The CRS Argument for Secrecy

In the past, CRS has testified and written policy positions against the dissemination of its products to the public. CRS has offered numerous excuses as arguments against allowing the public dissemination of its products. For example, Librarian of Congress James Billington has written that "... a variety of legal issues, cost considerations, institutional repercussions, and technical complexities need to be weighed carefully by Congress in developing policy for Internet access to these materials." (Appendix D) However, these concerns, some of which are identified below, need not permanently prevent public access to CRS information.

A few of CRS's arguments against making its products directly available to the public are:

1. Loss of Speech or Debate Clause Protections: CRS has stated that to offer its products to the public could result in the loss of CRS's Speech or Debate Clause protections, a provision granted to Members while speaking on the Floor of Congress. With this protection, Members cannot be sued for any statements made on the House or Senate Floors. By extension, Members' staff, CRS, the General Accounting Office (GAO), committee staff, and other Congressional agencies are also covered by this protection.

CRS's argument is undercut, however, by the fact that the GAO and the Congressional Budget Office (CBO) have retained these protections while making their reports accessible and readily available to the public. The GAO, which is also part of the Legislative Branch and has a function similar to that of CRS, offers all of its unclassified reports to the public in hard copy or through its website at no charge. The GAO even voluntarily complies with the Freedom of Information Act, which requires federal agencies to disclose records but does not apply to Congressional entities, reasoning that "the spirit of the act [is] consistent with [GAO's] duties and functions and responsibility to Congress."7 The CBO also produces analyses for Congress and has a website that makes its reports available to the public. However, CRS refuses all public inquiries.

Outside experts familiar with the issue agree that CRS's constitutional immunity would be protected if it made its products available to the public. Stan Brand,8 the former General Counsel to the House of Representatives, has also concluded that "... nothing in [the bill to make CRS products publicly available] will alter or modify applicability of the Speech or Debate Clause protections to CRS products." (Appendix E)

2. Risk of Copyright Infringement: CRS states that "there is some risk of assertion of copyright infringement [of original source material] if CRS materials are made available on-line to members of the general public." However, in the same memo CRS also states that "[t]o the extent that the material is copyrighted, CRS either: obtains permission for the use; considers its information-gathering function protected by the speech or debate clause; or believes that the use falls under the 'fair use' doctrine of the Copyright Act as applied in the context of the legislative process." (Appendix A, p. CRS-10) Given this statement, there should be no risk of copyright infringement.

Should CRS still be concerned about possible copyright infringement, Gary Ruskin, then-Director of the nonprofit Congressional Accountability Project, offered a number of solutions to counter the issue. CRS could ask permission to reproduce portions of copyrighted materials into reports and explain that these reports will be placed on the Internet. CRS could also abridge or eliminate the more lengthy passages which may fall outside the "fair use" claim before the reports are placed on the Internet.9

3. Cost Considerations: CRS also mentions cost as a concern. However, a pilot project initiated by Representative Christopher Shays (R-CT) that makes some CRS products publicly available demonstrates how inexpensive providing access to CRS products through the Internet can be. Representative Shays' website provides access to some CRS Issue Briefs, Short Reports, Long Reports, and Appropriations Reports. The pilot project cost only 60-80 hours of programming, 40-50 hours of testing, and the use of an additional existing server. A possibility other than establishing a new website would be to integrate as much information as possible from the CRS and LIS websites into the already-existing THOMAS system.

4. Peer Review of CRS Products: CRS states, "If CRS written products were routinely available on a wholesale basis to academic and other professional peers outside of Congress, CRS analysts might become more conscious of the need to address views, methods, disciplines, and expectations of non-congressional professional peers ... ." (Appendix A, p. CRS-6)

What CRS states as a negative is seen by many as beneficial. Quality peer and public review can only serve to increase the quality of the works produced, thus better informing Congress and the public. GAO embraced the idea that the quality of its reports will be improved through peer and public review. For example, GAO sends its final draft reports to the agencies it has investigated and includes the agencies' comments in its final reports.

