Confidentiality status of CRS Reports

The confidentiality status of CRS Reports has been a public policy dispute.

Congress's attitudes towards CRS confidentiality

CRS annual appropriations legislation

According to the CRS, Congress has historically reserved to itself control over the dissemination of CRS products to the public on the principle that CRS, as an extension of congressional staff, works exclusively for the Congress.^[1]

A provision has been included in CRS annual appropriations acts since FY1952 requiring approval by one of its two congressional oversight committees for acts of "publication" by the CRS.^[2]

The limitation began in the House as a flat prohibition on publications by the Library of Congress using funds appropriated to the Legislative Reference Service (now CRS).

In 1954 a provision was added providing for exception only with the approval of our oversight committees.

The standard appropriations language text which appears annually in the law appropriating funds for the Legislative Branch today reads as follows:^[3]

“

Provided, That no part of such amount may be used to pay any salary or expense in connection with any publication, or preparation of material therefore (except the Digest of Public General Bills), to be issued by the Library of Congress unless such publication has obtained prior approval of either the Committee on House Administration of the House of Representatives or the Committee on Rules and Administration of the Senate.

”

Mulhollan notes that the term "publication" in this context has generally been construed to encompass all manner of communicating information to the public, based on the legislative history of the provision (with its concern over diverting CRS (then LRS) resources to providing materials to the public) and subsequent Joint Committee on the Library guidance.^[2]

The prohibition appears each year in the annual appropriations act for the Legislative Branch and is intended to preserve the role of CRS as a confidential resource. The appropriations acts, supplemented by other congressional guidance that CRS has received over the years, and supported by judicial opinions, leave to the Members and committees the decision whether and how to place individual CRS products in the public domain.^[2]

The CRS notes that Congress has never authorized the wholesale public dissemination of CRS analytical products such as Reports or Issue Briefs (and has seldom authorized publication of other products), whether by CRS or the Congress, but rather has preferred to rely on congressional release of individual products on a case-by-case basis.^[4]

1978 proposal by the National Conference of State Legislatures

In 1978, the National Conference of State Legislatures (NCSL) issued a proposal under which CRS would have received access to the files of State research materials abstracted by the NCSL, and would have had the opportunity to order copies of desired items for use in answering congressional inquiries. In return, CRS would have provided the NCSL with periodic listings of CRS Reports (called "multiliths" at that time) and with only one copy of those CRS Reports which the NCSL requested. Under this proposal the NCSL also would have gained access to certain files from the Library of Congress's SCORPIO system, including CRS Issue Briefs.

On September 27, 1978, the Joint Committee on the Library held a hearing to consider the proposal. At the hearing, the Committee concluded that any transmission of CRS material contained in SCORPIO to noncongressional users via computer terminal would constitute a "publication" and thus, under the terms of the language contained in CRS's annual appropriations legislation (noted above) would require the prior approval of either the Committee on House Administration or the Senate Committee on Rules and Administration. Moreover, members of the Joint Committee expressed serious reservations about any activity that might divert CRS resources and priorities from its statutory responsibilities to Congress. Finally, members of the Committee expressed the view that it was appropriate for Members of Congress, rather than CRS, to determine whether and to what extent various CRS products should be publicly disseminated. As a result, no action was taken to implement the proposed CRS-NCSL exchange.

1980 communication of the Joint Committee on the Library

In a communication dated March 21, 1980, the Joint Committee on the Library released a policy statement regarding the publication of CRS written products:^[4]

“

... Congressional policy that the circulation of CRS materials prepared specifically for congressional use be limited to the Congress, and that the long-standing policy of confidentiality in the work of CRS for individual congressional clients should be maintained. We believe that, as in the past, CRS and its oversight committees should consider the publication of only those CRS products whose release to the general public would be compatible, both in terms of cost and product content, with the CRS's obligations to the Congress.

”

Reflecting on this passage in 2007, CRS Director David Mulhollan wrote, "It is noteworthy that in this instance the Joint Committee referred to the restriction on "circulation" of CRS materials, making it clear that the term "publication" in the statute is interpreted broadly."^[2]

Senate Resolution 396, 96th Cong., 2d Sess. 1980

A March 27, 1980 Senate Resolution (S. Res. 396, 96th Cong., 2d Sess. 1980), occasioned by a subpoena issued in an administrative proceeding for CRS material, reads:^[5][6]

“

Whereas, the communications between the Congressional Research Service and the members and committees of the Congress are an integral part of the legislative process and privileged under the Speech or Debate Clause of the Constitution, [and]...memoranda of the Congressional Research Service are in the custody and under the control of the members and committees for whom they have been prepared, and the Congressional Research Service has no authority to release them to anyone outside the Congress... Resolved, That it is the determination of the Senate that the communications of the Congressional Research Service to the members and committees of the Congress are under the custody and control of the Congress and may be released only by the Congress, its Houses, committees and members, in accordance with the rules and privileges of each House...

”

This Senate Resolution directed the Senate Legal Counsel to represent the Senate and CRS in respect to a Federal Trade Commission administrative law judge’s “sweeping subpoena [on behalf of oil companies involved in a FTC proceeding] to the Congressional Research Service for documents which discuss the oil industry and governmental policy in relation to it.” Id. The Resolution stated that “the communications between the Congressional Research Service and the members and committees of the Congress are an integral part of the legislative process and privileged under the Speech or Debate Clause of the Constitution.”

Senate Majority Leader Byrd, in introducing the Resolution, noted CRS’ role in advising members and committees on legislative issues and that CRS “thereby provides a service to the Members and committees of Congress which is equivalent to that performed by the staffs of Members and committees."^[6]

1990 - Senate authorizes its Legal Counsel to challenge a subpoena of CRS

A decade later, Senate Legal Counsel was authorized by resolution to challenge a subpoena that was issued in a case in the U.S. Tax Court to an American Law Division attorney. The subpoena sought both testimony and documents relating to a memorandum the attorney had prepared for a Senator on certain tax questions that had been posed by a constituent. In introducing the resolution, the Senate Majority Leader reiterated the importance of "protecting the work done by CRS in preparing communications to the Members and committees of Congress":^[7]

“

A committee or Member of the Senate, of course, may determine to make available to the public a report or memorandum which the Congressional Research Service has provided to the committee or Senator. Senator McClure, in this case, sought to assist his constituent in that way. Nevertheless, even when a final product prepared by CRS is released to the public, it is important to protect the confidentiality of CRS's preparatory work in order to encourage the freest possible exploration by CRS of issues about which committees or Members seek information or advice. It would be detrimental to the free flow of information and advice within the Congress to subject lawyers and other analysts at CRS to examination outside of the Congress about the basis of their communications to committees and Members.

