Why does this issue matter?
Although CRS has testified and written policy positions opposing the distribution of its products to the public, other legislative agencies with functions similar to those of the CRS - the General Accounting Office (GAO) and the Congressional Budget Office (CBO) - have made their products available to the public. Both the GAO and CBO have done so without compromising their responsibilities to Congress, relinquishing their constitutional protections, or violating any legal prohibitions.
The Project on Government Oversight supports efforts to make CRS reports available over the internet and more accessible to the public. POGO champions issues dealing with open government and believes a well-informed citizenry encourages the successful functioning of democracy.
Special thanks go to Gary Ruskin, who has been one of the key driving forces behind broad public access to Congressional Research Service products. POGO also wants to thank Steve Katz for his assistance on this report.
- The Congressional Research Service (CRS), an arm of the U.S. Congress, authors such products as Reports to Congress, Issue Briefs, and Authorization and Appropriations Reports.
- CRS also operates both the CRS website (www.crs.gov) and the Legislative Information System (LIS) website (www.congress.gov). The LIS varies substantially from the system which is available to the public at the Library of Congress' THOMAS website (http://thomas.loc.gov). In fact, CRS has a special page detailing the enhanced capabilities of its restricted LIS website over the public THOMAS website, such as up-to-the-minute floor and committee schedules.
- Neither CRS's products nor its websites are readily available to the public. CRS products are only available to the public if one knows exactly where to go: A citizen must request them from his or her Member of Congress, undertake an exhaustive and time-consuming search for them, or pay for them. There is no predictable method of finding a report, as various outlets offer different reports. None of the free websites lists all of the CRS reports available to the public.1 The official CRS websites are not available to the public at all. To prevent public access to its websites, CRS has erected an elaborate firewall. As a Congressional entity, CRS is not subject to the Freedom of Information Act and CRS does not answer direct public inquiries.
- Taxpayers pay for CRS products and for both CRS websites in addition to THOMAS. Private vendors such as Lexis, Penny Hill Press, and Westlaw sell some of these taxpayer-funded CRS products.
- Former Members of Congress, many of whom become lobbyists, can request current CRS publications and limited reference assistance. There are over 150 registered lobbyists who are former Members of Congress. Entities such as corporations, universities, and localities who can afford these high-priced lobbyists have access to current CRS publications that the general American public does not.
- While CRS has testified and written policy positions opposing the dissemination of its products to the public, other legislative agencies with functions similar to those of the CRS - the General Accounting Office (GAO) and the Congressional Budget Office (CBO) - have made their products available to the public without compromising their responsibilities to Congress, relinquishing their constitutional protections, or violating any legal prohibitions.
- Recommendation: CRS products such as Reports to Congress, Issue Briefs, and Authorization and Appropriations Reports should be made readily available to the general public. The Library of Congress should seek to bolster the public THOMAS website to include as much information from the CRS and LIS websites as possible.
Washington's Best Kept Secret
"For a democracy to be dynamic and self-correcting, its governing institutions must be not only continuously accountable to the people but also solidly based on a body of knowledge that is both constantly expanding and available equally to those who legislate and to those who elect the legislators." (Emphasis in the original) 2
- Excerpt from Library of Congress Mission Statement
The Congressional Research Service (CRS) is a department within the Library of Congress. It acts as an arm of the U.S. Congress, researching and reporting on topics of interest to Congress. It then issues the information in both print and web form as CRS products. Its work provides Senators, Representatives, and their staffs with high quality non-partisan research and analysis. CRS had 694 employees and a budget of over $81 million during the Fiscal Year 2002.
According to the mission statement of the Library of Congress, "the unifying purpose of providing the public with essential library services, such as cataloging and reference help, is to afford as much access to useful information as possible to each of these three constituencies [Congress, the U.S. government more broadly, and the public]."3 Despite this, however, Congress has dictated since 1952 that it has control and custody of CRS products and that those products may be released only by Congress. (Appendix A, p. CRS-2) As CRS currently states on its report covers, "The Congressional Research Service works exclusively for the Congress, conducting research, analyzing legislation, and providing information at the request of committees, Members, and their staffs." Those who elect the legislators are being denied direct access to a major wealth of information that directly affects the decisions of those who legislate.
