Should Congressional Research Service Reports Be Public?
The walls between members of the public and Capitol Hill’s exclusive division of policy and legal analysts are too tall, according to transparency advocates both inside and outside of Congress.
Such sentiment is prompting their calls to lawmakers with jurisdiction over the Library of Congress and the House clerk’s office to examine making public the highly regarded work of the Congressional Research Service.
“By providing public access to CRS reports, we can elevate our national discourse and make it easier for citizens to cut through the misinformation that too often confuses the national debate,” Reps. Leonard Lance, R-N.J., and Mike Quigley, D-Ill., wrote in a June 17 letter to House Administration Committee leaders.
Bolstered by The New York Times editorial supporting their proposal to put CRS reports online, the bipartisan pair wrote that the American taxpayer, who helps fund the agency’s nearly $107 million budget, “deserves access to the same objective and nonpartisan CRS analyses on which we rely as Members of Congress.”
Republicans who control the panel are making no promises. Chairman Candice S. Miller, R-Mich., and Rep. Gregg Harper, R-Miss., who serves as vice chairman of the Joint Committee on the Library, both told CQ Roll Call they had concerns about changing the publication policy that originated in 1952.
“You could argue that both ways, and so I want to make sure that we give that a proper study, so we haven’t made a 100 percent decision on what works best,” Harper said. “You want to make sure they can speak openly and we can get the information we need. Now, do you want to release that to the public? That’s something that we’re still trying to work through.”
The risk of exposing national security intelligence or other sensitive data ranked chief among both lawmakers’ concerns. However, the proposal exempts any information determined to be confidential by the CRS director or the head of the agency that provided it to the CRS. Documents produced in response to confidential research requests from Congress would also be exempt.
Such concerns are based on a “fundamental misconception,” said Daniel Schuman, policy director for Demand Progress and chairman of the Congressional Data Coalition‘s steering committee. The proposal is aimed at reports that CRS posts to its website, Schuman said, documents that are already accessible to an estimated 20,000 members, staffers, officers and legislative branch employees.
“The greenest intern can pull down and access [CRS reports] any time they want,” Schuman said.
Congressional offices regularly share the information with curious constituents. Upon request, the CRS releases the reports to journalists and executive branch officials. Hundreds of reports wind up online through the Federation of American Scientists or other third parties that charge for access and do not always offer the most recent version of a report. (CQ Roll Call provides CRS reports as part of its subscription service options to readers of CQ.com.)
“Making them public would make them publicly available more equally, more equitably,” said former CRS analyst Kevin R. Kosar, who penned an essay on his decision to quit his job at the agency. “Steve Aftergood [director of the Government Secrecy Project at FAS] has so many of these reports. He may have 75 percent of the reports written. So, they’re out there, but 99 percent of Americans have no idea who Steve Aftergood is or the Federation of American Scientists or, you know, any of the other groups that have these.”
The days when CRS reports were only available on paper to people on Capitol Hill — willing to walk over to the James Madison Memorial Building and trudge to the second floor to pick them up — are long gone, thanks to the Internet. Since 1997, members of Congress, including Sen. John McCain, R-Ariz.; former Sen. Joseph I. Lieberman, I-Conn.; and former Rep. Christoper Shays, R-Conn., have led the movement to make CRS reports available to the public. New members have picked up the torch.
Quigley, who serves as co-chairman of the Congressional Transparency Caucus, offered an amendment to the fiscal 2016 Legislative Branch Appropriations bill related to publishing a list of non-confidential CRS products. But, like other attempts to make the change via the appropriations process, the language did not appear in the final bill.
In recent years, CRS has declined to release its reports directly to the public in part based upon spending bill language that blocks paying for expenses related to publication, without prior approval of the House Administration Committee or the Senate Rules and Administration Committee.
“I’ve never understood why those couldn’t be available to the public and I’m interested in looking at that,” said Sen. Roy Blunt, R-Mo., who was handed the gavel on the Senate Rules panel in January, and also serves as chairman of the Joint Committee on the Library.
While the nation’s largest professional library organizations, including the American Library Association, have advocated for the change, CRS has advised Congress that disseminating its products directly to the public could have “potentially significant institutional and legal consequences for CRS and current congressional operations and practices.”
Concerns range from exposing CRS to legal liabilities to damaging the important relationship between the agency and its client base. A spokesman for the agency did not respond to CQ Roll Call’s questions, including the financial feasibility of bringing its product to the public with strained resources.
Lance said he believes the reports could be made available for “virtually no cost,” and his proposal instructs the House Clerk to establish and maintain a centralized, searchable database.
During a 2011 forum in the Rayburn House Office Building, hosted by the Advisory Committee on Transparency, a former House counsel refuted arguments about potential exposure to libel or copyright infringement lawsuits based on the information that would be made public.
Mike Stern, who served the House from 1996 to 2004, said the “general burdensome argument” about litigation, including concerns about speech or debate immunity, revealed a “pre-Internet mindset.”
“Really most CRS reports at some point — usually not long after they’re published — do make their way out into the public domain,” Stern said. “The ship has sailed, to the extent that that was a serious concern.”
Nine Democrats are co-sponsoring Lance’s legislation, and the four-term Republican said he’s working to bring GOP supporters on board. Reps. Jim Costa, D-Calif.; Adam B. Schiff, D-Calif.; and Cheri Bustos, D-Ill., added their names to the list on the same day The New York Times declared its support.
“I was a newspaper reporter for 17 years and I happen to believe that all forms of government information that is gathered with taxpayer dollars that should be public record ought to be made available,” Bustos said in an interview. “I think we all ought to operate in a fishbowl.”