[Congressional Record Volume 144, Number 97 (Monday, July 20, 1998)]
[Senate]
[Pages S8558-S8563]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              LEGISLATIVE BRANCH APPROPRIATIONS ACT, 1999

  The Senate continued with the consideration of the bill.
  Mr. McCAIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.


                           Amendment No. 3225

(Purpose: 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)

  Mr. McCAIN. Mr. President, I have an amendment at the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Arizona (Mr. McCain), for himself, and Mr. 
     Coats, Mr. Leahy, Mr. Faircloth, Mr. Ashcroft, Mr. Kerrey, 
     Mr. Enzi, Mr. Wyden, Mr. Feingold, Mr. Abraham, and Mr. Robb, 
     proposes an amendment numbered 3225.

  Mr. McCAIN. Madam President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER (Mrs. Hutchison). Without objection, it is so 
ordered.
  The amendment is as follows:
       At the appropriate place, insert the following:

     SEC.   . 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.
       (3) Removal of information; changes and updates.--
     Notwithstanding any other provision of this section, the 
     Director of the Congressional Research Service may--
       (A) remove from the information required to be made 
     available on the Internet under this section the name of, 
     phone number of, and information regarding, an employee of 
     the Congressional Research Service;
       (B) remove from the information required to be made 
     available on the Internet under this section, any material 
     the Director determines may infringe the copyright of a work 
     protected under title 17, United States Code; and
       (C) make any changes or updates in the information required 
     to be made available on the Internet under this section that 
     the Director determines are necessary to ensure that the 
     information is accurate.
       (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.
       (d) Method of Public Access.--The public shall have access 
     to the web page containing Congressional Research Service 
     information that is available to the public only through the 
     Library of Congress' THOMAS web page (http://thomas.loc.gov). 
     The Director of Congressional Research Service shall work 
     with the Librarian of Congress to establish an appropriate 
     Internet link to carry out this subsection. The Director of 
     Congressional Research Service shall be responsible for 
     maintaining and updating the web page containing 
     Congressional Research Service products. The Director of 
     Congressional Research Service shall have sole discretion to 
     edit the web page based on the criteria established by this 
     Act. The Librarian of Congress shall have the responsibility 
     of working with the Director of Congressional Research 
     Service only to the extent necessary to establish the link 
     from the THOMAS web page to the public access Congressional 
     Research Service web page. Nothing in this Act may be 
     construed to interfere with the Librarian's normal duties 
     concerning THOMAS.
       (e) Further Approval Not Required.--Notwithstanding the 
     first proviso under the subheading ``salaries and expenses'' 
     under the subheading ``Congressional Research Service'' under 
     the heading ``LIBRARY OF CONGRESS'' under title I of this Act 
     (relating to prior approval of certain publications), the 
     Director shall make information available in accordance with 
     this section without the prior approval of the Committee on 
     Rules and Administration of the Senate or the Committee on 
     House Oversight of the House of Representatives.

  Mr. McCAIN. Madam President, this amendment to HR 4112 would direct 
the Director of the Congressional Research Service to post ``CRS 
Reports to Congress'' and ``CRS Issue Briefs'' on the Internet. My 
intention for offering this amendment would be to establish a web site 
for the public to access CRS products only through the THOMAS web site. 
This amendment is co-sponsored by Senators Coats, Leahy, Faircloth, 
Ashcroft, Kerrey, Robb, Feingold, Abraham, Enzi, and Wyden.
  I believe that it is important that the public be able to use this 
CRS information. For FY 1999, the American taxpayers will pay $67.9 
million to fund CRS' operations. CRS is well-known for being composed 
of expert specialists who write reports on the important policy issues 
of the day that are both factual and unbiased--a rarity for Washington. 
The public has a right to see that its money is being well-spent and 
has the right to see the product of thier labors.
  The CRS products can play an important role in educating the American 
public. Public access to these documents will mark an important 
milestone in opening up the federal government. Our constituents will 
be able to see the research documents that influenced our decisions and 
understand the trade-offs and factors that we consider before a vote. 
This will give the public an accurate view of Congress, instead of the 
current cynical view that sometimes prevails.
  Also, constituents can learn a lot from these products. They can 
receive a concise, accurate summary of the issues before Congress. 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.
  I would also like to make my colleagues aware that in many cases 
these products are already out on the Internet. ``Black market'' 
private vendors can charge $47 for a single report. Other web sites 
have outdated CRS products on them. It is not fair for the American 
people to have to pay a third party for out-of-date products that they 
have already footed the bill for.
  I know that my colleagues in the Senate Committee on Rules and 
Administration have proposed that Senators and Committee chairman be 
allowed to post CRS products as they see fit on the Internet. I 
appreciate that gesture, and believe that it is a first step. However, 
I am proposing this amendment as a way to take this process to the next 
logical step--a centralized web site.
  A centralized web site will make it much easier for the public to 
find CRS information. The public can just go to a web site and look up 
those products that interest them. That would be much easier than 
having them go through all of our web sites to find CRS reports. This 
web site will be attached to the Congressionally mandated THOMAS web 
site, so that our