Making certain types of CRS products and its websites widely available to the public would provide citizens with the type of high quality information necessary to actively and knowledgeably participate in public debate about current issues and the workings of our government.
This report does not seek to promote changes to CRS research methods or products, but only to their availability.
CRS's products include briefs, reports, short issue papers and longer position papers. These products provide research and policy analyses including scientific, economic, and legislative analyses; background analyses; pro and con arguments; and legislative histories.4 CRS goes to great lengths to ensure that all sides of an issue are clearly presented and that its products are both simple and easy to understand, making these reports an invaluable asset to public debate.
Recent CRS products include "Across-the-Board Tax Cuts: Economic Issues," "Afghanistan: Current Issues and U.S. Policy Concerns," "Anti-Ballistic Missile Treaty Demarcation and Succession Agreements: Background and Issues," "Middle East: Attitudes Toward the United States," "Global Climate Change," and "Iraq: Divergent Views on Military Action."
In addition to these products, current Members of Congress and their offices both in Washington and in their home districts have access to the CRS website and to CRS's Legislative Information Service (LIS) website. These sites are the most comprehensive and integrated sources of information regarding workings of the federal government, and are arguably the best sources of information regarding the legislative process of the United States.
Not only is all proposed legislation available on these sites, but all information necessary to become informed about any aspect of government is available there as well. They have the information needed to keep up-to-the-minute on most legislation including information from past bills similar to the current legislation; historical information about the legislation; biographical data about the Members who introduced it; the ability to track the legislation as it moves through committee hearings to the Floor; and links to information about the legislation in the Congressional Record, Floor and committee schedule information, and the Federal Register. (Appendix B)
The CRS website (www.crs.gov) provides CRS publications on current legislative issues, electronic briefing books, information on the legislative and budget processes, a searchable database of all CRS products, and other information about Congressional procedures and activities.
The LIS website (www.congress.gov) is specifically designed to track legislation and legislative activity. According to the CRS, "The LIS ... provides bill summary and status, full text of legislation and public laws, full text of committee reports, hearings, and other documents, and the Congressional Record for the current and earlier Congresses. The system also gives (and is searchable by) committee, sponsorship, and cosponsorship; identification of identical bills; and other information."5 The LIS varies substantially from the system which is available to the public at the Library of Congress' THOMAS website (thomas.loc.gov). In fact, CRS has a special page detailing the enhanced capabilities of the restricted LIS website over the public THOMAS website.
Neither of these websites are available to the public, even though knowing what is happening when it is happening would be enormously empowering to citizens, activists, journalists, and academics following legislation.
In order to prevent public access to the websites, CRS has erected an elaborate firewall to keep the public out. In fact, when the public tries to access the LIS, they are automatically forwarded to THOMAS without warning. Taxpayers pay for both CRS systems in addition to THOMAS, yet are only allowed access to THOMAS.
The following is CRS's comparison of the two websites 6:
Last updated March 2002.
Well Known to Lobbyists
Unfortunately, neither CRS's products nor its websites are readily available to the public. CRS, like other Congressional entities, is not subject to the Freedom of Information Act (FOIA), nor does it answer direct public inquiries. To receive a copy of a report, a citizen must request it from his or her Member of Congress, personally conduct an exhaustive search through various websites that may or may not have it, or buy it from a private company.
Although CRS states that it is "well known, both in Washington, D.C. and by interested parties throughout the country, that constituents may obtain copies of CRS written products through a Member or Committee of Congress," (Appendix A, p. CRS-4) CRS is actually not publicized at all even inside Washington, D.C. Furthermore, most Members of Congress do not currently publicize the availability of CRS or its products on their websites. Therefore, the vast majority of people outside Washington would have no way of knowing of its existence.
Even when constituents are aware of CRS and its products, Congressional staff are not always willing or able to provide copies of reports in a timely manner. While there are several websites which offer some CRS reports to those citizens who are aware of the service, the sites are frequently incomplete, out of date, and sometimes charge a fee for this publicly-funded research.