”

Congressional efforts to make reports public

There have been numerous attempts to pass legislation requiring the CRS to make its products available on a public web site, including the introduction of bills in 1998, 1999, 2001, and 2003.^[8] All have so far failed to pass. Publicly stated reasons for this include legal liability for CRS findings, copyright issues, and increased CRS workload. However, it is far more likely that the members of Congress who commission CRS reports wish to maintain control over the distribution of any potentially sensitive conclusions.^[8]

In 1998, then-Chairman of the Rules Committee Senator John Warner (R-VA) and Ranking Member Wendell Ford (D-KY) disseminated CRS products through the Committee's website, taking the position that it is appropriate "for Members and Committees to use their web sites to further disseminate CRS products," and, in fact, encouraging them to do so.^[9] Senator Tom Daschle (D-SD) was the first to respond to this suggestion, putting almost 300 CRS products on his website. The CRS products are no longer accessible on this website.

Legislation that would make CRS Reports to Congress, Issue Briefs, and Authorization and Appropriations Reports available over the Internet has been introduced every Congress by Senator John McCain (R-AZ) or Senator Patrick Leahy (D-VT) since 1998. This initiative enjoys support from the leadership of both parties in the Senate. (The legislation proposed in the 107th Congress, Senate Resolution 21, was co-sponsored by Senators Tom Harkin (D-IA), Patrick Leahy (D-VT), Joseph Lieberman (D-CT), and Trent Lott (R-MS).) Bills have also been introduced in the past in the House by Representative Shays and Representative Jim DeMint (R-SC), and at least two Representatives - Representative Shays and Representative Mark Green (R-WI) - have placed many CRS products on their own websites in an attempt to make some CRS products available to the public.^[10]

“Reports are produced by the Congressional Research Service staff for the education of members of Congress,” Kyle Anderson, a spokesman for the House Administration Committee, which has jurisdiction over the issue in the House, wrote in an e-mail message to the New York Times. “Just as other memos produced by staffers for members of Congress aren’t made public, these are not.”^[11]

Mr. Schwartz made it clear, however, that the organization was seeking the public release of only reports the research service produces, not the memorandums it also writes for members of Congress.^[11]

A spokesman for Senator Charles E. Schumer, the New York Democrat and chairman of the Senate Rules Committee as of 1999, said Mr. Schumer was “aware of the arguments for making these reports public” and was reviewing the current policy.^[11]

Senator Joseph I. Lieberman, independent of Connecticut, who makes several of the reports available on his Web site, has on several occasions proposed legislation to make the reports public. “For too long, C.R.S. reports have been available to the public only on a haphazard basis,” Mr. Lieberman said in an e-mail message to the New York Times. “These reports inform members of Congress and their staffs on a wide range of issues. The American people, who pay for these reports, should be able to learn from this same expert analysis.”^[11]

CRS positions and public responses

1999 CRS Report: CRS's view on "Issues Associated With The Wholesale Release Of CRS Products To The Public"

In its 1999 report, "Congressional Policy Concerning the Distribution of CRS Written Products to the Public," the CRS described what it viewed as both "institutional issues" and "legal issues" regarding the public distribution of CRS products.^[1]

Institutional issues

1. Limited resources. CRS noted that any services provided to non-congressional entities would necessarily come "only at the expense of direct support of the Congress." While acknowledging that "the direct and indirect costs associated with disseminating Reports and Issue Briefs are difficult to estimate with precision," CRS nevertheless held that "it is clear that significant resources would have to be diverted from congressional services."

“

For example, with wider product distribution, particularly to users of the Internet/World Wide Web, CRS is more likely to get calls, comments, and requests for additions and changes that would place a burden on CRS analysts, distracting them from their work for Congress. In particular, outside parties may judge and question CRS papers on the basis of standards other than the standards CRS has developed to meet congressional needs (e.g., timeliness, non-partisanship, balance, objectivity). It is reasonable to anticipate that the volume of communications between CRS and the public, currently manageable, would rise substantially and affect the Service's ability to meet the needs of congressional requester. Any mechanisms developed by CRS to shield analysts from these demands would of course also involve resource commitments.[1]

”

2. Distraction from congressional audience. The report expressed concern that if future reports were made public, CRS analysts might be distracted from their duties to craft their products for the Congressional audience; "CRS analysts might become more conscious of the need to address views, methods, disciplines, and expectations of noncongressional professional peers, with the result that CRS written work could shift away, or appear to shift away, from its current emphasis on the congressional audience;" conversely, Members might react by increasing the number of confidential requests that they place – thus requiring CRS to write more tailored responses, and

“

diminish[ing] the ability of CRS analysts to prepare reports that are generally available to Congress and that serve a broader congressional audience. With this increase in tailored analysis would come the necessity of duplicating more analysis because of the demand of those Members who request that their examination of a legislative proposal remain confidential at that point in the legislative process.[1]

”

3. Interest group pressure. The report expressed concern that "Enhanced internal mechanisms would have to be developed to ensure that communications with interested parties did not deflect CRS analysts from producing products that are free from advocacy and bias, resulting in a further diversion of resources from direct service to Congress."^[1]

4. A precedent undermining confidentiality of Congressional resources generally. The report expressed concern that "[t]he release by Congress of CRS Reports and Issue Briefs may set a precedent leading to greater pressure to have studies prepared by congressional staff for Members’ exclusive use (e.g., committee staff studies distributed to entire committee membership) to be disseminated directly to the general public. It might be difficult for Congress to articulate a convincing rationale for granting public access to the Service’s work but denying equivalent access to materials prepared by other shared staff (e.g., committee staff) that are distributed to more than one Member. Thus, a policy of providing Members’ constituents with the same materials that Members themselves draw upon to make legislative decisions could have serious implications for the functions of staff and their relationship with Members."^[1]