[[Page S8559]]

constituents can find legislation and the relevant CRS products--simple 
one-stop shopping.
  A centralized web site will also present the information in a 
nonpartisan format. I know that cynical constituents will look at the 
CRS reports on a Member's web page, and believe that those products are 
only put up to gain adherents to a particular political position. CRS 
is a nonpartisan organization, and its work should be presented on a 
non-partisan web site. This will allow the public to see CRS as it 
truly is, not as a political organization.
  This bill also gives the Director of CRS discretion to protect 
himself from liability suits. The Director will be allowed to remove 
the names and phone numbers of a CRS employee to keep the public from 
distracting them from doing their jobs. I have also been informed that 
CRS may not have permission to release copyrighted information over the 
Internet. While I hope that this situation can be quickly resolved, I 
have included a provision in the bill to allow the Director to remove 
unprotected copyrighted information from the bill. Finally, I have 
allowed a 30 day delay between the release of these CRS products to 
Members of Congress and the public. This will allow CRS to revise their 
products and make sure that it is accurate and up-to-date before 
releasing it to the public.
  Opponents of this legislation have tried to accuse this bill of 
violating the ``Speech or Debate'' Clause of the Constitution. I find 
this argument to be complete and total nonsense. When I first 
introduced this bill, I submitted a letter from Stanley M. Brand, the 
former General Counsel to the House of Representatives, who has 
experience in litigating ``Speech or Debate'' cases. I would like to 
re-submit his letter for the Record, and highlight his quote that:

       I believe that the concerns expressed . . . 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 ask unanimous consent that the letter be made part of the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                         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, 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 with 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, 
     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 Tavoulareas v. Piro, 527 F. Supp. at 682, the court 
     ruled ``[t]he fact that the documents were ultimately 
     disseminated outside of 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 Servicemen'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 
     from 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 that 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 investigative 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. 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 files used or 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.

[[Page S8560]]

     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 CRS 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 in 
     camera inspection of legislative 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 otherwise 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 than already 
     exists.
       I hope my views are helpful in your deliberations on this 
     issue.
           Sincerely,
                                                Stanley M. Branch.

