[Congressional Record Volume 144, Number 2 (Wednesday, January 28, 1998)]
[Senate]
[Pages S123-S126]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. McCAIN (for himself, Mr. Coats, Mr. Faircloth and Mr. 
        Ashcroft):
  S. 1578. A bill to make available on the Internet, for purposes of 
access and retrieval by the public, certain information available 
through the Congressional Research Service web site; to the Committee 
on Rules and Administration.


               CONGRESSIONAL RESEARCH SERVICE LEGISLATION

  Mr. McCAIN. Mr. President, I would like to introduce a bill that will 
make Congressional Research Service Reports, Issue Briefs, and 
Authorization and Appropriations products available on a web site to 
the American people. Senator Coats, Senator Faircloth, and Senator 
Ashcroft are original co-sponsors to this bill. Additionally, 
Representative Shays will be introducing a companion bill over in the 
House.
  The Congressional Research Service (CRS) has a well-known reputation 
for producing high-quality reports and issue briefs that are unbiased, 
concise, and accurate. Many of us have used these CRS products to make 
decisions on a wide variety of legislative proposals and issues, 
including Amtrak, the Endangered Species Act, the Line Item Veto, and 
U.S. policy in Zambia. Also, we routinely issue these products to our 
constituents in order to help them understand the important issues of 
our time.
  This fiscal year, the American taxpayer will pay $64.6 million to 
fund the Congressional Research Service. Newspapers, such as the San 
Jose Mercury-News and the Austin American-Statesman, and watchdog 
groups, such as the Congressional Accountability Project, have recently 
asked the Congress to allow the public access to CRS resources. The 
American people have paid for these valuable resources and have a right 
to see that their money is being well spent.
  Congress can also serve two important functions by allowing public 
access to this information. First, public access to these CRS products 
will mark an important milestone in opening up the federal government. 
Our constituents will be able to see the research documents which 
influenced our decisions and understand the trade-offs and factors that 
we consider before a vote. This will give the public a more accurate 
view of the Congressional decision-making process to counter the 
prevailing cynical view of Members of Congress selling their votes to 
the highest campaign contributor.
  Also, these CRS reports will serve an important role in informing the 
public. Members of the public will be able to read these CRS products 
and receive a concise, accurate summary of the issues that concern 
them. As elected representatives, we should do what we can to promote 
an informed, educated public. The educated voter is best able to make 
decisions and petition us to do the right things here.

  The Internet provides an ideal way to inform the public while not 
distracting CRS from its primary mission to serve Congress. The 
Director of CRS can simply post CRS products on a web site, and then 
voters can look up information without any extra effort by CRS 
researchers. The public will not be allowed to write responses or 
research requests to CRS, so that valuable CRS time will not be 
diverted from helping us to do our jobs. Confidential requests by 
Members of Congress will not be released to the public. It is my intent 
that CRS establish a separate web site that will serve the public 
without otherwise causing CRS to do anything drastically different from 
its current operations when it posts CRS products on the web site 
accessible to Members of Congress.
  I recognize that there have been a few questions about this bill. 
There are concerns disseminating CRS material via the Internet will 
remove its protection under the Speech and Debate Clause. At present, 
no court case has directly addressed this issue. However, the Supreme 
Court acknowledged in its concurrence to Doe versus McMillan that a 
legislator's function in informing the public concerning matters before 
Congress should be protected by the Speech and Debate Clause, similar 
to communications which relate directly to the legislative process. 
Furthermore, my bill gives the CRS Director discretion to not release 
material that he determines is confidential. This aspect of my bill has 
been upheld in similar circumstances where the U.S. District Court 
maintained the confidentiality of the underlying research used to 
create reports by Congressional support agencies. I am including in the 
Record a letter by Mr. Stanley M. Brand, a former General Counsel to 
the House of Representatives, who agrees that my legislation will not 
threaten CRS' protection under the Speech and Debate Clause.
  I am also aware of potential copyright concerns if the CRS 
information is made accessible to the public. For example, CRS has 
informed me that it does not have a copyright agreement that will allow 
it to make the maps used in CRS products available electronically. I 
believe we can work out an equitable solution to resolve any copyright 
concerns that would prevent any CRS Report, Issue Brief, or 
Authorization or Appropriations product from being electronically 
disseminated to the public.
  Another concern has been raised about the 30 day delay between the 
release of CRS material to Members of Congress and their staff and its 
release to the public on the web site. This delay will make sure that 
CRS has carried out its primary statutory duty of informing Congress 
before releasing information the public. Also, it will allow CRS to 
verify that its products are accurate and prepare them for public 
release in order to protect CRS from liability problems and the 
American people from being misinformed.
  I would like to stress that opening up these select CRS products to 
the public will in no way compete with existing commercial information 
services. The public will have access to selected CRS products that are 
currently available only to Members of Congress and their staff. I 
firmly believe that the federal government should not be involved in 
competing with legitimate private industry.
  This bill has received popular support from across the country, and I 
am including in the Record a letter of support from many concerned 
industries and groups including America On-Line, IBM, Public Citizen, 
and the League of Women Voters of the United States. I hope that my 
colleagues will join them