Legal issues

1. More litigation, less protection from speech or debate clause immunity. The report expressed concern that, if the CRS transitioned from "the current practice of limited distribution" to "widespread electronic dissemination to the general public", this could increase the risk of "a variety of administrative and judicial proceedings" for "[t]hose engaged in public distribution of CRS products, as well as CRS analysts who prepare the products," in which "litigants might seek, for purposes of discovery, the files of CRS analysts or ... damages or injunctive relief barring further distribution of a particular report or issue brief [or] damages in suits alleging copyright infringement." Furthermore, the defendants in these cases might lose their immunity under the Speech and Debate Clause of the Constitution. Since its 1972 ruling in United States v. Brewster, the Supreme Court has limited that immunity to "legislative acts,"^[12] which were distinguished from a range of activity described as "entirely legitimate" but unprotected by the speech or debate clause because it was considered to be "political in nature."^[13] "The dissemination (by Members and/or their aides, by CRS, or by a congressionally designated entity) to the general public of CRS products would not be viewed as a legislative act but would be considered to be an exercise of Congress' representational function, for which speech or debate immunity is not available.^[14]" To support this argument, the report noted that in several cases relevant to the applicability of speech or debate immunity to the public distribution of CRS products, the Court has relied on the dichotomy established in Brewster to hold that congressional activities intended to inform the general public are outside the scope of the speech or debate clause. Notably, in Doe v. McMillan, the Court found that the clause might not protect the Public Printer and the Superintendent of Documents from liability for distribution of a committee report, which contained material alleged to have invaded individual privacy rights, beyond "the legitimate legislative needs of Congress...."^[1][15]

2. Related litigation burdens. The report expressed concern that "widespread distribution of CRS products" would cause "an increase in public awareness of the research and analysis prepared by the Service for Congress," which "could escalate the efforts of litigants to obtain, for purposes of discovery, CRS analysts' files," including "information and data used to develop CRS Reports and Issue Briefs" as well as "related material from the Service's files."

• Even where Speech or Debate Immunity provides a valid defense in such discovery proceedings, the report notes that

“

even in those cases in which CRS succeeded in defending against discovery efforts, the litigation would place a burden on CRS and other congressional resources and could put judges in the position of arbitrating disputes Discovery attempts to obtain CRS file materials have often been defended by the offices of House General Counsel or Senate Legal Counsel. ... Claims of speech or debate immunity would be subject to review by the courts, potentially including in camera inspection of material as to which a claim of privilege is made and segregation of protected from non-protected material. Arguably, this type of judicial sifting of legislative branch materials would impinge upon the interest in confidentiality served by the speech or debate clause.

”

• In addition, the report noted two reasons that "it is uncertain whether Congress would prevail in litigating such matters." First, it is possible that a court would not precisely differentiate among the information in the superficially similar types of documents in a CRS subject file and would grant litigants access not only to publicly available information but also to confidential communications between the Service and congressional offices. Second, in previous instances in which CRS has been involved in litigation or agency proceedings, the judicial or agency decision has emphasized that CRS performs a legislative function and that its staff functions as an adjunct of Member and committee staff.^[16] With wider dissemination of CRS products to the general public, this longstanding perception of the Service and the nature of its communications to the Congress could be altered, eventually putting at risk speech or debate protection for the Service’s confidential work. In other words, extensive involvement by CRS in the direct public information function could lead courts and administrative agencies to reconsider their perception of CRS as playing a significant and unique support role in the legislative process, and thus some day might hamper a claim of immunity even in an instance in which CRS was fulfilling its legislative function.^[17]

3. Risk of copyright infringement. The report noted that CRS reports "in certain instances" may contain "appropriately credited" material from copyrighted sources. In these instances, the CRS either: obtains permission for the use; (generally based on legislative use and the expectation that dissemination is limited to Members of Congress); considers its information-gathering function protected by the speech or debate clause; or believes that the use falls under the "fair use" doctrine of the Copyright Act as applied in the context of the legislative process. Although "[t]he copyright statute does not expressly include congressional use of copyrighted works as a fair use," "both the House and Senate Reports on the Copyright Act of 1976 include the "reproduction of a work in legislative or judicial proceedings or reports" among examples of fair use."^[18] The legislative history also contains an observation that publication of copyrighted material in Congressional documents would constitute fair use "[w]here the length of the work or excerpt published and the number of copies authorized are reasonable under the circumstances, and the work itself is directly relevant to a matter of legitimate legislative concern..."^[19] Thus, in an infringement action, a court might regard the publication of copyrighted material in a Congressional document for legitimate legislative purposes as a "fair use." If, however, the use is outside of such legislative purposes, it is possible that a traditional fair use analysis might result in liability for copyright infringement. Wider dissemination outside the confines of Congress would further complicate the "fair use" question.

“

Moreover, if CRS products were generally available to the public, the construction of these products may be affected, with the potential consequent loss when material, such as copyrighted maps or graphs, may be withheld in the writing of the paper with the foreknowledge that the paper could be widely disseminated and thereby subject to different “fair use” guidelines than those applicable to work for legislative use only. Therefore, public availability may perforce shape selected CRS products so that their contents no longer bring to bear the best information and analysis to assist Members in their decisionmaking.