  Mr. McCAIN. Madam President, in addition, I would like to point out 
that the Rules Committee has approved a decentralized system, where 
Senators can release CRS products on their private web pages. I see no 
difference between the release of CRS material on one hundred 
independent web pages and THOMAS, a Congressionally mandated web page. 
Both approaches should protect CRS equally.
  I also urge my colleagues not to believe other arguments that CRS 
will suffer from a huge rise in workload from this amendment. It will 
require only two computer technicians to set up this web site, and keep 
it updated. CRS already has a process for deciding which information 
goes up on their web site for Members of Congress. This bill only asks 
that they duplicate this process for a public version of that web page. 
Also, we release paper copies of these products to our constituents 
every day without causing a great strain to CRS staff. Finally, I have 
the results of an analysis of state legislative research organizations 
that do work similar to CRS and post these products on the Internet. 
None of these organizations have complained of a huge increased 
workload from releasing their products to the Internet.
  In conclusion, I would like to point out that a centralized web site 
has been endorsed by the Congressional Accountability Project, the 
League of Women Voters, the American Council on Education, the American 
Library Association, the American Association of Engineering Societies, 
IBM, America Online Corporation, Intel Corporation, The Washington 
Post, The Dallas Morning News, The Arizona Republic, and a host of 
other groups, businesses, and newspapers interested in maintaining an 
informed electorate. I urge my colleagues to support this amendment. It 
will give CRS wide discretion to set up a nonpartisan centralized web 
site that will benefit the public and allow it to continue to do its 
great work for us.
  Madam President, the number of people who use the Internet is 
increasing geometrically every single month. More and more Americans, 
especially young Americans, are relying on the Internet for 
information. Since we spend $67 million a year in turning out the best 
possible information we can from Members of Congress, it seems to me at 
a very, very modest cost we should share that information with our 
constituents on the Internet at the web site that is already 
designated, the so-called THOMAS web site.
  It is hard for me to understand why the Rules Committee has refused 
to act in an affirmative fashion on this issue. I hope we will be able 
to consider this amendment and that we will be able to have a voice 
vote on it and move forward and make this thing happen. If not, 
obviously, we will have to come back and back and back, but I have no 
doubt that the American people overwhelmingly, especially those who use 
the Internet to obtain information for themselves, for their 
classrooms, for their associates, for their families, should be privy 
to the same information that we are and that we provide our 
constituents in written form when requested rather than have to leaf 
through each of the 100 different web sites of Senators. It is time we 
caught up with the technology that is changing America. It is past time 
we caught up in a broad variety of ways, and this is one way we can do 
it.
  Madam President, I yield the floor.
  Mr. STEVENS. I ask the Senator from Virginia if he seeks the floor?
  Mr. WARNER. Madam President, I thank my distinguished colleague. I do 
seek the floor. I would like to make a reply for the record on the 
amendment of the distinguished Senator from Arizona, Mr. McCain.
  Madam President, I thank my colleague. First, might I inquire of my 
colleague--I came as quickly as I could when I saw that Senator McCain 
took the floor--is his amendment now on file? Have the yeas and nays 
been requested?
  Mr. STEVENS. Madam President, the Senator from Virginia asks the 
question about Senator McCain's amendment. The yeas and nays were not 
requested, to my knowledge.
  The PRESIDING OFFICER. That is correct. They have not been requested.
  Mr. STEVENS. The circumstances, I say to the Senator from Virginia, 
will preclude a vote on that amendment if cloture is granted at 10 a.m. 
tomorrow morning. If it is not granted, then he will be in a position 
to ask for the yeas and nays.
  Mr. WARNER. Madam President, in fairness to my colleague from 
Arizona, even though I am in opposition, did he seek to have an up-or-
down vote? I think we should extend the courtesy to him.
  Mr. STEVENS. With due regard to the Senator's request, Madam 
President, the pending cloture vote would, if it is approved, mean that 
there would not be a vote on that amendment as it is not germane to the 
legislative appropriations bill.
  Mr. WARNER. Madam President, I understand that, so I guess the 
Senator clarified as best he can the status of the amendment.
  Mr. STEVENS. That is correct.
  Mr. WARNER. I think it is important at this time as chairman of the 
Rules Committee to put into the Record some comments that I have.
  Madam President, I also ask unanimous consent that if the 
distinguished Senator from Kentucky, Mr. Ford, desires to put something 
in, the Record be made available to his entry, as well as the 
distinguished Senator from Mississippi, Mr. Cochran. Both of these 
Senators have done a great deal of work on this and are in opposition 
to the McCain amendment. So I make that unanimous consent request in 
the event that they wish to do so.
  Mr. STEVENS. Madam President, as I understand it, I would have to 
object.
  Does the Senator wish to have an opportunity for those two Senators 
to make a statement today or put them in the Record?
  Mr. WARNER. Just to put them in the Record.
  Mr. STEVENS. I have no objection to that, nor do I have objection if 
the Senators wish to come now and speak. But I would object to keeping 
the Senate in session very much longer because we know we have a series 
of very long days coming now. Tuesday and Wednesday are going to be 
very long, and it is