[[Page S124]]

in supporting this legislation and opening up a useful source of 
information to the American people.
  Mr. President, I ask unanimous consent that additional material be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1578

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. AVAILABILITY OF CERTAIN CRS WEB SITE INFORMATION.

       (a) Availability of Information.--
       (1) In general.--The Director of the Congressional Research 
     Service shall make available on the Internet, for purposes of 
     access and retrieval by the public, all information that--
       (A) is available through the Congressional Research Service 
     web site;
       (B) is described in paragraph (2); and
       (C) is not confidential as determined by--
       (i) the Director; or
       (ii) the head of a Federal department or agency that 
     provided the information to the Congressional Research 
     Service.
       (2) Information.--The information referred to in paragraph 
     (1)(B) is as follows:
       (A) All Congressional Research Service Issue Briefs.
       (B) All Congressional Research Service Reports that are 
     available to Members of Congress through the Congressional 
     Research Service web site.
       (C) All Congressional Research Service Authorization of 
     Appropriations Products or Appropriations Products.
       (b) Time.--The information shall be so made available not 
     earlier than 30 days after the first day the information is 
     available to Members of Congress through the Congressional 
     Research Service web site.
       (c) Requirements.--The Director of the Congressional 
     Research Service shall make the information available in a 
     manner that the Director determines--
       (1) is practical and reasonable; and
       (2) does not permit the submission of comments from the 
     public.
                                  ____

                                      Congressional Accountability


                                                      Project,

                                 Washington, DC, January 26, 1998.
     Hon. John McCain and Daniel Coats,
     Russell Senate Office Building, U.S. Senate, Washington, DC.

