BNUMBER: B-276953
DATE: June 6, 1997
TITLE: Bill Comments on the Government Printing Office Act of 1997,
B-276953, June 6, 1997
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Subject: Bill Comments on the Government Printing Office Act of 1997
File: B-276953
Date: June 6, 1997
B-276953
June 6, 1997
The Honorable John Warner
Chairman
Committee on Rules
and Administration
United States Senate
Dear Mr. Chairman:
This responds to your letter of April 16, 1997, requesting our
suggestions concerning a draft bill entitled the "Government Printing
Office Act of 1997." We commend this effort to resolve a number of
concerns about government printing and public access to government
information, including questions about the constitutionality of the
current law.
As discussed below, we support transfer of the Government Printing
Office (GPO) to the executive branch as provided in Title II.
However, we believe that, while the draft bill would resolve the
constitutional separation of powers issue concerning legislative
branch control over executive branch printing, the bill would raise an
issue of executive branch control over printing for the judicial and
legislative branches. One way to resolve this potential problem would
be to provide that the government's printing needs could be fulfilled
elsewhere whenever it was advantageous to do so. Ending GPO's
monopoly over federal government printing in this manner could have
the added benefit of enhancing the efficiency and effectiveness of
GPO's operations.
We discuss below our views on two broader issues raised by the draft
bill: the question of control of legislative and judicial printing by
GPO as an executive branch agency and questions about GPO's printing
monopoly. Also, we will be providing your staff with a separate list
of some specific provisions that are unclear and suggested language
changes to help clarify them where we can do so.
Over the past several years, officials in the executive branch have
issued a number of opinions challenging the constitutionality of the
provisions set forth in 44 U.S.C. sec. 501 and section 207(a) of the
Legislative Branch Appropriations Act, 1993,
Pub. L. No. 102-392, 106 Stat. 1703, 1719 (1992), as amended by
section 207(2) of the Legislative Branch Appropriations Act, 1995,
Pub. L. No. 103-283, 108 Stat. 1423, 1440 (1994) (set forth at and
hereinafter referred to as 44 U.S.C. sec. 501 note).[1] These provisions
require that, with limited exceptions, all federal government
printing, be done by or through GPO. Section 501 applies to in-house
printing while section 501 note applies to procurement of printing
from outside sources.
A May 1996 memorandum issued by the Office of Legal Counsel (OLC) of
the Department of Justice declared, to the extent 44 U.S.C. sec. 501 and
501 note require all executive branch printing and duplicating to be
procured by or through the GPO, they violate constitutional principles
of separation of powers. The OLC found that the GPO is subject to
congressional control, and concluded that the GPO's extensive control
over executive branch printing is unconstitutional. The memorandum
also concluded that executive branch departments and agencies are not
obligated to procure printing by or through the GPO and that there is
little or no risk of liability or sanction to contracting officers who
act consistently with the opinion.[2]
The 1996 memorandum raises serious questions regarding the validity
and enforceability of 44 U.S.C. sec. 501 and 501 note. While no court
has ruled on the constitutionality of these provisions, we agree with
the sentiments expressed in your letter to us of April 16, 1997, and
the attachments thereto, that the time may be ripe for reform of Title
44 to resolve the long-standing constitutional concern.
Title II of the bill would transfer GPO from the legislative branch to
the executive branch while maintaining GPO's monopoly, under 44 U.S.C. sec.
501 and 501 note, over most printing for the executive, legislative,
and judicial branches of the federal government. If the bill is
enacted, GPO, as an executive branch agency, would continue to have
control over all congressional printing including printing of the
Congressional Record, as well as certain printing required by the
judiciary. This would raise a question of the independence of the
Congress and the Courts in controlling their own printing functions
and activities.
This issue was presented in a constitutional context by the Public
Printer,
Michael F. DiMario, in his April 24, 1997, testimony on the draft
bill. He stated that, "if the proposition is accepted that in order
to be constitutional GPO must be transferred to the executive branch,
the legislative and judicial branches will immediately be provided
with a constitutional pretext for withdrawing their work from GPO."
It was also raised in testimony delivered on April 24, 1997, by Judge
Royce C. Lamberth, District Court Judge for the District of Columbia.
Judge Lamberth, speaking as a representative of the judiciary, stated
that re-creation of GPO as an executive branch agency, with the
authorities set forth in the draft bill, "potentially challenges the
judiciary's independence" and raises "issues of independence that may
have serious impact on the production of information both for and from
the federal courts."