”

“

In summary, where permission has been granted to CRS to use copyrighted material, it has likely been based on legislative purpose and limited to selective distribution of hardcopy by Members of Congress. If access is broadened to wholesale release to members of the general public, such release may be outside the scope of "legitimate legislative purpose." 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. In this regard, distinctions can be made between the selective distribution of hardcopy CRS products by Members and Committees and wholesale, potentially world-wide distribution of CRS products on the Internet. Violation of any of the exclusive rights of the copyright owner may give rise to an action for copyright infringement. Although the extent of copyright owners’ rights in the online environment is still evolving, wholesale distribution of CRS products via the Internet - unlike the current practice - would likely implicate copyright owners’ performance and public display rights, as a matter of direct infringement, and may implicate rights [20] of reproduction and public distribution either as a matter of direct, vicarious or [21] contributory infringement. On the other hand, under a “fair use” analysis, there is likely less effect upon the potential market of the copyright owner in the case of selective hardcopy distribution than in the case of wholesale distribution on the Internet. Selective distribution of hardcopy CRS products by Members may not constitute “publication” in the copyright sense.[22]

”

1997 CRS memorandum

In a December 1997 memorandum, the CRS summarized the "Legal Issues Presented by Proposals for the General Release of CRS Products to the Public":^[23]

• Speech and debate immunity: Reducing "substantial role in the legislative process". Such proposals 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 [Speech and Debate Clause] immunity even in an instance in which CRS was fulfilling its legislative mission (e.g., by preparing a confidential memorandum for a Member on a pending bill.)"^[24]
• Libel, slander, and defamation. CRS also believes that slander or libel actions might occur more frequently if CRS products were put on the Internet, because more people would read CRS products and know of their existence.
• Confidentiality of CRS files. CRS believes that broader dissemination of CRS products would likely inspire more litigants who wish to obtain, for purposes of discovery, the files of CRS analysts. This might, CRS argues, cause the public release of correspondence between Members of Congress and CRS.
• Copyright infringement. CRS argues that it might be subject to claims of copyright infringement if CRS products were available on the Internet. CRS sometimes incorporates copyrighted work into its reports and products. (Elsewhere, the CRS notes that these inclusions are always "appropriately credited".)^[1]

Responses to the 1997 CRS memorandum

Memorandum of Gary Ruskin

On January 5, 1998, Gary Ruskin, Director of the Congressional Accountability Project, wrote a memorandum which disputed each of the arguments in the 1997 CRS memorandum. He wrote:

“

None of CRS's arguments present a barrier to placing CRS products and reports on the Internet. All of the legal issues CRS raises are easily resolved and small -- compared to the rich benefits of placing CRS products on the Internet.[25]

”

With regards to "Speech and debate immunity," he wrote:

“

This is a legitimate concern -- and an easy problem to solve. As long as Congress erects a firewall between CRS and the governmental entity that would distribute CRS products, then CRS's constitutional immunity should remain invulnerable. Hence, CRS products should be made available over the Internet either by the Government Printing Office (GPO), or through Congress itself, as research products of the U.S. Congress. Irrespective of which governmental entity places CRS products on the Internet, they should be made available under the aegis of Congress, in its role of informing the public about important governmental matters. Such a setup would place adequate institutional separation between the constitutionally protected advisory function of CRS, and the constitutionally unprotected "informing" function of Congress and GPO.(10) In any statute or resolution placing CRS products on the Internet, Congress should clearly demarcate and distinguish between the research and advisory role of the CRS, and the "informing" role of the governmental entity that disseminates the CRS products to the public. By building separation between CRS and the institution that would put CRS products on the Internet, CRS would likely remain safely swaddled in its claims of constitutional immunity. And citizens could reap the rich benefits of Internet access to CRS's work product.

”

^[25]

With regards to Libel, slander, and defamation, he wrote:

“

"This argument is ironic and unpersuasive, because it is precisely those wealthy organizations and individuals who are currently able to purchase or obtain CRS products that also possess the resources to litigate such matters. Meanwhile, other, poorer Americans may know of CRS, but cannot afford to purchase CRS products, and so must go through the burdensome and time-consuming process of requesting them from a Member of Congress, if they know how to obtain CRS products at all. Those Americans cannot typically afford such slander or libel actions (but would benefit from ready access to CRS products). So the increase in exposure to CRS would likely be minimal, if it existed at all. Furthermore, CRS products are rarely, if ever, defamatory or libelous. If anything, they are the opposite -- measured, tempered, well-reasoned, and balanced. It is conceivable that, in an extremely rare occasion, someone might perhaps feel defamed or libeled by a CRS product. But notably, CRS, in its analysis, does not cite a single defamation, slander, or libel action brought against it by a member of the public. Given this record, or lack thereof, CRS's concerns are overstated; they are not a hurdle to placing CRS products on the Internet."

”

^[25]

With regards to Confidentiality of CRS files, he wrote:

“

CRS believes that broader dissemination of CRS products would likely inspire more litigants who wish to obtain, for purposes of discovery, the files of CRS analysts. This might, CRS argues, cause the public release of correspondence between Members of Congress and CRS. This argument is ironic and unpersuasive because, once again, those wealthy organizations and individuals who are currently able to purchase or obtain CRS products also possess the resources to litigate such matters. The great majority of organizations or persons who possess sufficient resources to litigate such matters must know of the existence of CRS reports and products, and how to obtain them. So, any increase in such litigation is improbable, and would most likely be small, if it existed at all. Although CRS does have to defend against such actions, this is not an onerous burden on CRS resources, because such actions are extremely rare. The CRS Memorandum cites only two cases involving subpoenas seeking discovery of CRS documents. In the Matter of Exxon Corp., et al., FTC Docket No. 8934, 95 F.T.C. 919. Smith v. IRS, No. 3778-89 (Tax Ct. 1990). CRS Memorandum at 4-5. CRS also cites one case regarding a libel claim against a lobbyist who transmitted a memorandum to CRS. Webster v. Sun Co., Inc., 731 F.2d 1 (D.C. Cir. 1984), and 790 F.2d 157 (D.C. Cir. 1986). CRS Memorandum at 6.

”

With regards to Copyright infringement, he wrote:

[T]his potential problem of copyright infringement, too, is easily solved. First, CRS could ask for permission to reproduce significant portions of copyrighted works, and explain that such materials will be put on the Internet. Second, the use of copyrighted materials within a legislative document probably constitutes a "fair use" within the meaning of the Copyright Act of 1976. The CRS analysis notes that both House and Senate committee reports of the Copyright Act mention as examples of fair use "reproduction of a work in legislative or judicial proceedings or reports." The legislative history of the Copyright Act indicates that copyrighted material in congressional documents would be fair use "[w]here the length of the work or excerpt published and the number of copies authorized are reasonable under the circumstances, and the work itself is directly relevant to a matter of legitimate legislative concern..." Congress may occasionally have to abridge or eliminate long passages which, in the extreme, may fall outside a "fair use" claim, before such materials are placed on the Internet.