       Dear Senators McCain and Coats: We happily endorse your 
     draft legislation to put Congressional Research Service (CRS) 
     reports and products on the Internet, including CRS Issue and 
     Legislative Briefs, and Authorization and Appropriation 
     products.
       CRS products are some of the finest research prepared by 
     the federal government. They are a precious source of 
     government information on a huge range of topics. In a recent 
     editorial, Roll Call described CRS reports as ``often the 
     most trenchant and useful monographs available on a 
     subject.'' Citizens, scholars, journalists, librarians, 
     businesses, and many others have long wanted access to CRS 
     reports via the Internet.
       We believe that taxpayers ought to be able to read the 
     research that we pay for. But citizens cannot obtain most CRS 
     products directly. Instead, we must purchase them from 
     private vendors, or engage in the burdensome and time-
     consuming process of requesting a member of Congress to send 
     CRS products to us. Often, citizens must wait for weeks or 
     even months before such a request is filled. This barrier to 
     obtaining CRS products serves no useful purpose, and damages 
     citizens' ability to participate in the congressional 
     legislative process.
       James Madison aptly described why the public needs 
     reliable, accurate information about current events: ``A 
     popular Government, without popular information, or the means 
     of acquiring it, is but a Prologue to a Farce or a Tragedy; 
     or, perhaps both. Knowledge will forever govern ignorance: 
     And a people who mean to be their own Governors, must arm 
     themselves with the power which knowledge gives.''
       Your bill falls squarely within the spirit of Madison's 
     honorable words. Thanks for your efforts in making CRS 
     products available on the Internet.
           Sincerely,
       American Conservative Union.
       American Protestant Health Alliance.
       America Online Corp.
       Danielle Brian, Executive Director, Project on Government 
     Oversight.
       Business Software Alliance.
       California Budget Project (CA).
       Center for Media Education.
       Center for Science in the Public Interest.
       Citizen Advocacy Center (IL).
       Timothy J. Coleman, Director, Kettle Range Conservation 
     Group (WA).
       Computer Communications Industry Association.
       Computer Professionals for Social Responsibility.
       Congressional Accountability Project.
       Consumer Project on Technology.
       Decision Matrix Inc. (OR).
       George Draffan, Director, Public Information Network (WA).
       Electronic Frontier Foundation.
       Fairness and Accuracy in Reporting.
       Federation of American Scientists.
       Ray Fenner, President, Superior Wilderness Action Network 
     (MI).
       Darlene Flowers, Executive Director, Foster Parents 
     Association of Washington State (WA).
       Forest Service Employees for Environmental Ethics.
       Government Purchasing Project.
       IBM.
       Impact Voters of America.
       Information Technology Association of America.
       Institute for Local Self-Reliance.
       Intel Corp.
       League of Women Voters of the United States.
       Marin Democratic Club (CA).
       Halsey Minor, Chief Executive Officer, CNET.
       Barbara J. Moore, Ph.D., President and CEO, Shape Up 
     America!
       National Association of Manufacturers.
       National Citizens Communications Lobby.
       Native Forest Council (OR).
       NetAction.
       Netscape Communications Corp.
       OMB Watch.
       Public Citizen.
       Public Interest Projects.
       Amy Ridenour, President, The National Center for Public 
     Policy Research.
       Greg Schuckman, Director of Public Affairs, American 
     Association of Engineering Societies.
       Peter J. Sepp, Vice-President for Communications, National 
     Taxpayers Union.
       Taxpayers for Common Sense.
       TenantNet (NY).
       Triad Healthcare Technologies, LLC (TX).
       United Democratic Clubs, Orange County, CA; Larry 
     Trullinger, President.
       United Seniors Association.
       U.S. Public Interest Research Group (PIRG).
       U.S. Term Limits.
       Russell Verney, Chairman, Reform Party.
       Virginia Journal of Law and Technology.
       Western Land Exchange Project (WA).
                                  ____



