[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.
____________________