Letter of Stanley M. Brand

On January 27, 1998, Stanley M. Brand, the former General Counsel to the House of Representatives, wrote a letter to Senator John McCain:

“

"Concerning applicability of the Speech or Debate Clause, U.S. Const. art. I, 6, cl. 1, to certain CRS products which your bill would, if enacted, make available on the Internet, 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.[26]

”

(See also his letter addressing a 2001 reintroduction of the same legislation.^[26])

John McCain cited this letter on the Senate floor when he was proposing an amendment^[27] to the Legislative Branch Appropriations Act 1999 that would direct the Director of the Congressional Research Service to post `CRS Reports to Congress' and `CRS Issue Briefs' on the Internet.^[28] In this speech, he also noted:

“

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.

”

February 2003 POGO Report

The report, "Congressional Research Service Products: Taxpayers Should Have Easy Access", pointedly begins with an excerpt from the Library of Congress mission statement:

“

For a democracy to be dynamic and self-correcting, its governing institutions must be not only continuously accountable to the people but also solidly based on a body of knowledge that is both constantly expanding and available equally to those who legislate and to those who elect the legislators.

”

^[29]

The report included a letter of September 3, 1999, from James Billington, the Librarian of Congress, responding to a letter from Ari Schwartz of the Center for Democracy and Technology, urging him to "make available on the Internet the reports of the Congressional Research Service".^[30]

The report addressed several of CRS's arguments.

1. Loss of Speech or Debate Clause Protections: Pogo argues that CRS's argument is undercut "by the fact that the GAO and the Congressional Budget Office (CBO) have retained these protections while making their reports accessible and readily available to the public." It adds that "[o]utside experts familiar with the issue agree that CRS's constitutional immunity would be protected if it made its products available to the public", noting the afermentioned letter from Stan Brand, the former General Counsel to the House of Representatives (and counsel for the Project On Government Oversight), which concluded that "... nothing in [the bill to make CRS products publicly available] will alter or modify applicability of the Speech or Debate Clause protections to CRS products."^[26]

2. Risk of Copyright Infringement: Noting that CRS concedes in its aforementioned CRS Report that "[t]o the extent that the material is copyrighted, CRS either: obtains permission for the use; considers its information-gathering function protected by the speech or debate clause; or believes that the use falls under the 'fair use' doctrine of the Copyright Act as applied in the context of the legislative process", Pogo claims there should be no risk of copyright infringement. It adds that, "[s]hould CRS still be concerned about possible copyright infringement, Gary Ruskin, then-Director of the nonprofit Congressional Accountability Project, offered a number of solutions to counter the issue. CRS could ask permission to reproduce portions of copyrighted materials into reports and explain that these reports will be placed on the Internet. CRS could also abridge or eliminate the more lengthy passages which may fall outside the "fair use" claim before the reports are placed on the Internet."^[31]

3. Cost Considerations: Pogo claims that a pilot project initiated by Representative Christopher Shays (R-CT) that makes some CRS products publicly available demonstrates how inexpensive providing access to CRS products through the Internet can be. Representative Shays' website provides access to some CRS Issue Briefs, Short Reports, Long Reports, and Appropriations Reports. The pilot project cost only 60-80 hours of programming, 40-50 hours of testing, and the use of an additional existing server. A possibility other than establishing a new website would be to integrate as much information as possible from the CRS and LIS websites into the already-existing THOMAS system.

4 Peer Review of CRS Products: CRS states, "If CRS written products were routinely available on a wholesale basis to academic and other professional peers outside of Congress, CRS analysts might become more conscious of the need to address views, methods, disciplines, and expectations of non-congressional professional peers ... ." (Appendix A, p. CRS-6)

What CRS states as a negative is seen by many as beneficial. Quality peer and public review can only serve to increase the quality of the works produced, thus better informing Congress and the public. GAO embraced the idea that the quality of its reports will be improved through peer and public review. For example, GAO sends its final draft reports to the agencies it has investigated and includes the agencies' comments in its final reports.

5. Member-Constituent Relations: Another of CRS's concerns is that open access to its products will obstruct the Member-constituent relationship. Daniel P. Mulhollan, Director of CRS states:

"[It] threatens the important relationship that Members have with their constituents. Historically, constituents have gone to Members of Congress when they have questions about legislation ... . The wholesale direct dissemination of CRS products to the public would bypass this long standing relationship by denying constituents the benefit of their Members' additional insights, party viewpoints, or regional perspectives on CRS analysis."^[32]

According to Librarian of Congress Billington:

"Disclosure of CRS reports and issue briefs by Members and Committees - and greater use of the Internet to achieve such disclosure - is seen as reaching the proper balance between the public's desire for information on the issues before Congress, the preservation of CRS' role in the legislative process, and the protection of the Member's role in informing his/her constituents on their public policy concerns."^[30]

But public access to CRS material in no way obstructs Member-constituent relationships. It could, in fact, even improve that relationship. Well-informed constituents can only strengthen the democratic process by asking pertinent questions and offering educated opinions to their Members of Congress. One way of strengthening the relationship would be to establish a central database of CRS products to which Members of Congress could link, as is recommended in the bill to make CRS products publicly available. The Members would be serving their constituents by providing timely and unbiased analyses; the public would see their Members as trying to provide as much unbiased information as possible to keep their constituents well informed and able to participate in the governing process; and the public would have reason to frequent their Members' websites.

Furthermore, improving Member-constituent relationships is hardly a valid argument for creating a monopoly on information. Constituents are entitled to this information in a timely manner without the ideological screening of their Members of Congress, with whom they may not agree.

