Congress Urged to Revisit Editorial Firewall Protections of US-Funded Media Networks
This article features Government Accountability Project’s Senior Counsel, David Seide, and was originally published here.
A government report is recommending that Congress pass legislation to better define editorial firewalls at the U.S. Agency for Global Media, which oversees VOA.
The Government Accountability Office, which audits U.S. government agencies for Congress, issued a 60-page report Wednesday examining the impact that legislation passed in recent years has had on USAGM’s organizational structure and editorial independence.
The report examines the tumultuous tenure of former USAGM CEO Michael Pack, who became the agency’s first leader with expanded powers to oversee several taxpayer-funded news networks, including Voice of America,
Soon after he was confirmed by the Senate, Pack, a conservative documentary filmmaker, drew criticism from U.S. lawmakers and others by firing most of the network heads and replacing members of the formerly bipartisan governing boards.
Pack’s actions later drew lawsuits; whistleblower complaints alleging gross mismanagement and retaliation; a subpoena from Congress; and court orders barring him from interfering with the operations of the networks and grantee organizations he oversaw, including VOA, Radio Free Europe, Radio Free Asia, the Middle East Broadcasting Networks, the Office of Cuba Broadcasting, and the Open Technology Fund.
David Seide, senior counsel at the Government Accountability Project, who represented several agency whistleblowers, said the report did a “commendable job” of reviewing the misconduct allegations made against Pack and his team.
“The independence of the agency and the existence of the firewall are critical to the mission of VOA, the other networks and USAGM. And the GAO has recognized that more work could be done in the space and should be done,” Seide said.
Seide said the report references three independent investigators hired by USAGM to review allegations made against Pack’s team between June 2020 and January 2021.
“Fundamentally, this report suggests that CEO Pack was out of his lane in a variety of ways on a variety of topics. And so, this report catalogues those instances and is a good basis to strengthen the independence of the agencies,” Seide told VOA.
The GAO makes two recommendations to Congress. The first focuses on amendments to the 1994 Broadcasting Act’s provisions on hiring and firing grantee board members, and the second recommends legislation to more clearly define what the firewall does and does not cover.
When asked for comment, USAGM referred VOA to a response from USAGM included in the report. In the letter dated October 5, acting USAGM CEO Kelu Chao said she concurs with the recommendations and “recognizes the importance of strong grants management.”
The firewall was central to a November 2020 lawsuit in which a federal district court ruled that VOA’s journalists were afforded First Amendment rights. The ruling imposed a preliminary injunction to prevent further attempts to repeal or breach the firewall.
After Pack resigned, the law firm representing members of USAGM including then-VOA Program Director Chao in a case against Pack’s team agreed to withdraw the case on condition that the Justice Department would not file a motion to vacate the decision.
Chao was named acting CEO of USAGM in January.
The deal is significant because it means journalists at the network could cite the decision in future lawsuits over suspected firewall breaches, said Lee Crain, of Gibson, Dunn & Crutcher, who acted as the counsel for the plaintiffs in the case.
Crain welcomed the report recommendations, saying, “It’s really exciting to think that they’re going to try to build out what was in the prior regulation in the legislation.”
“Our position in the case was there was enough language in the statute, and in the legislative history from President [Barack] Obama and different committees of Congress, that the firewall was baked into the statute. But that said, I don’t think there’s anything wrong with clarifying and making things more specific,” Crain told VOA.
The GAO focuses on the CEO’s powers over the grantee boards. Those powers were expanded when Congress changed the agency’s leadership structure in 2018.
Supporters of the change hoped the CEO would be able to better manage and coordinate the agency’s networks, which in 2020 had a budget of around $810 million.
But the GAO said that Pack made himself chair of all the boards and appointed new members. The report cites officials at the agency who said the move “increased uncertainty and lowered the morale of network staff.”
The challenges reflect a long-standing tension over what VOA’s role should be.
In repealing the firewall, Pack had argued that agency rules made it impossible for him to fulfill his executive branch responsibilities to further U.S. foreign policy objectives. But his critics alleged that making sweeping changes to the firewall and bipartisan boards undercut the networks’ credibility with foreign audiences.
Crain said the disagreement highlighted the need to clarify the CEO’s powers and responsibilities.
“Looking at what was happening at the time, I think it was very scary for a lot of people, the idea that Mr. Pack would have the authority to put whoever he wants in perpetuity on these boards, and sort of burrow his policies going forward, when that wasn’t what the administration wanted. That wasn’t what a lot of bipartisan members of Congress wanted with these organizations. So, I think it absolutely makes sense to impose some sort of structural reform.”
The report cites some shortcomings, including USAGM’s failure to resolve a deficiency in grants monitoring and compliance with federal grant regulations. But the report notes that “corrective actions” are being taken, which include a plan to hire someone to oversee the improvements.
It also cited a whistleblower complaint alleging misconduct by the director of VOA’s Persian division, who was accused of fraud, waste and abuse. The director was placed on administrative leave while Pack’s team took steps to terminate her.
The official was reinstated and the request for termination rescinded when Chao was appointed acting CEO.
Republican U.S. Representative Michael McCaul, however, wrote to USAGM on Wednesday, asking for information about the decision to reinstate the senior official.
McCaul said that USAGM’s Labor and Employment Relations office found cause for dismissal including “falsifying … credentials and abuse of public funds.”
He also questioned Chao’s relationship with the official and requested that the acting CEO detail her role in the rehiring process and provide other information and documents, by November 17.
USAGM told VOA it does not comment on communication, or possible communication, between the agency and members of Congress.
Investigators for the GAO report interviewed managers and journalists working for USAGM’s networks. Pack and his senior advisers all declined to be interviewed, the report said.
The report highlighted other steps USAGM has taken to roll back some of Pack’s policies, including the nonrenewal of J-1 work visas for the agency’s foreign journalists, which the report said led to “a significant loss of staff with specialized skills and knowledge.”
Authority to renew the visas was given to the acting VOA director, and the network has since approved 23 visas and is in the process of rehiring at least 15 journalists who were terminated after their visas had expired under Pack.
Seven foreign journalists whose contracts were terminated under Pack filed a lawsuit claiming wrongful termination and seeking damages. Three of those had to leave the U.S.