[[Page S8561]]

our understanding the Senate will not be in session beyond 5 o'clock.
  Mr. WARNER. Madam President, I will momentarily notify Mr. Ford.
  The PRESIDING OFFICER. The Senator from Virginia is recognized.
  Mr. STEVENS. Will the Senator yield for a parliamentary inquiry? I 
understand the Senate will stand in adjournment following the statement 
of Senator Warner.
  The PRESIDING OFFICER. That is the unanimous consent agreement.
  Mr. WARNER. Recognizing the distinguished Senator from Alaska wants 
to be brief, I will simply say this is a very important recommendation 
that the Senator from Arizona has made. It has been carefully studied 
by the Rules Committee. I, as chairman; Mr. Ford, as ranking member, we 
have taken a position in opposition--not to the ultimate goals sought 
by the distinguished Senator from Arizona, but to the time with which 
such a goal could likely be achieved. Second, we are still studying the 
issue and we are concerned that this proposal would take the Member out 
of the sequence of making this information available to the public. As 
I read the McCain request, it would mandate that the CRS and its 
Director would send a great deal of material---reports and issue 
briefs--right into the Internet system. No Member would be interposed 
between the recipients of that information and the Director of CRS.
  That concerns this Senator a great deal, because if I am out there 
and come up on the system and access some of this information, it reads 
that the Director of the CRS put it out. Who is he? Of course, we all 
know that the CRS is a part of the Library of Congress. It was created 
for the purpose of accommodating the important needs of Members of 
Congress, committees, and their respective staffs. Suddenly, this 
information takes on the imprimatur that the Director takes this 
position on an issue, as opposed to a Member sending it out and the 
recipient contacting the Member.
  So we, the Rules Committee, felt we should take a first step and 
therefore, on June 10, we sent to all Members of the Senate a Dear 
Colleague letter stating that we had now set up a system electronically 
whereby the CRS could, at the Member's request, transfer certain CRS 
products to a Member's web site.
  I ask unanimous consent this letter be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

