The Open House Project from The Sunlight Foundation

6. Congressional Research Service

Recommendations to Publish Congressional Research Service Reports

Recommendation Summary

The closed nature of Congressional Research Service (CRS) reports should be revisited. While CRS is meant to be a research arm for Congress, this does not preclude the possibility of some of its reports being made available to the public. This would let the public benefit from the nonpartisan, objective analysis that CRS performs with public funding. Although current policy is that reports are generally off-limits to the public, most reports are already readily available to those with money or influence, and thus the current policy already requires revision. Issue briefs and other categories of reports should be made available to the public, with appropriate measures put in place to ensure that public access does not hinder CRS’s ability to perform its primary function as a research arm for Congress.

Overview of the Congressional Research Service

The Congressional Research Service (CRS) is a research-based legislative branch agency within the Library of Congress. CRS’s mission is to provide Congress with “its own source of nonpartisan, objective analysis and research on all legislative issues.� 42 In 2006 the cost of these services totaled $102 million.

Currently, CRS written products are created solely for the benefit of Congress itself, and can only be released to the public by members of Congress. As CRS’s director, Daniel P. Mulhollan, has stated, “Once a report is produced for the Congress, it becomes the property of the Congress… CRS itself has no public role and is prohibited by law from publishing its work.�

CRS written products may be intended solely for the use of members of Congress, but a variety of stakeholders do have access to the reports. According to the Project on Government Oversight, former members of Congress, including many who have become lobbyists, have access to CRS reports. In addition, for-pay services such as Penny Hill Press, Gallery Watch, Lexis-Nexis and Westlaw offer these reports. According to Stephen Young, reference librarian at The Catholic University of America, over thirty Web sites, including OpenCRS.com , offer CRS reports at no cost, though there is no one comprehensive source. Most of these sites would welcome giving up their roles as conduits, should Congress provide a comprehensive alternative.

The consequence of the patchwork release pattern is that lobbyists and those with political connections have access to Congress’ “brain� while the public at large finds these reports difficult to procure.

History of the Congressional Research Service

Since 1952, Congress has stipulated that it alone is granted access to studies, analysis and research from CRS (then known as the Legislative Reference Service). CRS is prohibited “from general public distribution of its material without prior approval by one of its two congressional oversight committees.�

In 1980, the Joint Committee on the Library recommended that “the circulation of CRS materials prepared specifically for congressional use be limited to Congress, and that the long-standing policy of confidentiality in the work of CRS for individual congressional clients should be maintained.� 43 Following the committee’s release of recommended guidelines, the Senate enacted a resolution stating:

“That it is the determination of the Senate that the communications of the Congressional Research Service to the members and committees of the Congress are under the custody and control of the Congress and may be released only by the Congress, its Houses, committees and members, in accordance with the rules and privileges of each House.� 44

The 1980 guidelines proposed by the Joint Committee on the Library and the Senate resolution outlined the current policy that protects the Congressional Research Service from doing any work for the general public, while leaving it to members of Congress to decide what, if any, access the public should have to CRS reports. In a 1998 report on whether CRS reports should be widely available to the public, CRS made the following observation:

“The principles of representative government and of legislative accountability hold that representatives have an obligation to provide their constituents with the information and understanding required in order to exercise democratic citizenship; that is, the democratic idea that the authority of those who govern rests on the consent of those who are governed, calls for democratic consent to be fully informed and enlightened…

Moreover, technology now enables Members and Committees to make CRS products available to constituents in electronic format through congressional Homepages.� 45

In the report, CRS expressed reservations about their products being publicly available. Their concerns included: the pressure to “address views, methods, disciplines, and expectations of non-congressional professional peers, with the result that CRS written work could shift away, or appear to shift away, from its current emphasis on the congressional audience�; the possibility that “outside parties may judge and question CRS papers on the basis of standards other than the standards CRS has developed to meet congressional needs (e.g., timeliness, non-partisanship, balance, objectivity)�; and multiple legal issues related to “copyright infringement,� “the speech and debate clause,� and “confidentiality…and…constitutional immunity.�

43 “ Congressional Policy Concerning the Distribution of CRS Written Products to the Public ,� Congressional Research Service, January 2, 1998.
44 S. 396, 96th Congress
45 “ Congressional Policy Concerning the Distribution of CRS Written Products to the Public ,� Congressional Research Service, January 2, 1998.