A final point which also undermines CRS's arguments against making its products public is the fact that the Government Printing Office (GPO) makes many old CRS reports available to the public through its federal depository libraries. Additionally, the Department of State makes current and archived copies of CRS reports, obtained from CRS, publicly available at their website.^[33]

2003 CRS internal memo

The memo states:

PLACING CRS PRODUCT LINKS ON CONGRESSIONAL WEB SITES

Statutory Restriction. The prohibition on publication of CRS products without oversight committee approval appears in the annual appropriations acts for the Legislative Branch. This provision is intended to preserve the role of CRS as a confidential resource solely available to the Congress. The appropriations acts, supplemented by congressional guidance that CRS has received over the years, and supported by judicial opinions, leaves to the Members and committees the decision whether, on a selective basis, to place CRS products in the public domain. Members have long made CRS products available to interested persons either directly, by inclusion in congressional publications, or through their own Web sites.

[...]

Key Risks of Wholesale Publication Without Selectivity. Legislation has been introduced in both houses (S.Res. 54 and H.R. 3630) that would authorize the wholesale public dissemination of CRS products, without selectivity, through Member and committee Web sites. Such an approach raises several policy and institutional concerns:

Impairment of Member Communication with Constituents – The danger of placing CRS, a support agency, in an intermediate position responding directly to constituents instead of preserving the direct relationship between constituents and their elected representatives. This threatens the dialog on policy issues between Members and their constituents that was envisioned by the Constitution.

Risk to Protection of Confidentiality – The current judicial and administrative perception of CRS might thereby be altered, putting at risk speech or debate protection for confidential work.

Change in Mission and Congressional Focus – Over time, CRS products might come to be written with a large public audience in mind and could no longer be focused solely on congressional needs.

Reduction in Service to Congress – Wholesale dissemination would inevitably generate a significant number of comments, questions, and concerns from the public regarding content. In addition to placing a burden on congressional offices, responding to such correspondence would require CRS to shift significant resources away from direct service to the Congress.^[34]

CRS Report, "The Congressional Research Service and the American Legislative Process" (2006/2008)

In the section entitled "Supporting a System of Shared Powers," the report notes that the staff of the U.S. Congress is much larger than in any other national legislature as a consequence of "the underlying nature of the American political system." In contrast to other parliamentary systems where there is "[n]ormally ... a collaborative relationship between the majority party or coalition in the parliament and the political leaders of the government ministries," under the United States Constitution "the powers of the federal government are distributed in a way that is intended and almost guaranteed to create competition and conflict between the legislative and executive branches." In support of the claim that the U.S. system of government, often characterized by a separation of powers, is "in fact ... a system of separate institutions sharing powers," the report details the ways in which "[t]he executive and legislative branches are distinctly separate institutions," as well as ways in which they share both legislative and executive powers; adding that "[t]he reason for this system of shared powers lies in both an historic mistrust of government power and a concern over the efficient administration of the law." The authors of the Constitution [felt that the] best way to protect against abuses of power was to provide for a system of “checks and balances”, and that, although sharing powers can created administrative and deliberative inefficiencies, "having a government that its citizens can control and hold accountable was preferred in 1787, when the Constitution was written, to having one effectively controlled by either the executive or the legislative branch;" and "the fundamental framework of government under the Constitution remains unchanged today." The report adds that "in order for the sharing of power to protect against the abuse of power, more is required than the words of the Constitution."

“

Each branch of government must be able to protect its independence and assert its power effectively. In its continuing effort to preserve its constitutional authority and independence, Congress can suffer from an important competitive disadvantage: it often possesses less information and knowledge than the executive branch, which has more than 2.6 million employees. If the executive branch could control what Congress knows, it might largely nullify Congress’s independent exercise of its powers and its ability to oversee the exercise of executive powers. While Congress would remain independent of the executive branch in theory, it could become its captive in practice. This is an important reason why Congress has created permanent committees of the House and Senate with responsibility for studying issues, recommending legislation, and conducting oversight on the subjects assigned to them. In this way, Congress develops policy expertise among its own members and the staffs of its committees. For the same reason, Congress created its three support agencies, including CRS, which are not subject to executive branch direction and which assure Congress of its own expert and independent assessments of national and international events and condition, its own studies of existing laws and programs, and its own analyses of the options for change.

”

In the section entitled "Nonpartisan Support for a Partisan Institution", the report adds "another respect in which the mandate of CRS reflects the nature of U.S. political institutions and the party system: although the House and Senate are organized by the Democratic and Republican parties and nearly all Members of Congress are affiliated with one party or the other, CRS is a nonpartisan institution. Its purpose is to inform, not to persuade. ... [i]t is in this environment that CRS exists to serve as a source of nonpartisan analysis and information."

In the section entitled "Serving All the Members of Congress", the report notes that "Representatives and Senators can be independent political decision-makers," and thus "[e]ach Member then needs direct access to a source of information and analysis to help him or her make these judgments — a source of accurate information and expert analysis that is independent and dependable and that has no interest in affecting the Member’s decisions. To serve this need, the resources of CRS are available equally to each Representative and Senator without regard to party, position, or philosophy."

2007 CRS memo, "Distribution of CRS Reports to Non-Congressionals"

https://fas.org/sgp/crs/crs032007.pdf

On March 20, 2007, CRS Director David Mulhollan wrote an internal memo, "Distribution of CRS Products to Non-Congressionals". It describes how distribution controls are being "strengthened and clarified". "Following upon discussions held before the Research Policy Council, I have concluded that prior approval should now be required at the division or office level before products are distributed to members of the public. This policy is effective immediately."

Describing previous policy, the memo noted that "Products have generally not been made available to non-congressionals directly from CRS, with notable exceptions. For example, specifically identified individual products have been furnished by the Inquiry Section to executive and judicial branch offices and employees, and state and local government officials. The research divisions have also distributed products to such entities when it has been deemed to enhance CRS service to the Congress. Additionally, CRS products have been furnished by the Inquiry Section to members of the media and foreign embassies on request, but only if the requester can make specific reference to the product number or title of the report. Product requests can also originate from other non-congressional sources including individual researchers, corporations, law offices, private associations, libraries, law firms and publishers. The Inquiry Section typically declines these requests, and most often refers the caller to his or her congressional representative's office."

Analysts and research staff receive direct requests infrequently; however, "research divisions have on occasion both received and responded to product requests from these same public sources, and have, on occasion, provided products at their own initiative." Also, the Inquiry Section has also furnished CRS products to the media and foreign embassies but only when the requester has made specific reference to the product number or title of the report. Most formal requests from non-congressional sources come to the Service through the Inquiry Section, although many products are provided to these audiences through the informal, collégial dealings of CRS research staff with work contacts in their fields.