                                         Brand, Lowell & Ryan,

                                 Washington, DC, January 27, 1998.
     Hon. John McCain,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator McCain: I am writing to amplify the comments 
     that I recently made to the press concerning applicability of 
     the Speech or Debate Clause, U.S. Const. art. I, Sec. 6, cl. 
     1, to certain CRS products which your bill would, if enacted, 
     make available on the Internet. Juliet Eilperin, Memo Claims 
     That McCain Legislation to Put CRS Reports Online Could Have 
     Constitutional Problems, Roll Call, January 15, 1998, p. 8.
       First, as General Counsel to the House of Representatives I 
     litigated virtually scores of cases involving the Speech or 
     Debate Clause, including a landmark case before the Supreme 
     Court reaffirming the central function of the clause in 
     protecting the legislative branch from judicial and executive 
     branch interference, United States v. Helstoski; 442 U.S. 
     477, Helstoski v. Meanor, 442 U.S. 500 (1979); see also, 
     Vander Jagt v. O'Neill, 699 F.2d 1166 (D.C. Cir. 1983); In Re 
     Grand Jury Investigation, 587 F.2d 589 (3d Cir. 1978); United 
     States v. Eilberg, 507 F. Supp. 267 (E.D. Pa. 1980); Benford 
     v. American Broadcasting Co., 98 F.R.D. 42 (D. Md. 1983), 
     rev'd sub nom. In Re: Guthrie, 735 F.2d 634 (4th Cir. 1984). 
     Many of these cases which I litigated were cited in the CRS 
     memorandum as supporting their conclusion that publication on 
     the Internet would adversely affect the Speech or Debate 
     Clause privilege.
       I believe that the concerns expressed in the CRS memorandum 
     are either overstated, or the extent they are not, provide no 
     basis for arguing that protection of CRS works will be 
     weakened by your bill. I also want you to know that I was, 
     and remain, a strong advocate for vigorous assertion and 
     protection of the Speech or Debate Clause privilege as a 
     great bulwark of the separation of powers doctrine that 
     protects the Congress from Executive and Judicial branch 
     encroachment.
       The CRS memorandum states ``extensive involvement by CRS in 
     the informing function might cause the judiciary and 
     administrative agencies to reassess their perception of CRS 
     as playing a substantial role in the legislative process, and 
     thereby might endanger a claim of immunity even in an 
     instance in which CRS was fulfilling its legislative 
     mission.''
       This fear is simply unfounded. While the courts have 
     consistently relegated the so-called ``informing function'' 
     to non-constitutionally protected status, they have also 
     steadfastly refused to permit litigants to pierce the 
     privilege for activities that are cognate to the legislative 
     process despite later dissemination outside the Congress. So, 
     for example, in McSurely v. McClellan, 553 F.2d 1277, 1286 n. 
     3 (D.C. Cir. 1976) (en banc), the Court refused to allow a 
     litigant to question Senate aides about acts taken within the 
     Committee, even though acts of dissemination outside the 
     Congress were subject to discovery. Publication of a CRS 
     product on the Internet would no more subject CRS employees 
     to questioning about the basis for their work, consultations 
     with colleagues or the sources of that work, than would be 
     the case if the same CRS product were obtained by means other 
     than the Internet. Indeed, the fact that House and Senate 
     proceedings are televised does not alter the applicability of 
     the clause to floor speeches, committee deliberations, staff 
     consultation, or other legislative activities. Even certain 
     consultations concerning press relations are protected though 
     dissemination to the media is not protected. Mary Jacoby, 
     Hill Press Releases Protected Speech, Roll Call, April 17,

[[Page S125]]