         U.S. Senate, Committee on Rules and Administration,
                                    Washington, DC, June 10, 1998.
       Dear Colleague: The Committee on Rules and Administration 
     wishes to advise all Senators of their ability to make 
     Congressional Research Service (CRS) products available to 
     the public via Member and Committee Internet web sites.
       As you know, CRS works exclusively for Congress and is 
     prohibited from disseminating its work directly to the 
     public. However, in accordance with a longstanding policy in 
     the Senate, Members can and often do release CRS products to 
     the public as part of their constituent service activities.
       With the rapidly expanding use of the Internet, we believe 
     it is appropriate for Members and Committees to use their web 
     sites to further disseminate CRS products. The Rules 
     Committee has worked with CRS to develop a system to 
     facilitate the posting of CRS products on Member and 
     Committee web sites. We invite you to visit the Rules 
     Committee web site at http://www.senate.gov/rules/ to view 
     our posting of CRS products and we encourage you to post CRS 
     products on your web site.
       It is our intent to evaluate the public interest in this 
     feature and the accompanying impact on CRS, Committees and 
     Member offices before considering additional ways to 
     electronically disseminate CRS products.
       Robert Newlen of CRS can be reached at 7-4313 to coordinate 
     the posting of CRS products on your web site.
           With kind regards,
     John Warner,
                                                         Chairman.
     Wendell H. Ford,
                                                   Ranking Member.
  Mr. WARNER. Also, I would like to have printed in the Record a letter 
by the Senator from Arizona and others, and a July 20 Dear Colleague 
from myself and Senator Ford. This will create a record of 
correspondence on this matter.
  I ask unanimous consent those be printed in the Record.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                                    June 24, 1998.
     Hon. John W. Warner, Chairman,
     Hon. Wendell H. Ford, Ranking Member,
     Senate Committee on Rules and Administration, Russell Senate 
         Office Building, Washington, DC.
       Dear Senators Warner and Ford: We are writing to you in 
     reference to your recent letter allowing Senators and their 
     Committees to post issue Briefs and ``Congressional Research 
     Service (CRS) Reports to Congress'' on the Internet. While we 
     appreciate this first step to make this information available 
     to the pubic over the Internet, we are concerned that this 
     decentralized approach may end up hurting our shared goal of 
     giving the public electronic access to CRS products.
       We have a number of concerns that we believe must be 
     addressed in order to ensure that CRS Reports and Issue 
     Briefs are put up on the Internet in a way that will benefit 
     both the American people and the Congressional Research 
     Service.
       (1) We are concerned that CRS products will become 
     inherently politicized by a decentralized approach.
       The major reason why the American public is clamoring for 
     CRS products is that they contain both accurate and 
     nonpartisan information abut important political issues--a 
     rarity for Washington. Our concern with a decentralized 
     approach is that it will inherently politicize CRS in the 
     eyes of the American people. Members and Committees will be 
     able to release CRS information as it suits their political 
     needs. It is a likely possibility that Members may not give 
     their constituents access to CRS products if they do not want 
     an issue discussed or if they disagree with the CRS analysis 
     of the issue. This will allow individual Senators to censor 
     what their constituents see. It will also mean that CRS 
     products will be publicly used to support Senators' political 
     positions, and give the public an inaccurate impression that 
     CRS is a partisan agency. If CRS becomes politicized, there 
     are important public and legal ramifications that must be 
     considered.
       We want to ensure that CRS keeps its excellent nonpartisan 
     reputation. That is why we proposed in S. 1578 that CRS 
     remain in control of a centralized public access web site 
     that would be attached to a nonpartisan Congressionally 
     mandated site, such as either the THOMAS web site or the 
     United States Senate web site (www.senate.gov). CRS already 
     has a nonpartisan process for making its products available 
     electronically over the Senate intranet, and we believe that 
     it would be best to allow them to continue to use this 
     nonpartisan process for the public.
       (2) A decentralized system will be confusing to 
     constituents.
       There is no doubt that a decentralized system will confuse 
     constituents. Considering that different Members and 
     Committees may post different CRS products, it is almost 
     impossible for a constituent to find information about an 
     issue. Instead, they will become confused by the multiple 
     places they have to search. When faced with having to examine 
     possibly 580 web sites for information, the public is apt to 
     either give up or request a centralized web site.
       We proposed a centralized web site based on the intranet 
     web page CRS has already established. This system will allow 
     constituents to search a general index based on what CRS has 
     already established in order to easily find products. This 
     will be less confusing for our constituents.
       (3) A decentralized system may cause legal and liability 
     problems for CRS.
       The strategy as outlined in your letter will leave 
     copyrighted information in the public CRS products. We have 
     been informed by CRS that this oversight will cause legal and 
     liability problems for CRS. On February 26, 1998, Daniel P. 
     Mulhollan, the Director of CRS, testified before your 
     committee that ``If a CRS product, containing substantial 
     copyrighted material (albeit with appropriate credit) is made 
     available to the general public without permission and 
     outside the confines of traditional fair use, liability is 
     possible.''
       Furthermore, there is nothing in your plan that will remove 
     the names of CRS analysts from their products. During our 
     consultations, CRS requested that the names of these analysts 
     be removed in order to prevent the public from calling these 
     analysts with their complaints. We share CRS's concerns on 
     these issues, and would ask that you consider our proposals 
     to give the Director of CRS discretion to remove the names of 
     analysts and copyrighted information as he feels is 
     necessary.
       (4) A decentralized system will be a logistical nightmare.
       As alluded to earlier, we are concerned that a 
     decentralized system with no protocol from the Senate Rules 
     Committee will be a logistical nightmare. Different Members 
     and Committees may end up putting up the same CRS products, 
     while other products are not released to the public. If there 
     is no rule about updating CRS reports, the public may end up 
     seeing out of date CRS products that will misinform them or 
     even be a liability concern for CRS. Finally, there is 
     concern that there will be a drag on the Members' personal 
     and committee office staff as they select and update the web 
     pages.
       We are also concerned that the restrictions in the Senate 
     Internet Usage Policies may obstruct your attempts at a 
     decentralized system. According to these restrictions: 
     ``During the 60 day period immediately preceding the date of 
     any primary or general

[[Page S8562]]