Independent companies obtain CRS reports from Capitol Hill sources and sell the reports or access to the reports. For example, reports from Penny Hill Press cost $29.95 each, or $7.95 for subscribers. A subscription is $299 per year or $549 for two years. Another company, IssueBrief.net, offers HTML reports for free but charges for downloaded PDF files. They have daily, weekly, and monthly fees for access to reports in PDF format. Sources told POGO that Westlaw and Lexis send representatives to Congressional offices to collect new CRS reports to place for sale on their respective websites. Penny Hill Press stated that the CRS reports they have for sale come from different sources throughout Washington.
The only people off Capitol Hill to whom the availability of CRS products may be well known are lobbyists. Former Members of Congress, many of whom become lobbyists, can request current CRS publications and limited reference assistance. Currently, there are over 150 registered lobbyists who are former Members of Congress.(Appendix C) Entities such as corporations, universities, and localities who can afford these high-priced lobbyists have access to CRS publications that the general American public does not.
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:
- 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)
- 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
- 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.
- 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.
- 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.
- 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.
- 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|
"Congressional Policy Concerning the Distribution of CRS Written Products to the Public," Congressional Research Service, January 2, 1998.
"A-Z Site Index," Legislative Information System of the U.S. Congress.
List of former Members of Congress who are registered lobbyists.
Letter from James H. Billington, Librarian of Congress, to Mr. Ari Schwartz and Mr. Rick Blum, September 3, 1999.
Letter from Stan Brand, former General Counsel to the House of Representatives, to The Honorable John McCain, January 27, 1998.
Letter from Stan Brand, former General Counsel to the House of Representatives, to The Honorable John McCain, Chairman of the Senate Committee on Commerce, Science and Transportation, February 6, 2001.
Letter from Chairman John Warner and Ranking Member Wendell H. Ford, Senate Committee on Rules and Administration, to Senate Colleagues, June 10, 1998.
Letters from Groups to The Honorable John McCain and The Honorable Patrick Leahy, and The Honorable Christopher Shays, February 9, 1999.
1. A variety of websites collect and provide selected CRS products.
2. "The Mission and Strategic Priorities of the Library of Congress FY 1997-2004," www.loc.gov/ndl/mission.html, downloaded February 10, 2003.
3. "The Mission and Strategic Priorities of the Library of Congress FY 1997-2004," www.loc.gov/ndl/mission.html, downloaded February 10, 2003.
4. "Introductory Material to UPA Microform Collection Guides: Major Studies and Issue Briefs of the Congressional Research Service," www.lexisnexis.com/academic/2upa/Acrs/MajorStudiesIssueBriefs.CRS.htm, downloaded February 10, 2003.
5. "Congressional Staff Guide to Resources in CRS Research Centers and the LaFollette Congressional Reading Room," Congressional Research Service, February 8, 2001, p. CRS-4.
6. "Comparison of LIS and THOMAS," http://www.congress.gov/homepage/listhomas.html, downloaded June 28, 2002.
7. "Public Availability of General Accounting Office Records," 4CFR81.1.
8. Stan Brand is counsel for the Project On Government Oversight.
9. Memorandum from Gary Ruskin, Director of Congressional Accountability Project, Re: Placing Congressional Research Service Products on the Internet, January 5, 1998.
10. "Statement of Daniel P. Mulhollan, Director, Congressional Research Service, before the Subcommittee on Legislative Appropriations, Committee on Appropriations, United States Senate, Fiscal 1999 Budget Request, March 12, 1998," p. 10.
11. U.S. Department of State, " Congressional Research Service (CRS) Reports," http://fpc.state.gov/c4763.htm, downloaded September 5, 2001.
12. The legislation proposed in the 107th Congress, Senate Resolution 21, was co-sponsored by Senators Tom Harkin (D-IA), Patrick Leahy (D-VT), Joseph Lieberman (D-CT), and Trent Lott (R-MS).
13. HTML reports are free, but Issue Brief.NET does charge to download PDF files. They have daily, weekly, and monthly fees for access to reports in PDF format.
14. Reports cost $29.95 each, or $7.95 for subscribers. A subscription is $299 per year or $549 for two years.