     1995, p. 1 (the Senate Legal Counsel argued that because a 
     legislative discussion is embedded in a press release doesn't 
     entitle a litigant to question staff about the substance of 
     the legislation); see also Tavoulareas v. Piro, 527 F. Supp. 
     676, 682 (D.D.C. 1981) (court ordered congressional deponents 
     to merely identify documents disseminated outside of Congress 
     but did not permit questions regarding preparation of the 
     documents, the basis of conclusions contained therein, or the 
     sources who provided evidence relied upon in the documents), 
     Peroff v. Manual, 421 F. Supp. 570, 574 (D.D.C. 1976) 
     (preparation of a Committee witness by a congressional 
     investigator is protected because ``facially legislative in 
     character''). Under this line of caselaw, it is difficult to 
     foresee how the mere dissemination of a CRS product could 
     subject any CRS employee to inquiry concerning the 
     preparation of such a product. In short, because ``discovery 
     into alleged conduct of [legislative aides] not protected by 
     the Speech or Debate Clause can infringe the [legislative 
     aides'] right to be free from inquiry into legislative acts 
     which are so protected,'' McSurely v. McClellan, 521 F.2d 
     1024, 1033 (D.C. Cir. 1975), aff'd en banc by an equally 
     divided court, 553 F.2d 1277 (1976) courts have imposed the 
     Clause as a bar to any inquiry into acts unrelated to 
     dissemination of the congressional reports.
       In Tavaulareas v. Piro, 527 F. Supp. at 682, the court 
     ruled ``[t]he fact that the documents were ultimately 
     disseminated outside the Congress does not provide any 
     justification'' for piercing the privilege as to the staff's 
     internal use of the document. Accord McSurely v. McClellan, 
     553 F.2d at 1296-1298 (use and retention of illegally seized 
     documents by Committee not actionable); United States v. 
     Helstoski, 442 U.S. 477, 489 (1979) (clause bars introduction 
     into evidence of even non-contemporaneous discussions and 
     correspondence which merely describe and refer to legislative 
     acts in bribery prosecution of Member); Eastland v. United 
     States Serviceman's Fund, 421 U.S. at 499 n. 13 (subpoena to 
     Senate staff aide for documents and testimony quashed because 
     ``received by [the employee] pursuant to his official duties 
     as a staff employee of the Senate'' and therefore ``. . . 
     within the privilege of the Senate''). See also United States 
     v. Hoffa, 205 F. Supp. 710, 723 (S.D. Fla 1962), cert, denied 
     sub nom Hoffa v. Lieb, 371 U.S. 892 (wiretap withheld by 
     defendant by ``invocation of legislative privilege by the 
     United States Senate'').
       In the Tavoulareas case, in which I represented the House 
     deponents, part of the theory of plaintiff's case against the 
     Post was the reporter ``laundered'' the story through the 
     committee ``as a means of lending legitimacy'' to the stories 
     and information provided by other sources, Tavoulareas v. 
     Piro, 93 F.R.D. at 18. In pursuance of validating this 
     theory, the plaintiff sought to prove that the committee 
     never formally authorized the investigation, but rather that 
     the staff merely served as a conduit and engaged in no bona 
     fide investigation activity. The court ruled that ``although 
     plaintiffs have repeatedly suggested that the subject 
     investigation was not actually aimed at uncovering 
     information of valid legislative interest . . . it is clear 
     that such assertions, even if true, do not pierce the 
     legislative privilege.''
       As a practical matter, therefore, a litigant suing or 
     seeking to take testimony from a CRS employee based on 
     dissemination of a report alleged to be libelous or 
     actionable may be unable to obtain the collateral evidence 
     needed to prove such a claim--a serious impediment to 
     bringing such a case in the first place.
       Even in the case of Doe v. McMillan, 412 U.S.C. 306 (1973) 
     relied on by the CRS memorandum to support its narrow view of 
     the Clause's protection, the Court of Appeals on remand 
     stated: ``Restricting distribution of committee hearings and 
     reports to Members of Congress and the federal agencies would 
     be unthinkable.'' 566 F.2d 713, 718 (D.C. Cir. 1977). It 
     would be similarly unthinkable to subject CRS to broad 
     ranging discovery simply because its work product was made 
     available on the Internet.
       The CRS memorandum raises the specter that litigants might 
     even seek ``the files of CRS analysts'' in actions 
     challenging the privilege. It is beyond peradventure of 
     doubt, however, that publication of even alleged defamatory 
     or actionable congressional committee reports does not 
     entitle a litigant to legislative flies used to created 
     in preparing such a report. United States v. Peoples 
     Temple of the Disciples of Christ, 515 F. Supp. 246, 248-
     49 (D.D.C. 1981) In re: Guthrie, Clerk, U.S. House of 
     Representatives, 773 F.2d 634 (4th Cir. 1984), Eastland v. 
     United States Servicemen's Fund, 421 U.S. at 499, n. 13. 
     Given the foregoing caselaw, I fail to see a realistic 
     threat that CFS employees will be subjected to any 
     increased risk of liability, or discovery of their files. 
     Of course, nothing can prevent litigants from filing 
     frivolous or ill-founded suits, but their successful 
     prosecution or ability to obtain evidence from legislative 
     files seems remote and nothing in your bill would change 
     that.
       The CRS memoranda even goes so far as to suggest that 
     claims of speech or debate immunity for CRS products might 
     lead to in camera inspection of material, itself an incursion 
     into legislative branch discretion. Yet in the very case 
     cited to by CRS memo, no court ordered in camera inspection 
     of House documents. In Re: Guthrie, supra, involved no camera 
     inspection of legislation documents. These cases are 
     typically litigated on the basis of the facial validity of 
     the privilege and few, if any, courts of which I am aware 
     have even gone so far as to order in camera inspection. See 
     United States v. Dowdy, 479 F. 2d 213, 226 (4th Cir. 
     1973)(``Once it was determined, as here, that the legislative 
     function. . .was apparently being performed, the proprietary 
     and motivation for the action taken as well as the detail of 
     the acts performed, are immune from judicial inquiry''). 
     Under the Clause, courts simply do not routinely resort to in 
     camera review to resolve privilege disputes. Given the now 
     highly developed judicial analysis of the applicability of 
     the Clause to modern legislative practices it rarely occurs. 
     In one recent celebrated case cited to by the CRS, the Court 
     upheld a claim of privilege for tobacco company documents 
     obtained by Congress even though they were alleged to have 
     been stolen, without ever seeking in camera review. Brown & 
     Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 417 (D.C. 
     Cir. 1995) (``Once the documents were received by Congress 
     for legislative use--at least so long as congressmen were not 
     involved in the alleged theft--an absolute constitutional ban 
     of privilege drops like a steel curtain to prevent B&W from 
     seeking discovery'').
       In an abundance of caution, and to address CRS' concerns, 
     you might consider adding the following language to the bill: 
     ``Nothing herein shall be deemed or considered to diminish, 
     qualify, condition, waive or otherwide affect applicability 
     of the Constitution's Speech or Debate Clause, or any other 
     privilege available to Congress, its agencies or their 
     employees, to any CRS product made available on the Internet 
     under this bill.''
       I appreciate the CRS sensitivity to subjecting its 
     employees, or their work product, to searching discovery by 
     litigants. Based on the very good caselaw protecting their 
     performance of legislative duties and the strong 
     institutional precedent in both the House and Senate in 
     defending CRS against such intrusions, I do not believe your 
     bill creates any greater exposure to such risks that already 
     exists.
       I hope my views are helpful in your deliberations on this 
     issue.
           Sincerely,
                                                 Stanley M. Brand.