     election (whether regular, special, or runoff) for any 
     national, state, or local office in which the Senator is a 
     candidate, no Member may place, update or transmit 
     information using a Senate Internet Server (FTP Server, 
     Gopher, and World Wide Web), unless the candidacy of the 
     Senator in such election is uncontested.''
       This clearly prohibits Members from posting CRS products on 
     their web sites before elections. One-third of the Members of 
     the Senate will not be able to update what they have posted 
     during the biennial election cycle.
       A centralized web site will solve all of these concerns. 
     CRS already has a uniform system for maintaining its 
     centralized intranet web site. This web site has prevented 
     much of the confusion that a decentralized web site would 
     entail. The legislation proposed by us during our discussions 
     with you would simply ask that CRS use its existing processes 
     to maintain a web site that the public could access through a 
     non-partisan Congressionally mandated web page. We know that 
     this proposal would only require 3 CRS staff and not involve 
     over 100 personal office and committee staff.
       (5) A decentralized system may cost more than a centralized 
     system.
       Our concern is that a decentralized system may incur the 
     same costs for CRS as a centralized system, while also being 
     a funding and time drag on personal and committee offices. 
     CRS will still have to use the same staff and resources 
     preparing products for public dissemination in either a 
     centralized or decentralized web site. However, the 
     decentralized proposal will also end up using valuable 
     personal and committee staff resources to post the products 
     on their web pages and update them.
       While we appreciate your recent attempt to address the 
     issue of giving the public access to CRS products, we want to 
     make sure that this is not a mis-step. By using our proposal 
     for a centralized web site, we hope to work with you to 
     create a public venue for access to CRS products that will 
     give the Director of CRS greater discretion over the 
     dissemination of CRS products while also reducing the public 
     visibility of CRS. This will give the American public access 
     to the high quality information that they already pay for, 
     and still allow CRS to perform its statutory responsibility 
     to only serve Congress.
       We look forward to your continued cooperation on this 
     issue, and hope to continue working with you to pass S. 1578 
     and establish a centralized web site where the public can 
     access CRS products.
           Sincerely,
     John McCain.
     Lauch Faircloth.
     Patrick Leahy.
     Mike Enzi.
     Dan Coats.
     Spencer Abraham.
     Charles Robb.
     J. Robert Kerrey.
                                  ____

                                                      Committee on


                                     Rules and Administration,

                                    Washington, DC, July 20, 1998.
       Dear Colleague: When the Senate considers the FY99 
     Legislative Branch Appropriations bill, Senator McCain is 
     expected to offer an amendment that would mandate that the 
     Congressional Research Service (CRS) directly release certain 
     documents to the public through the THOMAS web site. As 
     Chairman and Ranking Member of the committee with oversight 
     of CRS, we have serious concerns regarding this amendment.
       Let us state up front that we support the objective of 
     using technological advances to increase the availability of 
     CRS products to the public. Following testimony before the 
     Committee on Senator McCain's proposal, we announced a new 
     initiative designed to increase access to this information 
     while maintaining a long-standing policy that Congress, not 
     CRS, disseminate CRS products to the public. This initiative, 
     outlined in a June 10 letter which you have previously 
     received, increases public access by facilitating 
     dissemination of CRS information through member and committee 
     home pages.
       The McCain amendment would make a radical change in CRS 
     policy by forcing CRS to directly disseminate material to the 
     public. CRS is not an independent agency. It is an extension 
     of our staff and was never intended to be an independent 
     source of legislative information for the public. Instead, 
     members communicate with their constituents and channel CRS 
     information products to them as the member determines it is 
     appropriate.
       The Congressional Budget Office has estimated that the cost 
     to CRS to implement this amendment would likely range between 
     $2 and $8 million dollars annually. This amendment would 
     create an entirely new mission for CRS--a public information 
     function that CRS is neither organized nor funded to perform. 
     The Rules Committee initiative, however, has minimal cost, 
     preserves the representational relationship between a member 
     and his or her constituents, and substantially increases 
     public access to CRS information products.
       Furthermore, the Joint Committee on Library is nearing 
     completion of a report regarding this very matter. It would 
     be premature to adopt this amendment prior to the completion 
     of that report.
       It is our intent to continue to evaluate the Rules 
     Committee initiative to determine the level of public 
     interest in CRS information products and to determine the 
     best approach for achieving broader dissemination while 
     preserving the historic role of CRS. We urge you to oppose 
     this amendment and allow the Committee to continue to work 
     with CRS to expand access to its products.
       With kind regards,
     Wendell H. Ford,
       Ranking Member.
     John Warner,
       Chairman.