Mulhollan explained that "to avoid inconsistencies and to increase accountability," CRS policy now requires prior approval at the division level before products can be disseminated to non-congressionals. "Increased accountability and articulated standards for case-by-case determination are in the interest of both CRS and the Congress and are in conformity with publication policies put forward in the past."

Implementation: CRS policy on the distribution of CRS products to non-congressional audiences is as follows:

(1) U.S. governmental entities: CRS staff may provide appropriate congressional distribution products, upon request and upon prior approval of the assistant or associate director, deputy assistant or associate director, or office head, to agencies in the Executive Branch (including the White House) and the Judicial Branch, as well as state and local government officials when it can be demonstrated that the distribution benefits the Congress by assisting CRS in its work (e.g., reciprocity for information sharing). The Inquiry Section will accept such requests only when a product is specifically cited, either by number or title. Enforcement of Inquiry policy is the responsibility of the Associate Director for Congressional Affairs.

(2) Other non-governmental entities: CRS staff may, upon request and upon prior approval of the assistant or associate director, deputy assistant or associate director, or office head, provide congressional distribution products to academic institutions, professional associations, industry, non-governmental organizations, and other members of the public, but only when it can be clearly demonstrated that the distribution benefits the Congress by significantly assisting CRS in its work (e.g., peer review or expert opinion). Inquiry will continue to decline such requests under the oversight of the Associate Director for Congressional Affairs.

(3) The Media: Products may only be provided to the media by the Inquiry Section if the media requester specifically identifies the product by product number or title. Inquiry dissemination will be monitored by the Associate Director for Congressional Affairs. Divisions, analysts, and research staff and other CRS staff outside of the Inquiry Section who receive requests must obtain the approval of the assistant or associate director, deputy assistant or associate director, or office head prior to dissemination, and distribution should occur only when it is clearly demonstrated that such sharing benefits the Congress by providing value to CRS.

(4) Foreign governments: The Inquiry Section may provide congressional distribution products in response to requests from foreign embassies when the requester provides either the title or citation to the product. Enforcement of this policy is the responsibility of the Associate Director for Congressional Affairs. CRS staff may not furnish products to foreign government entities without prior approval of the assistant or associate director, deputy assistant or associate director, or office head, and distribution should only occur when it is clearly demonstrated that such sharing benefits the Congress by providing value to CRS. Following approval, the assistant director will comply with existing Library of Congress security guidelines for reporting foreign contacts.

April 18, 2007 memo, "Access to CRS Reports"

CRS Director David Mulhollan wrote an internal memo:^[2]

What is the rationale for CRS providing its work solely to the Congress? Three broad concerns go to the heart of the existing policy: impairment of the performance of Members' representational role, risk to confidentiality, and impact on the mission and congressional focus that characterizes our efforts. These issues also inform our policies on furnishing products to individuals outside Congress and our guidelines on staff interactions with the media.

...

Institutional Concerns Regarding Public Access

Confidentiality. The "Speech or Debate" clause of the Constitution, referenced in the above congressional resolutions, states that "for any Speech or Debate in either House, [Members] shall not be questioned in any other Place." While this clause has been interpreted to grant broad legal immunity to Members and their aides for statements made during the course of debate or when activity occurs in the performance of "legislative acts," it has been made clear in recent years that the protection does not extend to representational responsibilities generally. The protection has been extended to areas where it has been considered necessary to prevent impairment of deliberations and other legitimate legislative activities. Of major concern here has been the extent to which a policy permitting significant public dissemination of our products might render the protection that our support to Members currently enjoys under the umbrella of this constitutional provision inapplicable to congressional communications with CRS. Currently, CRS products prepared for the Congress are considered to be protected from scrutiny by third parties without permission of the Congress or the Member for whom the work was prepared. Stated simply, the concern in this regard is that if the Service were to become generally known to frequently distribute products directly to the general public - and thereby to be seen more as a purveyor of products to the public rather than as adjunct staff to Congress - we might be subject to "questioning" (i.e., litigation, subpoena, or other demand for production of documents) regarding our work that would do serious harm to our confidential working relationship with our congressional clients.

Although the Courts have recognized the propriety of congressional activities intended to inform the general public, this informing function has been held to be outside the scope of so-called speech or debate immunity. Recent judicial narrowing of the scope of the application of this protection has exacerbated the potential threat to confidentiality. Case law supports the conclusion that widespread dissemination of products to the general public would likely be viewed by the courts as an exercise of Congress' representational or informing function for which speech or debate immunity would not attach. While an effort could be made to distinguish CRS confidential memoranda from our congressional distribution reports, the potential for damage to speech or debate protection claims for any CRS products would potentially still be significant. Under proposals for wholesale distribution of CRS products to the public, those engaged in such distribution - CRS staff, congressional staff, or Members - might be vulnerable to lawsuits seeking release of CRS files, damages, injunctions, etc. More likely - and more importantly for future relations between CRS and Congress - would be an erosion over time of the idea that CRS works solely for the Congress and that our analysts operate as a confidential staff resource to Members and committees.

Congressional Focus and Resource Issues. Public expectations of access could have significant cost implications for CRS - both in responding to requests and in answering public concerns regarding products provided. Widespread public access to CRS products could cause analysts to become more conscious of the need to address views, methods, disciplines, and expectations of a non-congressional audience, and thereby shift the focus of our products away from their current emphasis on the congressional audience. As a result, our congressional clients, recognizing such a change in the content and protection afforded our work, would either request more confidential memoranda, which are available only to the requester, or, more significantly, no longer have confidence in CRS ' ability to truly serve as their adjunct staff. As we know, memoranda are more resource intensive to prepare than products which are available for distribution to all Members and committees and take advantage of economies of scale. Writing for a public audience also has the potential to alter the extent to which CRS products can rely on a certain level of knowledge on the part of the reader, complicating the analyst's task and perhaps increasing the length of products. There is also the potential for incurring significant costs in any process of creating an effective system for making CRS work available to the public, the monitoring of products for necessary redaction, and the cost of a likely increase in the volume of requests for tailored individual requests for written products that are not made available to the public.