5. Member-Constituent Relations: Another of CRS's concerns is that open access to its products will obstruct the Member-constituent relationship. Daniel P. Mulhollan, Director of CRS states:

"[It] threatens the important relationship that Members have with their constituents. Historically, constituents have gone to Members of Congress when they have questions about legislation ... . The wholesale direct dissemination of CRS products to the public would bypass this long standing relationship by denying constituents the benefit of their Members' additional insights, party viewpoints, or regional perspectives on CRS analysis."10

According to Librarian of Congress Billington:

"Disclosure of CRS reports and issue briefs by Members and Committees - and greater use of the Internet to achieve such disclosure - is seen as reaching the proper balance between the public's desire for information on the issues before Congress, the preservation of CRS' role in the legislative process, and the protection of the Member's role in informing his/her constituents on their public policy concerns." (Appendix D)

But public access to CRS material in no way obstructs Member-constituent relationships. It could, in fact, even improve that relationship. Well-informed constituents can only strengthen the democratic process by asking pertinent questions and offering educated opinions to their Members of Congress. One way of strengthening the relationship would be to establish a central database of CRS products to which Members of Congress could link, as is recommended in the bill to make CRS products publicly available. The Members would be serving their constituents by providing timely and unbiased analyses; the public would see their Members as trying to provide as much unbiased information as possible to keep their constituents well informed and able to participate in the governing process; and the public would have reason to frequent their Members' websites.

Furthermore, improving Member-constituent relationships is hardly a valid argument for creating a monopoly on information. Constituents are entitled to this information in a timely manner without the ideological screening of their Members of Congress, with whom they may not agree.

A final point which also undermines CRS's arguments against making its products public is the fact that the Government Printing Office (GPO) makes many old CRS reports available to the public through its federal depository libraries. Additionally, the Department of State makes current and archived copies of CRS reports, obtained from CRS, publicly available at their website.11


Bipartisan Support for Making CRS Reports Public

Congress has legislated that all executive agencies have complete websites. Furthermore, Members of Congress have shown a commitment to educating their constituencies through the development of personal websites and through hastened response times to constituent correspondence. These changes were made to increase transparency, provide citizens with a larger base of knowledge, and to facilitate public participation in the workings of our democracy.

Despite the advances the government has made in keeping the public informed through the use of the Internet, information available about Congress' decision-making processes through the Internet remains limited. Many Members of Congress, including those at the highest level, seek to expand the amount of information available to the public.

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 website, 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. (Appendix F) Senator Tom Daschle (D-SD) was the first to respond to this suggestion, putting almost 300 CRS products on his website. The CRS products are no longer accessible on this website.

Legislation that would make CRS Reports to Congress, Issue Briefs, and Authorization and Appropriations Reports available over the Internet has been introduced every Congress by Senator John McCain (R-AZ) or Senator Patrick Leahy (D-VT) since 1998. This initiative enjoys support from the leadership of both parties in the Senate.12 Bills have also been introduced in the past in the House by Representative Shays and Representative Jim DeMint (R-SC), and at least two Representatives - Representative Shays and Representative Mark Green (R-WI) - have placed many CRS products on their own websites in an attempt to make some CRS products available to the public. Of those websites researched by POGO, Representative Shays' offers the most extensive free access to CRS reports, yet even this list is limited to those that the CRS makes available to him to make public.

Historically, many groups across the political spectrum have sought to make CRS products open to the public including: American Conservative Union, American Society of Newspaper Editors, Common Cause, League of Women Voters of the U.S., National Association of Manufacturers, National Newspaper Association, National Taxpayers Union, and Public Citizen. (Appendix G) Editorials and articles have been run in the media, including Austin American-Statesman, Minneapolis Star Tribune, MSNBC, Philadelphia Inquirer, Roll Call, and the San Jose Mercury News.


Recommendations

1. Unclassified CRS products such as Reports to Congress, Issue Briefs, and Authorization and Appropriations Reports should be made known and readily available to the public. Exceptions could be made for confidential and classified information and for subscription services.

2. The Library of Congress should seek to bolster the THOMAS website to include as much information from the CRS and LIS websites as possible. Again, exceptions could be made for confidential and classified information and for subscription services.

Some reports are available at these websites:

Who is Offering Reports	Where Reports are Located
Department of State	http://fpc.state.gov/c4763.htm
Federation of American Scientists	http://www.fas.org/
Government Printing Office via University of California	http://www.gpo.ucop.edu/crs/alpha.html
Libraries of the University of California	http://www.gpo.ucop.edu/crs/
House Committee on the Judiciary	http://www.house.gov/judiciary/crs.htm
House Committee on Rules	http://www.house.gov/rules/crs_reports.htm
National Council for Science and the Environment	http://www.cnie.org/NLE/CRS/
National Library for the Environment	http://www.cnie.org/NLE/CRS
Representative Christopher Shays	http://www.house.gov/shays/CRS/CRSProducts.htm
Representative Mark Green	http://www.house.gov/markgreen/w3ccrs.htm
Issue Brief.NET 13	http://www.issuebrief.com
LexisNexis (Subscription Service)	http://www.lexis.com
Penny Hill Press 14	http://www.pennyhill.com
Westlaw (Subscription Service)	http://www.westlaw.com

As of February 5, 2003