This issue could be avoided if, in addition to transferring GPO to the
executive branch, its monopoly over printing for the federal
government is eliminated. Ending GPO's printing monopoly would be one
way of addressing another issue concerning GPO's operations. In prior
work on the printing and procuring operations of GPO, we found that
GPO's monopoly has contributed to inefficiencies and ineffectiveness
in its operations. For this reason, in our 1994 report on the
National Performance Review (NPR), we supported a recommendation that
GPO's printing monopoly be eliminated.[3]
In a 1990 report on GPO, we stated that, while GPO's monopoly-like
role in providing printing services was originally created to assure
efficiency, with the passage of time that role has been
transformed.[4] The monopoly perpetuates inefficiency because
centralized control permits GPO to be insulated from market forces.
The agency does not have the incentives to improve operations and
processes that would ensure quality services at competitive prices.
On the basis of limited comparisons, we found that GPO's $150 million
of in-house printing in fiscal year 1989 might have been procured from
commercial printers for as little as $75 million.
In the 1990 report, we identified a number of operational problems
that stemmed from GPO's monopoly, including costly in-house
production, a procurement system where important quality of
performance information was not readily available, customer service
efforts hampered by poor communications, and weak accountability
throughout GPO's performance management system. While we recognized
that these operational problems could and should be improved within
the existing legislative structure, we recommended that GPO's role be
reexamined.
In a 1994 report, we concluded that with the emergence of various
electronic technologies, the framework of laws and regulations used to
manage many aspects of government publishing had become outdated.[5]
For example, we found that outdated definitions of printing and
duplicating were driving federal publishing decisions rather than
sound business practices emphasizing cost-effectiveness and customer
service. We stated that as Congress reviewed proposals to change the
existing legislative framework, it might wish to consider alternative
frameworks built on sound business practices and changing publishing
technologies.
In the 1994 report on the NPR mentioned previously, we reiterated that
GPO's monopoly-like status contributes to inefficiencies and
ineffectiveness. We agreed with a recommendation made in the NPR that
GPO's mandatory source status for executive branch agencies should be
eliminated. The NPR called for modification of Title 44 to remove the
executive branch from coverage and eliminate the mandatory requirement
to use GPO. It anticipated that GPO would market its services to the
executive branch at competitive prices. The NPR recognized, however,
that in order for GPO to make a successful transition, the executive
branch should be required for a limited period of time to use GPO to
satisfy most of its printing needs.
The draft proposal to transfer GPO to the executive branch provides an
opportunity for the Congress to decide whether it should end GPO's
monopoly over printing for all three branches of government. Such an
approach holds the potential of resolving what might otherwise become
another ongoing controversy while enhancing the efficiency and
effectiveness of future GPO operations.
Finally, regardless of the ultimate determination of GPO's structure,
we believe the nature of its activities require that GPO comply with
sound financial management practices. Accordingly, we recommend
requiring GPO to comply with the financial management reforms Congress
has enacted for 24 major executive departments and agencies by adding
GPO to the list of executive agencies subject to the Chief Financial
Officers Act of 1990. This would subject GPO to the same financial
management practices, including audited financial statements, as the
24 major executive departments and agencies to help assure the
issuance of complete, reliable, timely, and consistent financial
information, and to deter fraud, waste, and abuse of Government
resources. Alternatively, the bill could be revised to require GPO to
prepare annual financial statements covering all accounts and
associated activities consistent with the requirements of section 3515
of Title 31, United States Code and obtain an annual audit of those
statements consistent with section 3521 of Title 31, United States
Code.
Again, thank you for the opportunity to provide our comments on the
draft legislation.
Sincerely yours,
Robert P. Murphy
General Counsel
1. See, e.g., Memorandum for William H. Taft, IV, Deputy Secretary of
Defense, from Theodore B. Olson, Assistant Attorney General, Office of
Legal Counsel, Re: Effect of INS v. Chadha on 44 U.S.C. sec. 501,
"Public Printing and Documents" (March 2, 1984); From Red Tape to
Results: Creating a Government That Works Better and Costs Less,
report of the National Performance Review, September 7, 1993; and
Statement by President William J. Clinton Upon Signing the Legislative
Branch Appropriations Act of 1995, H.R. 4454, 30 Weekly Comp. Pres.
Doc. 1541, 1542
(July 22,1994).
2. Memorandum for Emily C. Hewitt, General Counsel, General Services
Administration, from Walter Dellinger, Assistant Attorney General,
Office of Legal Counsel, Re: Government Printing Office Involvement in
Executive Branch Printing (May 31, 1996).
3. Management Reform: Implementation of the National Performance
Review's Recommendations (GAO/OCG-95-1, Dec. 5, (1994).
4. Government Printing Office: Monopoly-Like Status Contributes to
Inefficiency and Ineffectiveness (GAO/GGD-90-107, Sept. 26, 1990).
5. Government Printing: Legal and Regulatory Framework is Outdated for
New Technological Environment (GAO/NSIAD-94-157, April 15, 1994).