ Committee for the Freedom of the Press, supra note 8.

11. The Living New Deal, “The Roosevelts” Premieres on PBS, September 8, 2014, https://livingnewdeal.org/tag/ken-burns/

12. Ken Burns Partnership, weta.org/about/productions/national/kenburns.

13. Susan Lorimor, PBS series 'A More or Less Perfect Union' focuses on the Constitution , ABA Journal, March 19, 2020, https://www.abajournal.com/web/article/pbs-a-more-or-less-perfect-union-aims-to-boost-understanding-of-the-Constitution

14. VOA History, https://www.insidevoa.com/p/5829.html

15. Mission, https://www.usagm.gov/who-we-are/mission/

16. Foreign Relations Authorization Act, Pub. L. No. 94-350, 90 Stat. 823, § 206 (1976) (See also Public Law 94-350, https://www.usagm.gov/wp-content/uploads/2016/06/Foreign-Relations-Authorization-Act-FY1977.pdf; https://www.usagm.gov/who-we-are/oversight/legislation/voa-charter/)

17. U.S. Agency for Global Media, Structure, https://www.usagm.gov/who-we-are/organizational-chart/

18. National Defense Authorization Act for Fiscal Year 2017 ( H.R. 4909; NDAA 2017, Pub.L. 114-328 (See also https://www.usagm.gov/who-we-are/oversight/legislation/technical-amendments-international-broadcasting-act/)

19. Paul Farhi, Trump appointee sweeps aside rule that ensured ‘firewall’ at Voice of America, The Washington Post , October 27, 2020, https://www.washingtonpost.com/lifestyle/media/voice-of-america-firewall-michael-pack-trump/2020/10/27/02a4fbae-1854-11eb-befb-8864259bd2d8_story.html

20. Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. __ (2020), 140 S. Ct. 2183, 207 L. Ed. 2d 494 (2020)

21. Cass Sunstein & Adrian Vermeule, The Very Structure of Modern Government Is Under Legal Assault, The New York Times, September 15, 2020.

22. In an opinion issued shortly before publication of this article, Collins et al. v. Yellen, et al., 594 U.S. ____ (2021), the U.S. Supreme Court confirmed its adherence to the principles of the Seila case concerning government agency independence. The Court reiterated the idea that certain agencies may retain independence because of special circumstances. However, it decided the case before it in a way that suggests a possible lack of flexibility in responding to the special circumstances of public broadcasting discussed below that support agency independence.

23. Humphrey's Executor v. United States, 295 U.S. 602 (1935) (See https://supreme.justia.com/cases/federal/us/295/602/)

24. Morrison v. Olson, 487 U.S. 654 (1988) (See https://supreme.justia.com/cases/federal/us/487/654/)

25. District of Columbia v. Open Technology Fund, 2020 CA 0031 185B Judge: Shana Frost Matini, https://oag.dc.gov/sites/default/files/2020-10/OTF-Summary-Judgment.pdf

26. Chris Murphy, Murphy Announces Legislation To Protect Journalists From Political Targeting, https://www.murphy.senate.gov/newsroom/press-releases/murphy-announces-legislation-to-protect-journalists-from-political-targeting

27. Turner et al. v. U.S. Agency for Global Media et al., No. 1:2020cv02885 - Document 45 (D.D.C. 2020) (See https://www.gibsondunn.com/wp-content/uploads/2020/11/PI-Decision-11-20-2020.pdf)