Recent Public Access Issues

Policy on Distribution Outside the Congressional Community. In keeping with the policies outlined above, CRS has generally refrained from making its products directly available to non-congressional requesters, save for a few exceptions based on principles of reciprocity. For example, research divisions have furnished individual products to Executive Branch and Judicial Branch offices and employees, state and local government officials, and representatives of foreign government entities when it has been deemed to enhance CRS service to the Congress. Analysts occasionally respond to requests for products from individual researchers, corporations, law offices, private associations, libraries, law firms, and publishers where a collégial exchange of information is deemed to benefit our work.

With limitations, on occasion CRS also furnishes CRS products to the media and foreign embassies for similar reasons.

I recently polled the divisions on their practices with respect to furnishing products to individuals and organizations not in the congressional community. As a result of the varying practices that were revealed, I restated the CRS policy on distribution of our products to such entities, articulating the need for agreement on standards across the Service to ensure consistency, to better appraise our current practices, and to be better able to articulate the standard of the Service in this regard when asked. This policy looks specifically at the sharing of our products with government entities (both federal, state, and local), with public organizations, institutions, and individuals, with the media, and with foreign embassies.

Clearly, this policy is itself an outgrowth of the publications policy, reflecting the fact that our work is intended for Congress, and it is the Congress that decides when further dissemination is appropriate. Adherence to consistent and articulated standards for sharing with those outside the congressional community is important to our efforts to maintain our confidential relationship with Congress and to any future need to enforce restrictions. Our congressional overseers would expect no less of us. Despite misunderstanding fueled by mis-characterization by the press and others, this policy restatement does not further prohibit dissemination of products under certain circumstances, but simply requires accounting of the practices via division notice and approval.

The Media. I also recently updated the policy on interacting with the media. In doing so, I emphasized that the risks to individual staff members and to CRS as a whole are greater with today's media because of the instant dissemination of news, the competition among media outlets, and the lack of control over quotation, its context and subsequent appearance elsewhere. The updated policy retains the basic requirement that has been a part of the CRS media policy since its inception: "staff must adhere to the basic tenets of CRS, respecting the confidential nature of our work for Congress and the requirements of objectivity, non-partisanship and non-advocacy whenever they speak to the media on matters relating to their work." The policy also provides that all on-the-record media interactions be reported to division/office management, as was urged under the former policy. It describes a role for the Office of Communications in assisting staff in determining if speaking with the media is advisable, and in following up on questions of the accuracy of reporting on staff comments or on CRS products.

The Internet and CRS Products. We are all aware of the proliferation of Internet sites that make CRS products available - some for a fee, some free of charge. In this electronic age it is obviously very difficult to control access to our congressional distribution products that appear on our own Web Site, even with restricted access to that site. Some sites present our products in searchable form, some not. Some are relatively complete in their coverage, while others focus on particular subject areas. Some publishers have even published CRS reports as hard copy books without permission of the author, often in out-of-date and excerpted form that runs the risk of misleading the reader. What they all have in common is that they make these products available without CRS approval. The fact that our work - the product of a government entity - is not copyrighted, makes it legally impossible to prohibit such use. The presence of these access points for our products, however, does not diminish the need for CRS to carefully hew to our obligation not to be involved in public distribution activities.

Conclusion

In part through added exposure, especially through online sources, CRS products have come to be widely cited as authoritative, timely, and accurate sources of information on public policy issues of the day. Audiences, including policy makers, industry leaders, professors, and students, have viewed our products as trusted and valued sources of information. However, over the years we have preserved CRS ' confidential relationship with the Congress by severely restricting access to our products as a general policy. Any relaxation of restrictions on dissemination to the public would be in conflict with the history of legislative provisions, policy statements and communications on the issue. These pronouncements have had the effect of restricting the disclosure or publication of CRS materials by emphasizing that communications from the Service to Congress are constitutionally protected, confidential, and subject to the custody and control of the Congress. The same rationales have been relied upon to limit access to the CRS Web Site to congressional users. I am convinced - to borrow the sound bite I noted at the beginning - that the true value of CRS is as a resource devoted solely to the needs of Congress. In that way, the taxpayers realize the utmost value for their "investment." Our staff is also better able to maintain its reputation for objective, authoritative and advocacy-free expertise devoted to an informed National legislature.

The reasons for limiting public dissemination of our work can be summarized as follows. First, there is a danger that placing CRS, a legislative support agency, in an intermediate position, responding directly to constituents as members of the public, would threaten the dialog on policy issues between Members and their constituents that was envisioned by the Constitution as the essence of the representational role of Members.

Leaving dissemination of CRS products to the discretion of Members avoids placing a "faceless bureaucracy" between constituents and their elected representative. Second, the current judicial and administrative perception of CRS as "adjunct staff of the Congress might be altered if CRS were seen as speaking directly to the public, putting at risk Speech or Debate Clause constitutional protections afforded the confidential work performed by this agency. To date, litigation demands for testimony of CRS employees and production of documents used in preparing memoranda and reports for the Congress have been quashed.

And third, if CRS products were routinely disseminated broadly to the public, over time these products might come to be written with a large public audience in mind and would no longer be focused solely on congressional needs. In addition to placing a burden on congressional offices asked to respond or comment on CRS work, responding to the inevitable questions posed by the public to CRS would likely require the Service to shift significant resources away from direct service to the Congress in order to meet this demand.

Other related policies - dissemination of products to those outside the congressional community and the media policy - flow from similar principles. I believe CRS would be a very different place and suffer a diminution in its role as adjunct staff to Congress were it not for the various restrictions we place on product distribution and staff interaction with the press. And, despite the somewhat hyperbolic reaction of some, there is little new in the recently announced policies nor anything particularly onerous. The majority of our seasoned staff abide by these regulations and understand and are comfortable with the principles that underlie them. Those who have joined CRS in the last few years must also become acculturated in these practices and understand their origin and rationale.

References

 This article incorporates public domain material from websites or documents of the Congressional Research Service.