GovExec.com recently published an update (worth reading in full) on Senator Lieberman’s Congressional Research Service bill, S.Res. 401. The bill has been referred to the Senate Rules Committee for consideration, where a compromise is seemingly being negotiated:

Senate Rules Committee Chairwoman Dianne Feinstein, D-Calif., who has jurisdiction over the matter, is pushing a more modest plan, based on the House’s system, in which members would choose whether to make reports public. Rules Committee Staff Director Howard Gantman said the proposal, which the committee can implement without a vote, would improve on the Senate approach by offering a standard system for publishing reports that would refresh reports on members’ Web sites when CRS updates them.

I encounter the staff and member resistance to CRS openness very frequently on the Hill, which I think speaks to just how important the researchers at the Library of Congress are to the work of Congress. Staff and members are concerned that opening access to CRS reports might make the analysts’ jobs harder, possibly politicizing their trusted source for objective research.

The problem with this argument is that the reports are already public; see OpenCRS.com for free access to (many of) these documents, or you can search also for reports sold by vendors. (Who knows how the vendors get them.)

Since most of the reports are widely circulated anyway, the reports’ publication is beyond Congress’s control. This leaves CRS analysts in the awkward position of seeing their old work (which they update often: “this report… will be updated as events warrant”) circulated online, often for sale, with their name on it, unattached to updated versions. There’s no way to be sure whether an updated report has been issued.

This concern also ignores the example of Congressional Budget Office (CBO) or Government Accountability Office (GAO) reports, both of which are not only published and searchable on the agencies’ Web sites, but even syndicated in RSS, encouraging the public to keep track of their latest work. As far as I’m aware this hasn’t harmed their effectiveness or perceived objectivity at all.

The GovExec.com article also cites lawmakers’ concerns about confidential reports: “The plan aims to balance public needs and the views of “a significant number of members” who oppose Lieberman’s bill due to their belief some CRS reports should remain confidential, Gantman said.” These concerns seem to reflect a fundamental misunderstanding of Lieberman’s proposal, which wouldn’t make confidential CRS memoranda public (no one is proposing that), but only the issue briefs already for sale by vendors and shared by many members of Congress with their constituents (and available at OpenCRS).

Finally, the other concern often raised about CRS report availability has to do with constitutional law. Legislators and congressional staff have certain immunity under the “Speech or Debate” clause of the constitution (see Article I here), and there is concern that if CRS served the public rather than Congress that they would be performing a function that isn’t legislative, serving the public rather than Congress. Again, this seems to be a non-issue given that CRS wouldn’t need to be the source of publication. Here’s the text of Lieberman’s provision:

(1) IN GENERAL- The Sergeant-at-Arms of the Senate, in consultation with the Director of the Congressional Research Service, shall make available through a centralized electronic system, for purposes of access and retrieval by the public under section 3 of this resolution, all information described in paragraph (2) that is available through the Congressional Research Service website.

For more background on the Speech or Debate clause, here’s (ironically?) a CRS report on recent court cases interpreting the privilege. (via ACSblog.org; referring also to the Supreme Court’s recent refusal to hear the case regarding Rep. Jefferson.)