  Mr. WARNER. This helps Members, then, to better understand the inner 
workings of the Rules Committee, what we have done for Members, and 
what Senator McCain is endeavoring to do. It lays out my concerns that 
it is important that we run this initial test, whereby Members of the 
U.S. Senate can now put this material out or the committees of the 
Senate can put this material out. Let's make some assessment over the 
next few months of what it costs, what staff are involved, and to the 
extent there is an interest out there in the public for this very 
voluminous amount of information that is created by CRS. It may well be 
in the due course of time we will take a further step towards the goals 
Mr. McCain has in his amendment.
  So for the time being we oppose the amendment and ask Senators to 
entrust to the Committee on Rules and Administration the proper 
analysis of the objective by Senator McCain, as well as the costs 
associated with it and the desirability, in the public domain, for the 
dissemination of this information.
  That concludes the remarks of the Senator from Virginia.
  Mr. FORD. Madam President, I rise in opposition to the amendment by 
my colleague and good friend from Arizona. I do not do so because I 
disagree with his goal of making the good work of the Congressional 
Research Service available to the general public. Nor do I believe that 
the American people should be prevented from seeing the kinds of 
documents we use every day to help us make difficult decisions here in 
Congress. The Senator from Arizona is nothing if not consistent in his 
commitment to open government, and this current effort, like so many 
others, is continued proof of his faith in those principles.
  That said, however, I oppose this amendment because it attempts to 
solve a problem that really doesn't exist. For years, all Members of 
Congress have had the opportunity to make CRS materials available to 
constituents upon request. This arrangement has been beneficial to 
everyone concerned: citizens receive information on issues of interest; 
Members of Congress are kept informed about the issues that concern 
their constituents; and the CRS--which is an extension of Congressional 
staff and not a public agency--maintains the ability to study and 
explain difficult issues for its primary audience, the Congress, 
without external pressure from groups with an interest in the issues 
that CRS is charged with researching.
  Of course, as technology has changed, CRS has been able to improve 
the ways of delivering materials to Congress. While CRS still prints 
reports and delivers them to Congressional offices by hand and by mail, 
those same reports are also now available to Members and staff via the 
Internet. Congress, similarly, can make use of technology and the 
Internet to distribute CRS materials to their constituents. There is no 
reason to switch from the procedure of allowing Members of Congress to 
interact with their constituents with regard to CRS products to a 
system where CRS responds directly to the public.
  That is why Senator Warner and I, as Chairman and Ranking Member of 
the Rules Committee, recently circulated a ``Dear Colleague'' letter 
announcing that the Rules Committee will be providing selected CRS 
documents to the public through a special link on the Committee Web 
site and inviting Members and Committee Chairmen to investigate the 
feasibility of doing the same with their Web sites.
  Although it might seem like a big step for the Rules Committee and 
other offices to make CRS documents available on the Internet, the 
truth is that our Web page is nothing more than a new twist on the old 
method of making CRS documents available to interested citizens. The 
only difference is that, instead of using what Internet users call 
``snail mail,'' Members of Congress can make CRS materials available to 
constituents at the click of a mouse or the press of a button.
  What has not changed is the necessary participation of Member offices 
in the process. Without that participation--without the ability of 
Members

[[Page S8563]]

and Committees to respond to constituent requests and to provide CRS 
products accordingly--CRS risks losing its status as an extension of 
our staff and the scholarly research and non-partisan analysis that are 
its hallmarks will be jeopardized.
  That is why I think the pending amendment--which would remove 
Congressional offices from the equation and require that CRS prepared 
and maintain a central public Website for its products--is flawed. What 
is worse, requiring CRS to put all of its products on the Internet 
would cost millions of dollars--money that could be put to better use 
in recruiting new CRS analysts to replace those who will be eligible to 
retire shortly after the turn of the century. I simply cannot 
understand why CRS should be saddled with a project of this size when 
we in Congress already have the means to use existing technology to 
significantly improve the traditional method of distributing CRS 
products.
  Madam President, as Ranking Member of the Rules Committee I have had 
several opportunities to hear out my colleague from Arizona on this 
issue. I urge him and any colleagues who support this amendment to 
follow the lead of the Rules Committee in offering CRS products to 
constituents via the Internet. As of now, no other Senate Committee--
including the Commerce Committee, chaired by my colleague from 
Arizona--has taken advantage of the offer by CRS to assist Committee 
and Member offices with online access to CRS products.
  Madam President, I have always believed that ``if it ain't broke, 
don't fix it''--and until it is clear that Committee- and member-
sponsored online distribution of CRS products is inadequate, I do not 
think we should expend the energy of the Senate--or the resources of 
the CRS--on such a questionable solution. I urge my colleagues to 
oppose the amendment.

                          ____________________