While these legitimate concerns merit consideration, they are not insurmountable obstacles to public access. We urge a change in thinking, as outlined below.

The Case for Public Access to Congressional Research Service Reports

There are two political institutional groups resistant to publication of CRS reports.

1)CRS is institutionally opposed to public review of its work.

2)Members of Congress consider the private distribution and production of CRS reports a valued constituent service. Senator Ted Stevens, “like many members of Congress, views CRS as an extension of his staff.� 46

However, in each Congress from the 105th to the 108th, Sen. John McCain has proposed a bill to provide for the Senate sergeant-at-arms to make CRS reports available for members of Congress and committees to post to their public Web sites at their own discretion. Both Rep. Chris Shays and then-Rep. Jim DeMint proposed similar legislation in the House of Representatives in the 104th, 105th and 108th Congresses. 47 Former Rep. Mark Green and Sen. Patrick Leahy have also provided a large amount of support for the expansion of public access to CRS reports.

The following current senators have sponsored or cosponsored legislation that would expand public access to CRS reports: McCain, Leahy, Joe Lieberman, Tom Harkin, Trent Lott, DeMint, Tom Coburn, and Mike Enzi.

Other members of Congress have expressed support for public access to CRS reports, according to the Project on Government Oversight’s report on public access to CRS:

“In 1998, then-Chairman of the Rules Committee Senator John Warner (R-VA) and Ranking Member Wendell Ford (D-KY) disseminated CRS products through the Committee’s Web site, taking the position that it is appropriate ‘for Members and Committees to use their web sites to further disseminate CRS products,’ and, in fact, encouraging them to do so. Senator Tom Daschle (D-SD) was the first to respond to this suggestion, putting almost 300 CRS products on his Web site.� 48

46 Information, Please ( http://www.washingtonpost.com/wp- dyn/content/article/2007/02/18/AR2007021801064_pf.html )

The Washington Post, February 19, 2007

47 In the 108th Congress, H.R. 3630 (Congressional Research Accessibility Act) and S. Res. 54.

The Project on Government Oversight’s report “Congressional Research Service Products: Taxpayers Should Have Easy Access� 49 suggests that the arguments against public distribution are not well founded:

•Speech and Debate Protections: Two other legislative branch offices that have a similar function as CRS: The Government Accountability Office and the Congressional Budget Office both provide public access through their Web sites to all reports they issue for consumption by Congress.

•Risk from Copyright Infringement: CRS already takes measures to avoid infringement in its documents, such as obtaining permission for use of copyrighted material. They would continue to take these steps, and could adapt them for more widespread distribution. For instance, material essential to a report, for which permission to distribute was not obtainable, could be distributed to the public in a different form.

•Cost: The cost of distributing documents on the Internet today is negligible.

While existing concerns are clearly important, research has shown that many

are molehills, not mountains, and can be resolved.

Recommendations

The House should pass a resolution directing the clerk of the House to work with CRS to create a publicly accessible database of a selection of CRS written products. Not all CRS products need be included in the database. While CRS Issue Briefs, reports generally available to members of Congress and CRS Authorization of Appropriations Products ought to be generally included, reports requested by individual members who do not wish to make the report public and reports containing confidential information certainly need not be made public. In addition, aspects of reports that may raise issues for public distribution, including the names of report authors and copyrighted material, should be addressed in any policy reforms. These concerns, however, should not prevent the other parts of the reports from being publicly distributed.

Conclusion

While the public need not be invited to scrutinize all work done by CRS, the case for complete secrecy is now weak. These reports are not confidential and are accessible to most staff members on Capitol Hill, as well as former staff members, lobbyists and anyone with political connections to those groups.

There is a realistic political worry that CRS could jeopardize its institutional independence by producing information that members find objectionable, but given that CRS reports are already widely available in a quasi-public state, this concern is not well founded. Indeed, to the extent that the public begins to rely on CRS as a useful guide to congressional activity, this will present an additional institutional incentive for Congress to maintain CRS’s nonpartisan and independent status as a respected and fully funded government service.

48 “ Congressional Research Service Products: Taxpayers Should Have Easy Access ,� Project on Government Oversight, February 10, 2003.

Restricting access to CRS reports to a narrow—if substantial—slice of the public is a needless barrier to full public access to useful, publicly produced information on how Congress makes its decisions.

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