  Mr. COATS. Mr. President, I am pleased to join the distinguished 
Senator from Arizona in introducing legislation directing the 
Congressional Research Service to make available, on-line, CRS Reports, 
Issue Briefs, and more comprehensive CRS reports on federal 
authorizations and appropriations.
  CRS is funded with over $64 million in taxpayer money every year and 
produces perhaps the most prolific and quality research available on 
policy and legislative issues. In making available information and 
materials that are used every day by Members and their staffs in 
developing policy initiatives and legislation, we will be opening a 
more informed relationship between the American people and the Congress 
that serves them.
  Beyond the tremendous value of informing the American people on the 
issues before their Congress, this legislation will help to shine some 
light on the federal government, allowing the American people to see 
the documents which influence the decision-making process.
  Mr. President, FDR once said that, ``The only bulwark of continuing 
liberty is a government strong enough to protect the interest of the 
people, and people strong enough and well enough informed to maintain 
its sovereign control over its government.'' At a time when public 
cynicism about government is at an all-time high, when government has 
encroached upon virtually every aspect of our daily lives, this 
statement is particularly poignant.
  As I have stated, CRS information briefs play a critical role in 
assisting Members of Congress in policy development and the legislative 
process. By making these products readily available to the American 
people, who pay for them, we hold out the promise of demystifying a 
legislative process that has become so complex and arcane that many 
Americans have simply tuned out.
  Mr. President, more than ever, information is power. It is my hope 
that the effect of this legislation will be to give a better informed 
public more power over their government.

[[Page S126]]

  My intention today is to keep my remarks short. As this legislation 
moves through the process, I will ask my colleagues to indulge me with 
more time to discuss the bill in detail. I would like to commend 
Senator McCain for his leadership on this issue, and to ask my 
colleagues for their support in this effort to make the Congress more 
accessible to the people. I yield the floor.
                                 ______